[Cite as State v. Edwards, 2013-Ohio-1290.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                        LAKE COUNTY, OHIO


STATE OF OHIO,                                   :      OPINION

                 Plaintiff-Appellee,             :
                                                        CASE NO. 2012-L-034
        - vs -                                   :

TARENCE E. EDWARDS,                              :

                 Defendant-Appellant.            :


Criminal Appeal from the Lake County Court of Common Pleas, Case No. 11 CR
000592.

Judgment: Affirmed.


Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee and Patrick J.
Condon, Assistant Prosecutors, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

Judson J. Hawkins, Parkhill Professional Building, 35104 Euclid Avenue, Suite 101,
Willoughby, OH 44094 (For Defendant-Appellant).



COLLEEN MARY O’TOOLE, J.

        {¶1}     Appellant, Tarence E. Edwards, appeals from the April 5, 2012 judgment

of the Lake County Court of Common Pleas, sentencing him for aggravated robbery,

robbery, kidnapping, abduction, and theft.

        {¶2}     On October 11, 2011, appellant was secretly indicted by the Lake County

Grand Jury on six counts: count one, aggravated robbery, a felony of the first degree, in

violation of R.C. 2911.01(A)(1), with an accompanying repeat violent offender
specification in violation of R.C. 2941.149; count two, robbery, a felony of the second

degree, in violation of R.C. 2911.02(A)(2), with an accompanying repeat violent offender

specification in violation of R.C. 2941.149; count three, robbery, a felony of the third

degree, in violation of R.C. 2911.02(A)(3); count four, kidnapping, a felony of the second

degree, in violation of R.C. 2905.01(A)(2), with an accompanying repeat violent offender

specification in violation of R.C. 2941.149; count five, abduction, a felony of the third

degree, in violation of R.C. 2905.02(A)(2); and count six, theft, a felony of the fifth

degree, in violation of R.C. 2913.02(A)(1). Appellant pleaded not guilty to all charges.

      {¶3}    A jury trial commenced on February 13, 2012. At trial, Omar Suleiman

(“the victim”), owner of Raw Styles in Painesville, Lake County, Ohio, testified for

appellee, the state of Ohio, that his store was robbed by three men on September 24,

2011. While he was getting ready to close for the night, a man the victim knew by the

name of “Speedy” came in. Speedy went to a shoe display and asked the victim if he

could try on a pair of shoes in his size. As the victim was entering the back room,

Speedy came behind him with a knife. Speedy told the victim it was a “shakedown.”

      {¶4}    At that point, the victim testified that a second man wearing a skull cap

and a bandana over his mouth entered the back room. The second man looked familiar

to the victim, as he could see his face from beneath his nose to the middle of his

forehead.    During a struggle between the victim and the second man, the victim

observed Speedy go behind the cash registers. The second man pushed the victim

further into the back room, turned him around, held him down, and attempted to duct

tape his hands behind his back. The victim heard a third man yell, “let’s go,” and the

three men took off running. The victim pressed the store’s panic button. He attempted




                                            2
to chase after the men, but was unsuccessful. After returning to the store, the victim

discovered that almost $4,000 in cash was taken from the registers.

       {¶5}   Officer William Smith (“Officer Smith”) with the Painesville City Police

Department (“PCPD”) was dispatched to Raw Styles after learning that three African

American male robbers were seen leaving in a white SUV. At the scene, Officer Smith

spoke with the victim about the incident. Officer Smith testified for the state that he

noticed that the victim was missing hair from his arm. Officer Smith saw a piece of duct

tape located on the ground near the registers.

       {¶6}   Later that night, the victim was shown two photo line-ups. He identified

Lawrence Bolden, a.k.a. “Speedy,” in one and Joel Martin (“Martin”) in the other. The

victim indicated that Martin used to work for him. Warrants were issued for Speedy and

Martin. Officers continued to investigate the identity of the remaining suspect.

       {¶7}   About a week after the incident, officers spoke with Martin following his

arrest. Martin identified Speedy and appellant as being involved in the crime. Detective

John Levicki (“Detective Levicki”) with the PCPD conducted another photo line-up, this

time including a photo of appellant. On October 5, 2011, Detective Levicki met with the

victim to administer the photo line-up. The victim identified appellant as the second

man with the partially covered face who tried to duct tape him. The victim testified that

he was familiar with appellant from past dealings.

       {¶8}   About two weeks later, officers spoke with Speedy following his arrest.

Speedy admitted to Detective Levicki that he was involved in the robbery at Raw Styles

with Martin and appellant. Speedy told officers, as well as testified for the state, that he

and Martin were friends and that appellant, who he called “T-Rex,” was Martin’s




                                             3
nephew. According to Speedy, on the night of the robbery, he went to Martin’s house.

They smoked crack cocaine and appellant arrived shortly thereafter. Speedy indicated

that Martin was upset about being recently fired from Raw Styles. Speedy further stated

that appellant was also upset and talked about robbing the store. The three men then

devised and set their plan into motion.

      {¶9}   Appellant drove his white Lexus SUV with Martin as the front seat

passenger and Speedy in the back seat. They parked on a nearby street and entered

Raw Styles. Speedy testified that he went into the store and asked the victim if he could

try on a pair of shoes. Speedy followed the victim into the back room and pulled a knife

on him. According to Speedy, Martin and appellant then ran into the store. Martin went

to the cash registers while appellant, who wore a partial face mask, went to the back

room and began wrestling with the victim.       The three men ran out of the store to

appellant’s car with cash in hand. After leaving the scene, Martin passed out money to

Speedy and appellant.

      {¶10} Thereafter, on November 4, 2011, appellant went to Raw Styles to pay a

bill. After recognizing appellant, the victim pressed the panic alarm. Officer Matt Tycast

(“Officer Tycast”) with the PCPD testified for the state that he responded to the call.

Officer Tycast arrested appellant and took him into custody. Appellant later spoke with

Detective Levicki. In a recorded interview admitted at trial over appellant’s objection,

Detective Levicki informed appellant that two individuals named appellant as being

involved in the September 24, 2011 crime. Appellant denied any involvement.

      {¶11} While incarcerated, appellant’s jail calls were collected. A portion of one

call between appellant and Yolanda Webber (“Webber”), the mother of appellant’s son,




                                            4
was played for the jury, over appellant’s objection. In that call, appellant explained that

he felt he needed to get money for Webber. Webber responded by asking appellant if

this was all her fault. Appellant replied that it was not Webber’s fault but rather his own

fault for the decisions he had made.

       {¶12} After the state rested, appellant called several witnesses to testify on his

behalf, including: Webber, his sisters Fateria and Rebecca Edwards, his cousin Johnny

Rivers (“Rivers”), and Rivers’ girlfriend Amy Darroch. Collectively, appellant’s witnesses

testified that he was at his mother’s house and that his white SUV was in Fateria

Edwards’ possession during the time frame of the robbery.

       {¶13} Following trial, the jury found appellant guilty on all counts. The trial court

deferred sentencing and the matter was referred to the Adult Probation Department for

a presentence investigation report and victim impact statement.

       {¶14} At the sentencing hearing, the trial court found appellant guilty of the

repeat violent offender specification accompanying count one and found him to be a

repeat violent offender.

       {¶15} Pursuant to its April 5, 2012 judgment, the trial court sentenced appellant

to a 21-year total prison term. Specifically, appellant was sentenced to ten years on

count one and five years on count four, to run consecutive to each other. Counts two,

three, and six merged with count one, and count five merged with count four. The trial

court further ordered appellant to serve an additional six years on the repeat violent

offender specification, to be served prior to and consecutive to the foregoing prison

term. Appellant filed a timely appeal asserting the following five assignments of error for

our review:




                                             5
       {¶16} “[1.] The trial court committed prejudicial error and violated Appellant’s VI

Amendment rights to confront the witnesses against him and the Ohio Rules of

Evidence by introducing hearsay statements of co-defendants and others via the

introduction of a recorded interview between the police and Appellant.

       {¶17} “[2.] The trial court committed prejudicial error in permitting the

introduction of Appellant’s pre-trial denials of guilt. These statements were not relevant

pursuant to Evid.R. 401 and, even if relevant, should have been excluded pursuant to

Evid.R. 403(A).

       {¶18} “[3.] The trial court committed prejudicial error in permitting, over

Appellant’s objection, the introduction of a brief segment of a jail house tape recorded

telephone call between Appellant and Yolanda Webber that occurred several months

after the crime.

       {¶19} “[4.] The trial court erred by treating both Aggravated Robbery and

Kidnapping as separate crimes for the purposes of sentencing.

       {¶20} “[5.] The trial court erred in sentencing Appellant to consecutive sentences

by using facts not presented to the jury and not found by the jury.”

       {¶21} In his first assignment of error, appellant argues that the trial court erred

and violated his constitutional right to confront witnesses against him and the Ohio

Rules of Evidence by introducing hearsay statements of co-defendants and others via

the introduction of a recorded interview he had with police.

       {¶22} In his second assignment of error, appellant contends that the trial court

erred in permitting the introduction of his pre-trial denials of guilt. Appellant maintains

that his statements to Detective Levicki were not relevant pursuant to Evid.R. 401 and,




                                            6
even if relevant, should have been excluded pursuant to Evid.R. 403(A). Appellant

further argues that the trial court erred in permitting the state to introduce, over his

objection, the video-taped interview in order to demonstrate to the jury his “demeanor”

and “reaction” to Detective Levicki’s statement that his co-defendants had identified him

as a participant in the crime.

       {¶23} Because appellant’s first and second assignments of error are interrelated,

we will address them together.

       {¶24} Although we generally review decisions on the admission of evidence for

an abuse of discretion, appellate courts apply a de novo standard of review to

evidentiary questions raised under the Confrontation Clause. See State v. Hall, 8th

Dist. No. 96680, 2012-Ohio-266, ¶21.

       {¶25} With regard to appellant’s constitutional argument, the Sixth Amendment

to the United States Constitution states that “[i]n all criminal prosecutions, the accused

shall enjoy the right * * * to be confronted with the witnesses against him[.]” Thus, the

Confrontation Clause bars the “testimonial statements of a witness who did not appear

at trial unless he was unavailable to testify, and the defendant had had a prior

opportunity for cross-examination.”    Crawford v. Washington, 541 U.S. 36, 53-54

(2004).

       {¶26} The threshold inquiry is whether the challenged out-of-court statements

were testimonial in nature and needed to be tested by confrontation. See State v.

Lewis, 1st Dist. Nos. C-050989 and C-060010, 2007-Ohio-1485, ¶30. Statements are

“testimonial when the circumstances objectively indicate that there is no * * * ongoing

emergency, and that the primary purpose of the interrogation is to establish or prove




                                            7
past events potentially relevant to later prosecution.” Davis v. Washington, 547 U.S.

813, 822 (2006); see also State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482,

paragraph one of the syllabus.

       {¶27} Confrontation Clause violations are subject to harmless error analysis.

See State v. Kraft, 1st Dist. No. C-060238, 2007-Ohio-2247, ¶67, citing United States v.

Summers, 414 F.3d 1287, 1303 (10th Cir.2005). “A constitutional error can be held

harmless if we determine that it was harmless beyond a reasonable doubt.” State v.

Conway, 108 Ohio St.3d 214, 2006-Ohio-791, ¶78, citing Chapman v. California, 386

U.S. 18, 24 (1967).

       {¶28} With respect to appellant’s evidence argument, Evid.R. 401 states:

“‘Relevant evidence’ means evidence having any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.”

       {¶29} Evid.R. 402 provides: “All relevant evidence is admissible, except as

otherwise provided by the Constitution of the United States, by the Constitution of the

State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of

the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme

Court of Ohio. Evidence which is not relevant is not admissible.”

       {¶30} Evid.R. 403(A) states: “Although relevant, evidence is not admissible if its

probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury.”

       {¶31} Hearsay is defined as, “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter




                                              8
asserted.” Evid.R. 801(C). Hearsay is inadmissible at trial, unless it falls under an

exception to the Rules of Evidence. Evid.R. 802.

       {¶32} Evid.R. 801(D)(2)(a) provides that a statement is “not hearsay” if, “The

statement is offered against a party and is * * * the party’s own statement * * *.”

       {¶33} In this case, appellant’s own out-of-court statements denying his guilt,

made during his interview with Detective Levicki and offered against him at trial, are

relevant and admissible pursuant to Evid.R. 401, 402, and 801(D)(2)(a). The admission

of the video-taped interview, as a whole, did not cause appellant unfair prejudice,

confuse the issues, and/or mislead the jury under Evid.R. 403(A). The majority of the

video-taped interview allowed the jury to observe appellant’s responses to Detective

Levicki’s inquiries and his overall demeanor in order to determine his credibility.

However, the trial court should not have allowed into evidence the portion of the tape

where Detective Levicki stated that appellant’s co-defendants and “others” implicated

him in the crime.

       {¶34} Prior to speaking with appellant, Detective Levicki interviewed appellant’s

co-defendants, Speedy and Martin, about the robbery.          During appellant’s recorded

interview, Detective Levicki said that responses made by appellant’s co-defendants and

“others” indicated that appellant was involved in the crime.         Specifically, Detective

Levicki informed appellant that “other people say you did it,” “people named you as

being involved,” “two people * * * involved with the crime implicated you,” and “they both

gave your name up.” Also, Detective Levicki said that “this was already taken to the

Grand Jury and the Grand Jury listened to the case, listened to the evidence that we

had, and the Grand Jury felt there was enough to give an indictment for your arrest.”




                                             9
         {¶35} We stress that Speedy testified at trial, however, Martin did not, and thus,

was not subject to cross-examination by appellant. In addition, we do not know who the

“others” are that Detective Levicki referred to and/or whether they testified at trial. Thus,

these testimonial statements are barred by the Confrontation Clause and their

admission violated appellant’s Sixth Amendment rights.          See Crawford and Davis,

supra.

         {¶36} The trial court attempted to “cure” the foregoing by providing the following

limiting instruction to the jury:

         {¶37} “Evidence has been submitted of the police questioning of the Defendant.

The police are permitted by law to engage in deception in an effort to elicit admissions

from the Defendant. The jury is not to consider as evidence any statement made by the

police during the questioning of the Defendant that has not been agreed to or adopted

by the Defendant, or otherwise has not been proven by other evidence during the trial.”

         {¶38} Most testimonial statements are too damaging for a lay juror to separate

and/or ignore. See e.g. State v. White, 8th Dist. No. 72011, 1998 Ohio App. LEXIS

1622, *7 (April 16, 1998), citing Bruton v. United States, 391 U.S. 123 (1968). “The

rationale of Bruton was that the introduction of a potentially unreliable confession of one

defendant which implicates another defendant without being subject to cross-

examination deprives the latter defendant of his right to confrontation guaranteed by the

Sixth Amendment.” United States v. Fleming, 594 F.2d 598, 602 (7th Cir.1979). The

Bruton rule also applies to statements of co-defendants that are not confessions. State

v. Moritz, 63 Ohio St.2d 150, 155 (1980). This same concept applies here in regard to

Crawford and its progeny.




                                             10
       {¶39} “Cases following Bruton have established that the error may be harmless.”

State v. Holdsworth, 11th Dist. No. 90-P-2231, 1992 Ohio App. LEXIS 724, *14 (Feb.

21, 1991). Thus, Bruton violations are subject to harmless error review. See State v.

Burney, 10th Dist. No. 06AP-990, 2007-Ohio-7137, ¶53, citing Harrington v. California,

395 U.S. 250, 252-254 (1969). “‘“The mere finding of a violation of the Bruton rule in

the course of the trial * * * does not automatically require reversal of the ensuing

criminal conviction.   In some cases the properly admitted evidence of guilt is so

overwhelming, and the prejudicial effect of the codefendant’s admission [or statements]

is so insignificant by comparison, that it is clear beyond a reasonable doubt that the

improper use of the admission was harmless error.           (* * *)”’   Moritz at 156, citing

Schneble v. Florida (1972), 405 U.S. 427, 430.” Holdsworth at *14.

       {¶40} Based on the facts of this case, the limiting instruction alone was not

enough to cure the Bruton violation because the jury had already heard the testimonial

statements of Detective Levicki that appellant’s co-defendants and “others” said that

appellant committed the crime.        Courts should be mindful that such testimonial

statements may be too damaging for a lay juror to separate and/or ignore. However,

the Bruton violation did not prejudice appellant as there was other evidence of his guilt.

See e.g. Holdsworth, supra, at *14. The facts in the case before us are not sufficient

given the overwhelming evidence of guilt properly before the jury. Thus, the trial court’s

error was harmless. Id.

       {¶41} Appellant’s first and second assignments of error are without merit.

       {¶42} In his third assignment of error, appellant alleges that the trial court erred

in permitting, over his objection, the introduction of a brief segment of the jail house tape




                                             11
recorded telephone call between him and Webber that occurred several months after

the crime.    Appellant maintains that the call was not placed in context and was

inaudible.

       {¶43} The Supreme Court of Ohio in State v. Robb, 88 Ohio St.3d 59, 72 (2000),

stated:

       {¶44} “‘To be admissible, a tape recording must be “authentic, accurate and

trustworthy.”’ State v. Coleman (1999), 85 Ohio St.3d 129, 141 * * *, quoting State v.

Rogan (1994), 94 Ohio App.3d 140, 148 * * *. Whether to admit tape recordings that

are partly inaudible rests within the sound discretion of the trial court. Coleman at 141 *

* *. See, also, State v. Gotsis (1984), 13 Ohio App.3d 282, 283 * * *; United States v.

Haldeman (C.A.D.C.1976), * * * 559 F.2d 31 (tape with unexplained gap held

admissible); United States v. Slade (C.A.D.C.1980), * * * 627 F.2d 293, 301 (tapes are

admissible unless inaudibility renders tape as a whole untrustworthy).”

       {¶45} In the case at bar, the trial court did not err in admitting a portion of the jail

house tape recorded telephone call between appellant and Webber, the mother of his

son who also testified at trial. Two detectives testified with respect to the recording.

Detective Donald Seamon (“Detective Seamon”) with the Lake County Sheriff’s Office

testified for the state regarding the jail’s call system. He explained the manner in which

inmate phone calls are recorded. Detective Seamon further indicated his involvement in

compiling all of appellant’s jail calls during the time period from November 4, 2011

through January 31, 2012. Also, Detective Levicki testified that it was appellant’s voice

on the recording. Thus, pursuant to the detectives’ testimony, the tape recording was




                                             12
“authentic, accurate and trustworthy,” and therefore, properly admitted. Robb, supra, at

72.

        {¶46} Although portions of the recording are somewhat inaudible, the inaudibility

did not render the tape as a whole untrustworthy. Id. As such, the trial court acted

within its discretion in admitting the recording.        Id.   Appellant claims that his

conversation with Webber established that he needed money while in jail. However, the

recording actually reveals that appellant had a prior need to get money for Webber. As

stated, appellant explained on the recording that he felt that he needed to get Webber

money. Webber responded by asking appellant if this was all her fault. Appellant

replied that it was not Webber’s fault but rather his own fault for the decisions he had

made.     The portion of the recording at issue created a reasonable inference that

appellant committed the robbery because he felt the need to get money for Webber.

Thus, the state’s use of the recording was to establish a possible motive appellant may

have had at the time of the crime.

        {¶47} Appellant’s third assignment of error is without merit.

        {¶48} In his fourth assignment of error, appellant argues that the trial court erred

by treating aggravated robbery and kidnapping as separate crimes for the purposes of

sentencing.    Appellant stresses that the presence of duct tape found at the scene,

without proof that it was brought to the crime, does not amount to a separate animus

sufficient to prevent a merger of the crimes.

        {¶49} Our review of an allied offenses question is de novo. State v. Williams,

Slip Opinion No. 2012-Ohio-5699, ¶12. “R.C. 2941.25 ‘codifies the protections of the

Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and




                                             13
Section 10, Article I of the Ohio Constitution, which prohibits multiple punishments for

the same offense.’ State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, * * * ¶23. At

the heart of R.C. 2941.25 is the judicial doctrine of merger; merger is ‘the penal

philosophy that a major crime often includes as inherent therein the component

elements of other crimes and that these component elements, in legal effect, are

merged in the major crime.’ State v. Botta, 27 Ohio St.2d 196, 201 * * * (1971).”

(Parallel citations omitted.) Williams at ¶13.

       {¶50} R.C. 2941.25 states:

       {¶51} “(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.

       {¶52} “(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.”

       {¶53} “To ensure compliance with both R.C. 2941.25 and the Double Jeopardy

Clause, ‘a trial court is required to merge allied offenses of similar import at sentencing.

Thus, when the issue of allied offenses is before the court, the question is not whether a

particular sentence is justified, but whether the defendant may be sentenced upon all

the offenses.’ Underwood at ¶27.” Williams, supra, at ¶15.

       {¶54} The method employed by courts in determining whether two crimes

constitute allied offenses of similar import has evolved. In State v. Rance, 85 Ohio




                                            14
St.3d 632 (1999), the Supreme Court of Ohio held that “[u]nder an R.C. 2941.25(A)

analysis, the statutorily defined elements of offenses that are claimed to be of similar

import are compared in the abstract.” Id., paragraph one of the syllabus. (Emphasis

sic.) Since its release, Rance has gone through various modifications and revisions.

See State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625; State v. Brown, 119 Ohio

St.3d 447, 2008-Ohio-4569; State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059.

       {¶55} The Supreme Court of Ohio revisited the allied offenses analysis again in

2010 and overruled Rance in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.

Under the new analysis, which this court later relied upon and embraced in State v.

May, 11th Dist. No. 2010-L-131, 2011-Ohio-5233, “[w]hen 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 the syllabus. The Johnson

court provided the new analysis as follows:

       {¶56} “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. * * * 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 offenses are of similar import.

       {¶57} “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.’ * * *.




                                             15
        {¶58} “If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

        {¶59} “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 [a] separate animus for each offense, then,

according to R.C. 2941.25(B), the offenses will not merge.” Id. at ¶48-51. (Citations

omitted.) (Emphasis sic.)

        {¶60} This court went on to state in May, supra, at ¶50-51:

        {¶61} “‘In departing from the former test, the court developed a new, more

context-based test for analyzing whether two offenses are allied thereby necessitating a

merger.    In doing so, the court focused upon the unambiguous language of R.C.

2941.25, requiring the allied-offense analysis to center upon the defendant’s conduct,

rather than the elements of the crimes which are charged as a result of the defendant’s

conduct.’” [State v.] Miller[,11th Dist. No. 2009-P-0090, 2011-Ohio-1161,] at ¶47, citing

Johnson at ¶48-52.

        {¶62} “‘The (Johnson) court acknowledged the results of the above analysis will

vary on a case-by-case basis. Hence, while two crimes in one case may merge, the

same crimes in another may not. Given the statutory language, however, this is not a

problem. The court observed that inconsistencies in outcome are both necessary and

permissible “(* * *) given that the statute instructs courts to examine a defendant’s

conduct - an inherently subjective determination.”’ Miller at ¶52, quoting Johnson at

¶52.”




                                            16
         {¶63} In our case, the issue is whether aggravated robbery and kidnapping are

allied offenses of similar import subject to merger for purposes of sentencing, which we

will review de novo. Williams, supra, at ¶12.

         {¶64} Aggravated robbery, under R.C. 2911.01(A)(1), states in part: “[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 or under the offender’s control and

either display the weapon, brandish it, indicate that the offender possesses it, or use

it[.]”

         {¶65} Kidnapping, under R.C. 2905.01(A)(2), provides in part: “[n]o person, by

force, threat, or deception, * * * shall remove another from the place where the other

person is found or restrain the liberty of the other person, * * * [t]o facilitate the

commission of any felony or flight thereafter[.]”

         {¶66} The Supreme Court of Ohio has held that aggravated robbery and

kidnapping are allied offenses of similar import. See State v. Wilson, 129 Ohio St.3d

214, 2011-Ohio-2669, ¶11. Again, under R.C. 2941.25, Ohio’s multiple-count statute, if

a defendant’s conduct results in allied offenses of similar import, the defendant may

ordinarily be convicted of only one of the offenses. R.C. 2941.25(A). However, if the

defendant commits each offense separately or with a separate animus, then convictions

may be entered for both offenses. R.C. 2941.25(B); see also State v. Dean, 11th Dist.

No. 2010-P-0003, 2010-Ohio-5185, ¶40 (holding that the trial court did not abuse its

discretion in not merging aggravated robbery and kidnapping for sentencing because

each had a separate animus.)




                                             17
       {¶67} Thus, although aggravated robbery and kidnapping are allied offenses,

our treatment of appellant’s argument is not over. The specific facts of this case must

be reviewed to determine whether appellant committed the charged offenses separately

or with a separate animus so as to permit multiple punishments.

       {¶68} At the sentencing hearing, appellant’s counsel argued that the aggravated

robbery and kidnapping charges should merge for purposes of sentencing. Following a

lengthy discussion, the trial court determined that the offenses would not merge

because each was committed with a separate animus. Based on the facts presented,

we agree with the trial court.

       {¶69} The aggravated robbery was complete when Speedy held the victim at

knife point, told him it was a “shakedown,” and Martin entered the store to empty the

cash registers. Appellant, wearing a skull cap and a bandana over his mouth, continued

to restrain the victim and a physical struggle ensued between appellant and the victim in

the back room. The victim indicated that appellant pushed him further into the back

room, while Martin was emptying the registers. Appellant attempted to duct tape the

victim’s hands behind his back during the struggle, which resulted in hair loss to the

victim’s arm. Although there is no evidence in the record that the duct tape used to

restrain the victim was brought to the robbery, duct tape was nevertheless found at the

scene, which corroborates appellant’s intent to physically restrain the victim. Thus, the

plan to get the victim into the back room and the prolonged restraint involved subjected

him to an increase in the risk of harm that was separate and apart from the aggravated

robbery. See State v. Chaffer, 1st Dist. No. C-090602, 2010-Ohio-4471, ¶11, citing

State v. Logan, 60 Ohio St.2d 126, syllabus (1979) (holding “that even without




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prolonged restraint, secret confinement, or substantial movement, where the asportation

or restraint exposes the victims to a substantial increase in the risk of harm separate

and apart from the underlying crime of robbery, a separate animus exists for

kidnapping.”)

      {¶70} Based on the facts of this case, the aggravated robbery and kidnapping

were not committed with the same animus.            Therefore, appellant was properly

sentenced separately for each offense under R.C. 2941.25(B) and Johnson.

      {¶71} Appellant’s fourth assignment of error is without merit.

      {¶72} In his fifth assignment of error, appellant contends that the trial court erred

in sentencing him to consecutive sentences by using facts not presented to and found

by the jury. Appellant bases his argument on constitutional violations raised in Blakely

v. Washington, 542 U.S. 296 (2004), and State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-

856, claiming that the jury must make the finding that a separate animus exists before

consecutive sentences can be imposed for allied offenses.

      {¶73} In reviewing sentences post-Foster, we note that “[t]he jury-trial guarantee

of the Sixth Amendment to the United States Constitution does not preclude states from

requiring trial court judges to engage in judicial fact-finding prior to imposing

consecutive sentences. (Oregon v. Ice, 555 U.S. 160 * * * (2009), construed.)” State v.

Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, paragraph one of the syllabus. This court

stated in State v. Hamilton, 11th Dist. No. 2011-P-0044, 2012-Ohio-1457, ¶21, that

“[t]rial judges have ‘“the discretion and inherent authority to determine whether a prison

sentence within the statutory range shall run consecutively or concurrently.”’ [Hodge] at




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¶12, quoting State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, * * * ¶18-19.”

(Parallel citations omitted.)

       {¶74} With regard to allied offenses, the Supreme Court of Ohio in Johnson

determined that R.C. 2941.25 “expressly instructs courts to consider the offenses at

issue in light of the defendant’s conduct” and repeatedly stated that it is “the court” that

determines prior to sentencing whether the offenses are committed by the same

conduct or if a separate animus exists. Johnson, supra, at ¶46-51.

       {¶75} Thus, contrary to appellant’s argument, trial court judges have the

discretion and inherent authority to determine whether offenses are committed by the

same conduct or if a separate animus exists, and whether a prison sentence within the

statutory range shall run consecutively. In this case, the trial court properly exercised its

discretion and authority in finding that a separate animus existed. As stated, a lengthy

discussion occurred at the sentencing hearing regarding the evidence and what the trial

court could consider in making its merger determination. Again, although there is no

evidence in the record that the duct tape used to restrain the victim was brought to the

robbery, duct tape was nevertheless found at the scene, which corroborates appellant’s

intent to physically restrain the victim. Also, the testimony from the jury trial revealed

that appellant held the victim in the back room, which provided Martin with the

opportunity to empty the cash registers.

       {¶76} In addition, before sentencing appellant consecutively, the trial court

considered the record, oral statements, any victim impact statement, pre-sentence

report and/or drug and alcohol evaluation as well as the principles and purposes of

sentencing under R.C. 2929.11, and balanced the seriousness and recidivism factors




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under R.C. 2929.12. Pursuant to R.C. 2929.14(C)(4) and 2929.19(B)(2)(b), the trial

court further found that consecutive sentences are necessary to protect the public from

future crime or to punish appellant and are not disproportionate to his conduct and the

danger he poses to the public.

      {¶77} Appellant’s fifth assignment of error is without merit.

      {¶78} For the foregoing reasons, appellant’s assignments of error are not well-

taken. The judgment of the Lake County Court of Common Pleas is affirmed. The court

finds there were reasonable grounds for this appeal.



DIANE V. GRENDELL, J.,

CYNTHIA WESTCOTT RICE, J.,

concur.




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