The Akron Legal News

Appeals court rules robbery, kidnapping not allied offenses

ANNIE YAMSON
Special to the Legal News
Published: May 23, 2013

The 11th District Court of Appeals found no error in a Lake County Court of Common Pleas decision sentencing defendant Joel Martin to a prison term of 12 years for aggravated robbery and kidnapping.

Martin’s conviction stemmed from an incident that took place on the evening of Sept. 24, 2011 when Omar Suleiman was closing his store, Raw Styles.

According to case summary, shortly before 10:30 p.m. a former client known by the nickname “Speedy” entered the store and asked Suleiman to find a pair of shoes for him.

Speedy followed Suleiman into the back room with a knife then told Suleiman it was a “shakedown” and the two began to fight.

A second man wearing a face mask then ran into the room, held Suleiman down and tried to duct tape his hands.

Suleiman then heard a third person call out to leave and Speedy and the masked man ran out of the store.

Suleiman unsuccessfully attempted to chase the men in his car and later returned to his store to find over $4,000 in cash missing.

Ultimately, the three men arrested for the robbery were Speedy, Martin and Martin’s nephew, Terrence Edwards, who was identified as the masked man.

Martin was indicted on one count of aggravated robbery, kidnapping, abduction, theft and two counts of robbery.

During the jury trial, Speedy testified for the state and identified Martin as the mastermind of the plot.

Martin’s plan was to have Speedy and Edwards distract Suleiman in the back room while he stole money out of the register.

Martin denied ever entering Raw Styles at the time of the robbery.

He testified that he ran into Speedy and Edwards outside of the store that evening and the two asked him to help distract Suleiman while they robbed him.

He stated that he felt “too guilty” about the idea to join.

The jury subsequently found Martin guilty on all counts.

The trial court merged the robbery and theft charges into the charge for aggravated robbery and sentenced Martin to 10 years in prison for that count.

The counts of abduction and kidnapping were also merged and Martin was sentenced to a two-year prison term to be served subsequent to the first.

Martin appealed and argued the trial court erred by failing to merge the charges of aggravated robbery and kidnapping as allied offenses of similar import in violation of his rights against Double Jeopardy.

“Essentially, Mr. Martin argues that any kidnapping of Mr. Suleiman — i.e. tricking him into the back room at his store — was merely incidental to the aggravated robbery,” Judge Colleen O’Toole wrote on behalf of the three-judge appellate panel.

Ohio Revised Code states that “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.”

Similarly, conduct that results in two or more offenses of the same kind committed separately or with a separate animus, allows the court to convict the defendant of all counts.

“In our case, the issue is whether aggravated robbery and kidnapping are allied offenses of similar import subject to merger for purposes of sentencing,” wrote O’Toole.

The appellate panel held that the aggravated robbery was complete when Speedy held Suleiman at knife point and Martin entered the store to empty the cash registers.

While Martin was stealing the money, Edwards pushed Suleiman further into the back room and duct taped his hands.

“The prolonged restraint involved subjected him to an increase in the risk of harm that was separate and apart from the aggravated robbery,” wrote O’Toole.

The court of appeals concluded that a separate animus existed for the crime of kidnapping.

It found that kidnapping could not merge with another offense “when the movement of the victim was achieved through deceit or trickery.”

Speedy had tricked Suleiman into the back room by asking that he go get a pair of shoes.

Therefore, the court found the trial court properly sentenced Martin separately for each offense.

Martin also argued that his conviction was against the manifest weight of the evidence because Speedy’s testimony conflicted with the original statements he made to the police.

“A challenge to the manifest weight of the evidence involves factual issues,” O’Toole explained. “The weight of the evidence addresses the evidence’s effect of inducing belief.”

In other words, O’Toole claimed that a reviewing court must determine whether the state’s or the defendant’s evidence is more persuasive.

The appellate panel found that the trial jury did not lose its way. It was made fully aware that Speedy’s original statements to the police differed with his trial testimony, as did Martin’s.

The main point of contention was differing testimony from two female Dunkin Donut employees who were next door to Raw Styles when the robbery happened.

They provided conflicting testimony as to the order in which the suspects left the store after the robbery.

However, all witnesses agreed that Martin was in the store at some point during the crime.

“These conflicts in the testimony all fall within the province of the jury: That the jury found Speedy and the Dunkin Donut employees more credible than Martin was its right,” wrote O’Toole.

The court of appeals found that neither of Martin’s assignments of error had merit and it upheld the conviction and sentence of the trial court.

Judges Cynthia Rice and Thomas Wright concurred.

The case is cited State v. Martin, 2013-Ohio-1944.

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