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State v. Ramey

Court of Appeals of Ohio, Second District, Montgomery

August 3, 2018

STATE OF OHIO Plaintiff-Appellee
v.
JERRY V. RAMEY, JR. Defendant-Appellant

          Trial Court Case No. 2016-CR-955 (Criminal Appeal from Common Pleas Court)

          MATHIAS H. HECK, JR., BY HEATHER N. JANS, ATTY. REG. NO. 0084470, ASSISTANT PROSECUTING ATTORNEY, MONTGOMERY COUNTY PROSECUTOR'S OFFICE, APPELLATE DIVISION, MONTGOMERY COUNTY COURTS BUILDING, 301 WEST THIRD STREET, DAYTON, OHIO 45422 ATTORNEY FOR PLAINTIFF-APPELLEE

          JAY A. ADAMS, ATTY. REG. NO. 0072135, 36 NORTH DETROIT STREET, SUITE 102, XENIA, OHIO 45385 ATTORNEY FOR DEFENDANT-APPELLANT

          OPINION

          TUCKER, J.

         {¶ 1} Defendant-appellant Jerry V. Ramey, Jr., appeals from his conviction and sentence for murder and aggravated burglary. He contends the trial court erred by failing to merge the murder and aggravated burglary convictions. He further contends that the trial court erred in instructing the jury. Finally, Ramey claims that the convictions are not supported by the manifest weight of the evidence.

         {¶ 2} We conclude that the trial court did err by failing to merge the murder and aggravated burglary convictions. We find Ramey's claims regarding the jury instructions to be without merit. We further conclude that his convictions are supported by the evidence in the record. Accordingly, the judgment of the trial court is affirmed in part, reversed in part, and remanded for resentencing.

         I. Facts and Procedural History

         {¶ 3} This case arises from the March 21, 2016, death of Earl Davis, Jr. Davis was in his home located on Strand Avenue in Dayton when he was strangled to death by Ramey. Ramey was indicted on one count of murder (proximate cause aggravated burglary) in violation of R.C. 2903.02(B), one count of murder (proximate cause felonious assault) in violation of R.C. 2903.02(B), one count of aggravated burglary (physical harm) in violation of R.C. 2911.11(A)(1), and one count of felonious assault (serious harm) in violation of R.C. 2903.11. A jury trial was conducted over the course of five days in May 2017. The following facts are adduced from the trial testimony.

         {¶ 4} Ramey and Davis, who had known each other since they were young, became close following the death of Davis's brother in 2013, and they began to spend significant time together. On March 21, 2016, Ramey and Davis were drinking at Davis's home. At some point, Ramey went out to his car, at which time he noticed that $300 that he had placed in the console of his vehicle was missing. Ramey went back into the house and asked Davis if he had seen the money. Davis indicated that he had not. Ramey then returned to the car to search it again. Unable to find the money, Ramey returned to the house and asked Davis if he was sure he had not seen it. According to Ramey, Davis "went off on him and was verbally abusive. Ramey testified that he informed Davis he was not accusing Davis of taking the money, but rather was just asking if he had seen it. Davis then told Ramey to get out of his house. Ramey stated that Davis was "real adamant" that Ramey leave his home. Ramey left the house, but as he was walking to his car, he heard Davis indicate that he had taken the money. Davis then told Ramey to stay away from his house.

         {¶ 5} Ramey, after experiencing difficulty with his vehicle, ultimately parked the car at his grandmother's home. At this point Ramey decided to walk back to Davis's home in order to ask him to return the money. Ramey walked about a quarter of a mile when a friend, who was driving by, stopped to pick him up. The friend then dropped Ramey at the entrance to an alley near Davis's home. Ramey walked down the alley and walked into Davis's home through the back door. As he entered the home, he saw Davis, who said, "What's your fat [ass] doing here again?" Ramey and Davis began to walk toward each other, and Ramey gave Davis a shove to "get his attention." According to Ramey, Davis then came toward him and aggressively shoved him backward into the living room, where Ramey hit the edge of a loveseat before regaining his balance. Davis continued to come toward him, and Ramey realized that a fight was starting. Ramey tried to put himself into an "advantageous position," and, thus, he lunged back at Davis, who tumbled over a couch with Ramey ending up on top of him. The pair fell off the couch and Davis jumped at Ramey, at which time Ramey pushed Davis back onto the couch. Ramey again was on top of Davis with his hands around Davis's throat and a knee on one of Davis's arms. Davis continued to struggle, but Ramey eventually noticed that Davis ceased to move, at which time he removed his hand from Davis's neck. Ramey left the house and went to a nearby drive-thru store where he purchased a bottle of wine. Thereafter, Ramey returned to his grandmother's home where he informed her and his aunt that he had strangled Davis and that he was going to turn himself in. He changed his clothes and left them in a pile on the living room floor. He then had his uncle take him to a local motel, where he spent the night.

         {¶ 6} After Ramey left her home, his grandmother, Sarah Wilson, called Davis's mother and informed her that Ramey had strangled Davis. Wilson then called 911. The police responded to Davis's home and found his body on the living room floor. Ramey was arrested the following evening when he was located at a barber shop. He was belligerent and resisted attempts to place him in handcuffs. Officers were eventually able to subdue and handcuff Ramey who, due to his large size, had to be transported in a police van rather than a cruiser.

         {¶ 7} An autopsy revealed that Davis had injuries to his neck, as well as hemorrhages in his eyes, consistent with strangulation. According to the coroner, Davis would have lost consciousness after 90 seconds, but it likely took four to six minutes of sustained pressure to the neck to cause his death. Davis had a blood alcohol level that was approximately three times the legal limit. At the time of his death, Davis was 5'10" tall and weighed approximately 144 pounds.[1] Davis's left hand was bandaged as a result of bone fractures which required the insertion of multiple metal rods. Davis also had a recent surgery to his fractured right leg during which a metal rod was inserted to support the fracture. The coroner discovered a gun in Davis's waistband.

         {¶ 8} The jury convicted Ramey on all the indicted charges. The trial court merged the two murder convictions and the State elected to proceed to sentencing on Count II, murder (proximate cause felonious assault). The trial court also merged the conviction for felonious assault with the murder conviction. The trial court sentenced Ramey to a term of fifteen years to life for the murder conviction and to a term of nine years on the aggravated burglary conviction. Finally, the trial court ordered the two sentences to run concurrently for a total sentence of fifteen years.

         {¶ 9} Ramey appeals.

         II. Merger

         {¶ 10} Ramey's first assignment of error states as follows:

         THE TRIAL COURT ERRED IN NOT ORDERING MERGER OF ALLIED OFFENSES AT SENTENCING.

         {¶ 11} Ramey contends that the trial court erred by failing to merge the convictions for murder and aggravated burglary. In support, he argues that they constitute allied offense of similar import because they share the underlying element of felonious assault.

         {¶ 12} Section 10, Article I of the Ohio Constitution prohibits multiple punishments for the same offense. This prohibition is codified at R.C. 2941.25, which states:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

         {¶ 13} In State v. Ruff, 143 Ohio St.3d 114');">143 Ohio St.3d 114, 2015-Ohio-995');">2015-Ohio-995, 34 N.E.3d 892 (Ruff I), the Ohio Supreme Court clarified the applicable standard when determining whether offenses merge as allied offenses of similar import as follows:

Rather than compare the elements of two offenses to determine whether they are allied offenses of similar import, the analysis must focus on the defendant's conduct to determine whether one or more convictions may result, because an offense may be committed in a variety of ways and the offenses committed may have different import. No bright-line rule can govern every situation.

Ruff at ¶ 30.

         {¶ 14} In Ruff I, the Supreme Court, with the above in mind, concluded that two or more offenses may result in multiple convictions if any of the following is true: "(1) the offenses are dissimilar in import or significance-in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, or (3) the offenses were committed with separate animus or motivation." Ruff I at ¶ 25. This analysis is dependent upon the facts of each case because R.C. 2941.25, as noted, focuses on the defendant's conduct. Id. at ¶ 26.

         {¶ 15} An appellate court applies a de novo standard of review when evaluating a trial court's R.C. 2941.25 merger determination. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. "The defendant bears the burden of establishing his entitlement to the protection provided by R.C. 2941.25 against multiple punishments for a single criminal act." State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18, quoting State v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987).

         {¶ 16} Ramey was convicted of murder (as a proximate cause of felonious assault) in violation of R.C. 2903.02(B), which provides:

No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of the Revised Code.

         {¶ 17} Felonious assault is proscribed by R.C. 2903.11(A)(1), which states that "no person shall knowingly * * * cause serious physical harm to another * * *."

         {¶ 18} Ramey was also convicted of aggravated burglary in violation of R.C. 2911.11(A)(1), which provides in pertinent part:

(A) No person, by force, stealth, or deception, shall trespass in an occupied structure * * * when another person other than an accomplice of the offender is present, with purpose to commit in the structure * * * any criminal offense if * * * (1) [t]he offender ...

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