State v. BrensonState v. Brenson
{¶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 tо consider whether this Court‘s ruling on appellant‘s fourteenth assignment of 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 shоuld have merged the two aggravated murder counts and imposed 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.
{¶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 сommit both offenses 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. Rather, 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 commissiоn of the other, the offenses will not merge. Johnson at ¶ 51.
{¶9} If it is possible to commit both offenses with the same conduct, the court must next dеtermine 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, the offenses are allied offenses of similar import and must be
{¶10} Under Johnson, “the court need not perform any hypothetical or abstract comparison of the offenses at issue in order to conclude that the offеnses 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 correct; 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 aggravated robbery pursuant to
{¶13} Appellant was convicted of two (2) counts of kidnapping pursuant to
{¶15} ” * * *
{¶16} “(2) To facilitate the commission of any fеlony or flight thereafter;
{¶17} “(3) To terrorize, or to inflict serious physical harm on the victim or another
{¶18} ” * * * ”
{¶19} Applying the Johnson analysis, we conсlude it is possible to commit kidnapping pursuant to
{¶20} We next determine whether appellant in fact committed both оffenses 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 that the trial court should have merged appellant‘s convictions for kidnapping pursuant tо
{¶22} Finally, appellant argues that the two aggravated robbery counts should merge. Appellant was convicted оf two counts of aggravated robbery.
{¶23} “(A) No person, in attempting or committing a theft offense, as defined in
{¶25} ” * * *
{¶26} “(3) Inflict, or attempt to inflict, serious physical harm on another.”
{¶27} Applying the Johnson analysis, we conсlude 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 compliance with the remand from the Ohio Supreme Court the appellant‘s Fourteenth Assignment of Errоr is sustained. In accordance 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 рroceedings consistent with that opinion. This decision in no way affects the guilty verdicts issued by the jury. It only affects the entry of сonviction and sentence. Appellant‘s convictions are affirmed.
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur
HON. W. SCOTT GWIN
HON. JOHN W. WISE
HON. PATRICIA A. DELANEY
WSG:clw 0331
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