[Cite as State v. Brenson, 2011-Ohio-1880.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. John W. Wise, J.
                         Plaintiff-Appellee    :       Hon. Patricia A. Delaney, J.
                                               :
-vs-                                           :
                                               :       Case No. 09-CA-18
JAMES BRENSON                                  :
                                               :
                     Defendant-Appellant       :       OPINION




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


DATE OF JUDGMENT ENTRY:                            April 15, 2010




APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

DAVID A. YOST                 WILLIAM T. CRAMER
DELAWARE PROSECUTING ATTORNEY 470 Olde Worthington Road, Ste. 200
BY: KYLE ROHRER               Westerville, OH 43082
140 N. Sandusky St., 3rd Fl.
Delaware, OH 43015
Gwin, P.J.

       {¶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 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 should 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, R.C. 2911.01(A)(1), and for kidnapping

R.C. 2905.01(A)(2) should have been merged for sentencing purposes. Id. at ¶420.

       {¶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.
Delaware County, Case No. 09-CA-18                                                      3

      {¶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 R.C. 2941.25.” The Ohio Supreme Court established a new two-

part test for determining whether offenses are allied offenses of similar import under

R.C. 2941.25.

      {¶8} The first inquiry focuses on whether it is possible to commit 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 commission 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 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, the offenses are allied offenses of similar import and must be




      1
          September 28, 2010
      2
          December 29, 2010.
Delaware County, Case No. 09-CA-18                                                     4

merged. Johnson 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.

      {¶10} Under Johnson, “the court need not perform any hypothetical or 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

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; R.C. 2941.25(A). Here, the trial court should have

merged the two aggravated murder counts and imposed only a single sentence. See

Id.; State v. Huertas, 51 Ohio St.3d at 28, 553 N.E.2d at 1066. Further the trial court

should have merged appellant’s conviction for aggravated robbery, R.C. 2911.01(A) and

for kidnapping, R.C. 2905.01(A) for sentencing purposes.” Id. at ¶420.

      {¶12} Appellant further argued that the two counts of aggravated robbery

pursuant to R.C. 2911.01(A)(1) and (3) should merge, and further, that the two counts of

kidnapping pursuant to R.C. 2905.01 (A)(2) and (3) should also have merged for

sentencing. (See also, State v. Brenson, Ohio Sup. Ct. Case No. 10-2206,

Memorandum in Support of Jurisdiction of Appellant James Brenson, filed December

20, 2010).

      {¶13} Appellant was convicted of two (2) counts of kidnapping pursuant to R.C.

2905.01. Specifically appellant was convicted under (A) (2) and (3):
Delaware County, Case No. 09-CA-18                                                         5


       {¶14} “(A) No person, by force, threat, or deception, 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 any of the following purposes:

       {¶15} “ * * *

       {¶16} “(2) To facilitate the commission of any felony 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 conclude it is possible to commit

kidnapping pursuant to R .C. 2905.01. (A)(2) and (3) with the same conduct.

       {¶20} 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; R.C. 2941.25(B).

       {¶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 to R .C. 2905.01 (A)(2) and (3) for sentencing.

       {¶22} Finally, appellant argues that the two aggravated robbery counts should

merge. Appellant was convicted of two counts of aggravated robbery. R.C. 2911.01

provides in relevant part,

       {¶23} “(A) No person, in attempting or committing a theft offense, as defined in

section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or

offense, shall do any of the following:
Delaware County, Case No. 09-CA-18                                                       6


       {¶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 offender

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 R.C. 2911.01(A)(1) and (A)(3) with the same conduct.

       {¶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; R.C. 2941.25(B).

       {¶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, R.C. 2911.01(A) (1), and (A)(3) for sentencing.

       {¶30} Accordingly, in compliance with the remand from the Ohio Supreme Court

the appellant’s Fourteenth Assignment of Error 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 proceedings

consistent with that opinion. This decision in no way affects the guilty verdicts issued by

the jury. It only affects the entry of conviction and sentence. Appellant's convictions are

affirmed.
Delaware County, Case No. 09-CA-18                                                    7


      {¶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




                                        _________________________________
                                        HON. W. SCOTT GWIN

                                        _________________________________
                                        HON. JOHN W. WISE

                                        _________________________________
                                        HON. PATRICIA A. DELANEY




WSG:clw 0331
             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                              FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :
                                             :
                        Plaintiff-Appellee   :
                                             :
                                             :
-vs-                                         :       JUDGMENT ENTRY
                                             :
JAMES BRENSON                                :
                                             :
                                             :
                     Defendant-Appellant     :       CASE NO. 09-CA-18




       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
