State v. Ross

85 N.E.3d 398

2017 Ohio 675

STATE of Ohio, Appellee

v.Randall ROSS, Appellant

No. OT–16–004

Court of Appeals of Ohio, Sixth District, Ottawa County.

Decided: February 24, 2017

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

Russell V. Leffler, for appellant.

DECISION AND JUDGMENT

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 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.

{¶ 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:

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 (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 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 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...