The Akron Legal News

Court of appeals rules assault offenses should have merged for woman who hit two men with her Camaro

ANNIE YAMSON
Special to the Legal News
Published: September 9, 2015

A panel of three judges in the 8th District Court of Appeals recently affirmed the felonious assault convictions of a Cleveland woman who ran over two men with her car, but ruled that her trial court erred by failing to merge allied offenses of similar import for sentencing.

Cierra English appealed from the judgment of the Cuyahoga County Court of Common Pleas where she was found guilty of three counts of felonious assault for striking Mark Lavender and Raymond Fisher with her Chevy Camaro on May 18, 2013.

Case summary states that English struck the men as they were exiting a parking lot and walking to Larry Flynt’s Hustler Club, where English was an employee. She hit the men from behind, ran over Fisher’s body and dragged him under her car for a few seconds before leaving the parking lot. Fisher was seriously injured as a result and the incident was captured on a surveillance camera.

At trial, it was established that English and Fisher had a romantic relationship that ended on or about May 6, 2013. English testified that she believed that Fisher had been stalking her in the days leading up to May 18.

On May 16, all four of the tires on English’s car were slashed and, on the night of the incident, while English was working, a tire on her vehicle was slashed while it was parked across the street from the club.

An employee of the club replaced the slashed tire with a spare and English left the club around 3 a.m. She told the jury that that’s when she saw Lavender and Fisher and panicked because the men “appeared out of nowhere in front of my vehicle.”

English claimed that she did not intend to hit Fisher but instead wanted to speed past him and get away from him.

After striking the men and leaving the scene, English did not stop or call for help. Although she initially testified that she did not know that she had struck the men, she later admitted that she knew of the contact because she had her mother call police and local hospitals to check on Fisher’s condition.

After hearing the evidence, the jury returned a guilty verdict on all three counts of felonious assault. The trial court sentenced English to five years in prison on the first two counts, to be served concurrently, and two years on the third count, to be served consecutively for a total of seven years in prison.

On direct appeal to the 8th District court, English first claimed that she was denied effective assistance of counsel when her attorney failed to turn over certain text messages in response to the state’s demand for discovery, resulting in those test messages being excluded at trial.

English also argued that her counsel failed to subpoena a witness who saw Fisher in the parking lot on the night of the incident, a police officer who took the statements of witnesses and a private investigator hired by English’s family.

“We are unable to consider the merits of English’s assignment of error because her arguments rely upon evidence outside the record,” Presiding Judge Eileen A. Gallagher wrote on behalf of the court of appeals.

The appellate panel recommended that English seek relief through a postconviction action, rather than a direct appeal, for matters that are not contained in the record.

It did, however, find merit to English’s second assignment of error in which she claimed that the trial court erred in failing to merge the first two counts of felonious assault.

“Count one charged English with causing Fisher serious physical harm and count two charged her with causing Fisher physical harm by means of a deadly weapon, to wit: a motor vehicle,” Gallagher wrote.

Reviewing for plain error, the appellate panel considered the state’s argument that English’s actions demonstrated separate animuses because they consisted of “sub-acts occurring closely in time.”

According to the state, the first act occurred when English struck Fisher and the second act occurred when English proceeded to drive over his body. The state claimed that even if English panicked when she first struck Fisher, she should have been aware of his body beneath her car as she continued to drive.

“We do not find the state’s argument persuasive in this instance,” Gallagher wrote. “The state offers no argument that the two offenses resulted in separate and identifiable harm and instead asserts that English possessed a separate animus for the two convictions.”

The surveillance video admitted at trial showed that the entire incident took place in six seconds, from when English first hit Fisher to when he was freed from the car.

“It is difficult to find that a separate animus occurred in the mind of English in the less than one second between her striking Fisher and when his body fell beneath the vehicle,” Gallagher wrote. “This is an instance where the first offense was merely incidental to the second offense.”

The court of appeals ruled that English successfully demonstrated plain error on the part of the trial court and it remanded the case for the lower court to merge the first two convictions.

The appellate panel proceeded to find little merit to English’s final argument that the trial court erred when it imposed consecutive sentences and it overruled that assignment of error before affirming the judgment of the Cuyahoga County court in part.

Judges Mary Eileen Kilbane and Mary Boyle joined Gallagher to form the majority.

The case is cited State v. English, 2015-Ohio-3227.

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