State v. Meeks

[Cite as State v. Meeks, 2020-Ohio-5050.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              DEFIANCE COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 4-20-02

        v.

JOSHUA A. MEEKS,                                          OPINION

        DEFENDANT-APPELLANT.




                Appeal from Defiance County Common Pleas Court
                          Trial Court No. 19 CR 13669

                                      Judgment Affirmed

                           Date of Decision: October 26, 2020




APPEARANCES:

        Henry Schaefer for Appellant

        Russell R. Herman for Appellee
Case No. 4-20-02


SHAW, P.J.

       {¶1} Defendant-appellant, Joshua A. Meeks (“Meeks”), brings this appeal

from the January 24, 2020 judgment of the Defiance County Common Pleas Court

sentencing him to an aggregate, indefinite prison term of 17 to 22 years after Meeks

entered guilty pleas to, and was convicted of, Kidnapping in violation of R.C.

2905.01(A)(3), a felony of the first degree, and Felonious Assault in violation of

R.C. 2903.11(A)(1), a felony of the second degree. On appeal, Meeks argues that

his convictions for Kidnapping and Felonious Assault should have merged for the

purposes of sentencing.

                                   Background

       {¶2} On August 29, 2019, Meeks was indicted for (Count 1) Attempted

Aggravated Murder in violation of R.C. 2923.02 and R.C. 2903.01(B), a felony of

the first degree, (Count 2) Kidnapping in violation of R.C. 2905.01(A)(3), a felony

of the first degree, (Count 3) Rape in violation of R.C. 2907.02(A)(2), a felony of

the first degree, (Count 4) Felonious Assault in violation of R.C. 2903.11(A)(2), a

felony of the second degree, (Count 5) Felonious Assault in violation of R.C.

2903.11(A)(1), a felony of the second degree, and (Count 6) Domestic Violence in

violation of R.C. 2919.25(A), a felony of the third degree due to Meeks having two

prior convictions for Domestic Violence. Counts 1 through 5 of the indictment all

contained Repeat Violent Offender specifications pursuant to R.C. 2941.149(A)


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Case No. 4-20-02


indicating that Meeks had previously been convicted of Felonious Assault in

Defiance County in 2007. The alleged victim of all the crimes in this indictment

was Meeks’ wife. At the time of the incidents Meeks and his wife still lived together

but they were proceeding through a divorce. Meeks pled not guilty to the charges.

       {¶3} On November 7, 2019, a change-of-plea hearing was held wherein

Meeks agreed to plead guilty to Count 2, Kidnapping in Violation of R.C.

2905.01(A)(3), a felony of the first degree, Count 5, Felonious Assault in violation

of R.C. 2903.11(A)(1), a felony of the second degree, and (Count 6) Domestic

Violence in violation of R.C. 2919.25(A), a felony of the third degree. In exchange

for Meeks’ pleas, the State agreed to dismiss the remaining charges against him and

to dismiss the Repeat Violent Offender specifications. Further, the State agreed that

the Felonious Assault and Domestic Violence convictions would merge for

purposes of sentencing.

       {¶4} The trial court conducted a Crim.R. 11 colloquy with Meeks and

determined that his pleas were knowing, intelligent, and voluntary. The trial court

also had the State recite a factual basis for the charges, which Meeks and his counsel

acknowledged were essentially correct, though Meeks stated the crimes did not

occur in precisely the way the State alleged. Afterward, Meeks’ pleas were accepted

and he was found guilty.




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Case No. 4-20-02


       {¶5} On January 16, 2020, the matter proceeded to sentencing. The State

recommended a lengthy prison term due to Meeks’ violent criminal history. It was

noted that Meeks had been charged with another Aggravated Assault while he was

being held in custody as this case was pending.

       {¶6} Meeks’ attorney then argued that the Felonious Assault and Kidnapping

counts should merge. The State objected, contending that if the State was aware

Meeks would be seeking merger of those two charges it would not have dismissed

certain other charges or specifications. Nevertheless, the trial court found that the

Felonious Assault and Kidnapping charges did not merge, reasoning that there were

multiple instances of serious violence against the victim in this matter.

       {¶7} After Meeks apologized to the victim in this matter, Meeks was ordered

to serve an indefinite prison term of 10-15 years on the Kidnapping conviction, and

7 to 10 and ½ years on the Felonious Assault conviction. The Felonious Assault

and Domestic Violence charges were merged for the purposes of sentencing. The

trial court ordered that Meeks’ sentences be served consecutively for an aggregate,

indefinite prison term of 17 to 22 years. A judgment entry memorializing this

sentence was filed January 24, 2020. It is from this judgment that Meeks appeals,

asserting the following assignment of error for our review.

                             Assignment of Error
       The trial court erred when it failed to merge appellant’s sentence
       for Kidnapping and Felonious Assault.


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Case No. 4-20-02


       {¶8} In his assignment of error, Meeks contends that the trial court erred by

failing to merge his sentences for Kidnapping and Felonious Assault.

                               Standard of Review

       {¶9} “ ‘Whether offenses are allied offenses of similar import is a question

of law that this Court reviews de novo.’ ” State v. Jessen, 3d Dist. Auglaize No. 2-

18-16, 2019-Ohio-907, ¶ 22, quoting State v. Frye, 3d Dist. Allen No. 1-17-30,

2018-Ohio-894; see generally State v. Ruff, 

143 Ohio St. 3d 114

, 2015-Ohio-955.

                                Relevant Authority

       {¶10} Revised Code 2941.25, Ohio’s multiple-count statute, 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.

       {¶11} In State v. Ruff, 

143 Ohio St. 3d 114

, 2015-Ohio-995, the Supreme

Court of Ohio held the following with regard to determining allied offenses:

       1. In determining whether offenses are allied offenses of similar
       import within the meaning of R.C. 2941.25, courts must evaluate
       three separate factors—the conduct, the animus, and the import.

       2. Two or more offenses of dissimilar import exist within the
       meaning of R.C. 2941.25(B) when the defendant’s conduct

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Case No. 4-20-02


      constitutes offenses involving separate victims or if the harm that
      results from each offense is separate and identifiable.

      3. Under R.C. 2941.25(B), a defendant whose conduct supports
      multiple offenses may be convicted of all the offenses if any one of
      the following is true: (1) the conduct constitutes offenses of
      dissimilar import, (2) the conduct shows that the offenses were
      committed separately, or (3) the conduct shows that the offenses
      were committed with separate animus.

The Supreme Court in Ruff explained:

      At its heart, the allied-offense analysis is dependent upon the facts
      of a case because R.C. 2941.25 focuses on the defendant’s conduct.
      The evidence at trial or during a plea or sentencing hearing will
      reveal whether the offenses have similar import. When a
      defendant’s conduct victimizes more than one person, the harm
      for each person is separate and distinct, and therefore, the
      defendant can be convicted of multiple counts. Also, a defendant’s
      conduct that constitutes two or more offenses against a single
      victim can support multiple convictions if the harm that results
      from each offense is separate and identifiable from the harm of
      the other offense. We therefore hold that two or more offenses of
      dissimilar import exist within the meaning of R.C. 2941.25(B)
      when the defendant’s conduct constitutes offenses involving
      separate victims or if the harm that results from each offense is
      separate and identifiable.

Ruff, 2015-Ohio-995 at ¶ 26.

                                    Analysis

      {¶12} In this case Meeks was convicted of Kidnapping in violation of R.C.

2905.01(A)(3), which reads,

      (A) No person, by force, threat, or deception, * * * by any means,
      shall remove another from the place where the other person is
      found or restrain the liberty of the other person, for any of the
      following purposes:

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Case No. 4-20-02



        ***

        (3) To terrorize, or to inflict serious physical harm on the
        victim or another[.]

        {¶13} Meeks was also convicted of Felonious Assault in violation of R.C.

2903.11(A)(1), which reads, “No person shall knowingly * * * [c]ause serious

physical harm to another[.]”

        {¶14} Meeks argues that his sentences for Kidnapping and Felonious Assault

should have merged in this case, particularly since they “shared” the element of

serious physical harm.1 In addition, Meeks argues that Kidnapping and Felonious

Assault could be committed by the same conduct if the restraint was only to engage

in the assault, and that there was only one victim of the offenses. Thus Meeks

contends that the only remaining question under Ruff is whether the offenses were

committed with a separate animus.

        {¶15} With regard to his “animus” in this matter, Meeks alleges that he never

intended to separately commit a Kidnapping; rather, he argues that “in his mind [the

Kidnapping] was not a distinct and separate event [from the Felonious Assault], and

he had no separate animus.” (Appt.’s Br. at 8). Meeks claims the lack of a separate

animus for the Kidnapping was illustrated at the sentencing hearing when he only

apologized for the Felonious Assault.


1
  As will be discussed, infra, Felonious Assault clearly requires serious physical harm, but Kidnapping only
requires restraint with purpose to terrorize or inflict serious physical harm.

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Case No. 4-20-02


      {¶16} The State counters by citing to numerous cases wherein Kidnapping

and Felonious Assault convictions were not merged. See, e.g., State v. Harmon, 9th

Dist. Summit No. 26502, 2013-Ohio-1769. While we acknowledge the State’s point

that cases exist finding that Kidnapping and Felonious Assault would not merge,

under the current law, merger inherently involves an examination of the particular

facts and circumstances of each case. Ruff, 2015-Ohio-995 at ¶ 26. As to the facts

in this case, the State contends that the circumstances establish a separate animus

for each of the offenses. We agree.

      {¶17} In State v. Logan, 

60 Ohio St. 2d 126

(1979), the Supreme Court of

Ohio set forth guidelines for when Kidnapping should merge with another offense.

      (a) Where the restraint or movement of the victim is merely
      incidental to a separate underlying crime, there exists no separate
      animus sufficient to sustain separate convictions; however, where
      the restraint is prolonged, the confinement is secretive, or the
      movement is substantial so as to demonstrate a significance
      independent of the other offense, there exists a separate animus
      as to each offense sufficient to support separate convictions;

      (b) Where the asportation or restraint of the victim subjects the
      victim to a substantial increase in risk of harm separate and apart
      from that involved in the underlying crime, there exists a separate
      animus as to each offense sufficient to support separate
      convictions.

“Although Logan predates Ruff, Ohio courts continue to apply the guidelines set

forth in Logan in determining whether kidnapping and another offense were

committed with a separate animus, in accordance with the third prong of


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Case No. 4-20-02


the Ruff test.” State v. Sowers, 2d Dist. Clark No. 2018-CA-58, 2019-Ohio-649, ¶

18, citing State v. Armengau, 10th Dist. Franklin No. 14AP-679, 2017-Ohio-4452,

¶ 125, citing State v. D.E.M., 10th Dist. Franklin No. 15AP-589, 2016-Ohio-5638,

¶ 143; State v. Williams, 7th Dist. Mahoning No. 13MA125, 2015-Ohio-4100, ¶

18; State v. Stinnett, 5th Dist. Fairfield No. 15-CA-24, 2016-Ohio-2711, ¶ 53.

       {¶18} Notably, this case was resolved by way of a plea agreement, providing

fewer facts for the trial court to make a determination regarding merger.

Nevertheless, the record in this case contained, inter alia, the indictment, the sworn

affidavit of a police officer initially filed with a complaint, the factual statements at

the plea hearing, and the statements contained in the pre-sentence investigation, all

of which provided a sufficient account of the incidents in question for purposes of

reviewing the issue of merger in this case.

       {¶19} First, the indictment alleged multiple instances of Felonious Assault

and a sexual assault via a Rape. Second, and more specifically to the facts in

question, an officer who initially met with the victim filed an affidavit that stated as

follows.

       On 08/16/2019 at approx. 1249 hours, Ptl Herbert and I were
       dispatched to 1005 Sunday St. Defiance, OH for a Domestic
       Violence complaint that took place at 622 Riverside Ave.
       Defiance, OH on 08/16/2019 at approx. 0130 hours. We made
       contact with [the victim] who stated [that she and] her husband,
       Joshua Meeks, are going through a divorce, but still live together.
       She stated that he accused her of seeing another guy. She stated
       that they were in the bedroom and he grabbed her by the throat

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Case No. 4-20-02


       (larynx area) and was strangling her. She stated he then leg swept
       her, knocking her on the bed and slapping her in the face. She
       stated he then grabbed a wooden walking stick, and began hitting
       her in the head, shoulders, and legs. He then grabbed a serrated
       knife and held it against her throat and threatened to kill her and
       himself. She stated that she told him that she wanted to be with
       him and they would work things out s[o] he would calm down and
       he took the knife away from her throat. Ms. Meeks had scrapes
       on her elbows. A large bruise on her left bicep. A large bruise on
       her right shoulder and a mid sized bruise on her left shoulder. On
       the front of her thighs, were bruises that almost covered the entire
       area from her pelvic region to her knee. Ms. Meeks was taken to
       Defiance Mercy Hospital for treatment for her injuries.

       ***

       Joshua Meeks was located at 622 Riverside Ave. * * * He stated
       that his wife likes to be choked during sex and he denied hitting
       her. * * *

(Doc. No. 1).

       {¶20} Third, in addition to the officer’s affidavit in the record, the State

recited a factual narrative at the change of plea hearing, which indicated that Meeks

assaulted the victim “repeatedly.” (Nov. 7, 2019, Tr. at 16). These incidents

included one where he choked the victim nearly to the point of unconsciousness,

another incident where Meeks struck the victim all over with a “wooden dowel,”

and one incident where a knife was put to her throat. The victim was only able to

leave the room the next morning.

       {¶21} Finally, the presentence investigation, which was discussed at

sentencing, indicated that the victim was forced into a sexual encounter that she was


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Case No. 4-20-02


afraid to prevent because of the incident earlier in the evening wherein Meeks had

choked her to the point of unconsciousness, and because of the incident wherein

Meeks threatened to kill her with a knife at her throat. The strangling incident led

to the victim having broken blood vessels (petechiae) in her eyes, and the knife left

a straight line scraping on her throat. The sexual assault purportedly occurred as the

victim was drifting off to sleep. Meeks pulled her legs apart and had sexual

intercourse with her. After reviewing all of the information the trial court had before

it, the trial court determined that the convictions for Felonious Assault and

Kidnapping did not merge.

       {¶22} In our own review of the record, we emphasize that there appeared to

be multiple instances of potential serious physical harm and an accusation of sexual

assault. There were allegations of the victim being choked to unconsciousness (or

near unconsciousness), allegations of a knife being held to her throat with threats of

murder, allegations of the victim being beaten repeatedly with a wooden dowel, and

allegations of sexual assault.

       {¶23} When the victim tried to get away from the situation in the house she

shared with Meeks at one point, she was restrained against her will and she was only

able to leave the following morning. It is not entirely clear from the record at what

point she was restrained or at what point each of the physical acts were perpetrated

against the victim; however, as there were multiple incidents here of serious


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Case No. 4-20-02


physical harm, or for potential serious physical harm, we could not find that the trial

court’s failure to merge these offenses was improper under these circumstances. See

Sowers, supra

, 2019-Ohio-649, ¶ 19 (finding that separate identifiable acts in the

midst of a Kidnapping resulted in separate animus). There is no indication that the

restraint in this matter was only to perpetrate a single assault.

       {¶24} Moreover, the Kidnapping statute only requires that a defendant

restrain a victim with the purpose to terrorize or inflict serious physical harm. In

other words, a defendant does not even have to complete his acts. See State v. Davis,

116 Ohio St. 3d 404

2008-Ohio-2, quoting State v. Powell (1990), 

49 Ohio St. 3d 255

, 262 (analyzing another Kidnapping provision and holding, “R.C.

2905.01(A)(4) requires only that the restraint or removal occur for the purpose of

non-consensual sexual activity—not that sexual activity actually take place.”)

(emphasis sic.) Thus the restraint for the Kidnapping here did not even have to lead

to completed acts. Nevertheless, as stated previously, there were multiple acts

reflected in the record of this case, which the trial court could have properly

determined were separate and distinct. For all of these reasons, Meeks’ assignment

of error is overruled.




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Case No. 4-20-02


                                   Conclusion

       {¶25} For the foregoing reasons the assignment of error is overruled and the

judgment of the Defiance County Common Pleas Court is affirmed.

                                                              Judgment Affirmed

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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