State v. Tapscott, 2012 Ohio 4213

Home invasion in Mahoning County; jury convicted Tapscott of aggravated burglary and two counts of aggravated robbery with firearm specs; weapons under disability count severed for separate trial; trial court merged firearm specs; burglary merged with robberies but court ran sentences concurrently; defendant appeals challenging admission of pregnant-victim testimony and failure to merge robberies; appellate court remands for resentencing due to improper merger treatment.
Victims were two individuals present during the robbery; the male victim testified to threats and pill/money demands; the female victim testified and was five months pregnant; the pregnancy was used by the State to contextualize actions and testimony.
Trial evidence included the pregnant victim’s condition and related pill bottles; officer testimony described state of fear and plans to relocate; defendant testified to prior gun sale and non-robbery activity; the court allowed pregnancy testimony over objections.
Judgment: convictions affirmed; sentence reversed in part for resentencing; the State to elect which merged offenses will be sentenced; firearm specs to be limited to one active spec.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether pregnancy-related testimony was admissible	Tapscott argues pregnancy evidence was irrelevant/prejudicial	Tapscott argues pregnancy should have been excluded	No reversible error; evidence admissible for credibility and context
Whether two aggravated robberies could merge with one another	State contends two robberies are not allied offenses	Tapscott contends offenses were allied and should merge	Offenses not allied; could sentence on both counts; remanded for election of merged offense
Whether merger of offenses was properly reflected in sentencing	State argues concurrent sentences suffice after merger	Consecutive/merged sentencing could be improper	Plain error; remand for resentencing so State elects which merged offenses to sentence; ensure only one firearm spec sentence
Whether firearm specifications and the burglary/robbery merges were correctly applied	State acknowledged need to merge firearm specs; burglary may merge with robberies	Unclear about correct merger treatment	Must limit to one firearm spec and choose between burglary and robberies on remand

State v. Grubb, 28 Ohio St.3d 199 (1986) (motion in limine and preservation principles; trial discretion on relevance)
State v. Hancock, 108 Ohio St.3d 57 (2006) (plain error review; timely objection required)
State v. Sage, 31 Ohio St.3d 173 (1987) (relevancy and probative value under Evid.R. 401-403)
State v. Johnson, 128 Ohio St.3d 153 (2010) (overruled Johnson on allied offenses; conduct considered to determine similarity of import)
State v. Whitfield, 124 Ohio St.3d 319 (2010) (remanded for state to elect which merged offenses to sentence)
State v. Gardner, 2011-Ohio-2644 (7th Dist.) (remand procedure when merger of allied offenses requires state election)
State v. Jones, 18 Ohio St.3d 116 (1985) (offenses against multiple victims may be separate for sentencing)
State v. Franklin, 2002-Ohio-5304 (Ohio Supreme Court) (arson as multiple-victim offense permissible for separate counts)
State v. Rance, 85 Ohio St.3d 632 (1999) (overruled for allied offenses analysis; conduct-based approach preferrable (later refined by Johnson))