[Cite as State v. Brumley, 2017-Ohio-8803.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                     PORTAGE COUNTY, OHIO


STATE OF OHIO,                                 :       OPINION

                 Plaintiff-Appellee,           :
                                                       CASE NO. 2016-P-0071
        - vs -                                 :

DRESHON G. BRUMLEY,                            :

                 Defendant-Appellant.          :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2016 CR
00457.

Judgment: Affirmed.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Shubhra Agarwal, 3732 Fishcreek Road, #288, Stow, OH            44224 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, P.J.

        {¶1}     Appellant, Dreshon G. Brumley, appeals from the judgment of the Portage

County Court of Common Pleas convicting him, after trial by jury, of kidnapping,

felonious assault, and domestic violence. At issue is whether appellant’s convictions

are supported by sufficient evidence, the weight of the evidence, and whether his

convictions for felonious assault and domestic violence should have been merged. We

affirm the trial court’s judgment.
       {¶2}   On Friday, June 28, 2016, Katrina Hamilton, appellant’s then-fiancé, was

laying in bed with the couple’s two daughters when appellant stormed in, grabbed the

woman by the arm and dragged her into a separate bedroom. Appellant was suspicious

Ms. Hamilton was romantically involved with a mutual friend of the couple, Tyrice

Lattrel.   Once in the next room, appellant threw Ms. Hamilton onto the bed, straddled

her and started slapping her and choking her with both hands.          During the attack,

appellant swore at Ms. Hamilton, calling her a whore, a slut, and a bitch. After the

assault, appellant left the room to speak with Mr. Lattrel, who was apparently waiting

somewhere in the downstairs area. Appellant returned shortly thereafter and slammed

Ms. Hamilton against the wall and again commenced choking her again. Appellant

eventually stopped and the couple went downstairs and began talking.

       {¶3}   While downstairs, appellant had various questions for Ms. Hamilton and,

during the discussion, appellant became agitated and violent again.            He initially

punched her in the ribs with a closed fist. Ms. Hamilton stated she was unable to breath

after the strike and believed she suffered a broken rib from the blow. Appellant then

grabbed her and threw her to the ground, held her shoulders, and slammed her head

into the floor several times.    After this incident, appellant calmed and the couple

retreated to bed. Ms. Hamilton testified she did not call police because she believed the

violence was over and did not want appellant to get in trouble with authorities.

       {¶4}   On Saturday, June 29, 2016, the couple, with their children, went to the

home of Ms. Hamilton’s mother. Ms. Hamilton advised her mother about her rib injury,

but did not disclose the assault. When they returned home, appellant again brought up

Mr. Lattrel. The tension escalated and appellant threw Ms. Hamilton to the ground,




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mounted her, and began slapping her head. Appellant additionally slammed her head

into the floor two or three times and punched her in the injured rib again.

       {¶5}   Over the next several days, Ms. Hamilton sustained a series of repetitive

beatings, some of which were severe.         Because, however, the indictment charged

appellant only with crimes that occurred on Friday, June 28, 2016, it is unnecessary to

discuss the nature of the attacks.

       {¶6}   On Tuesday, July 2, 2016, appellant left the home to umpire another

game. While he was out, Mr. Lattrel paid Ms. Hamilton a visit. He indicated he wished

to fight appellant. Ms. Hamilton slammed the door and the man left. Upon appellant’s

return home, Ms. Hamilton disclosed the visit.          Appellant again became violent,

threatening to kill her and repeatedly advising her “lies are worth your life.” Fearing for

her life, Ms. Hamilton took an empty pizza box out into the garage as though she was

going to dispose of the item. She then began to run down the street barefoot. She

found help at a local mechanic’s shop.

       {¶7}   Police were ultimately called and Ms. Hamilton was taken to the hospital

where, after various tests, she learned she suffered a fracture to the left 10th rib and a

partially collapsed lung. She also had deep tissue bruising on her forehead and face;

multiple scratches on the front, side and back of her neck; significant bruising to her

arms; and other superficial injuries to various parts of her body.

       {¶8}   Appellant was indicted on one count of kidnapping, in violation of R.C.

2905.01(A)(3), a felony of the first degree; one count of felonious assault, in violation of

R.C. 2903.11(A)(1), a felony of the second degree; and two counts of domestic

violence, in violation of R.C. 2919.25, one, a felony of the fourth degree, the other, a




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felony of the fifth degree. Appellant pleaded not guilty. The matter proceeded to jury

trial after which the jury returned verdicts of guilty on the charges of kidnapping,

felonious assault, and felony-four domestic violence. Appellant was acquitted of the last

domestic violence charge. Appellant was sentenced to 10-years imprisonment for the

kidnapping charge; seven years imprisonment for the felonious assault charge; and 18

months imprisonment for the domestic violence charge. Each sentence was ordered to

be served concurrently with one another. This appeal follows.

       {¶9}      Appellant assigns four errors for our review. His first two assignments of

error provide:

       {¶10} “[1.] The trial court committed reversible error when it overruled Mr.

Brumley’s Crim.R. 29(A) motion for acquittal because the evidence was insufficient to

support a conviction for kidnapping.

       {¶11} “[2.] Mr. Brumley’s conviction for [kidnapping] was against the manifest

weight of the evidence.”

       {¶12} Under these assigned errors, appellant challenges the weight and

sufficiency of the evidence supporting his kidnapping conviction. He does not take

issue with the evidence in support of his felonious assault or domestic violence

convictions. Thus, we need only address the merits of the kidnapping conviction.

       {¶13} A “sufficiency” argument raises a question of law as to whether the

prosecution offered some evidence concerning each element of the charged offense.

State v. Windle, 11th Dist. Lake No.2010-L-0033, 2011-Ohio-4171, ¶25. “[T]he proper

inquiry is, after viewing the evidence most favorably to the prosecution, whether the jury




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could have found the essential elements of the crime proven beyond a reasonable

doubt.” State v. Troisi, 179 Ohio App.3d 326, 2008-Ohio-6062 ¶9 (11th Dist.).

       {¶14} In contrast, a court reviewing the manifest weight observes the entire

record, weighs the evidence and all reasonable inferences, considers the credibility of

the witnesses and determines whether, in resolving conflicts in the evidence, the jury

clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. State v. Schlee, 11th Dist. Lake No. 93-L-

082, 1994 WL 738452 *14-*15 (Dec. 23, 1994).

       {¶15} The indictment alleged that, on June 28, 2016, appellant committed

kidnapping, in violation of R.C. 2905.01(A)(3). The statute provides:

       {¶16} (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:

       {¶17} * * *

       {¶18} (3) To terrorize, or to inflict serious physical harm on the victim or another.

       {¶19} Because “terrorize” is not defined by the Revised Code, Ohio courts have

defined it according to its common usage, which is “to fill with terror or anxiety.” State v.

Eggleston, 11th Dist. Lake No.2008-L-047, 2008-Ohio-6880, ¶30, fn.1

       {¶20} The evidence demonstrated that on Friday, June 28, 2016, appellant

grabbed Ms. Hamilton out of her bed and dragged her into another room. He threw her

onto a different bed, held her down, and began choking and slapping her.              As he

straddled and struck Ms. Hamilton, appellant released a stream of invective, declaring




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her a whore, a slut, and a bitch. The foregoing demonstrates a reasonable jury could

find, beyond a reasonable doubt, that appellant both removed Ms. Hamilton from the

place she was resting as well as restrained her liberty for the purpose of, at the least,

filling her with terror and anxiety (i.e., straddling, slapping, choking, and censuring her

with abusive language would be sufficient to cause a reasonable person to feel

“terrorized”).   There was therefore sufficient evidence to support the kidnapping

conviction.

         {¶21} Notwithstanding the foregoing, appellant argues Ms. Hamilton never

attempted to call the police and remained with appellant over the course of additional

days without attempting to leave their residence. Further, appellant points out Ms.

Hamilton never sought help from neighbors or family. Moreover, he emphasizes that

each night, after being beaten, choked, and berated, Ms. Hamilton still went to bed with

appellant, as though nothing happened. In his view, this conduct calls Ms. Hamilton’s

credibility into question and militates against his kidnapping conviction. We do not

agree.

         {¶22} Ms. Hamilton explained that she remained in the residence, without calling

the police or exposing appellant, because, each night, she believed appellant had finally

ceased being upset and she did not wish to get him into trouble. These explanations

are reasonable and do not undermine Ms. Hamilton’s credibility.          Accordingly, Ms.

Hamilton’s post-beating conduct does not militate heavily against his conviction for

kidnapping. Appellant’s conviction for kidnapping is therefore consistent with the weight

of the evidence.

         {¶23} Appellant’s first and second assignments of error lack merit.




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       {¶24} Appellant’s third and fourth assigned errors provide:

       {¶25} “[3.] The trial court committed reversible error and plain error when it

sentenced Mr. Brumley for felonious assault and domestic violence as they were allied

offenses of similar import subject to merger under R.C. 2941.25.

       {¶26} “[4.]   Mr. Brumley was denied his constitutional right to effective

assistance of counsel at trial when his trial counsel failed to argue that felonious assault

and domestic violence were allied offenses of similar import subject to merger under

R.C. 2941.25.”

       {¶27} Under his third assignment of error, appellant argues the trial court erred

when it failed to merge the felonious assault and domestic violence counts because

they are allied offenses of similar import. Whether offenses constitute allied offenses of

similar import subject to merger under R.C. 2941.25 is a question of law that appellate

courts review de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶26-28.

The burden is on the defendant to establish his entitlement to merger. State v.

Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, ¶18

       {¶28} Under his fourth assignment of error, appellant asserts trial counsel was

ineffective for failing to object to the lack of merger. As such, he acknowledges the

plain error standard of review applies. Plain error does not occur unless, but for some

“obvious” error committed by the trial court, the outcome of the trial would have been

different. State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶31. “Notice of plain

error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53

Ohio St.2d 91 (1978), paragraph three of the syllabus.




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      {¶29} “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.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,

paragraph one of the syllabus. If any of the following are true, a defendant’s convictions

do not merge and he or she may be sentenced for multiple offenses: “(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.” Id. at ¶25.

      {¶30} Felonious assault, pursuant to R.C. 2903.11(A)(1), provides that “[no]

person shall knowingly * * * [c]ause serious physical harm to another.” Serious physical

harm is defined as, inter alia, “[a]ny physical harm that involves acute pain of such

duration as to result in substantial suffering or that involves any degree of prolonged or

intractable pain.”    R.C. 2901.01(A)(5)(e).     Domestic violence, pursuant to R.C.

2919.25(A) provides that “[n]o person shall knowingly cause or attempt to cause

physical harm to a family or household member.” “Physical harm to persons means any

injury, illness, or other physiological impairment, regardless of its gravity or duration.”

R.C. 2901.01(A)(3).

      {¶31} Finally, to find appellant guilty of either offense, it was required to

determine he acted knowingly. “A person acts knowingly, regardless of his purpose,

when he is aware that his conduct will probably cause a certain result or will probably be

of a certain nature. A person has knowledge of circumstances when he is aware that

such circumstances probably exist.” R.C. 2901.22(B).




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       {¶32} The evidence demonstrated that, after the kidnapping was complete,

appellant went downstairs to further discuss matters with Mr. Latrell.          He returned

upstairs, located Ms. Hamilton and proceeded to slam her head into a wall and again

choke her. During this attack, appellant repeatedly accused her of lying to him and the

attack lasted approximately 15 minutes. She testified she sustained scratches on her

neck from this choking incident.

       {¶33} Later that evening, the couple returned downstairs together where they

continued to discuss appellant’s allegations.          Ms. Hamilton testified she made a

statement that “set [appellant] off” and he punched her in the ribs.          The evidence

ultimately revealed that Ms. Hamilton suffered a broken rib and was in excruciating pain

as a result of the injury. In fact, she testified that, as a result of the blow, she could not

breath, “[i]t took [her] breath away and it hurt to move or do anything after that. [She]

believed that [her] rib was broken immediately.”

       {¶34} The evidence shows that the first assault after the kidnapping was

sufficient to meet the elements of domestic violence, i.e., appellant knowingly caused

physical harm (scratches to her neck from being choked) to Ms. Hamilton, a household

member.     The second assault, the punch, was sufficient to meet the elements of

felonious assault, i.e., appellant knowingly caused Ms. Hamilton to suffer acute pain of

such duration as to result in substantial suffering. Each of these incidents were discrete

and separate, causing separate identifiable harm, and accomplished with a separate

animus. Thus, the crimes were not allied offenses of similar import and the trial court

did not err in failing to conduct a merger analysis.




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      {¶35} Because we discern no error, there is no plain error. Similarly, counsel’s

performance was not deficient for failing to request the court to merge the separate

counts.

      {¶36} Appellant’s third and fourth assignments of error lack merit.

      {¶37} For the reasons discussed in this opinion, the judgment of the Portage

County Court of Common Pleas is affirmed.



DIANE V. GRENDELL, J.,

THOMAS R. WRIGHT, J.,

concur.




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