State v. Robinson , 2014 Ohio 2973 ( 2014 )

[Cite as State v. Robinson, 2014-Ohio-2973.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 99917
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MARVIN C. ROBINSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-12-564924-B
BEFORE: E.T. Gallagher, J., Celebrezze, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: July 3, 2014
ATTORNEYS FOR APPELLANT
Robert L. Tobik
Cuyahoga County Public Defender
BY: Erika B. Cunliffe
Cullen Sweeney
Assistant Public Defenders
310 Lakeside Avenue
Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian R. Radigan
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Marvin Robinson (“Robinson”) appeals his convictions
and sentence. We find no merit to the appeal and affirm.
{¶2} Robinson and his codefendant, Charles Harris (“Harris”), were charged with
two counts of aggravated murder, one count of aggravated robbery, and one count of
felonious assault. They were accused of violently beating the victim, Michael Morgan
(“Morgan”), to death and stealing his belongings.
{¶3} The case proceeded to a jury trial where Morgan’s ex-wife, Jeanette Morgan
(“Jeanette”), testified that Morgan was a middle-aged father of three who lived in North
Olmsted, Ohio. According to Jeanette, Morgan had difficulty dealing with their recent
divorce and had been drinking more alcohol than usual. She had no knowledge that
Morgan had also been using crack cocaine.
{¶4} For several months prior to his death, Morgan had been visiting Anthony
Fields (“Fields”) two to three times per week at Fields’s apartment located on W. 83rd
Street in Cleveland to smoke crack cocaine. During these visits, Morgan would give
Fields cash, Fields would purchase the crack, and the two would smoke it together. They
had this arrangement because Morgan had been robbed attempting to buy crack in the
past, and Fields had a seller he purchased from regularly.
{¶5} W. 83rd Street is located in a high crime area known for drug activity and
prostitution. On the evening of July 16, 2012, Detective William Salupo (“Salupo”) was
parked on W. 83rd Street conducting surveillance when he observed a white Dodge
Charger turn onto W. 83rd from Detroit Avenue and park on the street. Salupo watched
as one man exited the car, crossed the street, and walked toward an apartment building.
Less than five minutes later, Salupo observed police vehicles arrive in the area where the
Charger was parked. He also observed two men walking away from the scene from the
east side of W.83rd Street to the west side of the street and disappear from view.
{¶6} Fields’s apartment was located on the second floor of the building and had a
balcony overlooking a courtyard. An elderly woman lived in the adjacent apartment and
shared the balcony with Fields. On the evening of July 16, 2012, Jason Miller (“Miller”),
the elderly woman’s son, had come to visit her. Miller was sitting on the balcony shortly
after 10:00 p.m. when he observed three men approaching the stairs to the apartment
building. He recognized one of the men as Morgan but did not recognize the other two.
{¶7} Miller went inside the apartment to get a soda and when he returned to the
balcony about one minute later, he saw Morgan lying lifeless on the sidewalk, and the
other two men were kicking and beating him. Miller immediately alerted Fields, who
came out on the balcony and also observed the beating. Fields testified that one of the
males, later identified as Harris, was tall and skinny and wearing a black shirt. The other
male, later identified as Robinson, was more stocky and was wearing a white shirt.
Miller and Fields saw Robinson going through Morgan’s pockets.
{¶8} Fields ran out to the courtyard in an attempt to help Morgan, but Harris
chased him away threatening to beat him as well. Fields called 911 to report the beating
and possible murder of his friend. Detective John Graves (“Graves”) and his partner
Detective Roland Mitchell (“Mitchell”), who were stationed on W. 81st Street and
Detroit, heard a broadcast of two males beating a man to death at an address on W. 83rd
Street and responded to the scene. When they arrived, Graves observed two men leaving
the courtyard and walking southbound on W. 83rd Street. Witnesses informed the
officers that the two men leaving the scene were the men responsible for the attack.
{¶9} Graves turned to follow the two males leaving the scene and observed that
they were either walking at a fast pace or running. Graves notified other police units in
the area to apprehend the males while he turned his attention to the victim. Minutes
later, other officers arrived at the scene with the two men in custody. Fields and a friend,
positively identified the two men as the perpetrators.
{¶10} Officer Graves and a Cleveland paramedic, who transported Morgan to
MetroHealth Hospital, testified that it was difficult to determine the extent of Morgan’s
injuries because he was unconscious with only a small amount of blood oozing from his
left ear and on the ground. However, Morgan’s blood pressure and unconscious state
indicated he sustained significant internal injuries. Shortly after reaching the hospital, it
was determined that Morgan was brain dead.
{¶11} Dr. Joseph Felo (“Dr. Felo”), a forensic pathologist with the Cuyahoga
County Medical Examiner’s Office, performed Morgan’s autopsy. Dr. Felo testified that
Morgan suffered several nonfatal injuries to his arms, legs, and torso. He also stated that
Morgan sustained a skull fracture, approximately five inches long from the right eyebrow
to the back of the skull, which was the fatal injury. He explained that this injury could
only have been caused by a single blow to the top of the skull with a blunt object having a
flat or rounded surface.
{¶12} Dr. Felo further opined that Morgan’s skull fracture could not have been
caused by a fist, and it could not have been caused by falling to the ground from a
standing position. It also could not have been caused by a fall from the balcony because
a fall from the balcony would have caused more extensive injuries throughout the entire
body. According to Dr. Felo, this injury could have been caused by a heel of a shoe, a
bat, or some type of pole. Dr. Felo further explained that Morgan’s injuries would not
have caused a significant amount of bleeding because there were no open wounds on the
body. He determined the death was a homicide caused by a single blow to the head.
{¶13} Curtiss Jones (“Jones”), a supervisor in the trace evidence department of the
Cuyahoga County Medical Examiner’s Office, testified that he examined Robinson and
Harris’s shoes and clothing for sources of DNA. Jones also examined a metal pole found
at the crime scene for bodily fluids or hair samples. However, because he found no hair
or bodily fluids on the pole he did not send the pole to the DNA department for further
testing.
{¶14} A forensic scientist in the DNA department of the Cuyahoga County
Medical Examiner’s Office testified that she performed DNA testing on several items of
clothing and shoes. She found Morgan’s DNA in a blood stain on the lip of Harris’s
shoe. The items failed to reveal any connection between Robinson and Morgan.
{¶15} Detective Ignatius Sowa (“Sowa”), a homicide detective with the Cleveland
Police Department, testified that as part of his investigation he obtained a search warrant
and searched the property Robinson and Harris possessed at the time of their arrests.
Among other things, Sowa discovered two $20 bills with Robinson’s property. During a
search of Morgan’s vehicle, Sowa found an ATM receipt that indicated Morgan had
withdrawn $40 from a bank in North Olmsted approximately 20 minutes before he was
murdered. Morgan’s wallet was found near his car and did not contain any money. No
money was found anywhere in Morgan’s car or on his person.
{¶16} At the close of evidence, the trial court granted Robinson’s Crim.R. 29
motion for acquittal on Count 1 of the indictment, which alleged aggravated murder with
prior calculation and design. The remaining charges were submitted to the jury.
{¶17} After several hours of deliberations, the jury informed the court that it was
“hung” on three counts, and the defense requested a Howard 1 charge. The court
declined to give a Howard charge but instructed the jury to continue deliberating. The
next day, Juror No. 5 asked to be replaced, stating “I feel like I have good points and due
to lack of evidence, I cannot make a — find him guilty.” In discussing the note, both the
state and defense agreed that the juror should not be excused.
{¶18} The defense, however, requested a mistrial on grounds that the juror’s
comments indicated the jury was hung. The court refused to grant a mistrial and gave the
1 In State v. Howard, 42 Ohio St.3d 18, 537 N.E.2d 183 (1989), the Ohio
Supreme Court set forth the proper instruction the trial court must give a jury that
has declared itself deadlocked.
jurors a Howard charge. Upon request, the court also gave the jury a written Howard
charge. After further deliberations, the jury found Robinson not guilty on the remaining
aggravated murder charge, but convicted him of murder, aggravated robbery, and
felonious assault.
{¶19} At sentencing, the court concluded, over defense objection, that the
aggravated robbery and murder charges were not allied offenses. The court sentenced
Robinson to 15 years to life for murder and three years for aggravated robbery to be
served consecutive to the 15 years on the murder. The court did not sentence Robinson
on the felonious assault charge because it merged with the murder charge. Robinson
now appeals and raises five assignments of error.
Evidence of Alleged Murder Weapon
{¶20} In the first assignment of error, Robinson argues the trial court violated his
constitutional right to due process when the court allowed the state to introduce evidence
of the alleged murder weapon without first demonstrating its evidentiary nexus to the
crime. He contends the state should not have been permitted to introduce evidence of the
pipe found at the crime scene because there was no physical evidence linking it to the
crimes.
{¶21} Robinson did not object to this evidence and therefore forfeited all but plain
error. Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.” “Notice of
plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus. In order to find
plain error under Crim.R. 52(B), it must be determined that, but for the error, the outcome
of the trial clearly would have been otherwise. Id. at paragraph two of the syllabus.
{¶22} A criminal defendant’s due process right to a fair trial is violated when
inadmissible evidence may have contributed to the conviction. Fahy v. Connecticut, 375
U.S. 85, 87-88, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). Under Evid.R. 402, only relevant
evidence is admissible. Evid.R. 401 defines relevant evidence as evidence having any
tendency to make the existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without the evidence.
However, relevant evidence is not admissible if its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading
the jury. Evid.R. 403. Although “all evidence presented by a prosecutor is prejudicial,
* * * not all evidence unfairly prejudices a defendant.” State v. Skatzes, 104 Ohio St.3d
195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 107.
{¶23} Because fairness is subjective, the determination as to whether evidence is
“unfairly prejudicial” is left to the sound discretion of the trial court. State v. Robb, 88
Ohio St.3d 59, 68, 723 N.E.2d 1019 (2000). Accordingly, we review a trial court’s
decision regarding the admission of evidence for an abuse of discretion. State v.
Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62.
{¶24} Robinson contends the probative value of the pipe found at the crime scene
is substantially outweighed by unfair prejudice, especially because the state made it the
focal point of its case. However, the record shows that the state did not overemphasize
the importance of the pipe, and there was evidence that the pipe was not only relevant but
highly probative.
{¶25} First, the state never mentioned the pipe in its opening statement, and the
state never theorized that the pipe was indeed the weapon that struck the fatal blow to
Morgan. In both the state’s opening statement and closing arguments, the state informed
the jury that it was not clear what blunt object actually inflicted the fatal blow. The state
merely suggested that the pipe was a possibility.
{¶26} Furthermore, the fact that the pipe may have been used as a murder weapon
is supported by the record. The pipe was first mentioned on page 464 of the transcript
where Detective Graves identifies it as an object found in the grass several feet away
from Morgan’s body. When asked why Graves thought the pipe was significant, he
explained: “Speaking with one of the people we learned some information regarding [sic]
possible object that was used.”
{¶27} Later, Dr. Felo explained that only a single blow with a blunt object could
have caused Morgan’s fractured skull. It could not have been caused by simply falling
from a standing position or falling from a second floor balcony. It also was not caused
by multiple blows because, if that were the case, there would have been more cracks in
the skull. Dr. Felo further explained that the injury could have been caused by holding
the victim in a headlock and ramming him into a fixed object.
{¶28} Finally, Dr. Felo stated that Morgan’s skull fracture could have been caused
by the pipe, but the pipe failed to contain any of the victim’s hair, skin, or blood. For
this reason, Dr. Felo could not identify the pipe as the murder weapon to a reasonable
degree of medical certainty. Nevertheless, Dr. Felo could not exclude the pipe as a
possible murder weapon and explained that it was unlikely there would be blood on the
murder weapon because Morgan’s injuries were internal. Dr. Felo also explained that
hair falls off an object much more easily than blood. Therefore, based on expert
testimony, the pipe remained a possible murder weapon in the case, and the jury was free
to determine what weight should be given to the evidence.
{¶29} Evidence of the pipe was relevant, probative, and admissible since it was a
possible murder weapon. Under these circumstances, Robinson was not deprived of a
fair trial by the court’s decision to admit evidence of the pipe, and its admission into
evidence was not an abuse of discretion.
{¶30} The first assignment of error is overruled.
Fair and Impartial Jury
{¶31} In the second assignment of error, Robinson argues he was denied his
constitutional right to a fair and impartial jury because (1) the court failed to provide
sufficient clarification requested by the jury, (2) the court interfered with the jury’s
deliberations, and (3) the court failed to declare a mistrial after the jury twice claimed it
could not reach a verdict.
{¶32} At approximately 4:00 p.m. on the jury’s second day of deliberations, it sent
out a note requesting direction because it was hung on three counts. Rather than give
the jury a Howard charge, as the defense requested, the court instructed the jury:
The word “hung” in reference to deliberations is generally used to mean we
cannot reach an agreement on three counts. I will assume that’s what you
mean here.
First things first. It appears you have reached an agreement on one count.
So your deliberations on that count should be undisturbed and are over.
As for the three counts, I just want you to know that your situation is not all
that unusual. Based on the time that you’ve been deliberating, I think that
a little more effort is in order in this particular case. However, an effort
probably shouldn’t be made this afternoon. If you have an evening to
reflect and rest, you may come in tomorrow morning prepared to have
productive discussions.
{¶33} Robinson contends this instruction was improper because the court
erroneously advised the jury that it should stop deliberating on the “unhung” count.
However, Robinson’s trial counsel specifically asked the court to instruct the jury not to
revisit the count upon which they had reached a verdict because they believed the jury had
reached a not guilty verdict. Thus, any error in providing this instruction is invited error.
Pursuant to the invited error doctrine, a party may not take advantage of an error that the
party invited or induced. State v. Bey, 85 Ohio St.3d 487, 492-493, 709 N.E.2d 484(1999). Therefore, since Robinson requested the jury instruction of which he now
complains, he may not now seek to use the instruction to his advantage on appeal.
{¶34} Robinson also argues it was improper for the court to send the jury home to
reflect on the case. However, Robinson’s trial counsel did not object to this instruction
and has therefore forfeited all but plain error. Further, jurors are not prohibited from
privately reflecting on the case at home as long as they do not discuss the case with
anyone. Robinson fails to demonstrate how he was prejudiced by this innocuous
statement.
{¶35} Robinson next argues that the trial court failed to properly answer two
questions asked by the jury. When “a jury requests further instruction, or clarification of
an instruction previously given, a trial court has discretion to determine its response to
that request.” State v. Lindsey, 87 Ohio St.3d 479, 721 N.E.2d 995 (2000). The
reviewing court must consider the court’s response as a whole and determine whether the
charge prejudiced the defendant. Becker v. Lake Cty. Mem. Hosp. W., 53 Ohio St.3d
202, 208, 560 N.E.2d 165 (1990). Therefore, an appellate court will only find reversible
error if the jury instruction has, in effect, misled the jury. Sharp v. Norfolk & W. Ry.
Co., 72 Ohio St.3d 307, 312, 649 N.E.2d 1219 (1995).
{¶36} In the first question, the jury asked: “If the defendant is thought to be
complicit in the felonious assault, which leads to death, then by law, is he complicit to the
charge of murder?” The trial court answered the question stating:
If you find beyond a reasonable doubt on Count 5, felonious assault, that the
defendant as either a principal offender or an aider and abettor of a
principal offender knowingly caused serious physical harm to Michael
Morgan, then you have found one of the elements of Count 4, murder.
However, to conclude your deliberations on Count 4, you then must
consider the separate element in Count 4 of whether beyond a reasonable
doubt the death was caused as a proximate result of the felonious assault.
As already instructed, the defendant is charged on all counts as both
principal offender and as a person complicit by having a — I’m sorry, aided
or abetted a principal offender.
{¶37} In the second question, the jury asked: “Does aiding and abetting in a
robbery constitute aiding and abetting in the murder?” The court answered this question,
explaining:
My answer to this question assumes that you are referring to the aggravated
murder charge in Count 2.
If you find beyond a reasonable doubt that the defendant aided or abetted a
principal offender on Count 3, aggravated robbery, you must still separately
find the other elements of Count 2, aggravated murder, beyond a reasonable
doubt before finding him guilty of Count 2.
If by this question you are referring to the murder charge in Count 4, then
you are instructed that “The commission of, or attempt to commit
aggravated robbery is not an element of Count 4.”
{¶38} A “yes” or “no” answer would not have provided an adequate response to
these questions. Instead, the court rephrased its earlier instructions on the elements of
each of the crimes. The court correctly explained that a guilty finding of felonious
assault does not automatically indicate the defendant is also guilty of murder. The court
explained that to find Robinson guilty of murder, they had to find the additional element
of proximate cause.
{¶39} Similarly, the court explained that a guilty finding on the aggravated robbery
charge is one element of the aggravated murder charge and that they would still have to
find the other elements of aggravated murder to find Robinson guilty of that charge.
Finally, the court correctly stated that aggravated robbery is not an element of murder.
Thus, the court’s responses were correct statements of the law, and there was nothing
unreasonable or misleading about them.
{¶40} Robinson next argues he was deprived of his right to a fair trial because one
of the jurors viewed one of the prosecutor’s LinkedIn pages. After questioning the
juror, both parties indicated they were satisfied that the juror could still be fair and
impartial to the case. The state nevertheless suggested the juror be removed in an
abundance of caution, but the defense indicated they did not want the juror to be
removed. Thus, the defense invited any error caused by the juror’s continued
participation in the case. Bey, 85 Ohio St.3d 487, 492-493, 709 N.E.2d 484.
Moreover, there is no evidence to suggest that Robinson was prejudiced by the juror’s
look at the prosecutor’s LinkedIn page.
{¶41} Having determined that the trial court did not interfere with jury
deliberations, provided appropriate answers to the jury’s questions, and Robinson was not
prejudiced by the juror’s view of the prosecutor’s LinkedIn page, we overrule the second
assignment of error.
Accomplice Instruction
{¶42} In the third assignment of error, Robinson argues his right to due process
was violated because the trial court gave the jury an accomplice instruction but failed to
require a unanimous finding on alternative theories of a principal offender or an aider and
abettor in the jury verdict form.
{¶43} Due process requires that the state establish beyond a reasonable doubt
every fact necessary to constitute the crime charged. State v. Gardner, 118 Ohio St.3d
420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 36. Thus, due process requires the jurors
unanimously agree that the defendant is guilty of the offense charged before they can
return a guilty verdict. Crim.R. 31(A); State v. Thomas, 40 Ohio St.3d 213, 533 N.E.2d
286 (1988), paragraph three of the syllabus.
{¶44} “Although Crim.R. 31(A) requires juror unanimity on each element of the
crime, jurors need not agree [on] a single way by which an element is satisfied.”
Gardner at ¶ 38, citing Richardson v. United States, 526 U.S. 813, 817, 119 S.Ct. 1707,
143 L.Ed.2d 985 (1999). Applying the federal counterpart of Crim.R. 31(A), the court
in Richardson explained that a “jury need not always decide unanimously which of
several possible sets of underlying brute facts make up a particular element, say, which of
several possible means the defendant used to commit an element of the crime.” Id.{¶45} In State v. Hinzman, 8th Dist. Cuyahoga No. 92767, 2010-Ohio-771, this
court held that where a defendant is charged with alternative theories of principal
offender or aider and abettor, the jury instructions need not require the jury to
unanimously agree on one of these alternative theories so long as they unanimously agree
beyond a reasonable doubt that the defendant’s actions constituted the offense charged.
Id. at ¶ 33.
{¶46} In this case, the court instructed the jury that they had to unanimously find
that the state proved all the elements of each offense beyond a reasonable doubt in order
to return a guilty verdict on a particular charge. Because a rational trier of fact could
have found Robinson guilty of murder, aggravated robbery, and felonious assault as either
the principal offender or an aider and abettor, unanimous agreement on one of these
alternatives in the verdict form was not required.
{¶47} The third assignment of error is overruled.
Ineffective Assistance of Counsel
{¶48} In the fourth assignment of error, Robinson argues he was denied his Sixth
Amendment right to the effective assistance of counsel because his trial counsel failed to
request a specific unanimity instruction on accomplice liability in the verdict forms. He
also contends his trial counsel was ineffective for failing to object to the admission into
evidence of the pipe found at the crime.
{¶49} To establish ineffective assistance of counsel, a defendant must show (1)
deficient performance by counsel, i.e., performance falling below an objective standard of
reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for
counsel’s errors, the proceeding’s result would have been different. Strickland v.
Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the
syllabus.
{¶50} As previously explained in the first assignment of error, the pipe found at
the crime scene was admissible into evidence. We have also determined that a specific
unanimity instruction on accomplice liability was not required. Therefore, counsel’s
failure to object to the admission of the pipe and the verdict forms did not constitute
deficient performance or the ineffective assistance of counsel.
{¶51} The fourth assignment of error is overruled.
Allied Offenses
{¶52} In his fifth and final assignment of error, Robinson argues the trial court
violated his right to be free from double jeopardy when it decided not to merge the
aggravated robbery conviction with the murder and felonious assault convictions. He
contends that aggravated robbery and murder share the same element of serious physical
harm and share a common animus.
{¶53} “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 prohibits multiple punishments for the same offense.” State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. Under R.C.
2941.25, a trial court may convict a defendant of two or more offenses arising from the
same criminal conduct or transaction, if the offenses (1) were not allied offenses of
similar import, (2) were committed separately, or (3) were committed with a separate
animus as to each offense. State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061, ¶ 51. Unless committed separately or with a separate animus, allied offenses
must be merged for purposes of sentencing. State v. Whitfield, 124 Ohio St.3d 319,
2010-Ohio-2, 922 N.E.2d 182, paragraph two of the syllabus.
{¶54} In Johnson, the Ohio Supreme Court held that “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.” Johnson at syllabus. Under R.C.
2941.25(A), the question is whether it is possible to commit one offense and commit the
other with the same conduct. If the offenses correspond to such a degree that the
conduct of the defendant can constitute the commission of both of the offenses, then the
offenses are of similar import. Id. at ¶ 48.
{¶55} If the offenses are of similar import, the court must then determine if they
were in fact committed by the same conduct — a single act, committed with a single state
of mind. Id. at ¶ 49. Conversely, if the commission of one offense could not result in
the commission of the other, or if the offenses are committed separately, or if the
defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the
offenses will not merge. Id.
{¶56} In this case, Morgan was severely beaten and then robbed. Several courts,
including this court, have held that, “where the force used to effectuate an aggravated
robbery is far in excess of that required to complete the robbery, or where the
circumstances suggest that a separate intent to kill existed, the offenses of aggravated
robbery and murder do not merge.” State v. Segines, 8th Dist. Cuyahoga No. 99789,
2013-Ohio-5259, ¶ 12, citing State v. Jackson, 2d Dist. Montgomery No. 24430,
2012-Ohio-2335, ¶ 139; State v. Diggle, 3d Dist. Auglaize No. 2-11-19, 2012-Ohio-1583;
State v. Ruby, 6th Dist. Sandusky No. S-10-028, 2011-Ohio-4864, ¶ 61, and State v.
Tibbs, 1st Dist. Hamilton No. C-100378, 2011-Ohio-6716, ¶ 48.
{¶57} Dr. Felo testified that Morgan sustained a massive skull fracture that
rendered him unconscious and unable to defend himself. Other witnesses testified that
Robinson and Harris continued to kick and beat Morgan after he was unresponsive. In
addition, Fields can be heard on the recording of the 911 call, that was played at trial,
telling the dispatcher he believed Morgan was killed. Thus, it was evident to witnesses
that the defendants used excessive force to subdue Morgan. Furthermore, it was not
until Morgan was already lifeless on the ground that witnesses observed Robinson go
through his pockets, as if the robbery was an afterthought. Under these circumstances,
the murder and aggravated robbery offenses were not allied offenses of similar import.
{¶58} The fifth assignment of error is overruled.
{¶59} 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 conviction having
been affirmed, any bail pending appeal 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.
EILEEN T. GALLAGHER, JUDGE
FRANK D. CELEBREZZE, JR., P.J., and
MELODY J. STEWART, J., CONCUR