STATE OF OHIO v. JAMES BRENSON
Case No. 09-CA-18
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
April 15, 2010
[Cite as State v. Brenson, 2011-Ohio-1880.]
Hоn. W. Scott Gwin, P.J.; Hon. John W. Wise, J.; Hon. Patricia A. Delaney, J.
CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 08-CRI-04-0207A. JUDGMENT: Affirmed in part, Reversed in part Remanded.
For Plaintiff-Appellee: DAVID A. YOST, DELAWARE PROSECUTING ATTORNEY, BY: KYLE ROHRER, 140 N. Sandusky St., 3rd Fl., Delaware, OH 43015
For Defendant-Appellant: WILLIAM T. CRAMER, 470 Olde Worthingtоn Road, Ste. 200, Westerville, OH 43082
{¶1} Upon remand from the Supreme Court of Ohio, this Court is asked to revisit only one of the fourteen assignments of error raised by appellant and addressed by this court in State v. Brenson, Delaware App. No. 09-CA-18, 2010-Ohio-4645. [“Brenson I“]. See, State v. Brenson (March 30, 2011), Slip Opinion No. 2011-Ohio-1425. Appellant‘s Fourteenth Assignment of Error stated as follows:
{¶2} “BRENSON‘S CONVICTIONS SHOULD HAVE MERGED INTO ONE COUNT OF AGGRAVATED MURDER AND ONE COUNT OF KIDNAPPING OR AGGRAVATED ROBBERY.”
XIV.
{¶3} Upon remand from the Supreme Court of Ohio, this court is asked to consider whether this Court‘s ruling on appellant‘s fourteenth assignment оf error should be modified in light of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.
{¶4} In Brenson I, we held the trial court should have merged the two aggravated murder counts and imposеd only a single sentence. Id. at ¶ 401. We further held appellant‘s conviction for aggravated robbery,
{¶5} However, based upon the Ohio Supreme Court‘s decisions in State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, and State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 884 N.E.2d 181, we found that the trial court was correct to sentence appellant on two counts of kidnapping and two counts of aggravated robbery. Id. at ¶ 411; 418.
{¶6} Shortly after our decision in Brenson I was released in the present appeal1, the Ohio Supreme Court decided State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 10612, which specifically overruled the 1999 Rance decision.
{¶7} In State v. Johnson, the Ohio Supreme Court revised its allied-offense jurisprudence. The Johnson court overruled State v. Rance, (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, “to the extent that it calls for a comparison of statutory elements solely in the abstract under
{¶8} The first inquiry focuses on whether it is possible to commit both offensеs with the same conduct. Id. at ¶ 48, 710 N.E.2d 699. It is not necessary that the commission of one offense will always result in the commission of the other. Id. Rаther, the question is whether it is possible for both offenses to be committed by the same conduct. Id., quoting State v. Blankenship (1988), 38 Ohio St.3d 116, 119, 526 N.E.2d 816. Conversely, if the commission of one offense will never result in the commission of the other, thе offenses will not merge. Johnson at ¶ 51.
{¶9} If it is possible to commit both offenses with the same conduct, the court must next determine whether the offenses were in fact committed by a single act, performed with a single state of mind. Id. at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 895 N.E.2d 149, 2008-Ohio-4569, ¶ 50 (Lanzinger, J., concurring in judgment only). If so, thе offenses are allied offenses of similar import and must be
{¶10} Under Johnson, “the court need not perform any hypothetical оr abstract comparison of the offenses at issue in order to conclude that the offenses are subject to merger.” Id. at ¶ 47, 942 N.E. 2d 1061. Rather, the court simply must ask whether the defendant committed the offenses by the same conduct. Id.
{¶11} Upon review of Johnson, we find as we did in Brenson I, “Appellant is сorrect; aggravated murder counts involving the same victim are merged for sentencing. State v. O‘Neal, 87 Ohio St.3d 402, 721 N.E.2d 73, State v. Lawson (1992), 64 Ohio St.3d 336, 351, 595 N.E.2d 902, 913;
{¶12} Appellant further argued that the two counts of aggravatеd robbery pursuant to
{¶13} Appellant was convicted of two (2) counts of kidnapping pursuant to
{¶14} “(A) No person, by force, threat, or dеception, or, in the case of a victim under the age of thirteen or mentally incompetent, by any means, shall remove another from the place where the other person is found or restrain the liberty of the other person, for аny of the following purposes:
{¶15} “* * *
{¶16} “(2) To facilitate the commission of any felony or flight thereafter;
{¶17} “(3) To terrorize, or to infliсt serious physical harm on the victim or another
{¶18} “* * * ”
{¶19} Applying the Johnson analysis, we conclude it is possible to commit kidnapping pursuant to
{¶20} Wе next determine whether appellant in fact committed both offenses by way of a single act, performed with a single state of mind, or whether he had separate animus for each offense. Johnson, 2010-Ohio-6314 at ¶ 49, 51;
{¶21} Upon review of Johnson, we depart from our holding in Brenson I and now hold thаt the trial court should have merged appellant‘s convictions for kidnapping pursuant to
{¶22} Finally, appellant arguеs that the two aggravated robbery counts should merge. Appellant was convicted of two counts of aggravated rоbbery.
{¶23} “(A) No person, in attempting or committing a theft offense, as defined in section
{¶24} “(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 offendеr possesses it, or use it;
{¶25} “* * *
{¶26} “(3) Inflict, or attempt to inflict, serious physical harm on another.”
{¶27} Applying the Johnson analysis, we conclude it is possible to commit aggravated robbery under
{¶28} We next determine whether appellant in fact committed both offenses by way of a single act, performed with a single state of mind, or whether he had separate animus for each offense. Johnson, 2010-Ohio-6314 at ¶ 49, 51;
{¶29} In reviewing Johnson, we depart from our holding in Brenson I and now hold that the trial court should have merged appellant‘s convictions for aggravated robbery,
{¶30} Accordingly, in comрliance with the remand from the Ohio Supreme Court the appellant‘s Fourteenth Assignment of Error is sustained. In accordanсe with the Ohio Supreme Court‘s decision in State v. Whitfield, 124 Ohio St.3d 319, 922 N.E.2d 182, 2010-Ohio-2 at ¶ 25, we remand this case to the trial court for further proceedings consistent with that оpinion. This decision in no way affects the guilty verdicts issued by the jury. It only affects the entry of conviction and sentence. Apрellant‘s convictions are affirmed.
{¶31} For the foregoing reasons, the judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed in part, reversed in part and this matter is remanded for proceedings in accordance with our opinion and the law.
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur
WSG:clw 0331
HON. W. SCOTT GWIN
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY
For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Delaware County, Ohio, is affirmed in part, reversed in part and this matter is remanded for proceedings in accordance with our opinion and the law.. Costs to appellee.
HON. W. SCOTT GWIN
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY