[Cite as State v. Dixon, 2013-Ohio-2951.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                            SEVENTH DISTRICT

STATE OF OHIO,                                    )
                                                  )   CASE NO. 10 MA 185
        PLAINTIFF-APPELLEE,                       )
                                                  )
        - VS -                                    )         OPINION
                                                  )
MELVIN DIXON,                                     )
                                                  )
        DEFENDANT-APPELLANT.                      )

CHARACTER OF PROCEEDINGS:                             Criminal Appeal from Common Pleas
                                                      Court, Case No. 07 CR 170.


JUDGMENT:                                             Affirmed.


APPEARANCES:
For Plaintiff-Appellee:                               Attorney Paul J. Gains
                                                      Prosecuting Attorney
                                                      Attorney Ralph M. Rivera
                                                      Assistant Prosecuting Attorney
                                                      21 W. Boardman St., 6th Floor
                                                      Youngstown, OH 44503

For Defendant-Appellant:                              Attorney J. Dean Carro
                                                      University of Akron-School of Law
                                                      Legal Clinic – Appellate Review Office
                                                      Akron, OH 44325-2901


JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite


                                                      Dated: June 27, 2013
[Cite as State v. Dixon, 2013-Ohio-2951.]
DeGenaro, P.J.
        {¶1}     Defendant-Appellant, Melvin Dixon, Jr. appeals the October 28, 2010,
verdict of the Mahoning County Court of Common Pleas convicting him of aggravated
murder and aggravated robbery with accompanying firearm specifications and having a
weapon under disability. Dixon first contends that the trial court erred when it permitted
the prosecution to exercise a peremptory challenge in a racially discriminatory manner
thereby violating the Equal Protection Clause of the Fourteenth Amendment. Second, he
asserts that the trial court erred when it did not allow him to introduce a State witness'
prior conviction for obstruction of official business in order to impeach her testimony
under Evid.R. 609(A)(3). Finally, Dixon contends the trial court erred by sentencing him
consecutively on the offenses of aggravated murder and aggravated robbery as they
were allied offenses of similar import and as such should have been merged at
sentencing.
        {¶2}     Upon review, all of Dixon's arguments are meritless. First, the trial court's
finding that no purposeful discrimination occurred by striking a prospective African-
American juror was not clearly erroneous. Second, the trial court did not abuse its
discretion by refusing to admit testimony pertaining to a prior conviction for obstruction of
official business as that offense does not necessarily rely upon dishonesty or a false
statement as contemplated by Evid.R. 609. Finally, the offenses of aggravated murder
and aggravated robbery are not allied offenses of similar import, nor were they committed
with the same animus, and as such were correctly not merged at sentencing. Accordingly,
the judgment of the trial court is affirmed.
                                   Facts and Procedural History
        {¶3}     On February 8, 2007, Melvin Dixon, Jr. was indicted by the Mahoning
County Grand Jury on counts of aggravated murder (R.C. 2903.01(B)(F)), an unclassified
felony, with an accompanying R.C. 2941.145(A) firearm specification; aggravated robbery
(R.C. 2911.01(A)(1)(B)), a first-degree felony, with an accompanying R.C. 2941.145(A)
firearm specification; and having a weapon while under a disability (R.C.
2923.13(A)(3)(B)), a third-degree felony. The indictment alleged that Dixon purposely
caused the death of Edward Agee while committing or attempting to commit, or in fleeing
                                                                                      -2-


immediately after committing or attempting to commit, aggravated robbery.
       {¶4}   The case proceeded to a jury trial on October 25, 2010 on the aggravated
murder charge and the aggravated robbery charges; Dixon consented to bifurcation and
waived a jury on the weapons under disability charge.
       {¶5}   During voir dire, the State exercised a peremptory challenge removing
prospective juror McDuffie, an African American. Dixon later objected arguing that there
was no reasonable basis for this challenge. The State countered that McDuffie was
excused because she had a tendency to interrupt. He did not want her to bully the room
and prevent other jurors from fulfilling their duty and expressing their own opinion. The
trial court overruled Dixon's objection.
       {¶6}   At trial the following facts were adduced. On May 2, 2006, Dixon contacted
Jamaad Jackson about planning a robbery. Later that evening, Dixon, Jackson, Maurice
Brooks and Reggie Everson drove to Auto Zone with the intention of committing a
robbery. Brooks waited in the vehicle around the corner while the other three men
entered the Auto Zone wearing masks and carrying guns. Inside the store, Jackson
raised a gun at the victim-employee, Edward Agee, and a struggle ensued between the
two. Dixon approached the struggle and shot Agee. The three fled the store, got into the
waiting car and returned to the home of Erika Hallman, the mother of Dixon's child.
Dixon was arrested on February 2, 2007.
       {¶7}   Hallman testified during the State's case.        In an unrelated criminal
proceeding, she had been convicted of obstruction of official business, a misdemeanor.
Dixon argued that Evid.R. 609 allowed him to cross-examine Hallman about this prior
conviction in order to impeach her credibility. The trial court denied his request. Dixon
did not offer a formal objection to this ruling; however, he made a proffer for purposes of
appeal.
       {¶8}   After the State rested, the defense made a Crim.R. 29 motion for acquittal,
which was overruled. The defense then rested without presenting any witnesses. The
jury found Dixon guilty of aggravated murder, aggravated robbery and both accompanying
firearm specifications. On the bifurcated charge of having a weapon under disability, the
                                                                                        -3-


trial court found Dixon guilty on that charge based on the evidence produced during the
jury trial.
        {¶9}   Sentencing was held on November 29, 2010. Dixon was sentenced to life
without parole on the aggravated murder charge; ten years on the aggravated robbery
charge; and five years on the weapons under disability charge, to be served
consecutively. Dixon was also sentenced to three years on the firearm specifications
which the trial court ordered to be served prior and consecutive to the other three counts
of the indictment.
        Exercise of Peremptory Challenge in Racially Discriminatory Manner
        {¶10} Dixon raises three assignments of error, which we will address out of order
for clarity of analysis, the second of which asserts:
        {¶11} "The state violated the Equal Protection Clause of the Fourteenth
Amendment when it exercised a peremptory challenge in a racially discriminatory
manner."
        {¶12} The Equal Protection Clause of the United States Constitution prohibits
purposeful discrimination in the exercise of a peremptory challenge to excuse a juror on
account of his race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 1719, 90
L.Ed.2d 69 (1986). In Batson, the United States Supreme Court outlined a three-step
process for evaluating claims that a prosecutor has used peremptory challenges in a
manner violating the Equal Protection Clause. Id. at 96-98. First, the defendant must
make a prima facie showing that the prosecutor has exercised peremptory challenges on
the basis of race. Id. at 96-97. Second, if the requisite showing has been made, the
burden shifts to the prosecutor to articulate a race-neutral explanation for striking the
jurors in question. Id. at 97-98. Finally, the trial court must determine whether the
defendant has carried his burden of proving purposeful discrimination. Id. at 98. An
appellate court will not reverse the trial court's decision of no discrimination unless it is
clearly erroneous. See State v. Hernandez, 63 Ohio St.3d 577, 583, 589 N.E.2d 1310,
(1992).
        {¶13} Dixon contends that Ms. McDuffie, an African American prospective juror,
                                                                                            -4-


was excused by the State using a peremptory challenge in a racially discriminatory
manner.        Dixon objected at trial, and while conceding that one African-American
prospective juror had been excused for cause, trial counsel argued that McDuffie's
departure left only one African-American juror on the panel. Counsel concluded by
observing that he did not "see anything in her questionnaire, nor do I see anything in her
questioning, that would cause the state to exercise a peremptory other than her race at
this point."
       {¶14} While the State concedes that Dixon satisfied the first step of demonstrating
a prima facie case with respect to McDuffie, it contends that it did not racially discriminate
against her. Rather, the State asserts it excused McDuffie, as well as Ms. O'Neill, a white
prospective juror, for the same race-neutral reason. The State defended the peremptory
strike as follows:

                 As for Ms. McDuffie, albeit her questionnaire doesn't give a lot of insight into
       her background, however, when I was questioning her, what I noticed in hers was
       the same thing I noticed in Ms. O'Neil who was the first juror that I excused, and
       that was a white individual. They both had that tendency to interrupt a lot.
                 Specifically, I know that when I was talking to Ms. McDuffie – excuse me,
       when I was talking to Mr. Johnson, who was sitting to her right, and I was asking
       him questions, she chimed in – on at least two different occasions she chimed in.
       And I said okay – at one point I said, okay, I guess I'm talking to you, too, and
       began talking to her. And what it showed me is that she wasn't letting other people
       talk. And if that's the type of juror that's going to be in the back, she's going to
       bully the room. She's not going to let other people express their opinions. I don't
       like that. I don't like people who don't give other people a chance to talk. I don't
       like people who constantly interrupt and constantly need that attention, who need
       to make themselves the center of attention. It was the same problem I had with
       Ms. O'Neill who I excused, and it's the problem that I had with her. I don't
       particularly like jurors like that. I think that they prevent other jurors from fulfilling
                                                                                         -5-


       their duty and expressing their own opinion. So it was for that reason that I sought
       to have her removed, and that's why I exercised my peremptory challenge on her.

       {¶15} Dixon did not refer to any statements made by the State that would indicate
that the challenge was discriminatory, did not point to a pattern of discrimination and did
not point to specific questions in voir dire that would indicate a discriminatory motive.
       {¶16} Denying the Batson objection, the trial court found:

              [T]here is a remaining African American juror who has been, in effect,
       accepted by both sides. The issue, then, is that of the juror in question who was
       removed. I don't believe that the prosecution acted in any other – for any other
       reason other than what he stated on the record. And I think that unless you
       personally were in her presence and watched her demeanor and manner, I think it
       would be fair to make the assessment that she may be a distraction as the
       prosecutor said. I mean, I don't know that, but I think that is grounds. His
       reasoning is reasonable and fair and meets the standard and test that would
       dictate and control that decision.


       {¶17} The prosecutor gave a racially-neutral reason for using a peremptory
challenge against McDuffie. Admittedly, it is not a heavy burden for the State to meet to
articulate a racially-neutral reason for using a peremptory strike. However, the narrow
standard of review was imposed upon intermediate appellate courts in Batson because
assessment of the genuineness of a racially-neutral reason necessitates a multi-
dimensional analysis by the trial court. It is dependent upon credibility determinations the
trial court must make of the prosecutor and the prosecutor's articulated assessment of the
prospective juror's behavior during voir dire, which the trial court also has the benefit of
observing. A one-dimensional appellate record by necessity dictates review for clearly
erroneous determinations that are not dependent upon credibility determinations. As the
trial court's finding that no purposeful discrimination occurred by striking prospective juror
                                                                                        -6-


McDuffie was not clearly erroneous, Dixon's second assignment of error is meritless.
                       Admission of Witness's Prior Conviction
       {¶18} In his third assignment of error, Dixon asserts:
       {¶19} "The trial court erred when it did not allow Appellant Dixon to introduce per
Evid.R. 609(A)(3) the State's witness's prior conviction for obstruction of official business
under Evid.R. 609(A)(3)."

       {¶20} Evid.R. 609 provides in relevant part:

       (A) General Rule. For the purpose of attacking the credibility of a witness:
       ***
       (3) Notwithstanding Evid.R. 403(A), but subject to Evid.R. 403(B), evidence
       that any witness, including an accused, has been convicted of a crime is
       admissible if the crime involved dishonesty or false statement, regardless of
       the punishment and whether based upon state or federal statute or local
       ordinance.

       {¶21} The admission or exclusion of relevant evidence rests within the sound
discretion of the trial court. State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987),
paragraph two of the syllabus. Unless the trial court has abused its discretion and the
appellant has been materially prejudiced by the exclusion, an appellate court should be
slow to interfere. State v. Hymore, 9 Ohio St.2d 122, 130, 224 N.E.2d 126 (1967). Abuse
of discretion means an error in judgment involving a decision that is unreasonable based
upon the record; that the appellate court merely may have reached a different result is not
enough. See, Bergman v. Bergmann, 2d Dist. No. 25378, 2013-Ohio-715, ¶9; Hall-Davis
v. Honeywell, Inc., 2d Dist. Nos. 2008 CA 1, 2008 CA 2, 2009-Ohio-531, ¶35.
       {¶22} Having preserved the error for review via a proffer, Dixon argues that
Evid.R. 609 allowed him to cross-examine Erika Hallman, the State's witness, about her
prior misdemeanor conviction for obstruction of official business; a crime which he
contends involves dishonesty or false statement. The State counters that the trial court is
afforded wide discretion in admitting and excluding evidence, and that the trial court's
                                                                                          -7-


ruling to not permit defense counsel to cross examine Hallman was correct because the
offense of obstruction of official business does not necessarily involve dishonesty or
making false statements.
       {¶23} It is undisputed that Hallman had been indicted for theft, falsification, and
tampering with records for receiving welfare overpayments from the Mahoning County
Job and Family Services. She ultimately pled guilty to obstructing official business, which
is defined as: "No person, without privilege to do so and with purpose to prevent,
obstruct, or delay the performance by a public official of any authorized act within the
public official's official capacity, shall do any act that hampers or impedes a public official
in the performance of the public official's lawful duties." R.C. 2921.31.
       {¶24} As both parties have acknowledged within their briefs, the Ninth District has
addressed the issue in State v. Evans, 9th Dist. No. 07CA0057-M, 2008-Ohio-4772. In
Evans, the defendant was convicted of one count of kidnapping, two counts of rape, and
one count of felonious assault. Id. at ¶2. The victim-witness was convicted of obstruction
of official business for lying to the police. Pursuant to Evid.R. 609, the trial court did not
permit cross examination of the victim-witness about her conviction for obstruction of
official business, nor allow a police officer to testify about the facts surrounding said
conviction. Id. at ¶7-10. The trial court reasoned that the application of Evid. R. 609 was
limited to cases in which the conviction itself includes the element of dishonesty or
making a false statement. The Ninth District agreed that that the crime of obstruction of
official business does not include deceit, dishonesty or false statement as an element to
permit admissibility under Evid.R. 609(A)(3) or (B).
       {¶25} This rationale is persuasive. Here, Hallman was ultimately convicted of
obstruction of official business. There are many fact patterns which could support a
conviction for this offense that do not involve deceit, dishonesty or false statement,
potentially including the present one involving Hallman. To inquire into the facts behind
Hallman's conviction could conceivably require a trial within a trial; serving to confuse or
mislead the jury. Thus, it was not an abuse of the trial court's discretion to limit the same.
Accordingly, Dixon's third assignment of error is meritless.
                                                                                       -8-


                    Allied Offenses of Similar Import and Merger
       {¶26} In his first and final assignments of error, Dixon asserts:
       {¶27} "The trial court erred when it sentenced Appellant Dixon on two allied
offenses of similar import, committed at the same time and with the same animus, in
violation of R.C. 2941.25 and the Double Jeopardy clause of the Fifth Amendment."
       {¶28} Dixon argues that the offenses of aggravated murder and aggravated
robbery were allied offenses of similar import subject to merger. Although Dixon did not
seek merger of these counts prior to this appeal, the Supreme Court of Ohio has
repeatedly 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, 922 N.E.2d
923, ¶31, citing State v. Yarborough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E. 2d
845, ¶96-102. Merger of allied offenses is a question of law, State v. Taylor, 7th Dist. No.
07 MA 115, 2009-Ohio-3334, ¶19, and is thus subject to de novo review. State v. Ryan,
7th Dist. No. 10-MA-173, 2012-Ohio-1265, ¶44.
       {¶29}   R.C. 2903.01(B) defines aggravated murder as "[n]o person shall
purposely cause the death of another * * * while committing or attempting to commit * * *
kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated
burglary, burglary, terrorism, or escape." R.C. 2911.01 defines aggravated robbery as
"[n]o 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 [h]ave a
deadly weapon on or about the offender's person."
       {¶30} Under R.C. 2941.25, Ohio's multiple-count statute, a trial court may convict
and sentence a defendant for two or more offenses having as their genesis the same
criminal conduct or transaction, if the offenses (1) were not allied offenses of similar
import, (2) were committed separately, or (3) were committed with a separate animus as
to each offense. State v. Bickerstaff, 10 Ohio St. 3d 62, 66, 461 N.E.2d 892 (1984),
quoting State v. Moss, 69 Ohio St.2d 515, 519, 433 N.E.2d 181 (1982).                  The
constitutional protection against double jeopardy does not preclude a defendant from
being separately punished for an aggravated murder and for felonies involved in that
                                                                                         -9-


murder. State v Coley, 93 Ohio St.3d 253, 264, 754 N.E.2d 1129 (2001).
       {¶31} Prior to State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, it was well settled that aggravated felony murder was not an allied offense of similar
import to the underlying charged felony, State v. Keene, 1998-Ohio-342, 81 Ohio St. 3d
646, 668, 693 N.E.2d 246, 265 (1998), and specifically, aggravated murder and
aggravated robbery, for merger purposes. Bickerstaff at 66. However, this no longer
applies in light of the Ohio Supreme Court decision in Johnson. "When determining
whether two offenses are allied offenses of similar import subject to merger under R.C.
2941.25, the conduct of the accused must be considered." Johnson, at syllabus,
overruling State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), to the extent
Rance analyzed multiple offenses “solely in the abstract” for merger purposes. Johnson
at ¶ 44.

              Thus, the test applied in Johnson is: 1) can the two offenses be
       committed by the same conduct; and if so, 2) looking at the facts of the
       case, were the two offenses committed by the same conduct as a single act
       with a single state of mind. Id. If the answer to both questions is yes, then
       they are allied offenses of similar import and must be merged. If the acts
       were committed separately or with a separate animus, they are not allied
       offenses. Id. at ¶ 51, 942 N.E.2d 1061.
              Johnson recognized that, due to the subjective nature of the analysis
       based on the facts of each case, some crimes may be allied offenses in
       certain cases, but not in another case under a different set of facts. Id. at ¶
       52, 942 N.E.2d 1061.

State v. Helms, 7th Dist. No. 2012-Ohio-1147, ¶24-25.
       {¶32} Reviewing Dixon's conduct during the events giving rise to the charged
offenses, his convictions for aggravated murder and aggravated robbery are not subject
to merger pursuant to R.C. 2941.25(B). Despite the close temporal connection, the two
offenses were committed separately and with a separate animus. The aggravated
                                                                                       - 10 -


robbery was completed when Dixon enlisted accomplices, entered the Auto Zone with a
mask over his face and gun in hand with the intent to take money from the business. The
murder of Agee was completely unnecessary to complete the crime of aggravated
robbery. The facts supporting the aggravated murder charge are separate from those
supporting the aggravated robbery conviction; Dixon approached the struggle between
Jackson and Agee, raised his gun and shot Agee. These are separate actions which are
evidence of the specific purpose to kill to support an aggravated murder conviction,
independent of the aggravated robbery offense. As such these crimes had a separate
animus and conduct. Accordingly, Dixon's first assignment of error is meritless.
       {¶33} All of Dixon's arguments are meritless. First, the trial court's finding that no
purposeful discrimination occurred by striking a prospective African-American juror was
not clearly erroneous. Second, the trial court did not abuse its discretion by refusing to
admit testimony pertaining to a prior conviction for obstruction of official business as that
offense does not necessarily rely upon dishonesty or a false statement as contemplated
by Evid.R. 609. Finally, the offenses of aggravated murder and aggravated robbery are
not allied offenses of similar import, nor were they committed with the same animus, and
as such were correctly not merged at sentencing. Accordingly, the judgment of the trial
court is affirmed.
Vukovich, J., concurs.
Waite, J., concurs.
