State v. Jones , 2011 Ohio 2306 ( 2011 )

[Cite as State v. Jones, 2011-Ohio-2306.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 10 CA 50
LOWELL JONES
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case Nos. 09 CR 231 and 09 CR
359
JUDGMENT: Affirmed in Part; Reversed in Part and
Remanded
DATE OF JUDGMENT ENTRY: May 12, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH OSWALT WILLIAM T. CRAMER
PROSECUTING ATTORNEY 470 Olde Worthington Road
DANIEL HUSTON Suite 200
ASSISTANT PROSECUTOR Westerville, Ohio 43082
20 South Second Street, 4th Floor
Newark, Ohio 43055
Licking County, Case No. 10 CA 50 2
Wise, J.
{¶1} Appellant Lowell Jones appeals from his conviction for robbery, theft, and
complicity to assault in the Court of Common Pleas, Licking County. The relevant facts
leading to this appeal are as follows.
{¶2} On May 14, 2009, an employee of the Kroger grocery store in Hebron,
Ohio, noticed appellant acting suspiciously in the beverage section of the store. Lori
Cain, a store security/loss prevention officer, received a report that a man later identified
as appellant was in the process of shoplifting bottles of liquor. Appellant was confronted
by Cain inside the store. He first told Cain to get out of his way, and then threatened to
hurt her “real bad.” Appellant then removed two bottles from his coat and sat them on
the floor, indicating he intended to leave the premises to talk to his purported sister, a
female accomplice who had been inside the store with him but already had left for the
parking lot. Cain, who was backed up by two other store employees, told appellant he
could not leave. Appellant responded by removing another bottle and swinging it at
Cain. She responded by spraying him with pepper spray, which had little immediate
effect.
{¶3} As the incident progressed, appellant made it outside, where he saw his
aforesaid female accomplice, who was in the driver’s seat of a red pickup truck.
Appellant moved toward the vehicle yelling at her to “run the bitch over” and “run them
all over.” Appellant then ran from the immediate area. Cain, who later testified that the
driver “aimed right at me,” was struck by the pickup and suffered injuries to her right leg
and knee, which later required surgeries. Appellant was apprehended in the red pickup
truck a short time later by Union Township police officers.
Licking County, Case No. 10 CA 50 3
{¶4} Appellant was charged with aggravated robbery (R.C. 2911.01(A)(3)),
complicity in felonious assault (R.C. 2923.03(A)(1) and 2903.11(A)(1)/(A)(2)), and
robbery (R.C. 2911.02(A)(2)).
{¶5} Appellant entered pleas of not guilty, and the merged cases proceeded to
a jury trial on April 5 and 6, 2010. Appellant did not dispute at trial that he had
committed theft, but he denied robbery and assault.
{¶6} Appellant was found not guilty of aggravated robbery but was found guilty
of robbery (R.C. 2911.02(A)(2)), complicity in felonious assault, and theft (R.C.
2913.02).
{¶7} Appellant was thereafter sentenced to four years for robbery, six years for
complicity in felonious assault, and 180 days for theft.
{¶8} On May 5, 2010, appellant filed a notice of appeal. He herein raises the
following three Assignments of Error:
{¶9} “I. THE TRIAL COURT VIOLATED APPELLANTS’ [SIC] STATE AND
FEDERAL DOUBLE JEOPARDY PROTECTIONS, STATE AND FEDERAL RIGHTS TO
DUE PROCESS, AND R.C. 2941.25 BY FAILING TO MERGE THE ALLIED
OFFENSES OF ROBBERY IN VIOLATION OF R.C. 2911.02(A)(2) AND COMPLICITY
IN FELONIOUS ASSAULT IN VIOLATION OF R.C. 2923.03(A)(1)/2903.11(A)(1)
AND/OR (A)(2), WHICH WERE BASED ON THE SAME ACT OF VIOLENCE.
{¶10} “II. THE TRIAL COURT VIOLATED APPELLANTS’ [SIC] STATE AND
FEDERAL DOUBLE JEOPARDY PROTECTIONS, STATE AND FEDERAL RIGHTS TO
DUE PROCESS, AND R.C. 2941.25 BY FAILING TO MERGE THE ALLIED
Licking County, Case No. 10 CA 50 4
OFFENSES OF ROBBERY IN VIOLATION OF R.C. 2911.02(A)(2) AND THEFT IN
VIOLATION OF R.C. 2913.02, WHICH WERE BASED ON THE SAME ACT OF THEFT.
{¶11} “III. THE TRIAL COURT VIOLATED DUE PROCESS AND R.C.
2929.14(E)(4) BY IMPOSING CONSECUTIVE SENTENCES WITHOUT MAKING THE
REQUIRED STATUTORY FINDINGS.”
I.
{¶12} In his First Assignment of Error, appellant argues the trial court erred in
failing to merge his convictions for robbery and complicity to commit felonious assault.
We disagree.
{¶13} R.C. 2941.25 reads as follows:
{¶14} “(A) 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.
{¶15} “(B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the indictment
or information may contain counts for all such offenses, and the defendant may be
convicted of all of them.”
{¶16} There has been significant development in allied offense jurisprudence in
Ohio in recent years. For approximately the first decade of the new millennium, law
interpreting R.C. 2941.25 was based on State v. Rance, 85 Ohio St.3d 632, 636, 710
N.E.2d 699, 1999-Ohio-291, wherein the Ohio Supreme Court had held that offenses
are of similar import if the offenses “correspond to such a degree that the commission of
Licking County, Case No. 10 CA 50 5
one crime will result in the commission of the other.” Id. The Rance court further held
that courts should compare the statutory elements in the abstract. Id.{¶17} Approximately one year after appellant's sentence, the Ohio Supreme
Court instructed as follows in State v. Cabrales, 118 Ohio St.3d 54, 886 N.E.2d 181,
2008-Ohio-1625, syllabus:
{¶18} “In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), courts are required to compare the elements of offenses in the
abstract without considering the evidence in the case, but are not required to find an
exact alignment of the elements. Instead, if, in comparing the elements of the offenses
in the abstract, the offenses are so similar that the commission of one offense will
necessarily result in the commission of the other, then the offenses are allied offenses
of similar import.”
{¶19} According to Cabrales, if the sentencing court has initially determined that
two crimes are allied offenses of similar import, the court then proceeds to the second
part of the two-tiered test and determines whether the two crimes were committed
separately or with a separate animus. Id. at 57, 886 N.E.2d 181, citing State v.
Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816.
{¶20} However, subsequent to the oral arguments in the present appeal, the
Ohio Supreme Court decided State v. Johnson, 128 Ohio St.3d 153, 942 N.E.2d 1061,
2010-Ohio-6314, which specifically overruled the 1999 Rance decision. The Court held:
“When determining whether two offenses are allied offenses of similar import subject to
merger under R.C. 2941.25, the conduct of the accused must be considered.” Id., at the
syllabus. As cogently summarized in State v. Nickel, Ottawa App.No. OT–10–004,
Licking County, Case No. 10 CA 50 6
2011-Ohio-1550, ¶ 5, the new test in Johnson for determining whether offenses are
subject to merger under R.C. 2921.25 is two-fold: “First, the court must determine
whether the offenses are allied and of similar import. In so doing, the pertinent question
is ‘whether it is possible to commit one offense and commit the other offense with the
same conduct, not whether it is possible to commit one without committing the other.’
(Emphasis sic.) Id. at ¶ 48. Second, ‘the court must determine whether the offenses
were committed by the same conduct, i.e., “a single act, committed with a single state of
mind.” ’ Id. at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008–Ohio–4569, ¶ 50
(Lanzinger, J., concurring in judgment). If both questions are answered in the
affirmative, then the offenses are allied offenses of similar import and will be merged.
Johnson, at ¶ 50.”
{¶21} Appellant's complicity to commit felonious assault was based on the
following statutes: First, R.C. 2923.03(A)(1), which states: “No person, acting with the
kind of culpability required for the commission of an offense, shall *** [s]olicit or procure
another to commit the offense.” Secondly, on R.C. 2903.11(A)(1) and/or (A)(2), which
states: “No person shall knowingly do either of the following: (1) Cause serious physical
harm to another or to another's unborn; (2) Cause or attempt to cause physical harm to
another or to another's unborn by means of a deadly weapon or dangerous ordnance.”
{¶22} Appellant's conviction for robbery was based on R.C. 2911.02(A)(2), which
states: “No person, in attempting or committing a theft offense or in fleeing immediately
after the attempt or offense, shall * * * [i]nflict, attempt to inflict, or threaten to inflict
physical harm on another.”
Licking County, Case No. 10 CA 50 7
{¶23} Thus, the first question we must address under a Johnson analysis is
whether it is possible to cause serious physical harm to another, or to cause or attempt
to cause physical harm to another by means of a deadly weapon or dangerous
ordnance, while inflicting or attempting to inflict physical harm to another in the
commission of a theft offense.1 We conclude it is possible to commit the offense of
complicity in felonious assault and the offense of robbery, as charged in the case sub
judice, with the same conduct.
{¶24} Under the second Johnson step, however, we answer the “same conduct”
question in the negative. That is to say, the evidence supports the conclusion that after
appellant had exited the store and moved toward the pickup truck, he engaged in
additional conduct, not necessary to his fleeing of the scene, to direct the driver of the
pickup to run over the store security officer. We hold this action constituted both
separate conduct and separate animus under the circumstances.
{¶25} Accordingly, we find no error under Johnson in the trial court’s failure to
merge the complicity in felonious assault and robbery convictions in the case sub judice.
{¶26} Appellant’s First Assignment of Error is overruled.
II.
{¶27} In his Second Assignment of Error, appellant contends the trial court erred
in failing to merge his convictions for robbery and theft. We agree.
{¶28} Appellant's conviction for robbery was based on R.C. 2911.02(A)(2), which
states: “No person, in attempting or committing a theft offense or in fleeing immediately
1
We find the “complicity” aspect of the first charge against appellant does not impact
our analysis, because R.C. 2923.03(F) directs that where a person is guilty of complicity
in the commission of an offense, he “shall be prosecuted and punished as if he were a
principal offender.”
Licking County, Case No. 10 CA 50 8
after the attempt or offense, shall * * * [i]nflict, attempt to inflict, or threaten to inflict
physical harm on another.”
{¶29} Appellant's theft conviction was based on R.C. 2913.02(A)(1), which
states: “No person, with purpose to deprive the owner of property or services, shall
knowingly obtain or exert control over either the property or services * * * [w]ithout the
consent of the owner or person authorized to give consent.”
{¶30} We first conclude it is possible to commit the offense of robbery and the
offense of theft, as charged in the case sub judice, with the same conduct. In regard to
the second step of the analysis, the facts of the case sub judice establish that the
robbery and theft both stem from appellant’s shoplifting of the same items from the
Kroger store. Accordingly, pursuant to Johnson, we find the trial court should have
merged the robbery and theft convictions for sentencing, although this conclusion does
not affect the guilty verdicts issued by the jury. The matter will be remanded to the trial
court to review merger of the robbery and theft offenses for sentencing, as provided by
the Ohio Supreme Court in the case of State v. Whitfield, 124 Ohio St.3d 319, 922
N.E.2d 182, 2010-Ohio-2.
{¶31} Appellant’s Second Assignment of Error is sustained.
III.
{¶32} In his Third Assignment of Error, appellant argues the trial court erred in
failing to make findings of fact under R.C. 2929.14(E)(4) before imposing consecutive
sentences. We disagree.
{¶33} Following the decision of the United States Supreme Court in Oregon v.
Ice (2009), --- U.S. ----, 129 S.Ct. 711, 172 L.Ed.2d 517, the courts of Ohio were
Licking County, Case No. 10 CA 50 9
periodically presented with the argument that State v. Foster, 109 Ohio St.3d 1, 845
N.E.2d 470, 2006-Ohio-856, no longer severed the fact-finding requirements for
consecutive sentences. This Court took the position in several instances that such an
alteration of the Foster holding under Ice would have to await further review by the Ohio
Supreme Court. See, e.g., State v. Williams, Muskingum App. No. CT2009-0006, 2009-
Ohio-5296.
{¶34} On December 29, 2010, the issue was reached by the Ohio Supreme
Court in State v. Hodge, 128 Ohio St.3d 1, 941 N.E.2d 768, 2010-Ohio-6320, wherein
the Court held, at paragraph two of the syllabus, that the United States Supreme Court's
decision in Ice does not revive Ohio's former consecutive-sentencing statutory
provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional in
Foster.
{¶35} Appellant’s Third Assignment of Error is overruled on the authority of
Hodge.
{¶36} For the reasons stated in the foregoing opinion, the judgment of the Court
of Common Pleas, Licking County, Ohio, is hereby affirmed in part, reversed in part,
and remanded for further proceedings in accordance with this opinion.
By: Wise, J.
Farmer, P. J., and
Edwards, J., concur.
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JUDGES
JWW/d 0407
Licking County, Case No. 10 CA 50 10
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
LOWELL JONES :
:
Defendant-Appellant : Case No. 10 CA 50
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed in part,
reversed in part and remanded for further proceedings consistent with this opinion.
Costs assessed to be split equally among the parties.
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JUDGES