[Cite as State v. Gates, 2015-Ohio-4950.]


                                        COURT OF APPEALS
                                     FAIRFIELD COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. William B. Hoffman, P.J.
        Plaintiff - Appellee                 :       Hon. Patricia A. Delaney, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
JOHN W. GATES                                :       Case No. 14-CA-60
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Fairfield County
                                                     Court of Common Pleas, Case No.
                                                     14-CR-0183




JUDGMENT:                                            Affirmed in part;
                                                     Reversed and Remanded in part



DATE OF JUDGMENT:                                    November 25, 2015



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

GREGG MARX                                           SCOTT P. WOOD
Prosecuting Attorney                                 Daggar Johnston, Miller, Ogivlie &
                                                     Hampson
By: ANDREA K. GREEN                                  144 East Main Street
Assistant Prosecuting Attorney                       P.O. Box 667
239 W. Main Street, Ste. 101                         Lancaster, Ohio 43130
Lancaster, Ohio 43130
Fairfield County, Case No. 14-CA-60                                                     2




Baldwin, J.

      {¶1}    Appellant John W. Gates appeals a judgment of the Fairfield County

Common Pleas Court convicting him of attempted murder (R.C. 2903.02(A)) with a

firearm specification, two counts of felonious assault (R.C. 2903.11(A)(2)) with firearm

specifications, two counts of kidnapping (R.C. 2905.01(A)(3)) with firearm specifications,

abduction (R.C. 2905.02(A)(2)) with a firearm specification, and domestic violence (R.C.

2919.25(A)), and sentencing him to an aggregate term of incarceration of 44 years.

Appellee is the State of Ohio.

                          STATEMENT OF THE FACTS AND CASE

      {¶2}    On March 30, 2014, appellant and his wife Brenda spent Sunday together

in the home they had shared for seven years. Appellant suggested they sit down and

make notes about what they were both unhappy about in their marriage.               They

discussed issues in their marriage, and then watched television together.

      {¶3}    As the couple prepared for bed, appellant said to Brenda, "Your mother is

a whore and a slut." An argument ensued, and Brenda went downstairs to sleep on the

couch. Appellant followed her downstairs and continued to argue. She went upstairs to

a spare bedroom to attempt to sleep, as she needed to go to work early the next

morning.

      {¶4}    Appellant burst through the door of the spare room and the arguing

continued. Brenda told appellant to leave or she would call 911. Appellant left the room

and went downstairs. He got in his truck and pulled down the driveway.
Fairfield County, Case No. 14-CA-60                                                    3


      {¶5}    After watching appellant drive away, Brenda turned on every light in the

house so she would know when he returned. She was frightened because of the way

appellant had burst through the door of the spare bedroom. Contemplating a divorce,

Brenda collected important financial documents to take with her when she left the house

the next day. Appellant had threatened Brenda at least once a month during their

marriage, "There will be no divorce, no second divorce. Someone will lose their life or

someone will lose their legs." Tr. 480.

      {¶6}    Brenda returned to the spare bedroom and heard appellant's truck come

back up the driveway. She locked the door to the bedroom. She knew that a .45

caliber pistol was kept in the nightstand, so she placed it on top of the nightstand. She

did not know how to operate the gun and was not sure if the gun was loaded, but she

hoped the gun would act as a deterrent if appellant came through the door again.

      {¶7}    Appellant came upstairs, and Brenda put her hands on the door knob and

the lock. Appellant succeeded in entering the bedroom. He saw the pistol on the

nightstand, and told Brenda he was glad she put the gun there, because now he could

claim self-defense. Appellant left the room, and Brenda locked the door behind him.

      {¶8}    Several minutes later, appellant returned, and Brenda again tried to block

his entry by placing her hands on the lock and the door knob. Appellant burst through

the door again, this time knocking Brenda to the floor.     Appellant reached into the

hallway and grabbed a 30/30 hunting rifle, a high-powered weapon used primarily to kill

large game.

      {¶9}    Appellant fired at the left side of Brenda's body, and Brenda saw her left

leg explode. Her left leg remained connected only by a small patch of skin. Appellant
Fairfield County, Case No. 14-CA-60                                                      4


took a step backward into the hallway, came back into the room, and repositioned

himself on the right side of Brenda. She feared that he would shoot her in the face. He

raised the rifle a second time, and she begged him not to shoot her again. Appellant

fired a second time, hitting her right leg. As he left the room, appellant said to Brenda

two times, "Admit it. You had a gun pointed at my face." Tr. 404. However, the pistol

remained on the nightstand, out of Brenda's reach. Appellant left Brenda immobilized

on the bedroom floor and went downstairs.

       {¶10} Brenda drug herself toward a landline phone on a shelf near the floor in

the bedroom by using her upper body. She called 911 and explained that her husband

had just shot both of her legs, and she thought she was dying. Although Brenda's eyes

were closed, she heard appellant come back upstairs and sensed him standing over her

before the phone went dead. She was unable to get a dial tone on the phone she had

been using, but could hear the phone ringing in another part of the house as 911

attempted to re-connect the call.

       {¶11} While waiting for help to arrive, Brenda propped her right leg on the bed to

the best of her ability, but her left leg was too decimated to raise. Appellant returned to

the room and continued to badger her to admit that she pointed a gun at his face. She

remained still, hoping he would think she was dead.

       {¶12} Law enforcement officers arrived at the home based on the 911 call from

Brenda and a subsequent call placed by appellant. They surrounded the home, and

appellant came out with his hands in the air. Police noted an odor of alcohol about

appellant. Appellant told them that Brenda pulled a gun on him, so he had to shoot her.
Fairfield County, Case No. 14-CA-60                                                        5


       {¶13} Officers could hear Brenda yelling for help from upstairs. They found her

lying in a pool of blood. She was physically unable to reach the .45 caliber firearm from

her position on the floor, and the magazine clip was partially out of the weapon.

       {¶14} Brenda was life-flighted to the Ohio State University Surgical Center. Her

injuries were so severe that she went into cardiac arrest during transport. Brenda lost

her left leg, and underwent eight surgeries in the weeks following the incident.

       {¶15} Appellant was interviewed shortly after the incident. He told police that

they had argued about money, and Brenda pointed a gun his face and threatened to kill

him. He told police that he did not intend to kill her, just hurt her. He told police that he

believed his "soon-to-be ex-wife" was experiencing a change in mental stability due to

menopause.     Detective Kelly Staats noted he displayed arrogance and a lack of

compassion during the interview.

       {¶16} Appellant was indicted by the Fairfield County Grand Jury with two counts

of attempted murder, two counts of felonious assault, two counts of kidnapping, and

abduction, all with accompanying firearm specifications.       He was also charged with

tampering with evidence and domestic violence. The case proceeded to jury trial. After

the presentation of evidence, the state dismissed one count of attempted murder. The

jury returned a verdict finding appellant not guilty of tampering with evidence, but guilty

of all other charges with the accompanying firearm specifications.

       {¶17} Appellant was sentenced on October 8, 2014. The court merged Count

One of attempted murder with Counts Three and Four of felonious assault. The court

merged the domestic violence count with Count Four of felonious assault. The state

elected to sentence on Counts Three and Four. The trial court merged Count Five of
Fairfield County, Case No. 14-CA-60                                                     6


kidnapping with Count Seven of Abduction.         The State elected to have appellant

sentenced on Count Five. Appellant was sentenced to eight years in prison on Count

Three and an additional three years on the firearm specification, eight years in prison on

Count Four with an additional three years on the firearm specification, eleven years in

prison on Count Five, and eleven years in prison on Count Six, for a total term of fourty-

four years incarceration.

      {¶18} Appellant assigns a single error on appeal:

      {¶19} "THE TRIAL COURT ERRED IN SENTENCING APPELLANT."

      {¶20} In his sole assignment of error, appellant argues that the court erred in

failing to merge the two felonious assault convictions, and also that the court erred in

failing to merge the kidnapping convictions into the felonious assault convictions.

      {¶21} The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution provides that no person shall “be subject for the same offence to be twice

put in jeopardy of life or limb.” This protection applies to Ohio citizens through the

Fourteenth Amendment to the United States Constitution, Benton v. Maryland, 395 U.S.

784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969), and is additionally guaranteed by the

Ohio Constitution, Article I, Section 10. The Double Jeopardy Clause protects against

three abuses: (1) “a second prosecution for the same offense after acquittal,” (2) “a

second prosecution for the same offense after conviction,” and (3) “multiple

punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89

S.Ct. 2072, 23 L.Ed.2d 656 (1969), overruled on other grounds, Alabama v. Smith, 490

U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989).

      {¶22} R.C. 2941.25 reads:
Fairfield County, Case No. 14-CA-60                                                    7


       {¶23} "(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.

       {¶24} "(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."

       {¶25} At one time in Ohio, case law interpreting R.C. 2941.25 was based on

State v. Rance, 85 Ohio St.3d 632, 636, 710 N.E.2d 699, 1999–Ohio–291, wherein the

Ohio Supreme Court held that offenses are of similar import if the offenses “correspond

to such a degree that the commission of one crime will result in the commission of the

other.” Id. The Rance court further held that courts should compare the statutory

elements in the abstract. Id.

       {¶26} However, in State v. Johnson,128 Ohio St.3d 153, 942 N.E.2d 1061,

2010-Ohio-6314, the Ohio Supreme Court specifically overruled the 1999 Rance

decision. The Court held: “When determining whether two offenses are allied offenses

of similar import subject to merger under R.C. 2941.25, the conduct of the accused

must be considered." Id., at the syllabus. To determine whether offenses are allied

offenses of similar import under R.C. 2941.25(A), the question is whether it is possible

to commit one offense and commit the other with the same conduct, not whether it is

possible to commit one without committing the other. Id. at ¶48. If the multiple offenses

can be committed by the same conduct, then the court must determine whether the
Fairfield County, Case No. 14-CA-60                                                    8

offenses were committed by the same conduct. Id. at ¶49. If the answer to both

questions is yes, then the offenses are allied and must be merged.            Id. at ¶50.

However, if the court determines that the commission of one offense will never result in

the commission of the other, or if the offenses are committed separately, or if the

defendant has a separate animus for each offense, then the offenses will not merge,

according to R.C. 2941.25(B). Id. at ¶51.

      {¶27} Recently, the Ohio Supreme Court in State v. Ruff, 143 Ohio St. 3d 114,

34 N.E.3d 892, 2015–Ohio–995, addressed the issue of allied offenses, determining the

analysis set forth in Johnson to be incomplete:

                    When the defendant's conduct constitutes a single

             offense, the defendant may be convicted and punished only

             for that offense. When the conduct supports more than one

             offense, however, a court must conduct an analysis of allied

             offenses of similar import to determine whether the offenses

             merge or whether the defendant may be convicted of

             separate offenses. R.C. 2941.25(B).

                    A trial court and the reviewing court on appeal when

             considering whether there are allied offenses that merge into

             a single conviction under R.C. 2941.25(A) must first take into

             account the conduct of the defendant. In other words, how

             were the offenses committed? If any of the following is true,

             the offenses cannot merge and the defendant may be

             convicted and sentenced for multiple offenses: (1) the
Fairfield County, Case No. 14-CA-60                                                   9


             offenses are dissimilar in import or significance—in other

             words, each offense caused separate, identifiable harm, (2)

             the offenses were committed separately, and (3) the

             offenses      were   committed   with   separate   animus   or

             motivation.

                    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.

      {¶28} Appellant first argues that the court erred in failing to merge the two

counts of felonious assault. The trial court found at sentencing that the offenses would
Fairfield County, Case No. 14-CA-60                                                      10


not merge because there were two single shots, separated in time, under circumstances

where different parts of Brenda Gates' body were impacted. The court concluded that

there was separation in time, action, and intent. Sent.Tr. 103.

       {¶29} Felonious assault is defined by R.C. 2903.11(A)(2) as follows:

       {¶30} “(A) No person shall knowingly do either of the following:

       {¶31} “(2) Cause or attempt to cause physical harm to another or to another's

unborn by means of a deadly weapon or dangerous ordnance.”

       {¶32} Mrs. Gates testified as to the second shot to her right leg:

       {¶33} "I believe he took a step backwards first into the hallway, and then he

came back in the bedroom like he was trying to decide what to do. And he moved over

to the right and repositioned himself in front of the right side of my body." Tr. 402.

       {¶34} She went on to testify that before the second shot, she begged and

pleaded with him not to shoot her again. Tr. 403. He then lifted the rifle, pulled the

trigger, and shot her a second time.

       {¶35} Based on the testimony of Mrs. Gates, the shots were two separate

actions, separated by time. This is not a case where a shooter fired multiple shots in

close succession from an automatic weapon.           After firing the first shot, appellant

stopped, stepped backwards, came back into the bedroom, repositioned himself, and

shot a second time. During this time Brenda continued to plead with him to not shoot

her a second time.

       {¶36} In addition, the harm that resulted from each count of felonious assault

was separate and identifiable from the harm of the other offense, as discussed in Ruff,

supra. Brenda Gates lost her left leg to amputation as a result of the first shot. Her
Fairfield County, Case No. 14-CA-60                                                    11


right leg was saved, but she had multiple surgeries to save her right leg due to soft

tissue involvement on the back side. In addition, she had skin grafting on her right leg,

which will cause issues with mobility due to contractures and a greater risk for soft

tissue infection in the future. Tr. 509.

       {¶37} The trial court did not err in overruling appellant's motion to merge the two

counts of felonious assault.

       {¶38} Appellant next argues that the two kidnapping charges should have

merged into the felonious assault convictions.

       {¶39} Kidnapping is defined by R.C. 2905.01(A)(3):

       {¶40} “(A) No person, by force, threat, or deception, or, in the case of a victim

under the age of thirteen or mentally incompetent, 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:

       {¶41} “(3) To terrorize, or to inflict serious physical harm on the victim or

another[.]”

       {¶42} The trial court found that the two counts of kidnapping did not merge with

each other:

                     With regard to the offenses of kidnapping, the Court

              also finds that there was a separation in time during which

              these offenses occurred. The first offense of kidnapping, as

              described in Count Five, related to the Defendant forcing

              entry into the room, knocking Mrs. Gates to the ground, and

              preventing her from escape.
Fairfield County, Case No. 14-CA-60                                                   12


                    The second act of kidnapping occurred when the

             Defendant prevented Mrs. Gates from calling for help and

             receiving medical care, and restraining her from her liberty

             under those circumstances in which it was likely that she

             would receive serious physical harm.

                    The Court finds under those circumstances – it’s

             clearly in the Court’s mind a separate intent to commit the

             restraint necessary to establish the offense of kidnapping

             for each of those counts in the indictment.

      {¶43} Tr. 103-104.

      {¶44} The trial court did not expressly address appellant’s argument that the

kidnapping counts should merge with felonious assault.

      {¶45} In State v. Farringer, 5th Dist. Fairfield No. 14-CA-43, 2015-Ohio-2644,

the defendant and the victim were arguing, which at some point resulted in the

defendant grabbing the victim around the neck and restraining her. She died, and the

cause of death was asphyxiation by strangulation.          The trial court found that the

offenses of abduction and involuntary manslaughter were not allied, as the abduction

was completed prior to the defendant applying additional force which led to the victim’s

death. We reversed based on Ruff, supra, finding that the harm that resulted from the

abduction and the harm that resulted from the involuntary manslaughter were not

separate and identifiable. Id. at ¶35.

      {¶46} In State v. Fox, 5th Dist. Delaware No. 14 CAA10 0065, 2015-Ohio-3515,

the victim was restrained in a trailer for a long period of time, where he was initially
Fairfield County, Case No. 14-CA-60                                                      13


terrorized, and later raped. The defendant conceded that one count of kidnapping,

defined pursuant to R.C. 2905.01(A)(3) as restraint in order to terrorize or inflict serious

physical harm, would not merge with the rape counts as the initial restraint had an

independent significance apart from the rapes. Id. at ¶36. However, we concluded that

a separate count of kidnapping, defined as kidnapping to commit rape, was an offense

of similar import to the charge of rape, as it did not cause a separate identifiable harm to

the victim from that of the actual rape itself, was incidental to the commission of rape,

and was not committed with a separate animus. Id. at ¶40.

       {¶47} The State argues that the first offense of kidnapping was completed in the

instant case when appellant stood in the bedroom doorway after knocking Brenda to the

floor, prior to his reaching into the hallway to grab the gun. However, appellant’s entry

into the bedroom and blocking the doorway was nearly simultaneous with his reaching

back for the gun, and the kidnapping in Count Five was incidental to the offense of

felonious assault. The testimony does not demonstrate that this count of kidnapping

was committed separately or with a separate animus from the first count of felonious

assault, nor does the record demonstrate a separate and identifiable harm to the victim

from that of the felonious assault. Therefore, Count Five of kidnapping should merge

with one of the counts of felonious assault.

       {¶48} As to Count Six of kidnapping, while the shooting was the means by which

the victim was restrained, the harm that resulted from this count was separate and

identifiable to that of the felonious assaults themselves. Brenda Gates testified that

after she managed to prop her right leg on the bed and call 911, appellant disconnected

the call. She could hear the landline ringing and knew it was 911 trying to call, but
Fairfield County, Case No. 14-CA-60                                                       14


appellant would not answer. She testified that she tried to hold on to life long enough

for someone other than appellant to be in the house.        Brenda Gates suffered mental

anguish from this count of kidnapping separate and apart from the felonious assault and

the first count of kidnapping. In addition, Dr. Laura Phieffer testified that a difference in

time of seconds to minutes between the shooting and Brenda's arrival at the hospital

could have resulted in her death.       As every second that she lay in the bedroom

presented a further risk to her survival, the physical harm from the second kidnapping

was separate and distinct from the harm caused by the shooting itself.

       {¶49} The assignment of error is sustained as to Count Five of kidnapping and

otherwise overruled.

       {¶50} The judgment of the Fairfield County Common Pleas Court is affirmed in
part, reversed in part, and remanded to that court for resentencing consistent with this
opinion. Costs are assessed equally between the parties.

By: Baldwin, J.

Delaney, J. concurs

Hoffman, P.J. concurs in part
and dissents in part
Fairfield County, Case No. 14-CA-60                                                     15

Hoffman, P.J., concurring in part and dissenting in part

       {¶51} I concur in the majority’s analysis and conclusion Appellant’s convictions

on two counts of felonious assault are not allied offenses of similar import. I further

concur in the majority’s analysis and conclusion Count Five (kidnapping) should merge

with one of the counts of felonious assault.

       {¶52} I respectfully disagree with the majority’s conclusion Count Six

(kidnapping) should not merge with one of the counts of felonious assault.1           The

majority states law enforcement officers arrived at the home based on the 911 call from

Brenda and a subsequent call placed by Appellant. If so, I am not persuaded the

record affirmatively demonstrates any additional suffering or injury suffered by Brenda

Gates is attributable to the second act of kidnapping in Count Six. I find the harm that

resulted from the commission of the second kidnapping was not separate and

identifiable from the harm resulting from the commission of the two acts of felonious

assault.   While arguably “prolonging” such harm, it did not result in separate or

identifiable harm.    Under the facts presented, I would also merge Count Six

(kidnapping) with one of the felonious assault convictions.




1  While I question whether the facts presented are sufficient to satisfy the “restraint of
liberty” element of kidnapping, Appellant’s argument only challenges the sentencing on
Count Six, not the underlying conviction.
