State v. Ferguson

98 N.E.3d 987

2017 Ohio 7930

STATE of Ohio, Plaintiff–Appellee

v.Darryl FERGUSON, Defendant–Appellant

NO. 27032

Court of Appeals of Ohio, Second District, Montgomery County.

Rendered on September 29, 2017.

Lynne R. Nothstine, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422, Attorney for Plaintiff–Appellee

Francisco E. Luttecke, Atty. Reg. No. 0082866 and Charlyn Bohland, Atty. Reg. No. 0088080, Assistant State Public Defenders, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, Attorneys for Defendant–Appellant

OPINION

FROELICH, J.

{¶ 1} Darryl Ferguson was found guilty after a bench trial in the Montgomery County Court of Common Pleas, General Division, of aggravated assault, an inferior offense of felonious assault, and voluntary manslaughter, an inferior offense of murder. The trial court merged the two charges and sentenced D.F. to a mandatory term of eleven years in prison, pursuant to R.C. 2929.13(F), for voluntary manslaughter. D.F. was 16 years old at the time of the offense, and 18 years old when he was convicted.

{¶ 2} Ferguson appeals from his conviction, raising five assignments of error.¹ He claims that (1) the trial court erred in using a prior juvenile adjudication to impose a mandatory prison term, (2) the trial court erred in failing to suppress statements that he made to the police (3) the trial court erred in imposing a maximum sentence, (4) the trial court erred in failing to sentence him in accordance with R.C. 2152.121, and (5) the juvenile court abused its discretion in finding that he was not amenable to treatment in the juvenile system. For the following reasons, the trial court's judgment will be reversed, and the matter will be remanded to the trial court for resentencing and compliance with R.C. 2152.121.

I. Background and Procedural History

{¶ 3} In its verdict following the bench trial, the trial court found the following facts.

{¶ 4} In the early morning hours of June 8, 2014, 35–year-old Ryan Adams approached Ferguson's mother and his fifteen-year-old sister as they stood outside their home in Dayton. Adams stated to them that "everybody needs a playmate, do you want to play with me?" or similar sexually-suggestive words. Ferguson's mother and sister indicated they did not, and Adams walked some distance away, but stopped, turned around with his arms folded, and stared at them. Ferguson's mother and sister became "worried and anxious," and the sister proceeded to call Ferguson (her sixteen-year-old brother), Harley Farrell (the boyfriend of her maternal aunt)² , or both, requesting that Ferguson and Farrell return to the area. Ferguson, Farrell, and the aunt had walked down the street to see some "commotion" that was occurring there.

{¶ 5} Ferguson and Farrell arrived separately but at approximately the same time, and Ferguson began questioning his mother and sister regarding the nature of their concern. Upon learning that Adams had made suggestive remarks and had yet to leave the neighborhood, Ferguson became "angry and furious," and he and Farrell attempted to locate Adams. Ferguson and Farrell found Adams nearby, and Adams returned voluntarily with Ferguson and Farrell to Ferguson's home. When Ferguson's sister confirmed that "he was the guy" who had made the sexually-suggestive remarks, Ferguson became even more enraged and furious, and he demanded that Adams leave the neighborhood and never disrespect his family again.

{¶ 6} Adams "did not take kindly" to Ferguson's demands. Rather, Adams pulled off his shirt and challenged Ferguson, a "much younger and smaller" individual, to a fight; Adams called Ferguson a "punk" and spewed a stream of profanity and epithets. Ferguson and Adams, "in mutual combat, squared off in the street." Ultimately, Ferguson struck Adams several times in the face, dropping Adams to his buttocks on the grass next to the street. Adams was down only momentarily and regained his feet. Then, after the two combatants "exchanged further epithets and other unpleasantries," Adams did not re-engage Ferguson, but instead turned and walked away from Ferguson, ending the mutual combat. (The trial court expressly rejected, as not credible, testimony that Adams did not walk away and disengage.)

{¶ 7} As Adams walked away, a still-enraged Ferguson came up behind Adams, striking Adams with a right-handed haymaker which landed against Adams's right temple area. Adams was immediately rendered unconscious, and Ferguson then grabbed Adams around the waist and flipped him backward, driving him head first into the pavement. With Adams "unconscious and defenseless on the pavement," Ferguson struck Adams in the face and head several more times. Farrell, who had not been involved in the altercation up to this point, kicked Adams's head as Adams lay unconscious on the ground.

{¶ 8} At approximately 4:30 a.m., the police were dispatched to the scene on a "medical assistance" call. Officer Harry Dilley found Adams unconscious on the sidewalk, and he initially did not know if Adams's condition was the result of an assault or a seizure. Adams was transported to Miami Valley Hospital, where he had surgery to remove pressure on his brain. Adams remained in a coma and had respiratory failure, both due to damage to his brain stem. The right side of Adams's skull, Adams's nose, and the left side of Adams's jaw and eye socket were also broken, and he had various scrapes and bruises. Adams never regained consciousness.

{¶ 9} After his stay at Miami Valley Hospital, Adams was treated at Drake Hospital in Cincinnati, then transported to Liberty Nursing Facility. He ultimately was transferred to Hospice. Adams died on August 27, 2014 as a result of the blunt force trauma to the right side of his head. The trial court rejected, as "utterly incredible," Ferguson's argument that Farrell's kick to Adams's head as Adams lay unconscious was, alone, the fatal blow.

{¶ 10} Dayton Police Detective Rod Roberts, a member of the homicide squad, began an investigation into the assault on Adams at approximately 7:30 p.m. on June 8, the day of the assault. Within a couple days, Roberts identified Farrell and Ferguson as suspects. On the morning of June 10, 2014, Roberts asked Officer Mitch Olmsted, who had worked for approximately 20 years in the neighborhood where the assault occurred, to locate Ferguson and Farrell. Olmsted did so, and he (Olmsted) and Officer Edmond Trick brought Ferguson and Farrell to the police department for interviews.

{¶ 11} During Ferguson's interview (at approximately 9:30 a.m.), Ferguson initially stated that Farrell was the primary aggressor and that Farrell had assaulted Adams due to statements Adams had made about Farrell's mother. Detective Roberts stopped the interview with Ferguson and went back to Ferguson's neighborhood to interview people about the events. Roberts concluded that Ferguson's statements were inaccurate.

{¶ 12} Detective Roberts returned to the police department and interviewed Farrell. The interview led Roberts to believe that Ferguson was the primary suspect. Roberts re-interviewed Ferguson at approximately 3:00 p.m., at which time Ferguson admitted to hitting Adams, picking Adams up and "dunking" him while Adams was unconscious, and hitting Adams a few more times after Adams hit the ground. Ferguson wrote a written statement and gave written responses to Roberts's written follow-up questions. Roberts took photographs of injuries to Ferguson's hands (cuts, scrapes, and swollenfingers and knuckles) and left elbow (a scrape that Ferguson said occurred when he slammed Adams to the sidewalk). Ferguson was placed under arrest.

{¶ 13} The following day (June 11), Ferguson was charged by complaint with felonious assault in juvenile court. On June 27, 2014, the State filed a motion, pursuant to R.C. 2152.10(B) and 2152.12(B), to transfer the matter to the General Division so that Ferguson could be tried as an adult. On July 30, the juvenile court held a probable cause hearing, at which time Ferguson waived his right to present testimony on probable cause. In an August 4, 2014 decision, the juvenile court concluded that Ferguson was more than 14 years old at the time of the offense, that the act alleged would be a felony if committed by an adult, that sufficient evidence exists within the statement of facts as detailed by the State to find probable cause, and that there was probable cause to believe that Ferguson committed felonious assault. The trial court ordered a mental examination of Ferguson and that the probation department prepare a social history. An amenability hearing was scheduled for September 17, 2014.

{¶ 14} On September 8, 2014, after Adams's death, the State filed an amended complaint, charging Ferguson with felonious assault and murder. Contemporaneously, the State filed another motion to transfer the matter to adult court. The amenability hearing on the felonious assault charge was continued to October 31, 2014.

{¶ 15} On October 31, 2014 the juvenile court held a probable cause hearing regarding the murder charge and an amenability hearing regarding the felonious assault charge. The juvenile court concluded that there was probable cause to believe that Ferguson had committed murder, an unclassified felony, and the court transferred that charge to adult court pursuant to R.C. 2152.10(A)(1)(a) and R.C. 2152.12(A)(1)(a), the mandatory transfer provisions. The same day, the juvenile court filed a written entry, finding probable cause and granting the State's motion to relinquish jurisdiction and transfer the murder charge to adult court under the mandatory transfer provisions.

{¶ 16} With respect to the amenability hearing for the felonious assault charge, the parties stipulated to the psychological report; no testimony was presented. Upon considering the factors listed in R.C. 2152.12(D) and (E), the juvenile court concluded that Ferguson was not amenable to care or rehabilitation within the...