[Cite as State v. Kerby, 2014-Ohio-3358.]




                IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO                                      :

        Plaintiff-Appellee                         :         C.A. CASE NO.     2013 CA 31

v.                                                 :         T.C. NO.   02CR05

CARLOS L. KERBY                                    :          (Criminal appeal from
                                                               Common Pleas Court)
        Defendant-Appellant                        :

                                                   :

                                            ..........

                                            OPINION

                         Rendered on the 1st day of August, 2014.

                                            ..........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, 120 W. Second Street, Suite 706,
Dayton, Ohio 45402
      Attorney for Defendant-Appellant

                                            ..........

DONOVAN, J.

        {¶ 1}     Defendant-appellant Carlos L. Kerby, acting pro se, appeals from a decision
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of the Clark County Court of Common Pleas, Criminal Division, denying his

post-conviction “motion to vacate and correct sentences pursuant to R.C. 2941.25 and Crim.

R. 52(B).” Kerby filed a timely notice of appeal with this Court on March 25, 2013.

       {¶ 2}   We set forth the history of the case in State v. Kerby, 2d Dist. Clark No.

09-CA-39, 2010-Ohio-562 , and repeat it herein in pertinent part:

               In November 2001, three men attempted to rob a Family Video Store

       in Springfield, Ohio.    The men entered the vestibule of the store and

       demanded money. When they saw one of the clerks, Chad Kautz, on the

       telephone, one of the men fired a shotgun blast through the glass window of

       the vestibule. Kautz died as a result of the injuries he sustained, and the

       other clerk was extensively injured. After receiving some anonymous tips

       and investigating, the police questioned Kerby about one month later, and

       obtained a confession. The two other men involved in the shooting were

       Carlos’s brother, William Kerby, and Jawhan Massey. See State v. Kerby,

       162 Ohio App.3d 353, 2005-Ohio-3734, and State v. Kerby, Clark App. No.

       03-CA-55, 2007-Ohio-187, at ¶ 9-11. William Kerby pled no contest to one

       count of Aggravated Murder, one count of Aggravated Robbery, one count of

       Tampering with Evidence, and one count of Felonious Assault, and received

       a total aggregate sentence of life imprisonment, with parole eligibility after

       thirty-one (31) years. See State v. Kerby, Clark App. No. 2006 CA 73,

       2007-Ohio-3810, at ¶¶ 1 and 13 (affirming William Kerby’s conviction and

       sentence).
[Cite as State v. Kerby, 2014-Ohio-3358.]
                   Carlos Kerby initially pled no contest to, and was convicted of,

        Aggravated Murder with a firearm specification, Murder, Aggravated

        Robbery and Felonious Assault. Kerby, 2007-Ohio-187, at ¶ 1, and 16-17.

        Carlos Kerby was then sentenced to life imprisonment, with parole eligibility

        after 27 years. Id. at ¶ 17. We reversed the conviction and remanded the

        matter for further proceedings, because we concluded that Kerby’s confession

        was involuntary. Id. at ¶ 42-88.

                   After the matter was remanded, the State agreed to amend Count Two

        (the Murder charge) to Involuntary Manslaughter, to dismiss the firearm

        specifications in Count Two and Count Three (the Aggravated Robbery

        charge), and to dismiss the remaining counts. The parties also agreed to a

        ten-year sentence on both counts, and that the sentences would be served

        consecutively, for a total of twenty years.       Kerby then pled guilty to

        Involuntary Manslaughter and Aggravated Robbery, and was sentenced to ten

        years in prison on each charge, with the sentences to be served consecutively.

            The judgment entry of conviction was filed on June 9, 2008.

                   In December 2008, Kerby filed, pro se, a “Motion to Withdraw No

        Contest Plea Because of Manifest Injustice.”1 The basis for the motion is

        that the indictment for Aggravated Robbery fails to allege mens rea with

        respect to possession of a deadly weapon, and is therefore invalid for

        purposes of establishing an underlying felony for the Involuntary



            1
                The motion is incorrectly styled – Kerby pled guilty.
                                                                                                 4

       Manslaughter charge.      Kerby further alleged that “mens rea” was not

       mentioned when the trial court accepted his guilty plea.

               The trial court denied Kerby’s motion. The court held that the part of

       the Aggravated Robbery statute setting forth the deadly weapon element put

       Kerby on notice of the mens rea required. The court also concluded that

       Kerby had been afforded a thorough and detailed Crim. R. 11 colloquy.

       {¶ 3}    Kerby subsequently appealed the decision of the trial court. We concluded

the trial court did not err when it denied Kerby’s motion to withdraw his guilty plea and

affirmed his conviction and sentence. Kerby, 2d Dist. Clark No. 09-CA-39, 2010-Ohio-562.

       {¶ 4}    On May 10, 2012, Kerby filed a “motion to vacate and correct sentences

pursuant to R.C. 2941.25 and Crim. R. 52(B).” In his motion, Kerby argued that pursuant

to the Ohio Supreme Court’s holding in State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061, the trial court was required to merge his convictions for

involuntary manslaughter and aggravated robbery. In a decision and entry filed on February

22, 2013, the trial court denied Kerby’s motion, finding that under the specific facts of this

case, involuntary manslaughter and aggravated robbery were not allied offenses of similar

import. It is apparent from the decision that the trial court utilized the test set forth in

Johnson in order to determine whether the offenses should be merged.

       {¶ 5}    It is from this decision that Kerby now appeals.

       {¶ 6}    Kerby’s sole assignment of error is as follows:

       {¶ 7}    “THE TRIAL COURT ERRED WHEN IT DENIED KERBY’S MOTION

TO VACATE AND CORRECT SENTENCES.”
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       {¶ 8}   In his sole assignment, Kerby contends that the trial court erred when it

denied his motion to vacate and correct his sentences. Specifically, Kerby argues that his

convictions for involuntary manslaughter and aggravated robbery were allied offenses and

should have been merged for sentencing purposes based upon the new merger rule set forth

in Johnson. Kerby failed to argue at his original sentencing hearing before the trial court

that his involuntary manslaughter and aggravated robbery offenses are allied offenses of

similar import that must be merged. Kerby has therefore waived all error except plain error.

State v. Coffey, 2d Dist. Miami No. 2006CA6, 2007-Ohio-21, at ¶14. To prevail under the

plain error standard, an appellant must demonstrate both that there was an obvious error in

the proceedings and that but for the error, the outcome of the trial clearly would have been

otherwise. State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88.

       {¶ 9}   The merger of offenses is governed by R.C. 2941.25, which is a

“prophylactic statute that protects a criminal defendant’s rights under the Double Jeopardy

Clauses of the United States and Ohio Constitutions.” State v. Johnson, 128 Ohio St.3d 153,

2010-Ohio-6314, 942 N.E.2d 1061, ¶ 45. R.C. 2941.25 provides:

               (A)   Where the same conduct by defendant 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
                                                                                              6

       each, the indictment or information may contain counts for all such offenses,

       and the defendant may be convicted of all of them.

       {¶ 10} The defendant bears the burden to prove entitlement to merger. State v.

Thomas, 10th Dist. Franklin No. 10AP-557, 2011-Ohio-1191, ¶ 16.

       {¶ 11} In Johnson, the Supreme Court of Ohio announced a new manner of

applying R.C. 2941.25 to determine when offenses are allied offenses of similar import that

must be merged. It abandoned the previous test, set forth in State v. Rance, 85 Ohio St.3d

632, 710 N.E.2d 699 (1999), which called for a comparison of the statutory elements solely

in the abstract.   Johnson held that, 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. Id. at ¶ 44. The Supreme Court explained:

               In determining whether offenses are allied offenses of similar import

       under R.C. 2941.25(A), the question is whether it is possible to commit one

       offense and commit the other with the same conduct, not whether it is

       possible to commit one without committing the other. State v. Blankenship

       (1988), 38 Ohio St.3d 116, 119.        (Whiteside, J., concurring) (“It is not

       necessary that both crimes are always committed by the same conduct but,

       rather, it is sufficient if both offenses can be committed by the same conduct.

        It is a matter of possibility, rather than certainty, that the same conduct will

       constitute commission of both offenses.” [Emphasis sic] ). If the offenses

       correspond to such a degree that the conduct of the defendant constituting

       commission of one offense constitutes commission of the other, then the
                                                                                                 7

       offenses are of similar import.

               If the multiple offenses can be committed by the same conduct, then

       the court must determine whether the offenses were committed by the same

       conduct, i.e., “a single act, committed with a single state of mind.” State v.

       Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶ 50 (Lanzinger, J.,

       dissenting).

               If the answer to both questions is yes, then the offenses are allied

       offenses of similar import and will be merged.

               Conversely, if the court determines that the commission of one

       offense will never result in the commission of the other, or if the offenses are

       committed separately, or if the defendant has separate animus for each

       offense, then, according to R .C. 2941.25(B), the offenses will not merge.

Johnson at ¶ 48–51.

       {¶ 12} In the instant case, Kerby argues that his offenses should have merged

because his actions in committing the aggravated robbery and the involuntary manslaughter

were committed with a single animus. Kerby was convicted and sentenced for involuntary

manslaughter, in violation of R.C. 2903.04(A), and aggravated robbery, in violation of R.C.

2911.01(A)(1). R.C. 2903.04(A) states, “No person shall cause the death of another *** as

a proximate result of the offender’s committing or attempting to commit a felony.” R.C.

2911.01(A)(1), the relevant aggravated robbery statute, provides, “No person, in attempting

or committing a theft offense, * * * , or in fleeing immediately after the attempt or offense,

shall do any of the following: (1) [h]ave a deadly weapon on or about the offender’s person
                                                                                                8

or under the offender’s control and either display the weapon, brandish it, indicate that the

offender possesses it, or use it.”

        {¶ 13} The commission of aggravated robbery pursuant to R.C. 2911.01(A)(1)

necessarily entails that the offender display, brandish, or use a deadly weapon while

committing a theft offense. We therefore conclude that it is possible that the victim could

die through the offender’s use of a deadly weapon in the course of the aggravated robbery,

resulting in an involuntary manslaughter.       Thus, it is possible to commit involuntary

manslaughter under R.C. 2903.04(A) and aggravated robbery under R.C. 2911.01(A)(1) with

the same conduct, thus satisfying the first prong of the Johnson test.

        {¶ 14} Because it is possible to commit involuntary manslaughter and aggravated

robbery with the same conduct, we must examine Kerby’s conduct to determine whether he

did, in fact, commit the two offenses with the same conduct and the same animus. Johnson

at ¶ 50-51. At Kerby’s plea hearing on May 30, 2008, the following facts were read into the

record by the State:

                In the late evening hours of November 27 into the early morning

        hours of the 28th of November of 2001, the Defendant[s], Jawhan Massie and

        William Kerby went to the Family Video Store located at 1202 Selma Road

        in the City of Springfield. The victim in this matter, Chad Tyler Couts, and a

        coworker Matt Brown, were in the process of closing the store at that time

        when the Defendants arrived. They demanded money. At that point in

        time[,] Mr. Couts attempted to call 9-1-1. During this time, Jawhan Massie

        fired one shot with a 20-gauge shotgun, fatally wounding Mr. Couts. ***.
                                                                                                 9

       {¶ 15} In State v. Jackson, 2d Dist. Montgomery No. 24430, 2012-Ohio-2335, at ¶

140, we recently stated:

               Several courts have held that, where the force used to effectuate an

       aggravated robbery is far in excess of that required to complete the robbery,

       or where the circumstances suggest that a separate intent to kill existed, the

       offenses of aggravated robbery and murder do not merge.             See [State

       v.]Diggle, [3d Dist Auglaize No. 2-11-19, 2012-Ohio-1583] (evidence of

       prior conflict with victim and defendant’s use of force in excess of that

       required to complete robbery found to demonstrate separate animus for

       murder); State v. Ruby, 6th Dist. Sandusky No. S-10-028, 2011-Ohio-4864, ¶

       61 (beating of elderly, disabled victims demonstrated separate animus for

       aggravated robbery and attempted murder, because the beating far exceeded

       that necessary to effectuate the robbery); State v. Tibbs, 1st Dist. Hamilton

       No. C-100378, 2011-Ohio-6716, ¶ 48 (shooting victim in face and head from

       close range during course of aggravated robbery demonstrated a specific

       intent to kill).

       {¶ 16} In Jackson, the defendant was convicted of aggravated robbery and murder.

We ultimately found that the trial court could have reasonably concluded that the

defendant’s use of force exceeded that necessary to complete the robbery or that he had a

separate intent to kill the victim. Jackson, at ¶ 141. The victim was shot four times as he

lunged toward the defendant in an apparent attempt to thwart the robbery; when one of the

shots were fired, the gun was in contact with the top of the victim’s head. Id. This degree of
                                                                                                  10

force suggests the use of force in excess of that required to effectuate the robbery. Id. Based

on these facts, we found that the aggravated robbery was committed with a separate animus

from the murder. We therefore held that the trial court did not err when it refused to merge

the two offenses.

        {¶ 17} Although the charge in the instant case was involuntary manslaughter rather

than murder, the facts present in the instant case require the same outcome as in Jackson.

Kerby and Massie, who was brandishing a shotgun, approached the video store and

demanded money. Shortly thereafter, Massie observed that Couts was attempting to call

9-1-1. At that point, Massie shot Couts and killed him. No evidence was presented that

the defendants planned or decided to shoot Couts in order to accomplish the aggravated

robbery.    Rather, a subsequent decision was made to shoot Couts to stop him from

completing his call for help. Moreover, as we found in Jackson, the defendant’s use of

force exceeded that necessary to complete the robbery. Id. at ¶ 141. The fact that Massie,

not Kerby, was the shooter is irrelevant to this analysis. Thus, the trial court did not err

when it refused to merge Kerby’s convictions for aggravated robbery and involuntary

manslaughter, and his “motion to vacate and correct sentences pursuant to R.C. 2941.25 and

Crim. R. 52(B)” was properly denied.

        {¶ 18} Kerby’s sole assignment of error is overruled.

        {¶ 19} Kerby’s sole assignment of error having been overruled, the judgment of the

trial court is affirmed.

                                         ..........

HALL, J. and WELBAUM, J., concur.
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Copies mailed to:

Ryan A. Saunders
Robert Alan Brenner
Hon. Richard J. O’Neill
