State v. Howse ( 2020 )

[Cite as State v. Howse , 2020-Ohio-916.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108414
v. :
ROBERT D. HOWSE, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: March 12, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-632777-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Eleina K. Thomas, Assistant Prosecuting
Attorney, for appellee.
Ruth R. Fischbein-Cohen, for appellant.
MARY J. BOYLE, P.J.:
Defendant-appellant, Robert Howse, appeals his convictions and
sentence. He raises three assignments of error for our review:
1. The court erred in neglecting to place Robert Howse in the mental
health docket.
2. Trial counsel was ineffective as guaranteed by the Sixth Amendment
of the United States Constitution.
3. The court erred in sentencing Robert Howse to separate
punishments while this case is one of allied offenses of similar import
which should have merged the punishments.[1]
Finding no merit to his appeal, we affirm.
I. Procedural History and Factual Background
In October 2018, Howse was indicted on 11 counts, including Counts
1 and 4, aggravated burglary in violation of R.C. 2911.11(A)(2), first-degree felonies
(two named victims); Count 2, burglary in violation of R.C. 2911.12(A)(1), a second-
degree felony; Counts 3 and 8, having weapons while under a disability in violation
of R.C. 2923.13(A)(2), third-degree felonies; Count 5, aggravated robbery in
violation of R.C. 2911.01(A)(1), a first-degree felony; Count 6, robbery in violation of
R.C. 2911.02(A)(1), a second-degree felony; Count 7, kidnapping in violation of R.C.
2905.01(A)(2), a first-degree felony; Count 9, grand theft in violation of R.C.
2913.02(A)(4), a third-degree felony; Count 10, theft in violation of R.C.
2913.02(A)(4), a fifth-degree felony; and Count 11, disrupting public service in
violation of R.C. 2904.04(A)(3), a fourth-degree felony. The burglary, aggravated
burglary, robbery, aggravated robbery, and kidnapping counts carried one- and
three-year firearm, notice of prior conviction, and repeat violent offender
1 Howse did not raise any issue challenging the trial court’s imposition of the
maximum sentence on each individual count or challenge the trial court’s imposition of
consecutive sentences. This court will only address assignments of error that are raised
in the appeal. See App.R. 12 (“[A] court of appeals shall * * * [d]etermine the appeal on
its merits on the assignments of error set forth in the briefs under App.R. 16, the record
on appeal under App.R. 9, and, unless waived, the oral argument under App.R. 21.”).
specifications. The grand theft and theft carried one- and three-year firearm
specifications.
The charges arose after two incidents that occurred within “a span of
less than 48 hours.” First, around 12:00 a.m. on September 13, 2018, a female victim
walked into her bedroom and noticed that the screen door was open. She then saw
a pair of shoes “sticking up from the side of the bed.” A man jumped up and pointed
a gun at her. She screamed, ran into her bathroom, locked the door, and called 911.
The second incident occurred around 8:30 p.m. on September 14,
2018. A male victim noticed that a light was on in his barn, which had been
converted to a living area with a bar, entertainment area, and an office. The barn
was approximately 20 yards from the house. The victim walked to the barn and was
going to turn the light off when Howse “pops up from behind the bar, threatens to
shoot [the victim], points a gun at him, [and] starts asking him where money is.”
Howse then noticed that there was a safe in the barn. Howse pointed the gun at the
victim’s head and made him walk to the safe and open it. Once the safe was open,
Howse made the victim get on the ground. At this point, the victim noticed that
Howse had “a GPS monitor on his ankle.” Howse rummaged through the safe and
found a leather handbag. Howse filled the handbag with a handgun, alcohol,
headphones, a camera, and equipment for the camera.
Howse then began asking the victim where the money was. The
victim stated that he did not have any money on him because it was in the house.
After approximately 30 minutes, Howse took the victim by gunpoint from the barn
to his house. Howse asked the victim who was in the house. The victim responded
that his wife and children were in the house and that “he wasn’t getting in the
expletive house.” When the victim swore at Howse, Howse threatened to shoot him
in the head. The victim cracked the door open and yelled to his wife, “Give me all
the money you can find.” The victim’s wife grabbed the money from her husband’s
wallet and realized that they were being robbed. The victim’s wife gave the money
to her husband, who then gave it to Howse. The victim’s wife then called 911. As
Howse was picking up “his bag” to put the money in it, the victim was able to escape
and lock himself in his house. The victim ran upstairs to get his gun and waited for
police to arrive. Police found Howse through the GPS monitor on his ankle.
At a January 3, 2019 hearing, the state and defense counsel informed
the court that they had reached an agreement. The state explained that Howse
would plead guilty to the indictment as charged in exchange for the state agreeing
that it would “not go back into the grand jury prior to trial and add the 54-month
firearm specification that [Howse] was actually eligible for at the time” the state
originally filed the charges against him. The state explained that the 54-month
firearm specification applies because Howse had a prior conviction for firearm
specifications.
Defense counsel agreed that the state’s recitation of the plea
agreement was correct. Defense counsel further explained that he had advised
Howse of the rights he was waiving by entering into the plea and that Howse
understood those rights.
The trial court then began the plea colloquy with Howse. When asked
if he was satisfied with his defense counsel, however, Howse responded, “No.” The
trial court told Howse that if he was not satisfied with his defense counsel, it could
not take a plea from him.
The trial court asked the parties if it had set a trial date for Howse’s
case. The state replied that the trial was set for January 14, 2019. The court stated,
“So, we’ll have a trial on January 14th.” The state interjected, asking the court if it
could explain about “the expiration of this plea deal.” The state told the court that
the same plea offer had been given to Howse’s prior attorney as well. Howse’s prior
attorney had been appointed for him but then Howse had retained the attorney who
was representing him at the current plea hearing. The state told the court that it
wanted to make sure that Howse’s retained attorney was fully advised of the
“deadline that we’re working against here.” The court responded, “Well, the trial
date is January 14th, period.”
At that point, defense counsel asked the trial court to be removed
from the case due to the fact that the state was going to “re-present this” to the grand
jury and that Howse’s new counsel would “have to deal with [the] 54-month gun
specs.” After a series of questions to Howse regarding whether he wished to keep
his retained counsel or have another attorney appointed, which the trial court
explained to Howse that it would delay his “speedy trial” even more and the state
would definitely add the 54-month firearm specification, Howse told the court that
he would “take the plea.”
The trial court stated that it needed to ensure that Howse was
entering into his plea voluntarily. The court asked the state if it would delay adding
the 54-month firearm specification if it appointed new counsel. The state agreed
that it would if there was “a time limit.” The state indicated that it could “provide
discovery immediately” since it had already “provided it twice in this case.” The state
told the court that it would give Howse’s new attorney “two weeks” and “if after the
two weeks he still has not plead guilty, then we will go back to the grand jury.” The
state indicated that this was “the very last time” that it would offer the same plea.
Howse told the trial court that he was never informed of the plea offer
from his previous attorney. Both the state and Howse’s retained counsel stated that
they would inform Howse’s newly appointed attorney of the plea offer. The court
then explained that it would appoint new counsel for Howse within the next couple
of days.
At a January 24, 2019 hearing, the trial court asked the parties if they
had reached a plea agreement. Both the state and Howse’s new defense counsel
stated that they had.
Defense counsel then asked the trial court if “a psych report” had been
done. The court replied, “Yes.” Defense counsel replied, “I just wanted to clear up
something. It appears in my review of the report that my client was eligible for the
mental health docket and could have been transferred to the mental health docket
which you elected to keep the case. Is that correct?” The court responded, “That’s
correct.”
Defense counsel then asked if he read the report correctly that there
was nothing in the report that suggested Howse was incompetent. The court replied,
“I thought they found him competent.” Defense counsel said that they did find him
competent, but “they found him eligible” for “Northcoast * * * because of his IQ
results.” The court replied, “All right. So prior to you becoming involved in this,
* * * we did handle that matter. He was not sent to North Coast as he was not
incompetent. And so if he’s not incompetent, I don’t see any purpose in sending him
to North Coast, despite the psychiatric recommendation.”
The trial court then asked defense counsel if he “had any trouble
discussing the case” with Howse. Defense counsel told the court that he had not.
The court then asked, “Do you believe he understands what’s going on here today
after talking to him?” Defense counsel stated he did. The court stated that it was
satisfied that Howse was competent.
The state explained that Howse was going to plead guilty to the
indictment in exchange for the state not going back to the grand jury to replace the
three-year firearm specification with a 54-month firearm specification and replace
the one-year firearm specification with an 18-month firearm specification because
of Howse’s “prior gun specification conviction.” The state told the court that no
other threats or promises had been made “other than what’s been stated here on the
record.”
The trial court then explained each offense to Howse and the
maximum penalty associated with each offense. The court also explained the
applicable postrelease control to Howse and the consequences for violating it.
In response to the trial court’s questioning, Howse stated that he was
24 years old, that he had gone to college but did not complete it, that he was not
under the influence of drugs or alcohol, and that he was satisfied with his defense
counsel. Howse also told the court that he was on postrelease control from another
case. The court asked Howse if he understood that he could receive an additional
sentence on that case and then “get a sentence consecutive to that on this case.”
Howse responded that he did. The court also explained Howse’s constitutional
rights to him and asked if he understood that he was waiving those rights. Howse
responded that he did.
Howse then pleaded guilty to each offense as charged in the
indictment. The trial court found that Howse entered into his guilty plea knowingly
and voluntarily and accepted Howse’s guilty plea.
The trial court sentenced Howse as follows:
Count 1 (aggravated burglary relating to the first female victim) — 11
years consecutive to three years for the firearm specification
Count 2 (burglary relating to the first female victim) — merged with
Count 1
Count 3 (weapons disability) — 36 months
Count 4 (aggravated burglary relating to the male victim) — 11 years
consecutive to three years for the firearm specification
Count 5 (aggravated robbery relating to the male victim) — 11 years
consecutive to three years for the firearm specification
Count 6 (robbery relating to the second female victim) — 11 years
consecutive to three years for the firearm specification
Count 7 (kidnapping relating to the male victim) — 11 years consecutive
to three years for the firearm specification
Count 8 (weapons disability) — 36 months
Count 9 (grand theft) — merged with Count 5
Count 10 (theft) — merged with Count 5
Count 11 (disrupting public service) — 12 months
The trial court ran Counts 1, 3, 5, 6, and 8 consecutive to one another
and all other counts concurrent to those and each other, for an aggregate sentence
of 45 years in prison (39 years plus 72 months). The trial court imposed a mandatory
period of five years of postrelease control and $2,180 in restitution to the male
victim. The court also ordered Howse to pay costs. It is from this judgment that
Howse now appeals.
II. Mental Health Court
In his first assignment of error, Howse argues that his trial court erred
and violated “his due process privilege” when it chose not to assign him to the mental
health and developmental disabilities (“MHDD”) docket.
In late October 2018, Howse’s first appointed counsel filed a motion
to determine Howse’s eligibility in the mental health court. In the motion, defense
counsel stated that transfer to the mental health court is appropriate when a
defendant has a “severe mental illness with psychotic features,” which he asserted
would qualify Howse. Defense counsel stated that when he met with Howse at the
county jail, Howse informed him that he had previously been diagnosed with post-
traumatic stress disorder from when he discovered his uncle’s body after he had shot
himself. Defense counsel further stated that even “more compelling” was the fact
that Howse told him that he had been diagnosed with paranoid schizophrenia when
he was in the Cuyahoga County Juvenile Detention Center around 2010. Based
upon Howse’s possible posttraumatic stress disorder (“PTSD”) and paranoid
schizophrenia diagnoses, defense counsel maintained that Howse should be
evaluated by the court’s psychiatric clinic to determine if he should be placed in
mental health court.
The trial court referred Howse to the court’s psychiatric clinic on
November 7, 2018, and received the “Mental Health Court Eligibility Report” in
December 2018. According to the his “educational history,” Howse reportedly
received his GED in 2015 “and was enrolled in business administration classes at
Cuyahoga Community College for about three weeks prior to his arrest.” During the
“mental status evaluation,” the psychologist reported that Howse’s “thought
processes were intact and his statements were consistent and coherent.” The
psychologist reported that Howse’s IQ was 73. Based on his IQ results, the
psychologist diagnosed Howse with borderline intellectual functioning. She
concluded that Howse met the criteria for mental health court because persons with
an IQ under 75 are eligible. The psychologist further diagnosed Howse with PTSD,
which resulted from Howse watching his uncle shoot himself in front of Howse when
he was four years old. She also stated that Howse experienced symptoms of
depression, and met the criteria for alcohol and cannabis use disorder based upon
Howse’s report of such use.
Loc.R. 30.1 sets forth “Assignment of Criminal Cases to Mental
Health and Developmental Disabilities Dockets.” It states that defendants with
“confirmed severe mental illness with a psychotic feature or developmental
disabilities, as determined by the court’s guidelines set forth in the Appendix C
hereto are to be assigned to an MHDD docket.” Loc.R. 30.1(A). The rule further
provides that “[a]t arraignment, * * * there will be a random assignment of identified
MHDD defendants to MHDD judges.” However, “[i]n cases where it is determined
after assignment to a non-MHDD judge that the defendant qualifies for the MHDD
docket, the assigned judge may apply to the administrative judge for transfer of the
case to the MHDD docket.” Loc.R. 30.1(C)(2)(a).
This court has explained that Loc.R. 30.1, “[t]hrough the use of ‘may,’
* * * authorizes, but does not mandate, a transfer of a defendant to the common
pleas court’s mental health docket.” State v. Ellis, 8th Dist. Cuyahoga No. 98538,
2013-Ohio-1184, ¶ 30. See also State v. Jones, 8th Dist. Cuyahoga No. 99703, 2014-
Ohio-1634, ¶ 3 (“In a case where the mental health of the defendant is not
determined until after arraignment, assignment to the mental health docket is
discretionary.”); State v. Lee, 8th Dist. Cuyahoga No. 99796, 2014-Ohio-205, ¶ 14
(“Loc.R. 30.1 does not mandate the transfer of a case after arraignment. Indeed,
‘[t]hrough the use of “may,” the rule authorizes, but does not mandate, a transfer of
a defendant to the common pleas court's mental health docket under certain
circumstances.’”).
In Ellis, the trial court was aware of Ellis’s mental health issues but
did not deem a transfer necessary. Id. This court reviewed the transcript of the
proceedings. We determined that although the court was aware of Ellis’s mental
health issues, it did not find his competency to be an issue. We further determined
that Ellis was able to assist in his defense throughout the proceedings. We
concluded:
[T]he trial court did not commit an error, plain or otherwise, in not
transferring Ellis to the mental health docket. The record does not
reveal indicia of Ellis’s lack of competence to stand trial or inability to
assist in his defense, despite any potential mental health issues. He fails
to demonstrate prejudice. The fourth assignment of error is without
merit.
Id. at ¶ 35.
Similarly, in Jones, this court concluded:
Nothing in the record shows that the court abused its discretion by not
transferring the case to the mental health docket. Although Jones’s
evaluations determined that she was a candidate for transfer to the
mental health docket, the evaluation determined also that she was
competent to stand trial and her mental health issues did not prevent
her from knowing that her conduct was wrong.
Id. at ¶ 6.
In this case, the court’s psychiatric evaluation indicates that Howse
was eligible for the MHDD docket due to his diagnosis of borderline intellectual
functioning IQ of 73. Despite what Howse’s psychiatric evaluation states, the trial
court did not have to transfer his case to the MHDD docket. It had the discretion to
keep the case under Loc.R. 30.1.
Moreover, the trial court determined that Howse was competent, was
able to understand the proceedings, and was able to assist his defense counsel. We
further reviewed the record in this case. There is nothing in the transcript or mental
health evaluation to indicate Howse was unable to understand the charges against
him, the penalties he faced, and assist in his own defense. Indeed, according to
Howse’s mental health examination, Howse’s “thought processes were intact and his
statements were consistent and coherent.” Thus, we cannot say that the trial court
abused its discretion when it decided to keep Howse’s case on its docket rather than
transfer it to the MHDD docket.
Howse’s first assignment of error is overruled.
III. Ineffective Assistance of Counsel
In his second assignment of error, Howse contends that his trial
counsel was ineffective for “failing to illuminate to the court his psychological and/or
psychiatric condition, as an aid to the court, hence, the within trial judge could not
assess his mental capacity appropriately during the entire duration of the
proceedings.”
To establish that trial counsel was ineffective, a defendant must show
that (1) counsel’s performance was deficient, and (2) the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). Defense counsel’s performance must fall below an
objective standard of reasonableness to be deficient in terms of ineffective assistance
of counsel. See State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).
Moreover, to succeed on an ineffective-assistance-of-counsel claim,
the defendant must show prejudice. State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d
772 (1998). To show prejudice, defendant must establish that there is a reasonable
probability that, but for counsel’s deficient performance, the result of the proceeding
would have been different. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892
N.E.2d 864, ¶ 204, citing Strickland and Bradley. The failure to make a showing of
either deficient performance or prejudice defeats a claim of ineffective assistance of
counsel. Strickland at 697.
First, defense counsel’s performance was not deficient. Howse’s first
appointed counsel filed a motion for the trial court to order Howse to be evaluated
by the court’s psychiatric clinic to determine Howse’s eligibility for the MHDD
docket. The record further establishes that his second appointed counsel raised the
issue with the trial court before Howse entered into the plea. Thus, we find that both
defense attorneys properly raised the issue.
Even if we agreed with Howse that his defense counsel “failed to
illuminate” his psychological condition to the trial court, however, the result of the
proceedings would have been the same. We have already found that the trial court
did not abuse its discretion when it chose to keep Howse’s case rather than transfer
it to the MHDD docket. Although Howse’s IQ was borderline, he was competent to
stand trial, able to understand the charges against him, the penalties he faced, and
assist in his own defense.
Accordingly, Howse’s second assignment of error is overruled.
IV. Allied Offenses
In his third assignment of error, Howse argues that the trial court
erred when it failed to merge “the multiple burglary, thefts, and robbery charges.”
The Double Jeopardy Clauses of the Fifth Amendment to the United
States Constitution, and the Ohio Constitution, Article I, Section 10, protect a
defendant against a second prosecution for the same offense after acquittal, a second
prosecution for the same offense after conviction, and multiple punishments for the
same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d
656 (1969); State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, 780 N.E.2d 250,
¶ 7. But the Double Jeopardy Clause “does no more than prevent the sentencing
court from prescribing greater punishment than the legislature intended.” Missouri
v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983). Thus, the
dispositive issue is “whether the General Assembly intended to permit multiple
punishments for the offenses at issue.” State v. Childs, 88 Ohio St.3d 558, 561, 728
N.E.2d 379 (2000).
In Ohio, this constitutional protection is codified in R.C. 2941.25.
State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, ¶ 23.
“Merger is ‘the penal philosophy that a major crime often includes as inherent
therein the component elements of other crimes and that these component
elements, in legal effect, are merged in the major crime.’” Id. at ¶ 23, fn. 3, quoting
Maumee v. Geiger, 45 Ohio St.2d 238, 344 N.E.2d 133 (1976).
Pursuant to R.C. 2941.25(A), “[w]here 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.” However,
[w]here 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(B).
“At its heart, the allied-offense analysis is dependent upon the facts of
a case because R.C. 2941.25 focuses on the defendant’s conduct.” State v. Ruff, 143
Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 26. In Ruff, the Supreme Court
held that if a defendant’s conduct supports multiple offenses, the defendant can be
convicted of all of the offenses if any one of the following is true (1) the conduct
constitutes offenses of dissimilar import or significance, (2) the conduct shows the
offenses were committed separately, or (3) the conduct shows the offenses were
committed with separate animus or motivation. Id. at paragraph three of the
syllabus, citing R.C. 2941.25(B).
Two or more offenses are of dissimilar import within the meaning of
R.C. 2941.25(B) “when the defendant’s conduct constitutes offenses involving
separate victims or if the harm that results from each offense is separate and
identifiable.” Id. at paragraph two of the syllabus.
When determining whether two offenses are allied offenses of similar
import, we apply a de novo standard of review. State v. Williams, 134 Ohio St.3d
482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
It is difficult to determine exactly what offenses Howse is claiming
should have merged. His entire argument is as follows:
It is questionable whether the multiple burglary, thefts, and robbery
charges are cumulative. The only exception would be if the conduct
was separate or with two victims. Herein, the theft occurred upon the
male victim. The female was in the house, and nothing was taken from
her. Based on the state’s information, the female victim was neither
assaulted nor robbed. At the very most, she was a witness who saw the
male being robbed. She ran to the bathroom where she locked herself
in, and called 911. Perhaps the facts herein sentence can be explained
as kidnapping if a burglary was not connected to the same crime.
However, the multiple counts of burglary, theft, and robbery, are an
exaggeration of counts. If the theft upon the man was in the house, it
is a burglary. If it is outside, it is a robbery, however, they are not two
crimes, nor are they cumulative, since the theft only occurred upon the
man.
(Transcript citations removed.)
Howse appears to be arguing that he only committed offenses against
the male victim. He also appears to get the facts from the first incident involving the
first female victim (who found Howse on the floor beside her bed and ran into her
bathroom) confused with the facts from the second incident involving the second
female victim (the male victim’s wife who obtained the money out of his wallet to
give to Howse). Nonetheless, there were three victims in this case: the first female
from September 13, 2018, and then the husband and wife victims from September
14, 2018.
At the sentencing hearing, the court indicated that the parties had
reached an agreement on what offenses merged for purposes of sentencing: Counts
1 and 2, and Counts 5, 9, and 10. Counts 1 (aggravated burglary) and 2 (burglary)
were Howse’s crimes against the first victim who walked into her bedroom and
found Howse hiding on the floor on the side of her bed. Counts 5 (aggravated
robbery), 9 (grand theft), and 10 (theft) were Howse’s crimes against the male victim
who found Howse in his barn.
Howse only claims that his “burglary, thefts, and robbery” counts
should merge. After removing the offenses that the trial court already merged, that
only leaves Count 4 and Count 6 remaining that involve “burglary, thefts, and
robbery” counts. Count 4 involved aggravated burglary naming the male as the
victim. Count 6 involved robbery naming the male’s wife as the victim. Thus, we
will determine if either Count 4 or Count 6 should have merged with other counts.
Count 6 charged Howse with robbery under R.C. 2911.02(A)(1). This
provision states that “[n]o person, in attempting or committing a theft offense 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[.]” This count
would not merge into any other count because it is the only count involving the
second female victim: the wife of the male victim. Thus, the offense has dissimilar
import from all of the other offenses because it involves a separate and identifiable
victim. See Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph two
of the syllabus.
That leaves Count 4, which charged Howse with aggravated burglary
under R.C. 2911.11(A)(2). This offense provides:
(A) No person, by force, stealth, or deception, shall trespass in an
occupied structure or in a separately secured or separately occupied
portion of an occupied structure, when another person other than an
accomplice of the offender is present, with purpose to commit in the
structure or in the separately secured or separately occupied portion of
the structure any criminal offense, if * * * [t]he offender has a deadly
weapon or dangerous ordnance on or about the offender’s person or
under the offender’s control.
Howse seems to contend that this offense should merge with Count 5,
Howse’s aggravated robbery conviction under R.C. 2911.01(A)(1) involving the male
victim. This provision states:
No 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[.]
Under Ruff, we must consider these offenses in the context of
appellant’s conduct to determine (1) if the offenses were dissimilar in import or
significance; (2) if the offenses were committed separately; or (3) if the offenses were
committed with a separate animus or motivation. If any of these three factors apply
to Howse’s conduct, the offenses are not subject to merger pursuant to R.C. 2941.25.
Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, at ¶ 25.
After review, we conclude that the aggravated burglary and
aggravated robbery offenses should not have merged because they were committed
separately. Howse committed the aggravated burglary when he trespassed into the
male victim’s barn with purpose to commit a theft and threatened the victim with
harm by pointing a gun at his head. The aggravated robbery was committed when
Howse held the gun to the male victim’s head while standing outside of the victim’s
house with the intent to commit a theft. Thus, the trial court did not err when it did
not merge Howse’s aggravated burglary conviction with his aggravated robbery
conviction.
Accordingly, Howse’s third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
convictions having been affirmed, any bail pending is terminated. Case remanded
to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
RAYMOND C. HEADEN, J., CONCUR