[Cite as State v. Crowley,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Appellee : C.A. No. 2022-CA-59 : v. : Trial Court Case No. 22-CR-0329 : MICHAEL JEROME CROWLEY, II : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on May 26, 2023

...........

ANDREW PARKER PICKERING, Attorney for Appellee

J. DAVID TURNER, Attorney for Appellant

.............

HUFFMAN, J.

Michael Jerome Crowley, II, appeals from his conviction on one count of

kidnapping and one count of assault on a peace officer. Crowley’s counsel filed a brief

pursuant to Anders v. California,

,

,

(1967),

indicating that he could not find any potentially meritorious appellate issues and -2-

requesting to withdraw as counsel. This Court advised Crowley that counsel filed an

Anders brief and invited him to file a pro se brief within 60 days. Crowley did not file a

brief. After independently reviewing the record, we conclude that there are no issues

with arguable merit to present on appeal. The judgment of the trial court is affirmed.

Procedural History

{¶ 1} Crowley was indicted on April 12, 2022, on one count of rape, one count of

kidnapping, and one count of aggravated burglary, all of which were felonies of the first

degree, as well as one count of assault with a peace officer specification, a felony of the

fourth degree. Crowley pled not guilty on April 14, 2022.

{¶ 2} On June 2, 2022, Crowley filed a motion to sever counts one and two (rape

and kidnapping) from counts three and four (aggravated burglary and assault) because

the allegations occurred at different places and involved different victims. On June 8,

2022, the State opposed the motion, arguing that, at separate trials, it could introduce

evidence of the joined offenses as other acts evidence pursuant to Evid.R. 404(B) and

that the evidence of each crime was simple and direct.

{¶ 3} Crowley filed a motion in limine on June 24, 2022, seeking to exclude

evidence that he was on probation at the time of the offense and had a felony record, as

reflected in Crowley’s recorded interview with his probation officer. Crowley also sought

to exclude a portion of a cruiser camera audio-recording involving a 911 call during which

dispatch indicated that Crowley was on probation and a registered sex offender. The

court held a hearing on Crowley’s motions to sever and in limine. It orally denied the

motion to sever counts one and two from counts three and four. The State agreed to -3-

redact the portion of the cruiser camera audio-recording at issue and represented that it

would only seek to use Crowley’s probation interview if Crowley testified.

{¶ 4} The jury trial commenced on July 7, 2022. On July 8, 2022, the jury found

Crowley guilty of kidnapping and assault on a peace officer and not guilty of rape and

aggravated burglary. On August 4, 2022, when the matter was scheduled for disposition,

the court notified Crowley that, due to the kidnapping conviction, there was a presumption

that he be required to register as a violent offender on the Ohio violent offender database.

The court thoroughly advised Crowley of his registration and notification requirements

should he be placed on the database and further advised that the burden of proof to

overcome the presumption was Crowley’s. At the request of defense counsel, the matter

was continued. On August 5, 2022, Crowley filed a motion objecting to the court’s

placing him on the violent offender database. On August 19, 2022, the court held a

violent offender hearing. Defense counsel represented to the court that, given that there

were no other alleged perpetrators of the offenses, there was no evidence to submit to

rebut that Crowley was the principal offender. Defense counsel advised the court that

Crowley was unable to rebut the presumption that he be placed on the Ohio violent

offender database. The court overruled Crowley’s motion.

{¶ 5} Crowley was sentenced to a minimum of six years and a maximum of nine

years for kidnapping and to 15 months for assault on a peace officer, to be served

consecutively, for a maximum term of ten years and three months.

Anders Standard

{¶ 6} The following is well-settled: -4-

Upon the filing of an Anders brief, an appellate court has a duty to

determine, “after a full examination of the proceedings,” whether the appeal

is, in fact, “wholly frivolous.” [Anders] at 744; Penson v. Ohio,

,

,

(1988). An issue is not frivolous based

upon a conclusion that the State has a strong responsive argument. State

v. Pullen, 2d Dist. Montgomery No. 19232,

, ¶ 4. A

frivolous issue, instead, is one about which, “on the facts and law involved,

no responsible contention can be made that offers a basis for reversal.”

State v. Marbury, 2d Dist. Montgomery No. 19226,

, ¶ 8. If

we find that any issue is not wholly frivolous, we must reject the Anders brief

and appoint new counsel to represent the appellant.

State v. Moody, 2d Dist. Montgomery No. 28389,

.

Anders Analysis

{¶ 7} Appellate counsel identifies three potential issues for purposes of appeal.

The State did not file a responsive brief. The first potential issue is that there “is no

evidence in the record that suggests that appellant was informed by either the court or

his counsel that he had a right to testify in his defense at trial.”

{¶ 8} “The right to testify is an inherently personal right and is exercised or waived

by the client, not the attorney.” State v. Copeland, 2d Dist. Montgomery No. 18711,

, *2. During the State’s case, outside of the presence of the jury,

defense counsel advised the court that he did not believe that Crowley intended to testify.

After the State rested, in response to a question by the court outside of the jury’s presence -5-

and while Crowley was present, defense counsel represented that he had spoken to

Crowley about exercising his right to testify, and then counsel indicated that the defense

rested. There is no suggestion that Crowley was unaware of his right to testify or that he

was denied an opportunity to do so.

{¶ 9} “The Ohio Supreme Court has rejected the claim that a trial court must inform

a defendant of his right to testify at trial.” State v. Sapp, 2d Dist. Clark No. 1999-CA-84,

, ¶ 149, quoting State v. Bey,

,

(1999). “Furthermore, a trial court is not required to inquire whether the defendant’s

waiver of that right was done knowingly and intelligently.”

“Such an inquiry has been

deemed unnecessary, capable of causing confusion and delay, and may also be harmful

by interfering with the attorney-client relationship.” State v. Brown, 11th Dist. Ashtabula

No. 2016-A-0021,

, citing

. We agree with appellate

counsel that this first proposed assigned error is wholly frivolous.

{¶ 10} The second potential issue raised by appellate counsel is that Crowley was

“denied effective assistance of counsel as counsel for appellant failed to move for a

dismissal pursuant to Criminal Rule 29.”

{¶ 11} As this Court has noted:

In order to succeed on an ineffective assistance claim, a defendant

must establish: (1) his trial counsel's performance was deficient; and (2) the

deficient performance prejudiced him. Strickland v. Washington,

,

,

(1984), paragraph two of the syllabus;

State v. Bradley,

,

(1989), paragraph two -6-

of the syllabus. To establish deficient performance, a defendant must

show that his trial counsel's performance fell below an objective standard of

reasonable representation.

;

. To establish

prejudice, a defendant must show that there is “a reasonable probability

that, but for counsel's errors, the proceeding's result would have been

different.” State v. Hale,

,

,

, citing Strickland at 687-688 and Bradley at paragraph two of the

syllabus. The failure to make a showing of either deficient performance or

prejudice defeats a claim of ineffective assistance of counsel.

.

State v. Whaley, 2d Dist. Clark No. 2020-CA-15,

.

{¶ 12} Regarding a judgment of acquittal, this Court has further stated:

Crim.R. 29 pertinently states that a court should enter a judgment of

acquittal for an offense “if the evidence is insufficient to sustain a conviction

of such offense.” “Because, when faced with a Crim.R. 29 motion for

acquittal, a trial court must view the evidence in a light most favorable to the

state, ‘[f]ailure to move for an acquittal under Crim.R. 29 is not ineffective

assistance of counsel where the evidence in the State's case demonstrates

that reasonable minds can reach different conclusions as to whether the

elements of the charged offense[s] have been proved beyond a reasonable

doubt, and that such a motion would have been fruitless.’ ” State v. Winn,

,

,

(2d Dist.), -7-

quoting State v. Poindexter, 2d Dist. Montgomery No. 21036, 2007-Ohio-

3461, ¶ 29. * * *

State v. Hudson, 2d Dist. Greene No. 2019-CA-21,

.

{¶ 13} The following facts were adduced at trial. Regarding the kidnapping

offense, on April 1, 2022, the victim was at her apartment on East John Street in

Springfield with her 11-year-old son, while her friend Megan Salyers and Salyer’s

boyfriend, Crowley, were visiting, having arrived around 3:30 p.m. The adults left to pick

up sandwiches in a black Chevy Tahoe, returned to the victim’s home, and Crowley and

Salyers were drinking alcohol. Salyers and Crowley left the apartment two hours later,

and the victim fell asleep on the sofa. Around 7:00 or 7:30 p.m., Crowley loudly knocked

on the victim’s door and entered her home when she opened it. The victim testified that,

while her son was present, Crowley sat her down on the couch, pulled out his penis, and

began hitting her in the face with it. She testified that he put his hand down her pants,

penetrating her with his fingers, and that he sat on her while she told him no repeatedly

and could not get away. According to the victim, Crowley hit her on both sides of her

face with his hand and picked her up by her legs. She eventually got away, fled the

apartment, and called 911. She observed the Chevy Tahoe leaving the scene before

returning home, at which time she discovered that the screen of her television had been

smashed.

{¶ 14} Regarding the assault on a peace officer, also on the evening of April 1,

2022, Sarah Maynard and Danny Ervin, who resided on Selma Road in Springfield, drove

home after a brief absence and observed a black Chevy Tahoe parked in an unusual way -8-

close to their home. They observed a man, later identified as Crowley, staggering toward

their front porch from the direction of the Tahoe. Crowley had a bleeding wound on his

right hand on top of his middle knuckle. From her vehicle, Maynard told Crowley that he

could not enter her home, and he responded, “I don’t give a f***. I’m going in and killing

everyone.” Maynard called 911. She parked her vehicle in an alley, and when she

returned to the front of her home, she realized that Crowley was inside.

{¶ 15} Officers Allison Craig and Colin Matt responded immediately, and through

a window they observed Crowley in the home. They ordered him to come out with his

hands up and, after he did so, they ordered him to get down on the front porch. When

Crowley complied, he was handcuffed. Officers Rippley and Walter subsequently

arrived, and as all the officers tried to get Crowley to his feet to place him in a cruiser, he

resisted. Once up, a screaming Crowley kicked his leg backwards, striking Off. Matt’s

calf and causing Matt to partially fall off the porch; his left knee struck the porch, resulting

in abrasions and swelling. A video of the encounter from Craig and Matt’s cruiser camera

was played for the jury.

{¶ 16} Droplets of blood were found inside Maynard and Ervin’s home upon their

return, and blood was found inside the Tahoe. The officers learned that the plates on

the Chevy Tahoe came back to Salyers. They also learned that a sexual assault had

been reported the same evening, and the victim had identified Crowley as the perpetrator.

The East John Street address was a five- to six-minute drive from the Selma Road

address. Officers Rippley and Walter were subsequently dispatched from Selma Road

to East John Street on the reported sexual assault, where they interviewed the victim and -9-

took photographs.

{¶ 17} R.C. 2905.01(A)(4) defines kidnapping and states: “No person, by force,

threat or deception, * * * shall * * * restrain the liberty of the other person, for any of the

following purposes: * * * (4) To engage in sexual activity * * * with the victim against the

victim’s will.” R.C. 2903.13(A) defines assault and states: “No person shall knowingly

cause or attempt to cause physical harm to another * * *.” Based on the evidence

adduced at trial, we are convinced that reasonable minds could find that the State had

proved all the elements of kidnapping and assault on a peace officer beyond a reasonable

doubt. Accordingly, any suggestion that failure to move for acquittal on these counts

showed ineffective assistance of counsel is wholly frivolous.

{¶ 18} The third potential assignment of error is that the “trial court erred in denying

appellant’s motion to sever counts pursuant to Crim.R. 14.”

{¶ 19} Crim.R. 8(A) governs the joinder of offenses and provides:

Two or more offenses may be charged in the same indictment,

information or complaint in a separate count for each offense if the offenses

charged, whether felonies or misdemeanors or both, are of the same or

similar character, or are based on the same act or transaction, or are based

on two or more acts or transactions connected together or constituting parts

of a common scheme or plan, or are part of a course of criminal conduct.

{¶ 20} “The law favors joinder to prevent successive trials, to minimize the

possibility of incongruous results in successive trials before different juries, to conserve

judicial resources, and to diminish the inconvenience to witnesses.” State v. Broadnax, -10-

2d Dist. Montgomery No. 21844,

, ¶ 33. “Even if offenses are properly

joined pursuant to Crim.R. 8(A), a defendant may move to sever the charges pursuant to

Crim.R. 14. Id. at ¶ 37. Crim.R. 14 requires the trial court to order separate trials “[i]f it

appears that a defendant * * * is prejudiced by a joinder of offenses[.]” “If the trial court

refuses to sever offenses, the ‘defendant must demonstrate that the court abused its

discretion in refusing to separate the charges for trial.’ ” State v. McComb, 2017-Ohio-

4010,

(2d Dist.), citing Broadnax at ¶ 37, citing State v. Lott,

,

(1990).

{¶ 21} The record reflects that Crowley failed to renew his claim of prejudicial

joinder. Even if we were to conclude that the failure to renew the motion arguably

constituted deficient performance, we further cannot conclude, on this record, that there

is a nonfrivolous argument that the failure to renew the motion prejudiced Crowley.

Evid.R. 404(B) provides that evidence of other crimes, wrongs or acts may be admissible

to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.” Other acts “are inextricably intertwined with a charged

crime when they are so blended or connected with the charged crime that proof of one

incidentally involves the other, explains the circumstances thereof, or tends logically to

prove any element of the crime charged.” State v. Sinclair, 2d Dist. Greene No. 2002-

CA-33,

, ¶ 35, citing State v. Wilkinson,

,

. In other words, “other acts” evidence “is inextricably intertwined with

charged conduct when testimony about the other acts is ‘necessary to give the complete

picture of what occurred.’ ”

citing

. “If in separate trials the state -11-

could introduce evidence of the joined offenses as ‘other acts’ under Evid.R. 404(B), a

defendant cannot claim prejudice from the joinder.” State v. LaMar,

,

, 767N.E.2d 166, ¶ 50. “The state may also negate a claim of prejudice

by satisfying the less stringent ‘joinder test,’ which requires a showing ‘that evidence of

each crime is simple and direct.’ ” (Citations omitted).

{¶ 22} According to the testimony, the offenses herein occurred close in time and

place and in a continuing or ongoing course of conduct. Two officers who responded to

the burglary on Selma Road then proceeded to talk with the victim of the kidnapping on

East John Street. The black Chevy Tahoe was present at both offenses, and the plates

came back to Salyers, who had been at the kidnapping victim’s home with Crowley prior

to the kidnapping. A television at the East John Street residence where the kidnapping

occurred had been damaged after the victim left, and Crowley was bleeding when he was

observed at the scene of the burglary; there was also blood in the Tahoe and in multiple

locations inside the home of Maynard and Ervin. Based on this evidence, the trial court

reasonably denied the motion to sever. Because severance was not required, we

conclude that it would be wholly frivolous to argue that the trial court abused its discretion

in overruling the severance motion.

Conclusion

{¶ 23} In addition to reviewing appellate counsel’s potential assignments of error,

and consistent with our duty under Anders, we have independently reviewed the entire

record to determine if there are any non-frivolous appellate issues. This review includes

pretrial motions and hearings, the trial transcript, exhibits, the violent offender hearing, -12-

the PSI, and disposition. After doing so, we have found no issues with arguable merit

for Crowley to advance on appeal. Therefore, we affirm the judgment of the trial court

and grant appellate counsel’s motion to withdraw.

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TUCKER, J. and LEWIS, J., concur.