State v. Hamilton ( 2014 )

[Cite as State v. Hamilton, 2014-Ohio-5562.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 14AP-291
v. : (C.P.C. No. 13CR-2940)
De'Angelo R. Hamilton, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 18, 2014
Ron O'Brien, Prosecuting Attorney, and Michael P. Walton,
for appellee.
Barnhart Law Office LLC, and Robert B. Barnhart, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
SADLER, P.J.
{¶ 1} Defendant-appellant, De'Angelo R. Hamilton, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas pursuant
to jury verdicts finding him guilty of one count of aggravated robbery, one count of
robbery, and one count of kidnapping.
{¶ 2} All charges against appellant arose out of the robbery committed by two
men against Bradley Nguyen in Franklin County, Ohio on the night of May 15 and early
morning hours of May 16, 2013. The Franklin County Grand Jury indicted appellant on
one count of aggravated robbery, two counts of robbery, one count of kidnapping, and one
count of having a weapon under disability. All counts carried a firearm specification and
No. 14AP-291 2
the first three carried a repeat violent offender specification. Before trial, the state
dismissed one of the robbery counts as duplicative, and appellant waived jury trial on the
weapon under disability charge. The jury convicted appellant of the three principal
counts but acquitted him of the associated firearm specifications. The court then
acquitted appellant of the weapon under disability charge and repeat violent offender
specifications. The court merged the three offenses for sentencing as allied offenses
committed with a common animus. The state elected sentencing on the aggravated
robbery conviction, for which the court imposed a term of nine years.
I. ASSIGNMENTS OF ERROR
{¶ 3} Appellant has timely appealed and brings the following two assignments of
error for our review:
[I.] APPELLANT'S CONVICTIONS WERE AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
[II.] THE TRIAL COURT COMMITTED PLAIN ERROR
WHEN IT ENTERED A CONVICTION FOR BOTH
AGGRAVATED ROBBERY AND ROBBERY EVEN THOUGH
IT MERGED THEM FOR THE PURPOSES OF
SENTENCING.
A. First Assignment of Error
{¶ 4} Appellant's first assignment of error asserts that his convictions are against
the manifest weight of the evidence. When presented with a manifest-weight challenge,
an appellate court may not merely substitute its view for that of the trier of fact, but must
review the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses, and determine whether in resolving conflicts in the evidence, the
trier of fact clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St. 3d
380, 387 (1997), citing State v. Martin, 20 Ohio App. 3d 172, 175 (1st Dist.1983). "Weight
of the evidence concerns 'the inclination of the greater amount of credible evidence,
offered in a trial, to support one side of the issue rather than the other. It indicates clearly
to the jury that the party having the burden of proof will be entitled to their verdict, if, on
weighing the evidence in their minds, they shall find the greater amount of credible
evidence sustains the issue which is to be established before them. Weight is not a
No. 14AP-291 3
question of mathematics, but depends on its effect in inducing belief.' " (Emphasis
omitted.) Id., quoting Black's Law Dictionary 1594 (6th Ed.1990).
{¶ 5} As the finder of fact, the jury is in the best position to weigh the credibility of
testimony by assessing the demeanor of the witness and the manner in which he testifies,
his connection or relationship with the parties, and his interest, if any, in the outcome.
The jury can accept all, a part or none of the testimony offered by a witness, whether it is
expert opinion or eyewitness fact, whether it is merely evidential or tends to prove the
ultimate fact. State v. McGowan, 10th Dist. No. 08AP-55, 2008-Ohio-5894, citing State
v. Antill, 176 Ohio St. 61, 67 (1964).
{¶ 6} When a court of appeals addresses a judgment of a trial court on the basis
that the verdict is against the manifest weight of the evidence, the appellate court sits as a
"thirteenth juror" and disagrees with the factfinder's resolution of the conflicting
testimony. Thompkins at 387. A defendant is not entitled to a reversal on manifest-
weight grounds merely because inconsistent evidence was offered at trial. State v.
Campbell, 10th Dist. No. 07AP-1001, 2008-Ohio-4831. " '[W]hile the [factfinder] may
take note of the inconsistencies and resolve or discount them accordingly, * * * such
inconsistencies do not render defendant's conviction against the manifest weight or
sufficiency of the evidence.' " State v. Samatar, 152 Ohio App. 3d 311, 2003-Ohio-1639,
¶ 113 (10th Dist.), quoting State v. Craig, 10th Dist. No. 99AP-739 (Mar. 23, 2000).
{¶ 7} An appellate court should reverse a conviction as against the manifest
weight of the evidence in only the most "exceptional cases in which the evidence weighs
heavily against the conviction," instances in which the jury "clearly lost its way and
created such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered." Martin at 175.
{¶ 8} In order to sustain a conviction for aggravated robbery, in violation of R.C.
2911.01, as charged in the present case, the state was held to show that appellant, in
attempting or committing a theft offense or in fleeing immediately after the attempt or
offense, had a deadly weapon on his person or under his control and did possess or
display or brandish the weapon. In order to prove the offense of robbery, as defined in
R.C. 2911.02 and the indictment in the present case, the state was held to show that
appellant, while attempting or committing a theft offense or in fleeing immediately after
No. 14AP-291 4
the attempt or offense, had a deadly weapon on or about his person or under his control
and did recklessly inflict or attempt to inflict or threaten to inflict physical harm on the
victim. Alternatively, under the same robbery count of the indictment, the state could
show that appellant, in attempting or committing a theft offense or in fleeing immediately
after the theft or offense, did recklessly use or threaten the immediate use of force against
another. To support the charge of kidnapping, as defined under R.C. 2905.01, the state
was held to show that appellant, by force, threat or deception, removed the victim from
the place where the victim was found or restrained the victim of his liberty with the
purpose to facilitate the commission of a felony.
{¶ 9} The state established its case against appellant primarily through the
testimony of the victim, Bradley Nguyen. Nguyen testified that, at the time of the robbery,
he had been essentially homeless for perhaps 18 months, staying with friends and
relatives or living outdoors. His unstable circumstances were largely the result of his
illegal drug use, which had evolved to heroin use in the year preceding the robbery.
Despite these circumstances, he was employed through most of this period and had a
steady girlfriend.
{¶ 10} In early 2013, Nguyen moved in with a friend and his family, making a
diligent effort to remain sober. He obtained a new job and began saving money to get an
apartment where he could live with his girlfriend closer to his place of work. They secured
a sublease from friends who were vacating an apartment in the Reynoldsburg area and
began moving their possessions in. Nguyen had $650 in his pocket for rent and another
$50 in his wallet for gas and other moving expenses.
{¶ 11} During the course of Nguyen's initial testimony, the state introduced a map
and allowed him to indicate an apartment located at 5782 Channingway Court, which
Nguyen identified as the apartment he intended to move into. On the day in question,
Nguyen and his girlfriend had parked their car nearby with their possessions inside and
were moving the possessions into the apartment. Late in the evening, a man approached
Nguyen in the parking lot, and Nguyen recognized him as someone he knew from casual
observation on a previous occasion but had never had a conversation or other contact
with. Nguyen described the man as having a distinctive appearance, very tall and thin
with tattoos on the left side of his face. Nguyen first observed this individual, later
No. 14AP-291 5
identified as appellant's alleged accomplice, Alphonzo Evans, standing in the parking lot
with a group of people.
{¶ 12} Evans approached Nguyen and stated that he had marijuana available for
sale. Nguyen responded that he could not afford to buy it. Evans then offered to share
some marijuana and smoke it with Nguyen if Nguyen would give him a ride someplace.
Because Nguyen still had frozen food and other items in the car and his girlfriend was
eager to complete the move, Nguyen was reluctant to take up the offer. Evans assured
Nguyen that the ride would not take him far away and would cause little delay. Nguyen
was interested in smoking marijuana that he otherwise would be unable to afford and
eventually consented to give Evans a ride.
{¶ 13} Continuing his testimony and again referring to the proffered map, Nguyen
pointed out the route that he and Evans followed for a few minutes as they drove to a
nearby apartment complex, Century City. During the course of the drive, Evans used
Nguyen's phone to call his own phone so that they would have each other's number in
order to communicate for future marijuana transactions. Evans also used Nguyen's
phone to call another person at their supposed destination to let that person know he was
on the way with a companion.
{¶ 14} Upon their arrival at the Century City complex, Evans and Nguyen were met
by a third individual, later identified as appellant. Nguyen described this man as also in
his mid-twenties but of a much shorter, stockier build than Evans. Evans and his cohort
then stated that it was too hot outside and there were too many other persons present to
smoke marijuana in the parking lot and invited Nguyen to an upstairs apartment. When
Nguyen entered the apartment, there was a woman present who left the front room at
appellant's urging. Evans then stated that he had to use the bathroom, but returned
immediately with a gun in his hand and initiated the robbery. Nguyen described the
weapon as a large silver-plated revolver. The two men demanded that Nguyen empty his
pockets and produce his wallet. Nguyen gave them his car keys, cell phone, and wallet
containing $50.
{¶ 15} Disappointed with the contents of Nguyen's pockets, the robbers forced him
to strip and discovered a small plastic pellet gun tucked into Nguyen's waistband. The
robbers became upset and accused Nguyen of intending to rob them with the pellet gun.
No. 14AP-291 6
At this point in the robbery, appellant became the primary actor, wielded the gun, and
made the associated threats. They made Nguyen strip off all his clothes, at which time the
$650 reserved for his rent fell out of his pocket. The robbers counted the money and told
Nguyen to get dressed, allowing him to recover his wallet and associated identification.
They threw his car keys at him but refused to return his cell phone or pellet gun. As
Nguyen departed the apartment and descended the steps to his car, appellant repeatedly
said that he would shoot Nguyen if he ever returned to the area.
{¶ 16} Nguyen was able to get in his car and immediately leave the complex,
driving to a nearby Speedway gas station where he called 9-1-1. A Reynoldsburg police
officer responded to the location, and Nguyen made a statement at that location. He
accompanied Officer David Burks to the Century City apartment complex and pointed out
the building and apartment where he had been robbed. Officer Burks then took him back
to the Reynoldsburg police station. At the police station, Reynoldsburg police allowed
Nguyen to log onto his cell phone account and see if his phone was in use by the robbers.
They found that the account was not updated sufficiently to allow him to determine if this
was the case.
{¶ 17} Nguyen stayed at the Reynoldsburg police station for the night, and the next
day accompanied police as officers made a forced-entry raid on the apartment that was
the scene of the robbery. Nguyen stayed with an officer in the parking lot some distance
from the raid. Eventually the officers secured three individuals for Nguyen to identify,
two men and a woman. Nguyen excluded the two men as his assailants. The third
individual he identified as the female who was at the apartment the night before but had
not participated in the robbery.
{¶ 18} Approximately four days later, Reynoldsburg police invited Nguyen to come
to the police station and look at a photo lineup based on further information police had
developed regarding possible suspects. He was able to identify appellant with 100 percent
certainty as the stockier, shorter of his two assailants. Some time later, on or about June
10, Nguyen was shown another photo lineup and identified with 100 percent certainty
Evans' picture as the taller, thinner of the pair, the one bearing facial tattoos.
No. 14AP-291 7
{¶ 19} In his trial testimony, Nguyen further identified a picture of Evans holding a
gun as depicting the same gun used in the robbery. He then identified appellant in open
court as one of his robbers.
{¶ 20} On cross-examination, Nguyen testified that he had been arrested and
convicted for an unrelated misdemeanor theft offense after the robbery occurred. He had
failed to pay the resulting fine and court costs, leading to issuance of a warrant. He
confirmed that the warrant was still outstanding on the day of the current trial and that he
had only appeared in court after a discussion with the prosecutor over whether the
outstanding warrant would be set aside for purposes of allowing him to testify without
being taken into custody. Nguyen rejected the proposition that he was only testifying in
order to fulfill an agreement to have the warrant set aside. Nguyen also denied on cross-
examination that he had met Evans and appellant on the night in question in order to
purchase quantities of marijuana for resale. Nguyen also denied the suggestion that he
had accompanied Evans to the apartment in order to sell appellant or other persons some
pills that Nguyen was carrying in a concealed container disguised as a pop can.
{¶ 21} Officer Burks testified for the prosecution and described his participation in
the investigation following the robbery. Officer Burks testified that on the night in
question he responded to a dispatch to the Speedway gas station located at Brice Road
and Livingston Avenue. The victim had called in a robbery, and Officer Burks identified
Nguyen as the reported victim when he arrived at the gas station. Nguyen gave Officer
Burks physical descriptions of his robbers and the location of the apartment. Nguyen
described the weapon as a large silver revolver.
{¶ 22} From Nguyen's description of the apartment, Officer Burks was able to
identify it as apartment 6266 in the Century City apartment complex, differing only
slightly from the number 6366 that Nguyen recalled at the time. Based on Nguyen's
statement that the robber had used Nguyen's phone, Officer Burks attempted to assist
Nguyen at the police station in finding what numbers had been called, since it would
reveal one or both robbers' phone numbers. They were unable to ascertain these numbers
at that time.
{¶ 23} The next day, Officer Burks took Nguyen to the vicinity as the SWAT team
made a forced entry at the apartment in question. Nguyen then observed three persons
No. 14AP-291 8
secured in the raid, excluding two of them as robbers while confirming the third as the
non-participant female seen in the apartment when he first arrived with Evans.
{¶ 24} Officer Brian Marvin, also of the Reynoldsburg Division of Police, similarly
testified regarding his participation in administering a blind photo lineup to Nguyen,
during which Nguyen identified Evans as one of his robbers. Officer Marvin stated that
during this procedure, the chief investigating officer on the case, Detective Kevin
McDonnell, deliberately removed himself from the presence of Nguyen in order to avoid
influencing the choice.
{¶ 25} Detective McDonnell testified that he was the lead investigator on the case.
Upon being advised that a robbery investigation was commencing based on Nguyen's
report, Detective McDonnell went to police headquarters, spoke with Officer Burks, and
spoke with Nguyen. He executed an affidavit to obtain a search warrant. The next
morning, officers executed, pursuant to the search warrant, a forced entry at the alleged
scene of the crime. Because of the reported presence of a large handgun during the
robbery, the raid was executed by the Reynoldsburg SWAT team. Detective McDonnell
presented to Nguyen for identification the three adults secured during the raid and
observed Nguyen's response that the two men were not involved in the robbery, and the
female was present but not an active participant.
{¶ 26} Detective McDonnell identified various items taken from the apartment
during the raid, including a digital scale and a pellet pistol. Attempts to locate Nguyen's
cell phone by GPS tracking were unsuccessful. Having obtained information from the
occupants of the apartment, Detective McDonnell obtained photo identification of
appellant to eventually use in a photo lineup. Based on Nguyen's identification of the
photo lineup and subsequent information obtained by officers during the course of the
investigation, Columbus Police were able to locate and take appellant into custody.
{¶ 27} Detective McDonnell described results of his interview with appellant after
arrest. Appellant made vague statements at first regarding events on the night in
question, but eventually stated that an acquaintance known only as "J" who sold
marijuana and was approximately six feet tall, slender, with tattoos on his face, had come
over with an Asian-looking individual on the night in question. Presented with a
photograph of Nguyen, appellant identified him as the person who accompanied "J" to the
No. 14AP-291 9
apartment. Appellant's sister was present in the apartment, and appellant sent her to a
back room when they arrived. Appellant and the two other men sat at a dining room
table, and Nguyen took out a concealed container simulating a soda can, unscrewed it,
and revealed that it contained Percocet and cocaine. At this point, Nguyen produced and
began playing with a toy-like gun. This matched the description of the gun investigators
later found in the apartment in a closet. Appellant described Nguyen as extremely
intoxicated and jittery during these proceedings.
{¶ 28} Detective McDonnell's recollection of some parts of appellant's statement
was somewhat imprecise, but he believed that appellant's account of the proposed
transaction was that Nguyen would either sell or trade the drugs in the soda can in
exchange for marijuana. Appellant and "J" concluded a marijuana transaction between
themselves, but appellant did not describe any sort of transaction between Nguyen and
the two other men. At this point, according to appellant, "J" and Nguyen left together,
and appellant told his sister to lock the front door. Appellant stated that there were no
guns present other than the toy BB gun brought and left behind by Nguyen.
{¶ 29} Based on this information, Detective McDonnell proceeded to attempt to
locate the tall, tattoo-faced individual known by appellant as "J." Working from
information provided by cooperating informants and through use of electronic social
media that allowed him to identify a suspect's Instagram account, Detective McDonnell
was able to secure photographs of an individual matching the description of the tall, thin,
tattoo-faced robber. One photograph depicted this individual holding a silver .44
Magnum long-barreled revolver matching the weapon seen by Nguyen. Based on this
strong corroboration, investigators implemented a successful photo lineup of Evans and
later executed an arrest.
{¶ 30} Detective McDonnell also investigated phone records for the two suspects
and matched phone calls from Nguyen's phone to Evans' phone before the robbery as well
as calls to appellant afterwards. On cross-examination, Detective McDonnell confirmed
that based on these phone records, there was evidence of a three-second call from
Nguyen's phone to Evans' phone at 6:21 p.m. on May 15, 2013, the evening in question, at
a time when Nguyen's version of events seemed to indicate that he did not know or have
any reason to call Evans. The records reflected two later calls from Evans to Nguyen, one
No. 14AP-291 10
at 10:55 p.m. and one at 11:04 p.m., followed by three more from Evans to Nguyen at
11:45, 11:56, and 11:58 p.m. Finally, the records reflected calls at 12:05, 12:11, and 12:15
a.m. on May 16 that corresponded to Nguyen's account of calls made by Evans on
Nguyen's phone while they drove. Detective McDonnell conceded that the earlier phone
calls in the records did not corroborate Nguyen's account of when calls were placed to and
from his phone on the night in question.
{¶ 31} Detective McDonnell further stated on cross-examination that no DNA,
fingerprint or drug samples were tested for the digital scale or BB gun taken from the
apartment during the raid.
{¶ 32} The state recalled Nguyen to the stand to explain the discrepancy between
the phone records and Nguyen's initial version of events. Nguyen testified that the earlier
call at 6:21 p.m. on the night in question may have been, in fact, when he was first
approached by appellant and asked for a ride and that Nguyen actually did not offer the
ride until later in the evening, when the rest of the events transpired. Similarly, Nguyen
testified that the calls at 10:55 and 11:04 p.m. also involved him telling Evans that he was
not yet ready to drive, and the calls at 11:45, 11:56, and 11:58 p.m. involved him telling
Evans that he was almost ready. The three later calls occurred during the drive, as
described in Nguyen's earlier testimony. Nguyen stated that there were several moving
trips back and forth from Nguyen's girlfriend's current apartment to the new apartment
during this time, accounting for the delay. On re-cross, Nguyen persisted with his new
account of the timing of phone calls and the contact between him and Evans on the night
in question. Nguyen denied that the delay was due to his efforts to gather $700 in pursuit
of a drug deal with Evans and appellant.
{¶ 33} Appellant asserts that if we weigh the evidence and all reasonable inferences
and consider the credibility of witnesses, we must conclude that the jury clearly lost its
way in resolving conflicts in the evidence and finding that the evidence presented by the
state supports the elements of the charged offenses. Appellant's principal argument is
that the jury should not have given credibility to Nguyen's account of events because of
the inconsistencies in Nguyen's initial testimony about the timing of events and phone
calls in question. Appellant also stresses that Nguyen testified only after having the
warrant stemming from his theft conviction set aside. Appellant also points out that law
No. 14AP-291 11
enforcement failed to test physical evidence in the form of the digital scale found at the
apartment, which would have revealed whether it was used for a drug transaction.
{¶ 34} Viewing the evidence as a whole, we cannot say that the jury lost its way in
the present case. First, Nguyen's admitted history of drug use and his probable
willingness to minimize his involvement with drugs on or about the date of the crime is
not particularly probative. "Even if the victim were a drug addict, his status does not
suggest that he could not be the victim of a crime or that defendant could not steal from
him." State v. Blackburn, 10th Dist. No. 12AP-217, 2012-Ohio-6229, ¶ 17. Officer Burks
described Nguyen as coherent and not visibly impaired on the night he called to report the
robbery. This is in direct contradiction to appellant's description of Nguyen as intoxicated
on the night in question.
{¶ 35} Similarly, the inconsistencies regarding timing were largely resolved by
Nguyen's testimony upon recall at the close of the state's case. While the jury could well
have chosen to discount Nguyen's rehabilitative testimony under these conditions, the
jury could also choose to discount Nguyen's reluctance to expand the scope of his
interaction with Evans prior to the robbery and believe the essential elements regarding
the robbery itself.
{¶ 36} Finally, with respect to the warrant, we note that it pertained only to his
failure to pay restitution in court costs associated with a municipal court conviction that
was otherwise still in force. The temporary set aside of a warrant without any further
inducement in terms of mitigation of the underlying conviction or prosecution of an
unrelated case is not particularly probative of Nguyen's motive for testifying in the present
case.
{¶ 37} These circumstances go to weight and credibility, and the jury chose to give
credibility to Nguyen's testimony. As set forth above, the credibility of witnesses is a
matter for determination by the trier of fact. Nguyen's testimony was comprehensive if
occasionally inconsistent. The jury was free to believe some, all or none of that testimony
and manifestly chose to believe the consistent portions and conclude that the inconsistent
sections did not impact Nguyen's overall credibility. Trial counsel for appellant
thoroughly explored the inconsistencies between Nguyen's initial account and his later
testimony when recalled to the stand. Counsel also fully addressed Nguyen's drug history
No. 14AP-291 12
and potential involvement as a possible participant in a drug transaction. The jury was
also fully made aware that Nguyen had testified only after expressing his reluctance to
appear in court and possibly be detained on the outstanding warrant and having that
warrant set aside for purposes of allowing him to testify.
{¶ 38} The jury was also fully informed by testimony of investigating officers on
cross-examination that no physical evidence in the form of fingerprints, drug testing or
DNA testing was undertaken on Nguyen's phone, the scale or other items. With respect to
the lack of physical evidence, the state can persuasively point to the fact that this case was
not based on such evidence. If the state chose not to develop it further, the defense could
have pursued any testing that it thought necessary. Under the circumstances of this case,
it is difficult to discern any benefit to appellant from such testing, particularly testing a
digital scale quite likely used in drug transactions no matter what its relevance to the
current case. Any other insistence on the lack of fingerprint or DNA analysis merely calls
for extended speculation solely along lines adverse to the state's case and does not support
reversal on manifest-weight grounds. State v. Roush, 10th Dist. No. 12AP-201, 2013-
Ohio-3162, ¶ 41. See also State v. Williams, 10th Dist. No. 08AP-719, 2009-Ohio-3237,
¶ 35 (finding no evidence of prejudice resulting from trial counsel's failure to call a witness
to testify where the defendant did not submit an affidavit from the witness and the court
did not know the import of the potential testimony, thus rendering it "pure speculation to
conclude that the result of appellant's trial would have been different"); State v.
Stalnaker, 9th Dist. No. 21731, 2004-Ohio-1236, ¶ 9 (because the court had no way of
knowing what the witness would have said at trial, it could not find that the witness's
failure to appear prejudicially affected the defendant); State v. Wiley, 10th Dist. No.
03AP-340, 2004-Ohio-1008, ¶ 30.
{¶ 39} Based on our comprehensive review of the evidence heard at trial, we find
that the elements of aggravated robbery as indicted, robbery as indicted, and kidnapping
as indicted were supported by evidence which, if believed by the jury, would support
conviction on each charge. Appellant's convictions are not against the manifest weight of
the evidence heard at trial, and appellant's first assignment of error is accordingly
overruled.
No. 14AP-291 13
B. Second Assignment of Error
{¶ 40} Appellant's second assignment of error asserts that the trial court erred
when it failed to merge appellant's convictions for robbery and aggravated robbery.
Appellant points out that aggravated robbery and robbery, when committed against the
same victim and with the same animus, are allied offenses of similar import and that the
state is required to choose only one offense on which the court will enter the judgment of
conviction and sentence. State v. Harris, 122 Ohio St. 3d 373, 2009-Ohio-3323, ¶ 19.
Appellant, in so arguing, does not dispute that the trial court did merge these convictions
for purposes of sentencing and properly required the state to elect the sole count on which
sentence should be imposed. Rather, appellant asserts any "conviction"–in the sense of
an underlying finding of guilt–on the robbery charge should not be reflected in the court's
final judgment, since this crime is subsumed into the allied offense of aggravated robbery.
Appellant thus contends that the judgment in his case should reflect, at worst,
"conviction" on two felonies, aggravated robbery, and kidnapping, which would then
further merge for sentencing purposes. In this, appellant essentially asks us to adopt the
dissenting view in State v. Whitfield, 124 Ohio St. 3d 319, 327, 2010-Ohio-2, which
proposed that under Ohio's multiple count statute, R.C. 2941.25, merger should operate
to negate the finding of guilt on the subsumed offense, rather than solely for sentencing
purposes.
{¶ 41} The majority in Whitfield, however, reached a different conclusion as to the
application of R.C. 2941.25: "[F]or purposes of R.C. 2941.25, a 'conviction' consists of a
guilty verdict and the imposition of a sentence or penalty." (Emphasis sic.) Id. at ¶ 12,
citing State v. Gapen, 104 Ohio St. 3d 358, 2004-Ohio-6548, ¶ 135; State v. McGuire, 80
Ohio St. 3d 390, 399 (1997) ("a conviction consists of a verdict and a sentence"). By
defining "conviction" to require both a finding of guilt and imposition of a sentence, the
majority in Whitfield focused on the statute's objective of preventing multiple
punishments for the same underlying conduct. Id. at ¶ 18. This holding remains the
controlling law in Ohio regarding merger and sentencing on multiple counts.
{¶ 42} The record here makes clear that not only did the trial court merge the two
robbery offenses, it also merged the kidnapping offense for purposes of sentencing: "The
Defendant shall serve nine (9) years, as to Count One at the Ohio Department of
No. 14AP-291 14
Rehabilitation and Corrections. Counts Two and Three merge into Count One for
purposes of sentencing." (Emphasis omitted.) (Mar. 17, 2014 Judgment Entry, 1.) The
trial court complied with R.C. 2941.25 and Whitfield. Appellant's second assignment of
error lacks merit and is overruled.
II. CONCLUSION
{¶ 43} In accordance with the foregoing, appellant's first and second assignments
of error are overruled, and the judgment of the Franklin County Court of Common Pleas
is affirmed.
Judgment affirmed.
CONNOR and DORRIAN, JJ., concur.
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