[Cite as State v. Ross, 2017-Ohio-675.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     OTTAWA COUNTY


State of Ohio                                      Court of Appeals No. OT-16-004

        Appellee                                   Trial Court No. 13 CR 077

v.

Randall Ross                                       DECISION AND JUDGMENT

        Appellant                                  Decided: February 24, 2017


                                             *****

        James VanEerten, Ottawa County Prosecuting Attorney, and
        Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee.

        Russell V. Leffler, for appellant.

                                             *****

        MAYLE, J.

        {¶ 1} Following a jury trial, defendant-appellant, Randall J. Ross, appeals the

March 1, 2016 judgment of the Ottawa County Court of Common Pleas. For the reasons

that follow, we affirm the trial court judgment.
                                  I. BACKGROUND

       {¶ 2} Randall Ross and his wife, Amy, were experiencing marital difficulties. In

February of 2013, Amy began staying with her sister, A.S., and her 13-year-old niece,

S.S. They lived on Luetz Road, just outside of Oak Harbor, Ohio.

       {¶ 3} On March 27, 2013, Ross told a co-worker that Amy wanted to reconcile

and that he was leaving work early to meet with her. He said that he hoped to take her to

lunch and then possibly to dinner and a movie. He left work in Pemberville, Ohio, at

10:15 a.m., and headed to his home in Fremont, Ohio, to clean up and change his clothes.

When Ross arrived home, however, he discovered that Amy had retrieved her personal

belongings and several items of furniture from their home. She also canceled their

meeting. He sped off to confront Amy at her sister’s home.

       {¶ 4} When Ross arrived at A.S.’s home, he knocked on the front door. A.S. went

around to the back door and locked it. She then asked Amy what she wanted to do,

impliedly asking Amy whether she wanted A.S. to call the police or whether Amy wanted

to handle the situation on her own. They decided that they would all go upstairs, hoping

that if they didn’t answer the door, Ross would go away.

       {¶ 5} Ross kept knocking on the door, and A.S. again asked Amy what she wanted

to do. Amy said that she would tell him to leave. She went downstairs, and A.S. could

hear Amy and Ross talking through the door. Ross demanded that Amy let him in. Amy

told him to leave or she would call the police, and she told him that A.S. and S.S. were




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home. He asked why they were there, and Amy responded that it was S.S.’s spring

break.

         {¶ 6} A.S. started to descend the steps and Amy told her to call the police. A.S.

typed 9-1-1 into her cellphone, but neglected to hit “send.” Ross broke the door open,

and Amy and A.S. ran up the stairs. They saw that Ross had a gun.

         {¶ 7} Ross chased after the sisters, and Amy and A.S. ran into S.S.’s bedroom,

where S.S. was hiding in a closet. They shut the door and pushed against it, trying to

prevent Ross from entering. Ross was pushing from the other side, and A.S. knew that

they could not hold it shut. She let go and ran to shield S.S.

         {¶ 8} Ross stormed in and grabbed Amy by the hair. He pushed her to the floor,

and held the gun to her head. Amy freed herself and ran to the other side of the bedroom.

Ross pointed the gun at Amy, and A.S. pleaded with Ross, “please don’t do this.” Ross

looked at A.S. and S.S., then looked back at Amy. He took stronger hold of the gun,

aimed at Amy, and said “you think you can take everything from me?” He shot her in the

chest, killing her. Ross then put the gun underneath his chin and pulled the trigger.

Although the gun fired, he was still standing. He raised the gun to the same spot and shot

again. This time he fell backwards to the floor.

         {¶ 9} A.S. called 9-1-1 and told her daughter to leave. She saw that Ross was still

alive. The gun was underneath his leg, so A.S. picked it up and set it on the window sill.

Ross got up, descended the stairs, and walked outside where he was confronted by law

enforcement.



3.
       {¶ 10} Ross was charged with aggravated murder, a violation of R.C. 2903.01(A)

(count one); aggravated murder, a violation of R.C. 2903.01(B) (count two); murder, a

violation of R.C. 2903.02(A) (count three); murder, a violation of R.C. 2903.02(B) (count

four); aggravated burglary, a violation of R.C. 2911.11(A)(1) (count five); aggravated

burglary, a violation of R.C. 2911.11(A)(2) (count six); and kidnapping, a violation of

R.C. 2905.01(A)(3) (count seven). Counts one and two originally included four

specifications, and counts three through seven each included one specification. Before

trial, three of the specifications as to the aggravated murder charges were dismissed,

leaving only a firearms specification as to each of the seven counts of the indictment.

       {¶ 11} The case was tried to a jury beginning January 11, 2016. On January 14,

2016, the jury found Ross guilty on all counts. Following a short recess, the trial court

sentenced Ross to a term of life in prison without parole on count one, 11 years on count

six, and 11 years on count seven. It imposed an additional three years for each of the

specifications. The specifications were ordered to be served concurrently to one another,

and the sentences for the underlying offenses were ordered to be served consecutively to

each other and consecutively to the sentences on the specifications. Counts two, three,

and four, along with their corresponding specifications, merged with count one for

purposes of sentencing, and count five, and its corresponding specification, merged with

count six.

       {¶ 12} Ross appealed, and he assigns the following errors for our review:




4.
             I. THE TRIAL COURT ERRED IN NOT DISMISSING THE

      CRIME OF KIDNAPPING AS AN ALLIED OFFENSE OF SIMILAR

      IMPORT TO BOTH MURDER AND AGGRAVATED BURGLARY.

             II. IT WAS AN ABUSE OF DISCRETION AND A DENIAL OF

      DUE PROCESS UNDER THE CONSTITUTION OF THE UNITED

      STATES AND THE STATE OF OHIO AND A VIOLATION OF

      CRIMINAL RULE 32 AND 2929.19 TO NOT ALLOW THE DEFENSE

      TO PRESENT EVIDENCE IN MITIGATION INCLUDING THE

      TESTIMONY OF A PSYCHOLOGIST PREVIOUSLY ORDERED TO

      ASSIST THE DEFENSE AND PAID FOR WITH TAX DOLLARS.

             III. THE TRIAL COURT ERRED IN NOT INSTRUCTING THE

      JURY THAT THE MURDER CHARGES WERE LESSER OFFENSES

      OF AGGRAVATED MURDER DISTINGUISHED BY THE LACK OF

      PRIOR CALCULATION AND DESIGN AND THE COUNT 1 VERDICT

      WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

      PARTICULARLY IN LIGHT OF THE FAULTY INSTRUCTION.

                             II. LAW AND ANALYSIS

                                  A. Allied Offenses

      {¶ 13} While the jury found Ross guilty of each of the seven charges in the

indictment, the trial court sentenced Ross only on counts one (aggravated murder under

R.C. 2903.01(A)), six (aggravated burglary under R.C. 2911.11(A)(2)), and seven



5.
(kidnapping). The remaining convictions merged for purposes of sentencing. In his first

assignment of error, Ross claims that the trial court erred in failing to find that the

kidnapping conviction was an allied offense of similar import to both the murder and

aggravated burglary charges.

       {¶ 14} The Double Jeopardy Clause of the Fifth Amendment to the U.S.

Constitution, applicable to the state through the Fourteenth Amendment, provides that no

person shall “be subject for the same offence to be twice put in jeopardy of life or limb.”

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10. The Double

Jeopardy Clause protects against a number of abuses. Id. Pertinent to this case is the

protection against multiple punishments for the same offense. Id. To that end, the

General Assembly enacted R.C. 2941.25, which directs when multiple punishments may

be imposed. Id. It prohibits multiple convictions for allied offenses of similar import

arising out of the same conduct:

              (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




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       as to each, the indictment or information may contain counts for all such

       offenses, and the defendant may be convicted of all of them.

       {¶ 15} In Ruff, the Ohio Supreme Court examined in detail the analysis that must

be performed in determining whether offenses are allied offenses of similar import under

R.C. 2941.25. It identified three questions that must be asked: “(1) Were the offenses

dissimilar in import or significance? (2) Were they committed separately? and (3) Were

they committed with separate animus or motivation?” Id. at ¶ 31. If the answer to any of

these questions is “yes,” the defendant may be convicted and sentenced for multiple

offenses. Id. at ¶ 25, 30. The court explained that offenses are of dissimilar import

“when the defendant’s conduct constitutes offenses involving separate victims or if the

harm that results from each offense is separate and identifiable.” Id. at ¶ 23. And it

emphasized that the analysis must focus on the defendant’s conduct, rather than simply

compare the elements of two offenses. Id. at ¶ 30.

       {¶ 16} The state urges that all three of the questions identified by the Ohio

Supreme Court in Ruff must be answered in the affirmative. First, as to whether the

offenses are of dissimilar import, it argues that the harm resulting from each crime

differed: the harm resulting from the kidnapping was terror to Amy; the harm resulting

from the aggravated burglary was that entry was gained into A.S.’s home; and the harm

resulting from the murder was that Amy’s life was ended.

       {¶ 17} As to whether the offenses were committed separately, the state argues that

they were: the aggravated burglary occurred when Ross arrived at the home and broke



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through the door after he was unsuccessful in negotiating entry; the kidnapping occurred

when Ross, after following the victims up the stairs, grabbed Amy’s hair and threatened

her with a gun; and the murder occurred when he shot Amy in the chest.

       {¶ 18} And as to whether each offense involved a separate animus, the state argues

that they did: the aggravated burglary was committed to gain entry into the home; the

kidnapping was committed to restrain Amy’s liberty and to terrorize her; and the murder

was committed to end Amy’s life.

       {¶ 19} Ross, on the other hand, argues that no significant time elapsed between

when he entered the second floor of the home and when he shot his wife, thus no separate

animus existed for kidnapping. While he suggests that “[t]he Aggravated Burglary might

or might not be subject to allied offense analysis as related to Amy Ross,” he fails to

develop this argument in his brief.

       {¶ 20} After a thorough review of the facts of this case, we conclude that the trial

court did not err in failing to merge the kidnapping, murder, and aggravated burglary

charges. The evidence at trial established that Ross broke in the front door, chased Amy

up the stairs into a bedroom, pulled her by the hair, pushed her to the floor, placed the

gun to her head, and yelled at her. He did not shoot her at that time. Amy freed herself

from Ross’ grasp, and she ran to the other side of the bedroom. At that point, he aimed

the gun at her. He yelled, “You think you can take everything from me?” and, ignoring

A.S.’s pleas, he shot Amy. Although these events happened quickly, we find that there

was a distinction and separation between (1) the act of breaking in the door, (2) the act of



8.
holding Amy down with the gun to her head, and (3) the ultimate act of shooting her in

the chest. The offenses, therefore, were not allied. As such, the trial court did not err in

failing to merge Ross’ kidnapping conviction with his murder and aggravated burglary

convictions.

       {¶ 21} Accordingly, we find Ross’ first assignment of error not well-taken.

                B. Failure to Allow Mitigation Evidence at Sentencing

       {¶ 22} Earlier in this case, the trial court approved funds to retain a psychologist to

evaluate Ross. Following Ross’ conviction, defense counsel requested a continuance of

the sentencing hearing so that it could present mitigation evidence from the psychologist.

The trial court denied the request and proceeded to sentencing following a short recess.

In his second assignment of error, Ross claims that this was an abuse of the trial court’s

discretion.

       {¶ 23} Crim.R. 32 (A)(1) requires that at the time of imposing sentence, the court

shall “[a]fford counsel an opportunity to speak on behalf of the defendant and address the

defendant personally and ask if he or she wishes to make a statement in his or her own

behalf or present any information in mitigation of punishment.”

       {¶ 24} In addition to Crim.R. 32(A)(1), R.C. 2947.06(A)(1) provides that “the trial

court may hear testimony in mitigation of a sentence.” (Emphasis added.) As we

recognized in State v. Hayes, 6th Dist. Lucas No. L-97-1385, 1998 Ohio App. LEXIS

6026, *2 (Dec. 18, 1998), the word “may” is permissive, thus it is within the trial court’s

discretion whether to permit witness testimony concerning mitigation. So while a



9.
defendant and his counsel must be permitted to speak at sentencing under Crim.R.

32(A)(1), the trial court may—but is not required to—hear testimony from any other

witnesses in mitigation of a sentence. Because this decision is purely within the trial

court’s discretion, we review the court’s decision for an abuse of discretion.1 State v.

Anderson, 172 Ohio App.3d 603, 2007-Ohio-3849, 876 N.E.2d 632, ¶ 20 (11th Dist.).

An abuse of discretion connotes that the trial court’s attitude is unreasonable, arbitrary, or

unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140

(1983).

       {¶ 25} Here, as required, the trial court allowed both Ross and his counsel to make

statements before imposing Ross’ sentence. It was not obligated to consider testimony or

evidence from any other witness, let alone continue the sentencing hearing for this

purpose. We, therefore, find no abuse of discretion in the trial court’s refusal to continue

sentencing so that mitigation evidence could be provided by the psychologist who had

examined Ross.

       {¶ 26} Accordingly, we find Ross’ second assignment of error not well-taken.




1
  The state insists that we must review Ross’ second assignment of error under R.C.
2953.08(G)(2). Ross’ challenge here, however, is not to the sentence imposed by the trial
court; it is to the trial court’s refusal to continue the sentencing hearing for the purpose of
presenting mitigation evidence—a matter within its discretion. The abuse-of-discretion
standard, not the contrary to law standard, is, therefore, appropriate. See, e.g., State v.
Smith, 12th Dist. Fayette No. CA2014-05-013, 2015-Ohio-1094 (applying abuse-of-
discretion standard to appellant’s challenge to the trial court’s failure to order a
presentence investigation report).


10.
                                   C. Jury Instructions

       {¶ 27} In his third assignment of error, Ross argues that the third count of the

indictment—murder—was a lesser-included offense of count one—aggravated murder.

He contends that the trial court erred in instructing the jury to consider each count of the

indictment separately instead of explaining that count three was a lesser-included offense

of count one, distinguished only by the element of “prior calculation and design.” He

claims that in light of this faulty instruction, the verdict on count one was against the

manifest weight of the evidence.

       {¶ 28} The state denies that murder is a lesser-included offense of aggravated

murder because, it claims, “the jury could not have reasonably acquitted Appellant of

Aggravated Murder and found him guilty of murder” given that the evidence of prior

calculation and design was obvious. Secondly, it argues that considering the instructions

as a whole, the jury was aware that the only difference between aggravated murder and

murder was prior calculation and design.

       {¶ 29} Ross acknowledges that this objection was not raised at trial and must,

therefore, be reviewed under a plain-error analysis. Plain error is error that affects

substantial rights. Crim.R. 52(B). Plain error should be found “only in exceptional

circumstances and only to prevent a manifest miscarriage of justice.” State v. Hill, 92

Ohio St.3d 191, 203, 749 N.E.2d 274 (2001), citing State v. Long, 53 Ohio St.2d 91, 372

N.E.2d 804 (1978), paragraph three of the syllabus. “Reversal is warranted only if the




11.
outcome of the trial clearly would have been different absent the error.” Id., citing Long

at paragraph two of the syllabus.

       {¶ 30} We first address the state’s claim that murder is not a lesser-included

offense of aggravated murder. This is simply incorrect. See State v. Monroe, 105 Ohio

St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 36 (“Murder (R.C. 2903.02) is a lesser

included offense of aggravated murder (R.C. 2903.01[A]). State v. Mason, 82 Ohio St.3d

144, 161, 694 N.E.2d 932 (1998). The sole difference is that prior calculation and design

is absent from murder.”). We do agree with the state, however, that viewed in their

entirety, the jury instructions did not prejudice Ross.

       {¶ 31} The trial court properly instructed the jury as to the elements of each

offense and the legal definitions of the terms contained within those elements. While it

may have been advisable to explicitly instruct the jury how the elements differed, the

instructions provided by the court were correct.

       {¶ 32} We also disagree that the verdict on count one was against the manifest

weight of the evidence. When reviewing a claim that a verdict is against the manifest

weight of the evidence, the appellate court must weigh the evidence and all reasonable

inferences, consider the credibility of witnesses, and determine whether the jury clearly

lost its way in resolving evidentiary conflicts so as to create such a manifest miscarriage

of justice that the conviction must be reversed and a new trial ordered. State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We do not view the

evidence in a light most favorable to the state. “Instead, we sit as a ‘thirteenth juror’ and



12.
scrutinize ‘the factfinder’s resolution of the conflicting testimony.’” State v. Robinson,

6th Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing Thompkins at 388.

Reversal on manifest weight grounds is reserved for “the exceptional case in which the

evidence weighs heavily against the conviction.” Thompkins at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 33} Ohio courts recognize that to establish “prior calculation and design,” the

state must show that the accused killed the victim purposefully after devising a plan or

scheme to kill. State v. Davis, 8 Ohio App.3d 205, 206-207, 456 N.E.2d 1256 (8th

Dist.1982). “There must be some kind of studied analysis with its object being the means

by which to kill.” Id. While the degree of care and the length of time the offender takes

to ponder the crime beforehand are not critical factors in themselves, “momentary

deliberation” is insufficient. State v. Taylor, 78 Ohio St.3d 15, 22, 676 N.E.2d 82 (1997).

Whether there exists prior calculation and design is a factual determination resolved on a

case-by-case basis. State v. Jones, 91 Ohio St.3d 335, 345, 744 N.E.2d 1163 (2001).

       {¶ 34} Traditionally, courts consider three factors in determining whether a

defendant acted with prior calculation and design: (1) whether the accused and victim

know each other, and if so, whether that relationship was strained; (2) whether the

accused gave thought or preparation to choosing the murder weapon or murder site; and

(3) whether the act was drawn out or whether it was an almost instantaneous eruption of

events. Taylor at 19, citing State v. Jenkins, 48 Ohio App.2d 99, 102, 355 N.E.2d 825

(8th Dist.1976). In Taylor, for instance, the court found that even though the events



13.
elapsed in a two-to-three minute timespan, there was more than sufficient evidence of

“prior calculation and design” where the defendant and the victim had a strained

relationship and defendant brought a gun with him to the scene. Id. at 16-17.

       {¶ 35} Here, the evidence at trial was that Ross and Amy were married and their

relationship was severely strained, as demonstrated by both the testimony and the text

messages entered into evidence as exhibits. Ross traveled from Fremont, Ohio, to Oak

Harbor, Ohio, an approximately 30-minute drive, with a loaded weapon, intending to

confront Amy after finding that she had removed furniture and personal belongings from

the couple’s home. He had the weapon with him as he knocked on the door, and

brandished it as he chased Amy and A.S. up the stairs. He aimed the gun at Amy as A.S.

pleaded with him not to go through with it. And before shooting her, he told Amy that

she was not going to take everything from him. We find that this evidence demonstrated

“prior calculation and design” and supported the jury’s verdict.

       {¶ 36} Accordingly, we find Ross’ third assignment of error not well-taken.

                                  III. CONCLUSION

       {¶ 37} For the foregoing reasons, we find that Ross’ kidnapping, murder, and

aggravated burglary convictions were not allied offenses; the court did not abuse its

discretion in refusing to continue sentencing for purposes of allowing Ross to present

mitigation evidence from a retained psychologist; the court properly instructed the jury

on counts one and three of the indictment; and his conviction of aggravated murder was

not against the manifest weight of the evidence. We, therefore, find Ross’ assignments of



14.
error not well-taken, and we affirm the March 1, 2016 judgment of the Ottawa County

Court of Common Pleas. Ross is ordered to pay the costs of this appeal under App.R. 24.



                                                                      Judgment affirmed.



       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
James D. Jensen, P.J.
                                               _______________________________
Christine E. Mayle, J.                                     JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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