State v. Osman ( 2014 )

[Cite as State v. Osman, 2014-Ohio-294.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 13CA22
:
vs. :
:
MAHAT OSMAN, AKA MAHAD : DECISION AND JUDGMENT
OSMAN, AKA MOHAMUD : ENTRY
JAMA, AKA TAZ, :
:
Defendant-Appellant. : Released: 01/22/14
_____________________________________________________________
APPEARANCES:
Sam B. Weiner, Samuel B. Weiner Co., L.P.A., Columbus, Ohio, and David
J. Graeff, Westerville, Ohio, for Appellant.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M.
Saunders, Assistant Prosecuting Attorney, Athens, Ohio, for Appellee.
_____________________________________________________________
McFarland, J.
{¶1} Mahat Osman appeals the convictions and sentences imposed,
post remand, by the Athens County Court of Common Pleas after a jury
found him guilty of six felony offenses. On appeal, Appellant raises only
one assignment of error, contending that the trial court erred at the re-
sentencing hearing when it convicted and sentenced him again on both the
charge of felony murder, in violation of R.C. 2903.02(B), and aggravated
robbery, in violation of R.C. 2911.01, claiming that the offenses are allied
Athens App. No. 13CA22 2
offenses of similar import under R.C. 2941.25. However, because we
conclude that these two crimes had separate victims, we find they were
committed separately and thus are of dissimilar import. As such,
Appellant’s sole assignment of error is overruled. Accordingly, the decision
of the trial court is affirmed.
FACTS
{¶2} This case is before us for a second time on appeal, following a
prior remand to the trial court for the purposes of re-sentencing. The facts
are as follows, primarily set forth in our prior decision related to this matter.
The exchange of gunfire during an aggravated robbery between three men
outside a trailer and three other men inside a trailer resulted in the death of
bystander Donnie Putnam (hereinafter “victim”) on February 14, 2009. The
victim's death occurred outside Billie Osbourne, Jr.'s trailer.
{¶3} Three men, Osman, Philip Boler, and Abdifatah Abdi, and one
woman, Hamda Jama went in two cars to Osbourne's trailer intent on
committing a robbery. A fifth individual, Eric Fussner, went with them
because someone ordered him at gunpoint to drive his car. Fussner drove
Osman and Abdi while Boler drove Jama to the trailer. When the group
arrived at the trailer, Osman and Abdi ordered Fussner to back out of the
driveway so that they could confer with Boler and establish a plan of action.
Athens App. No. 13CA22 3
Before Fussner pulled into the driveway a second time, Osman and Abdi had
him turn off his lights.
{¶4} Osman, Abdi, and Boler exited the vehicles. Boler carried a .22
Marlin, and Fussner overheard Boler say to Osman that he (i.e., Boler)
would have “his” head in his sights the whole time. (The record is not clear
whose head Boler was referring to.) Osman and Abdi then walked up to
Osbourne's trailer. Inside Osbourne's trailer that evening, Shane Benson and
his friend John Perry Jr. were in the dining room smoking crack cocaine.
Someone (the record is not precisely clear on who) had noticed the two cars
approaching the trailer.
{¶5} Because of information he had received previously, Osbourne
was concerned that the individuals in the cars wanted to rob him. Earlier that
day, Osbourne had retrieved several guns and had placed them in readily
accessible locations in the trailer. He placed a 9mm semi-automatic pistol on
top of the television. He placed an SKS semi-automatic rifle next to the front
door. And finally, he leaned a shotgun up against a countertop.
{¶6} Osman and Abdi knocked on the front door. Osbourne partially
opened it and asked what they wanted. Osman and Abdi demanded to speak
with “Johnny.” Osbourne said that Johnny was not there and that there were
children in the trailer. Osbourne testified that Abdi then drew a .40 caliber
Athens App. No. 13CA22 4
semi-automatic Smith and Wesson pistol and pressed it against Osbourne's
gut. Osbourne grabbed the pistol and pushed it aside. As the two men
struggled over the pistol, Abdi fired the gun twice. Eventually, Osbourne
manipulated the pistol so that it pointed towards Abdi's head. At this point,
Abdi turned and ran letting go of the pistol.
{¶7} The front door of Osbourne's trailer opened to the outside. After
Osbourne wrested the pistol away from Abdi, Osbourne stood slightly
outside his trailer. Osman then slammed against the front door knocking
Osbourne against the wall. Osbourne shoved the door back open and
knocked Osman backwards. Osman then ran from the porch. At this point, a
gunfight ensued. Inside or near the trailer, Osbourne fired the gun he wrested
from Abdi until it ran out of bullets. Osbourne then retrieved his SKS
semiautomatic rifle and fired several rounds until it jammed. Osbourne's two
visitors inside the trailer joined the gunfight. That is, Perry fired four rounds
from a 9mm pistol, and Benson fired at least one shell from a shotgun.
{¶8} Outside the trailer, Boler fired at least three rounds from the .22
Marlin rifle. And Fussner testified that both Osman and Abdi fired at the
trailer as they retreated from the porch. During the struggle on the porch,
the victim arrived on the scene with his girlfriend Misty Swartz. The victim
and Osbourne were friends. The victim got out of his car and started to move
Athens App. No. 13CA22 5
towards the porch. A 9mm round struck the victim during the exchange of
gunfire. The bullet punctured the middle and lower lobes of the victim's
right lung. Mortally wounded, the victim fell to the ground and died shortly
thereafter.
{¶9} During the gunfight, Fussner backed his car out of the driveway
and drove off. As a result, Osman, Boler, Abdi, and Jama all piled into the
remaining car. Due to the speed of the escape, however, the car crashed and
overturned shortly after leaving Osbourne's trailer. Boler remained in the
area of the wreck, but his co-conspirators fled on foot. Paramedics were
called to the scene of the shooting. One of the dispatched squads instead
encountered the overturned car. The paramedics found Boler who appeared
dazed and confused after the accident. While one of the paramedics was
treating Boler, officers from the Athens County Sheriff's Office arrived and
arrested Boler. Officers of the Ohio State Highway Patrol eventually
apprehended Boler's coconspirators, including Osman.
{¶10} As we noted in our prior opinion, Osman had a different
version of the events. Following his arrest, Osman made several statements
to police. Initially, Osman gave a statement to Trooper Glendon Ward when
Trooper Ward was transporting Osman from the scene of Osman's arrest to
the Athens County Sherriff's Department. In this statement, Osman informed
Athens App. No. 13CA22 6
Trooper Ward that he and his coconspirators were the victims of a car
accident. Osman stated that another vehicle hit their car from behind. At that
time, however, the police had not advised Osman of his Miranda rights.
Shortly after Trooper Ward brought Osman to the Sherriff's Department,
Trooper Ward advised Osman of his Miranda rights. Osman again claimed
that he and his co-conspirators were the victims of a hit-and-run accident.
Osman claimed that he was travelling to a friend's house when another
vehicle caused the car to crash.
{¶11} Lt. Bryan Cooper of the Athens County Sherriff's Department
interviewed Osman several hours later. Lt. Cooper re-advised Osman of his
Miranda rights. During the interview, Osman admitted that he and his co-
conspirators took weapons to Osbourne's trailer to commit a robbery. Osman
also admitted that he drew his firearm during the struggle with Osbourne on
the porch. (Osman initially stated to Lt. Cooper that Abdi first pulled the gun
on Osbourne. Osman, however, changed his story during the interview and
stated that he, and not Abdi, first pulled the gun on Osbourne).
{¶12} Ultimately, the jury returned a verdict finding Osman (1) guilty
of aggravated robbery and complicity to aggravated robbery, both with a
firearm specification, in violation of R.C. 2911.01(A)(1) & 2941.145; (2)
aggravated robbery and complicity to aggravated robbery, both with a
Athens App. No. 13CA22 7
firearm specification, in violation of R.C. 2911.01(A)(3) & 2941.145; and
(3) murder and complicity to murder, both with a firearm specification, in
violation of R.C. 2903.02(B) & 2941.145.
{¶13} The trial court merged the counts of aggravated robbery and
complicity to aggravated robbery, and the court sentenced Osman to ten
years incarceration for those counts. The trial court also merged the murder
and complicity to murder convictions, and the court imposed a mandatory
fifteen years to life incarceration for the murder conviction plus three years
for the firearm specification. The trial court ordered all sentences to be
served consecutively, imposing a total sentence of twenty-eight years to life.
{¶14} Osman filed a direct appeal of his convictions and sentences.
This Court affirmed Appellant’s convictions and sentences in part, reversed
in part, and remanded the matter to the trial court. State v. Osman, 4th Dist.
Athens No. 09CA36, 2011-Ohio-4626. With one exception, this Court
upheld Osman’s convictions and sentences. Of importance to the present
appeal, we concluded that aggravated robbery and felony murder were allied
offenses of similar import and remanded the matter to the trial court for
further proceedings to determine if the two crimes were committed
separately or with a separate animus. Osman at ¶ 1.
Athens App. No. 13CA22 8
{¶15} As a result of this Court’s remand order, the trial court held a
re-sentencing hearing on April 9, 2013. The trial court determined that the
two crimes at issue were committed separately as they had separate victims.
In particular, the court noted that the victim of the aggravated robbery
charges was Billy Jo Osbourne while the victim of the murder charge was
Donnie Putnam. As a result, the trial court found the crimes were not allied
offenses of similar import and thus refused to merge them for purposes of
sentencing. As such, Appellant was once again sentenced for both of these
crimes separately. It is from the trial court’s April 24, 2013, judgment entry
re-sentencing him that Osman now brings his current appeal, assigning a
single error for our review.
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED, AT THE RE-SENTENCING
HEARING, WHEN IT CONVICTED AND SENTENCED THE
DEFENDANT AGAIN ON BOTH THE CHARGE OF MURDER,
IN VIOLATION OF R.C. 2903.02(B) WHICH PROSCRIBED
CAUSING THE DEATH OF ANOTHER AS A PROXIMATE
RESULT OF AGGRAVATED ROBBERY, IN VIOLATION OF
R.C. 2911.01, SINCE THE OFFENSES ARE ALLIED OFFENSES
OF SIMILAR IMPORT UNDER R.C. 2941.25 WHICH
PRECLUDES MULTIPLE CONVICTIONS IN SENTENCING FOR
THE SAME CONDUCT AND BECAUSE THE
CONSTITUTIONAL PROVISIONS OF THE DOUBLE JEOPARDY
CLAUSE PROHIBIT THE INFLICTION OF CUMULATIVE
PUNISHMENT FOR BOTH GREATER AND LESSER INCLUDED
OFFENSES.”
Athens App. No. 13CA22 9
LEGAL ANALYSIS
{¶16} In his sole assignment of error, Appellant contends that the
trial court erred in convicting him of both felony murder and aggravated
robbery, crimes which he claims arose from the same conduct, were
committed with a single animus and, as a result, should have merged for
purposes of sentencing, as allied offenses of similar import. Appellate
courts apply a de novo standard of review in reviewing a trial court's
application of the merger statute, R.C. 2941.25. State v. Williams, 134 Ohio
St.3d 482, 488, 2012-Ohio-5699, 983 N.E.2d 1245, ¶¶ 25-28 . “Appellate
courts apply the law to the facts of individual cases to make a legal
determination as to whether R.C. 2941.25 allows multiple convictions.” Id.{¶17} R.C. 2941.25 “codifies the protections of the Double Jeopardy
Clause of the Fifth Amendment to the United States Constitution and
Section 10, Article I of the Ohio Constitution, which prohibit[ ] multiple
punishments for the same offense.” State v. Underwood, 124 Ohio St.3d
365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. The statute states:
“(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.
Athens App. No. 13CA22 10
(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.”
{¶18} In State v. Nguyen, 4th Dist. Athens No. 12CA14, 2013-Ohio-
3170, ¶ 103, we set forth the analysis that applies when determining if
offenses should merge under R.C. 2941.25:
“ ‘Through a series of opinions the Supreme Court of Ohio has
advised and re-advised lower courts on the difficult task of
applying Ohio's multiple-count statute to determine which
criminal convictions require merger.’ [State v. Delawder, 4th
Dist. Scioto App. No. 10CA3344, 2012-Ohio-1923, ¶ 39]. In
the plurality decision of State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1061, the Court expressly
overruled its then current test for merger. Under the new test,
the trial court must first determine ‘whether it is possible to
commit one offense and commit the other with the same
conduct, not whether it is possible to commit one without
Athens App. No. 13CA22 11
committing the other.’ (Emphasis sic). Johnson at ¶ 48. If the
offenses are so alike that the same conduct can subject the
accused to potential culpability for both, they are ‘of similar
import’ and the court must proceed to the second step. The
court must then determine whether the offenses in fact were
committed by the same conduct, i.e., committed as a single act
with a single animus. Id. at ¶ 49. If so, merger is necessary.
However, if the offenses resulted from separate acts or were
performed with a separate animus, or if the commission of one
offense will never result in the commission of the other, the
offenses will not merge. Id. at ¶ 51.”
{¶19} This Court has already determined that, here, it was possible
for Osman to commit felony murder and aggravated robbery with the same
conduct. State v. Osman, supra, at ¶ 32. However, as the trial court had not
considered whether Osman committed these crimes separately or with a
separate animus prior to imposing sentence, we remanded the matter for
further proceedings and re-sentencing. On remand, the trial court
determined that “[i]n the instant case, Billy Jo Osbourne was the victim of
the aggravated robbery charges. Donnie Putman was the murder victim
although he was an innocent bystander.” As such, the trial court further
Athens App. No. 13CA22 12
determined that “each crime has a separate victim, and were thus of
dissimilar import[,]” and that Osman’s conduct “resulted in two or more
offenses committed separately or with a separate animus to each.” Based
upon our review of the record as well as recent case law, we agree with the
trial court’s determination.
{¶20} This Court recently addressed and rejected a similar argument
in State v. Clay, 4th Dist. Lawrence No. 11CA23, 2013-Ohio-4649. In Clay,
we reasoned as follows at ¶ 84:
“Ohio courts have routinely recognized that separate
convictions and sentences are permitted when the same course
of conduct affects multiple victims. State v. Franklin, 97 Ohio
St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 48 (finding the
court could impose multiple punishments for aggravated arson
as defendant ‘caused six offenses of dissimilar import because
six different people were placed at risk’ when defendant set one
structure on fire); State v. Jones, 18 Ohio St.3d 116, 480 N.E.2d
408 (1985) (determining that defendant could be sentenced for
two convictions of aggravated vehicular homicide, even though
the convictions arose out of the same conduct, when the
conduct resulted in the death of two individuals); State v. Crisp,
Athens App. No. 13CA22 13
4th Dist. Scioto No. 10CA3404, 2012-Ohio-1730, ¶ 36 (finding
that ‘[i]n situations where a defendant has knowledge that more
than one victim could be harmed, courts have concluded there
is a separate animus for each victim at risk’). Thus, ‘multiple
sentences for a single act committed against multiple victims is
permissible where the offense is defined in terms of conduct
toward “another as such offenses are of dissimilar import; the
import being each person affected.” ’ State v. Tapscott, 7th
Dist. Mahoning No. 11 MA26, 2012-Ohio-4213, ¶ 41, quoting
Jones, 18 Ohio St.3d at 118, 480 N.E.2d 408; accord State v.
Angus, 10th Dist. No. 05AP-1054, 2006-Ohio-4455, 2006 WL
2474512, ¶ 34 (‘Where a defendant's conduct injures multiple
victims, the defendant may be convicted and sentenced for each
offense involving a separate victim.’).”
{¶21} Based upon the foregoing, we reject Osman’s argument that
the crimes of felony murder and aggravated robbery were committed with a
single animus. We further reject Osman’s argument that because the felony
murder statute fails to specify a mens rea element but instead relies upon the
mens rea specified in the predicate offense, the he committed felony murder
with the same animus as the predicate offense. See State v. Ragland, 5th
Athens App. No. 13CA22 14
Dist. Stark No. 2010CA00023, 2011-Ohio-2245, ¶ 71 (concluding that
because the crimes of felony murder and aggravated robbery had two
separate victims, the conduct constituted “two offenses of dissimilar
import.”). Likewise, we reject Appellant’s further argument that the felony
murder offense was committed with no animus whatsoever. For us to
conclude that there was no animus in the commission of the felony murder
offense would seem to invalidate Appellant’s conviction for that offense.
Rather, we affirmed Appellant’s conviction for that offense and noted that
“[u]nder Ohio law, ‘it is irrelevant whether the killer is the defendant, an
accomplice or a third party.’ ” State v. Osman at ¶ 47.
{¶22} In response to these arguments, we instead are persuaded by
the reasoning set forth above with respect to crimes stated in terms of
conduct towards “another” being of dissimilar import when multiple victims
are involved. State v. Clay at ¶ 84; citing State v. Tapscott at ¶ 41. Here, the
crimes of felony murder and aggravated robbery are both defined in terms of
conduct towards another. Specifically, R.C. 2903.02(B) provides that “[n]o
person shall cause the death of another * * *.” (Emphasis added). Further,
R.C. 2911.01(A)(1) and (3) provides that:
“[n]o person, in attempting or committing a theft offense * * *
or in fleeing immediately after the attempt or offense, shall do
Athens App. No. 13CA22 15
any of the following: (1) Have 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; * * * (3) Inflict, or attempt to inflict,
serious physical harm on another.” (Emphasis added).
{¶23} As recently noted by the First District Court of Appeals in a
case involving multiple victims as a result of the commission of the offenses
of aggravated vehicular homicide and aggravated vehicular assault:
“In 1985, the Ohio Supreme Court identified the General
Assembly's intention to provide for multiple punishments in
cases like this one where the offense is defined in terms of
conduct towards ‘another,’ and the offender has committed a
single act resulting in multiple victims. In State v. Jones, 18
Ohio St.3d 116, 480 N.E.2d 408 (1985), the Ohio Supreme
Court held that multiple convictions for aggravated-vehicular
homicide, in violation of R.C. 2903.06, can arise from a single
instance of a person's reckless operation of his vehicle. The
Supreme Court first examined the text of the vehicular-
homicide statute that prohibited recklessly causing the death ‘of
another.’ Id. at 118. Holding that the statute, by being framed
Athens App. No. 13CA22 16
in terms of an offender's conduct towards another, authorized a
conviction for each person killed by a reckless driver, the
Supreme Court concluded that the killing of the two passengers
in the defendant's vehicle as a result of the defendant's reckless
operation of the vehicle constituted two offenses of dissimilar
import. The conduct of recklessly causing the death of two
persons with the defendant's automobile represented ‘two
offenses of dissimilar import-the “import” under R.C. 2903.06
being each person killed.’ Id.” State v. Watkins, 1st Dist. No. C-
120567, 2013-Ohio-4222, ¶ 12.
{¶24} Although Watkins involved offenses quite different from the
ones sub judice, it relied on cases more similar to the one presently before
this Court. For instance, the Watkins court cited State v. Ellison, supra, in
support of its reasoning, which involved the offenses of kidnapping and
abduction, with separate victims. Watkins also cited State v. Wright, supra,
which involved the offenses of murder and felonious assault, involving a
woman and her unborn child. Finally, we again look to the reasoning of
State v. Ragland, which was discussed supra. Relying on the reasoning set
forth in State v. Jones, supra, which involved aggravated vehicular
homicide, the Ragland court determined that the offenses of felony murder
Athens App. No. 13CA22 17
and aggravated robbery committed against two separate victims were not
allied offenses of similar import. State v. Ragland at ¶ 71.
{¶25} Because Osman’s felony murder and aggravated robbery
convictions involved different victims, the imposition of multiple
punishments does not offend double jeopardy principles or R.C. 2941.25.
The offenses are of dissimilar import because each offense involved a
different victim. Consequently, the trial court did not err by failing to merge
the convictions.
{¶26} Accordingly, we overrule Osman’s sole assignment of error
and affirm the decision of the trial court.
JUDGMENT AFFIRMED.
Athens App. No. 13CA22 18
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens
County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it
is temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of
the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, P.J. & Harsha, J.: Concur in Judgment and Opinion.
For the Court,
BY: ___________________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing with
the clerk.