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Court rejects appeal for man who stabbed woman during Dairy Queen robbery
JESSICA SHAMBAUGH
Special to the Legal News
Published: November 26, 2013
The 5th District Court of Appeals recently rejected a man’s claim that his multiple convictions should merge for sentencing after he beat and stabbed a Dairy Queen worker during a robbery.
Charles McCoy appealed from the Licking County Court of Common Pleas’ 2005 sentencing decision and argued that counts of kidnapping and aggravated robbery should merge and that counts of attempted murder and felonious assault should merge as allied offenses.
The three-judge appellate panel found that he had already raised that argument on direct appeal.
McCoy’s case stemmed from his 2004 indictment following the robbery of a Dairy Queen in Heath, Ohio.
At a bench trial, Teresa Miller testified that she had known McCoy for about 15 years and they had previously worked together.
In 2004, Miller was working as a manager at Dairy Queen with Heather Bonifant, another employee, and the two were cleaning after closing the store.
At one point, Bonifant took the trash outside, where she encountered McCoy.
Bonifant testified that McCoy grabbed her by the neck and pressed a knife with a light colored handle to her stomach.
He told her he needed to speak to Miller and followed her back into the Dairy Queen.
The women told the court that McCoy forced them into a back room and made them turn off the lights and get on the floor.
He then made them crawl to the store’s safe and hit both women, striking and kicking Miller repeatedly while yelling at her.
According to the testimony given at his trial, McCoy ordered Miller to open the safe and he put the money into two bags.
Bonifant said after they gave him the money he commented that they would not be “getting out of this alive.”
After telling the women that they were going to “go for a ride,” McCoy forced them out the back door and told them not to “try anything stupid,” case summary states.
While the group was in the parking lot, Miller shouted “run” and she and Bonifant tried to get away.
McCoy stabbed Miller in the back and then again multiple times while she was on the ground.
Bonifant was able to get away to call the police and McCoy was arrested at his home shortly after the incident.
Miller was taken to the hospital and treated for several stab wounds.
A doctor testified that Miller would have scarring from the wounds and that two of them could have been fatal.
The trial court found McCoy guilty of aggravated robbery, attempted murder, felonious assault and kidnapping.
It sentenced him to an aggregate term of 30 years in prison and both his sentence and convictions were upheld on direct appeal.
On March 4, 2013, McCoy filed a motion requesting corrective sentencing. The common pleas court denied that motion and he appealed to the Fifth District.
“Appellant claims the trial court erred in denying his motion requesting corrective sentencing in accordance with R.C. 2941.25 as his sentence on ‘allied offenses’ was invalid and contrary to law,” Judge Sheila Farmer wrote for the court.
McCoy argued that attempted murder and felonious assault are allied offenses and should have been merged.
He gave a similar argument for his convictions for kidnapping and aggravated robbery.
Upon review, the judges found that McCoy had already raised these arguments on direct appeal and that they had rejected them at that time.
They previously ruled that felonious assault was not a lesser included offense of attempted murder and held that the ruling still applied.
They also stated in their former ruling that aggravated robbery and kidnapping are “distinguishable because the elements do not correspond to such a degree that the commission of one will result in the commission of the other.”
“We find the arguments herein to be res judicata,” Judge Farmer stated.
McCoy argued that the Ohio Supreme Court recently reviewed a two-step analysis for allied offenses but the judges rejected that line of defense as well.
“We note appellant is not entitled to the benefit of any new case law after the disposition of his direct appeal,” Judge Farmer wrote.
Finding that McCoy’s claims were barred by res judicata, the judges affirmed the common pleas court’s ruling.
Presiding Judge William Hoffman and Judge John Wise concurred.
The case is cited State v. McCoy, 2013-Ohio-5007.
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