State v. Morrissey , 2021 Ohio 4471 ( 2021 )

[Cite as State v. Morrissey, 2021-Ohio-4471.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 6-21-02
v.
JOHN JOSEPH MORRISSEY, III, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. CRI 20212005
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
Date of Decision: December 20, 2021
APPEARANCES:
Howard A. Elliott for Appellant
McKenzie J. Klingler for Appellee
Case No. 6-21-02
ZIMMERMAN, J.
{¶1} Defendant-appellant, John Joseph Morrissey, III (“Morrissey”), appeals
his conviction and sentence of the Hardin County Court of Common Pleas. For the
reasons that follow, we affirm in part and reverse in part.
{¶2} This genesis of this case is the armed robbery of the Village Pantry (a
gas station) located at 350 South Main Street, Kenton, Ohio in the early morning
hours of December 27, 2020. During the course of the robbery, a white male
assailant (wearing a hooded sweatshirt, coat, full face covering, and glasses) pointed
a gun at two employees of the gas station ordering them to open the cash register
(demanding they give him the money inside) while threatening to pull the trigger if
they did not follow his commands. The suspect left the gas station with $154 in
cash from the register.
{¶3} On January 14, 2021, the Hardin County Grand Jury indicted Morrissey
on seven criminal counts including: Counts One and Three, Aggravated Robbery
in violation of R.C. 2911.01(A)(1), (C), both first-degree felonies; Counts Two and
Four, Kidnapping in violation of R.C. 2905.01(A)(2), (C)(1), each second-degree
felonies; Count Five, Theft in violation of R.C. 2913.02(A)(1), (B)(2), a first-degree
misdemeanor; Count Six, Possessing Criminal Tools in violation of R.C.
2923.24(A), (C), a fifth-degree felony; and Count Seven, Having Weapons While
Under Disability in violation of R.C. 2923.13(A)(2), (B), a third-degree felony.
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(Doc. Nos. 1, 20, 23). The indictment included firearm specifications as to Counts
One, Two, Three, Four, and Seven and repeat violent offender (“RVO”)
specifications as to Counts One, Two, Three, and Four. (Doc. No. 1). On January
19, 2021, Morrissey appeared for arraignment and entered pleas of not guilty. (Doc.
No. 6).
{¶4} Morrissey’s case proceeded to a jury trial on March 17, 2021, and he
was found guilty by a jury of all counts.1 (Doc. Nos. 58, 59, 60, 61, 62, 63, 64, 66).
Further, the jury found that Morrissey did have a firearm “on or about [his] person
or under [his control] while committing the offense[s] and displayed the firearm,
brandished the firearm, indicated that [he] possessed the firearm, or used it to
facilitate the offense[s][]” as to Counts One, Two, Three, Four, and Seven. (Doc.
Nos. 58, 59, 60, 61, 64, 66).
{¶5} On March 31, 2021, the trial court sentenced Morrissey.2 (Doc. No.
69). The trial court sentenced Morrissey to a mandatory prison term for a minimum
of 11 years to a maximum of 16.5 years on Count One with the eight-year mandatory
prison term on Count Two to be served concurrently. (Id.). The trial court imposed
a mandatory term of 10 years on the RVO specification, and a 3-year mandatory
1
Moreover, the jury found (as to Counts One, Two, Three, and Four) that Morrissey did attempt to cause or
threatened to cause serious physical harm to a person; that Morrissey did release the two kidnapping victims
(as to Counts Two and Four) in a safe place unharmed; and that he possessed the criminal tools for use in the
commission of a felony under Count Six. (Doc. Nos. 58, 59, 60, 61, 63).
2
The trial court reviewed a post-sentence investigation report prepared for the Hardin County Common Pleas
Court in case number CRI 20122074. (Doc. No. 69).
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term on the firearm specification; an 11-year term on Count Three to be served
concurrent to an eight-year term on Count Four; 12 months on Count Six; and 36
months on Count Seven. (Id.). The trial court merged Counts One and Five. (Id.).
The prison terms imposed by the trial court yielded an aggregate sentence of a
minimum of 35 years mandatory and 48 months non-mandatory, with a maximum
of 44.5 years mandatory and 48 months non-mandatory plus an additional 1648 days
for Morrissey’s post-release control violation. (Mar. 31, 2021 Tr. at 47-50); (Doc.
No. 69). The judgment entry of sentencing was filed on April 2, 2021. (Id.)
{¶6} Morrissey timely filed his notice of appeal on April 12, 2021. (Doc.
No. 72). Morrissey raises three assignments of error for our review. For ease of
our discussion, we will first review Morrissey’s first and second assignments of
error together then his third assignment of error separately.
Assignment of Error No. I
None of the convictions herein for aggravated robbery,
kidnapping, possession of criminal tools, theft, and possessing
weapons under a disability, are supported by sufficient evidence
and as such all convictions herein are improper and must be
vacated.
Assignment of Error No. II
None of the convictions herein for aggravated robbery,
kidnapping, possession of criminal tools, theft, and possessing
weapons under a disability, are supported by sufficient evidence
and the convictions are against the manifest weight of the
evidence and must be vacated.
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{¶7} In his first and second assignments of error, Morrissey argues that his
convictions are based on insufficient evidence and are against the manifest weight
of the evidence. In particular, in his first assignment of error, Morrissey argues that
the State presented insufficient evidence as to the issue of identity, and therefore he
could not have been convicted of any of the offenses. In his second assignment of
error, Morrissey argues that the weight of the evidence demonstrates that the jury
lost their way (by finding him guilty) because the State offered witnesses that
contained variations as to the identification of the suspect.
Standard of Review
{¶8} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389
(1997), superseded by statute on other grounds, State v. Smith, 80 Ohio St.3d 89(1997). Thus, we address each legal concept individually.
{¶9} “An appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of the defendant’s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio
St.3d 259 (1981), paragraph two of the syllabus, superseded by statute on other
grounds, Smith at 89. Accordingly, “[t]he relevant inquiry is whether, after viewing
the evidence in a light most favorable to the prosecution, any rational trier of fact
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could have found the essential elements of the crime proven beyond a reasonable
doubt.” Id. “In deciding if the evidence was sufficient, we neither resolve
evidentiary conflicts nor assess the credibility of witnesses, as both are functions
reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and
C-120571, 2013-Ohio-4775, ¶ 33, citing State v. Williams, 1st Dist. Hamilton No.
C-110097, 2011-Ohio-6267, ¶ 25. See also State v. Berry, 3d Dist. Defiance No.
4-12-03, 2013-Ohio-2380, ¶ 19 (“Sufficiency of the evidence is a test of adequacy
rather than credibility or weight of the evidence.”), citing Thompkins at 386.
{¶10} On the other hand, in determining whether a conviction is against the
manifest weight of the evidence, a reviewing court must examine 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.’” Thompkins at 387,
quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). A reviewing
court must, however, allow the trier of fact appropriate discretion on matters relating
to the weight of the evidence and the credibility of the witnesses. State v. DeHass,
10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight standard,
“[o]nly in exceptional cases, where the evidence ‘weighs heavily against the
conviction,’ should an appellate court overturn the trial court’s judgment.” State v.
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Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v.
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Sufficiency of the Evidence Analysis
{¶11} Notably, Morrissey moved the trial court for a judgment of acquittal
under Crim.R. 29(A) at the conclusion of the State’s case-in-chief and renewed his
motion at the conclusion of all the evidence. (See Mar. 18, 2021 Tr., Vol. II, at 626,
628-629, 656).
{¶12} Morrissey was convicted of all seven counts in the indictment. (Mar.
19, 2021 Tr., Vol. III, at 722-728); (Doc. Nos. 58, 59, 60, 61, 62, 63, 64, 66).
Specifically, Morrissey was convicted of two counts of Aggravated Robbery in
violation of R.C. 2911.01(A)(1), which provides that “[n]o person, in attempting or
committing a theft offense, as defined in section 2913.01 of the Revised Code, or in
fleeing immediately after the attempt or offense, shall * * * [h]ave a deadly weapon
on or about the offender’s person or under the offender’s control and either display
the weapon, brandish it, indicate that the offender possesses it, or use it[]”.
{¶13} Further, Morrissey was convicted of two counts of Kidnapping in
violation of R.C. 2905.01(A)(2), which provides: “[n]o person, by force, threat, or
deception, * * * by any means, shall remove another from the place where the other
person is found or restrain the liberty of the other person, * * * [t]o facilitate the
commission of any felony or flight thereafter[]”.
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{¶14} Morrissey was also convicted of Theft in violation of R.C.
2913.02(A)(1), which provides: “[n]o 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[]”.
{¶15} Morrissey was further convicted of Possessing Criminal Tools in
violation of R.C. 2923.24(A), which provides: “[n]o person shall possess or have
under the person’s control any substance, device, instrument, or article, with
purpose to use it criminally.”
{¶16} Finally, Morrissey was convicted for Having Weapons While Under
Disability in violation of R.C. 2923.13(A)(2), which provides: “[u]nless relieved
from disability under operation of law or legal process, no person shall knowingly
acquire, have, carry, or use any firearm or dangerous ordnance, if * * * [t]he person
* * * has been convicted of any felony offense of violence * * *.”
{¶17} Importantly, Morrissey does not dispute any of the underlying
elements of any of the offenses of which he was convicted; rather, he disputes only
the issue of identity as to his convictions. Thus, we need only address the identity
element of the offenses.
{¶18} “‘It is well settled that in order to support a conviction, the evidence
must establish beyond a reasonable doubt the identity of the defendant as the person
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who actually committed the crime at issue.’” State v. Missler, 3d Dist. Hardin No.
6-14-06, 2015-Ohio-1076, ¶ 13, quoting State v. Johnson, 7th Dist. Jefferson No.
13 JE 5, 2014-Ohio-1226, ¶ 27, citing State v. Collins, 8th Dist. Cuyahoga No.
98350, 2013-Ohio-488, ¶ 19 and State v. Lawwill, 12th Dist. Butler No. CA2007-
01-014, 2008-Ohio-3592, ¶ 11.
{¶19} In his sufficiency-of-the-evidence challenge, Morrissey argues that a
rational trier of fact could not have found that he was involved in the robbery of the
Village Pantry because the perpetrator was wearing dark clothing and a full facial
covering and was never apprehended at or near the crime scene. (Appellant’s Brief
at 8). Morrissey contends that his convictions are based on insufficient evidence
because the State presented an entirely circumstantial case against him. In other
words, the State offered no direct evidence that he committed any of the crimes
charged. “‘Circumstantial evidence’ is the ‘proof of facts by direct evidence from
which the trier of fact may infer or derive by reasoning or other facts.’” Lawwill at
¶ 12, quoting State v. Wells, 12th Dist. Warren No. CA2006-02-029, 2007-Ohio-
1362, ¶ 11, citing State v. Griesheimer, 10th Dist. Franklin No. 05AP-1039, 2007-
Ohio-837, ¶ 26. Circumstantial evidence has no less probative value than direct
evidence. Griesheimer at ¶ 26, citing Jenks, 61 Ohio St.3d 259, at paragraph one of
the syllabus. See also State v. Heinish, 50 Ohio St.3d 231, 238 (1990) (“This court
has long held that circumstantial evidence is sufficient to sustain a conviction if that
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evidence would convince the average mind of the defendant’s guilt beyond a
reasonable doubt.”).
{¶20} Indeed, the record before us contradicts Morrissey’s arguments. The
State presented circumstantial evidence that Morrissey was the person responsible
for the robbery of the Village Pantry. Specifically, Morrissey was first identified as
a person of interest in the investigation by his own family members. Importantly,
Morrissey admitted to committing the Village Pantry robbery to Cody Gawkins (an
inmate in his cellblock at Multi-County Correctional Facility) who testified at his
trial and was subject to cross-examination. (See Mar. 17, 2021 Tr., Vol. I, at 247-
280, 282-289, 400-407); (Mar. 18, 2021 Tr., Vol. II, at 492-511); (State’s Exs. 28,
35, 36).
{¶21} Nonetheless, Morrissey opines that the evidence is insufficient to
establish that he was the person who committed the offenses due to discrepancies
and variations in witnesses’ testimonies relating to his height, his mannerisms, and
his voice. To us, Morrissey is arguing the issue of credibility of the witnesses.
Assessing the credibility and weight of the evidence is primarily the role of the trier-
of-fact. State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, ¶ 106, citing State
v. DeHass, 10 Ohio St.2d 230, at paragraph one of the syllabus. In this case, the
jury had such a role. In reviewing the sufficiency of the evidence, we do not resolve
evidentiary conflicts or assess the credibility of witnesses. Instead, we are to
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determine if any rational trier of fact could have found the essential elements of each
offense beyond a reasonable doubt when viewing the evidence in a light most
favorable to the prosecution. Jenks, 61 Ohio St.3d 259, at paragraph two of the
syllabus; Jones, 2013-Ohio-4775, at ¶ 33.
{¶22} Accordingly, viewing the evidence in a light most favorable to the
prosecution, we conclude that a rational trier of fact could conclude beyond a
reasonable doubt that Morrissey was the person who committed the offenses based
upon the testimonies of Tyler Triplett (his cousin), Shannon Miller (his mother),
Kenton City Police Department Patrolman Melvin Yoder, Susan Long, Melissa
Brown (his girlfriend), Joseph Stone (his girlfriend’s roommate), Cory Gawkins (his
blockmate), Laura Gettings, and Kenton City Police Detective Daniel Kemmere.
As such, all of Morrissey’s convictions are based on sufficient evidence.
{¶23} Having concluded that Morrissey’s convictions are based on sufficient
evidence, we address Morrissey’s arguments that his convictions are against the
manifest weight of the evidence.
Manifest Weight of the Evidence Analysis
{¶24} Similar to his sufficiency-of-the-evidence arguments, Morrissey
argues that the evidence identifying him as the person who committed the offenses
at the Village Pantry lacked credibility and reliability by virtue of the variations and
conflicting witnesses’ testimonies’ presented. In particular, Morrissey contends that
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the witness testimonies as to his height, his mannerisms, and his voice (as argued in
his sufficiency assignment of error) were against the manifest weight of the
evidence to establish that Morrissey was the person who committed the offenses.
{¶25} “Although we review credibility when considering the manifest
weight of the evidence, the credibility of witnesses is primarily a determination for
the trier of fact.” State v. Banks, 8th Dist. Cuyahoga No. 96535, 2011-Ohio-5671,
¶ 13, citing DeHass, 10 Ohio St.2d 230, at paragraph one of the syllabus. “The trier
of fact is best able ‘to view the witnesses and observe their demeanor, gestures[,]
and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.’” Id., quoting State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-
2202, ¶ 24, citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80-81
(1984).
{¶26} Here, Morrissey does not attack a specific witnesses’ credibility,
rather, he argues that because there were discrepancies in the testimonies, that
should have weighed heavily against his convictions. Notwithstanding his
arguments, “we are mindful of the jury’s ‘superior first-hand perspective in judging
the demeanor and credibility of witnesses.’” State v. Suffel, 3d Dist. Paulding No.
11-14-05, 2015-Ohio-222, ¶ 33, quoting State v. Phillips, 10th Dist. Franklin No.
14AP-79, 2014-Ohio-5162, ¶ 125, citing DeHass at paragraph one of the syllabus.
Indeed, the jury heard the witnesses’ testimonies and was in the best position to
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determine whether the testimonies (as to discrepancies and variations) were
credible.
{¶27} Moreover, the evidence that we summarized in our sufficiency-of-the-
evidence analysis (supporting Morrissey’s convictions) is weightier than the
evidence against it, and thus, we cannot say that the evidence weighs heavily against
Morrissey’s convictions. Accordingly, we cannot conclude that the jury clearly lost
its way, which created such a manifest miscarriage of justice that Morrissey’s
convictions must be reversed.
{¶28} Accordingly, Morrissey’s first and second assignments of error are
overruled.
Assignment of Error No. III
Unless there is a significant passage of time for the restraint of a
victim or a significant movement during the offense from one
location to another the offenses of aggravated robbery and
kidnapping must be merged.
{¶29} In his third assignment of error, Morrissey argues that his convictions
for Aggravated Robbery and Kidnapping are subject to merger. Specifically,
Morrissey argues that the trial court should have merged his Aggravated Robbery
convictions (under Counts One and Three) with his Kidnapping convictions (under
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Counts Two and Four) pursuant to R.C. 2941.25 because there was no significant
lapse of time or relocation of the victims to support a separate animus.3
Standard of Review
{¶30} R.C. 2941.25, Ohio’s multiple-count statute, prohibits the imposition
of multiple sentences for allied offenses of similar import. It provides:
(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.
(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.
R.C. 2941.25(A)-(B).
{¶31} Whether offenses are allied offenses of similar import is a question of
law that this court reviews de novo. State v. Frye, 3d Dist. Allen No. 1-17-30, 2018-
Ohio 894, ¶ 128, citing State v. Stall, 3d Dist. Crawford No. 3-10-12, 2011-Ohio-
5733, ¶ 15, citing State v. Brown, 3d Dist. Allen No. 1-10-31, 2011-Ohio-1461, ¶
36, citing State v. Loomis, 11th Dist. Ashtabula No. 2002-A-0102, 2005-Ohio-1103,
¶ 8. When applying de novo analysis, we must independently determine whether
3
Significantly, Morrissey concedes in his brief that there are two victims at issue and thus that there is
separate animus as to each victim supporting the two counts of Aggravated Robbery and two counts of
Kidnapping. See R.C. 2941.25(B).
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the facts satisfy the applicable legal standard without deference to the conclusions
of the trial court. State v. Johnson, 3d Dist. Allen No. 1-13-45, 2014-Ohio-4750, ¶
12, citing State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8, citing State
v. McNamara, 124 Ohio App.3d 706, 710 (4th Dist.1997), superseded by state
regulation on other grounds, State v. Schmehl, 3d Dist. Auglaize No. 2-05-33, 2006-
Ohio-1143, ¶ 22.
Analysis
{¶32} “Separate convictions are permitted under R.C. 2941.25 for allied
offenses if we answer affirmatively to just one of the following three questions: (1)
Were the offenses dissimilar in import or significance? (2) Were they committed
separate? And (3) Were they committed with a separate animus or motivation?”
State v. Bailey, 1st Dist. Hamilton No. C-140129, 2015-Ohio-2997, ¶ 76, citing State
v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, paragraph three of the syllabus.
{¶33} The Supreme Court of Ohio held that “for purposes of R.C.
2941.25(A), a conviction is a determination of guilt and the ensuing sentence.”
State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 13, superseded by state
statute on other grounds, United States v. Mackey, S.D.Ohio No. 3:04cr00096, 2014
WL 6606434, *2 (Nov. 20, 2014), fn. 4. Indeed, recognizing “R.C. 2941.25(A)’s
mandate that a defendant may be ‘convicted’ of only one allied offense is a
protection against multiple sentences rather than multiple convictions.” Id. at ¶ 18.
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Because “a defendant may be found guilty of allied offenses but not sentenced on
them,” “[t]he defendant is not ‘convicted’ for purposes of R.C. 2941.25(A) until the
sentence is imposed.” Id. at ¶ 17, 24. And, therefore, merger of allied offenses
occurs at sentencing. Id. at ¶ 18. Importantly, Morrissey was convicted and
sentenced for two counts of Aggravated Robbery and two counts of Kidnapping.
{¶34} Although, we recognize that the trial court imposed concurrent
sentences for Count One with Count Two and Count Three with Count Four, the
imposition of concurrent sentences is not the equivalent of merging allied offenses.
See State v. Russell, 5th Dist. Licking No. 2021 CA 0026, 2021-Ohio-3982, ¶ 38,
citing State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, ¶ 17. Hence, a trial
court must merge the crimes into a single conviction and impose a sentence that is
appropriate for the offense chosen for sentencing. Id. citing id., citing State v.
Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶ 41-43.
{¶35} Here, Morrissey specifically challenges the time frame and the
relocation involved in the restraint of the victims as to the kidnapping. (Appellant’s
Brief at 16). Indeed, a brief restraint of the victim is present in every Aggravated
Robbery. State v. Morris, 1st Dist. Hamilton No. C-150421, 2016-Ohio-5490, ¶ 17,
citing State v. Jenkins, 15 Ohio St.3d 164, 198 (1984), fn. 29. To determine whether
kidnapping and another offense are subject to merger, the primary question is
“whether the restraint or movement of the victim is merely incidental to a separate
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underlying crime or, instead, whether it has a significance independent of the other
offense.” State v. Logan, 60 Ohio St.2d 126, 135 (1979)4; Morris at ¶ 17. Where
the restraint of the victim is prolonged, the confinement of the victim secretive, or
the movement of the victim is substantial, there exists a separate animus for each
offense. Logan at syllabus; Morris at ¶ 17, citing Logan at 135. A separate animus
also exists where “the asportation or restraint of the victim subjects the victim to a
substantial increase in risk of harm separate and apart from that involved in the
underlying crime.” Logan at syllabus.
{¶36} Because this issue involves a fact-specific analysis, we undertake a
review of the record as it pertains to the Aggravated Robbery and Kidnapping
offenses. The State offered (in its case-in-chief) the testimony of Ashley Arnold
(“Arnold”), a third-shift employee at Village Pantry working in the early morning
hours on December 27, 2020. (Mar. 17, 2021 Tr., Vol. I, at 191-192). Arnold
testified that she was in an office area (behind a cigarette wall) directly behind the
cash registers, seated in a chair talking to her co-worker Dakota Johnson
(“Johnson”) and clocking out of her shift. (Id. at 192-195). According to Arnold’s
testimony, she observed a white male (approximately six-foot-tall) dressed in all
black with a gun enter the gas station from the Detroit Street entrance. (Id. at 196,
4
“Although the ‘two-step’ analysis prescribed by the Supreme Court of Ohio in Logan has been overruled,
the court’s discussion of animus remains relevant under the current tripart test prescribed in Ruff.” Frye, 3d
Dist. Allen No. 1-17-30, 2018-Ohio-894, ¶ 131, fn. 2.
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207, 218-219). Arnold testified the suspect pointed the gun at her and Johnson and
demanded the money in the register, but that he had to tell her a second time because
she was in shock. (Id. at 197). Arnold testified that she then asked Johnson to open
the register because she had been operating it throughout the evening. (Id.). Arnold
testified that Johnson went to the register, and she froze. (Id. at 197-198). The
suspect told her to get out of the office and grabbed her coat to pull her out and push
her towards the register. (Id. at 198). Arnold further testified that by that time
Johnson had already opened the drawer exposing the cash. (Id. at 199). According
to Arnold, she asked the suspect (out of nervousness) if he wanted the change, and
he responded no. (Id. at 199-200). Once she handed him the cash, he asked for any
cash under the drawer. (Id. at 200). Arnold testified that she told him there was
nothing under the drawer because of their nightly-drop routine. (Id.). Thereafter,
Arnold testified that the suspect ran out of building through the Main Street exit,
and she called 911. (Id. at 200-201); (State’s Ex. 2). The State’s second witness
Johnson offered nearly the identical testimony corroborating Arnold’s version of
the events. (See id. at 223-239). Importantly, the robbery was captured on a multi-
camera-surveillance system with both audio and visual recordings from inside the
Village Pantry, which was retrieved by law enforcement officers and presented to
the jury. (Id. at 157, 179-182); (State’s Ex. 1).
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{¶37} Considering the specific facts of this case, we do not find that
Morrissey’s restraint of Arnold and Johnson was prolonged so as to demonstrate a
significant independent event separate from the Aggravated Robbery offenses. See
Logan, 60 Ohio St.2d 126, at syllabus; See also Stall, 2011-Ohio-5733, at ¶ 20-21.
Indeed, from our review of State’s Exhibit 1 and the testimony of Arnold the entire
incident took no more than three minutes. Morrissey moved the women only a few
feet out of the office, through an open door to the area directly behind the check-out
counter in order to have them open the cash registers. Both offenses had a similar
import, were committed as one act with the same motivation. Consequently, in our
view the Kidnapping of Arnold and Johnson was “merely incidental” to the crime
of Aggravated Robbery. See id. Moreover, we do not say Morrissey’s movement
of Arnold and Johnson was “substantial so as to demonstrate a significance
independent of” the Aggravated Robbery offenses. See id.{¶38} Accordingly, we conclude that the Aggravated Robbery and
Kidnapping offenses of which Morrissey was convicted were allied offenses of
similar import. Consequently, the trial court erred by not merging Counts One and
Two (involving Arnold) and Counts Three and Four (involving Johnson) for
purposes of sentencing.
{¶39} For the foregoing reasons, the judgment of the Hardin County
Common Pleas Court is affirmed in part and reversed in part, and the matter is
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remanded to the trial court for further proceedings consistent with our disposition
of the third assignment of error.
Judgment Affirmed in Part,
Reversed in Part and
Cause Remanded
WILLAMOWSKI, P.J. and MILLER, J., concur.
/jlr
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