State v. LungState v. Lung
Brandon Charles McClain, 70 Birch Alley, Suite 240, Beavercreek, Ohio 45440, for defendant-appellant
O P I N I O N
BRESSLER, J.
{¶ 1} Defendant-appellant, Joseph Lung, appeals his sentence in the Brown County Court of Common Pleas for kidnapping.
{¶ 2} At 4:00 a.m. on December 27, 2010, Keren Lung (appellant‘s wife) was awakened by one of her sons frantically saying, “Mom, wake up. Joe has the shotgun.” The shotgun was loaded. Therеafter, appellant held Keren and her children (appellant‘s step-
{¶ 3} In January 2011, appellant was indicted on five counts of kidnapping, each with a firearm specification, one count of domestic violence, and one count of having weapons while under disability. On July 1, 2011, appellant pled guilty to two counts of kidnapping in violation of
{¶ 4} Appellant appeals, raising two assignments of error.
{¶ 5} Assignment of Error No. 1:
{¶ 6} THE TRIAL COURT COMMITTED PLAIN ERROR BY IMPOSING SEPARATE CONVICTIONS AND SENTENCES UPON MR. LUNG FOR ALLIED OFFENSES ARISING OUT OF THE SAME CONDUCT AND OF SIMILAR IMPORT.
{¶ 7} Appellant argues that the trial court erred in sentencing him on both counts of kidnapping because the offenses are allied offenses of similar import committed with the same animus.
{¶ 8} We note at the outset that appellant waived all but plаin error by failing to raise any allied offense objection with the trial court. However, the Ohio Supreme Court has held that the imposition of multiple sentences for allied offenses of similar import is plain error. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 31; State v. Luong, 12th Dist. No. CA2011-06-101, 2012-Ohio-4519, ¶ 48.
{¶ 9}
(A) Where the same conduct by defendаnt 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.
(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.
{¶ 10} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio Supreme Court established a new two-part test for determining whether offenses are allied offenses of similar import under
{¶ 11} If it is possible to commit both offenses with the same conduct, courts must next determine whether the offenses were in fact committed by the same conduct, that is, by a single act, performed with a single state of mind. Id. at ¶ 49. If so, the offenses are allied offenses of similar import and must be merged. Id. at ¶ 50. On the other hand, if the offenses are committed separately or with a separate animus, the offenses will not merge. Id. at ¶ 51.
{¶ 12} “Animus” is defined for purposes of
{¶ 13} Appellant was charged with kidnapping in violation of
{¶ 14} We next determine whether appellant in fact committed both kidnapping 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.
{¶ 15} For purposes of this determination, we note that in applying
{¶ 16} We find that the two kidnapping offenses were committed with a separate animus. This court has held that where a defendant commits the same offensе against
{¶ 17} In Gregory, we found that the defendant‘s two felonious assault charges were committed with a separate animus where the defendant was aware of the presence of two potential victims in the car at which he fired several gunshots and where he attemрted to cause physical harm to two separate victims. Id. See also Caudill, 11 Ohio App.3d 252 (separate sentences on two counts of aggravated vehicular homicide upheld where defendant‘s cоurse of conduct demonstrated he had a separate animus for killing a motorist and her passenger even though the two offenses stemmed from the same vehicular accident); State v. Bonham, 12th Dist. No. CA91-08-058, 1992 WL 68657 (Apr. 6, 1992) (sеparate animus where the defendant used a baseball bat to physically harm four individuals in a parking lot, and where each felonious assault committed by the defendant was perрetrated against a different victim); State v. Sanders, 12th Dist. No. CA2001-03-068, 2002 WL 471172 (Mar. 29, 2002) (separate animus where the defendant committed the same offense against each police officer by throwing broken platеs at each officer).
{¶ 18} In the case at bar, each kidnapping offense committed by appellant was perpetrated against a different victim (Keren and one of her sons). As we stated, a separate animus exists for each offense where a defendant commits the same offense against different victims during the same course of conduct. Seе Gregory, 90 Ohio App.3d 124. As the Seventh Appellate District stated in a case involving two counts of abduction, “although the conduct satisfying the elements of each crime overlaps to a degree, еach count and each conviction identifies a different victim. Committing the same crime, even simultaneously, with regard to different victims does not result in merger pursuant to
{¶ 19} Appellant‘s separate animus is further demonstrated by the fact that he separately held the kidnapping victims at gunpoint, approximately 30 feet away from one another. Neither Keren nor the children were allowed to move, to be together, or to leаve the house. Appellant pointed his loaded shotgun at his wife and her children where they could see each other.
{¶ 20} We therefore find that the two kidnapping offenses are not allied offenses of similar import. The trial court properly sentenced appellant on both counts of kidnapping. Appellant‘s first assignment of error is overruled.
{¶ 21} Assignment of Error No. 2:
{¶ 22} MR. LUNG WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL PURSUANT TO THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION.
{¶ 23} Appellant argues he received ineffective assistance of counsel because his trial counsel failed to (1) request that his sentences be merged as allied offenses of similar impоrt, and (2) subsequently object to the trial court‘s imposition of separate sentences for his kidnapping convictions.
{¶ 24} To prevail on an ineffective assistance claim, an аppellant must show that his trial counsel‘s performance fell below an objective standard of reasonableness and that appellant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-688, 693, 104 S.Ct. 2052 (1984); State v. Church, 12th Dist. No. CA2011-04-070, 2012-Ohio-3877, ¶ 42.
{¶ 25} Given our holding under appellant‘s first assignment of error, we find that trial counsel was neither deficient nor ineffective in failing to request that appellant‘s sentences be
{¶ 26} Appellant‘s second assignment of error is overruled.
{¶ 27} Judgment affirmed.
HENDRICKSON, P.J. and RINGLAND, J., concur.
Bressler, J., retired, of the Twelfth Appellate District, sitting by assignment of the Chief Justice, pursuant to Section 6(C), Article IV of the Ohio Constitution.