[Cite as State v. Jones, 2011-Ohio-2306.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                     JUDGES:
                                                  Hon. Sheila G. Farmer, P. J.
        Plaintiff-Appellee                        Hon. John W. Wise, J.
                                                  Hon. Julie A. Edwards, J.
-vs-
                                                  Case No. 10 CA 50
LOWELL JONES

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Criminal Appeal from the Court of Common
                                               Pleas, Case Nos. 09 CR 231 and 09 CR
                                               359


JUDGMENT:                                      Affirmed in Part; Reversed in Part and
                                               Remanded


DATE OF JUDGMENT ENTRY:                         May 12, 2011



APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

KENNETH OSWALT                                 WILLIAM T. CRAMER
PROSECUTING ATTORNEY                           470 Olde Worthington Road
DANIEL HUSTON                                  Suite 200
ASSISTANT PROSECUTOR                           Westerville, Ohio 43082
20 South Second Street, 4th Floor
Newark, Ohio 43055
Licking County, Case No. 10 CA 50                                                          2

Wise, J.

          {¶1}   Appellant Lowell Jones appeals from his conviction for robbery, theft, and

complicity to assault in the Court of Common Pleas, Licking County. The relevant facts

leading to this appeal are as follows.

          {¶2}   On May 14, 2009, an employee of the Kroger grocery store in Hebron,

Ohio, noticed appellant acting suspiciously in the beverage section of the store. Lori

Cain, a store security/loss prevention officer, received a report that a man later identified

as appellant was in the process of shoplifting bottles of liquor. Appellant was confronted

by Cain inside the store. He first told Cain to get out of his way, and then threatened to

hurt her “real bad.” Appellant then removed two bottles from his coat and sat them on

the floor, indicating he intended to leave the premises to talk to his purported sister, a

female accomplice who had been inside the store with him but already had left for the

parking lot. Cain, who was backed up by two other store employees, told appellant he

could not leave. Appellant responded by removing another bottle and swinging it at

Cain. She responded by spraying him with pepper spray, which had little immediate

effect.

          {¶3}   As the incident progressed, appellant made it outside, where he saw his

aforesaid female accomplice, who was in the driver’s seat of a red pickup truck.

Appellant moved toward the vehicle yelling at her to “run the bitch over” and “run them

all over.” Appellant then ran from the immediate area. Cain, who later testified that the

driver “aimed right at me,” was struck by the pickup and suffered injuries to her right leg

and knee, which later required surgeries. Appellant was apprehended in the red pickup

truck a short time later by Union Township police officers.
Licking County, Case No. 10 CA 50                                                      3


       {¶4}   Appellant was charged with aggravated robbery (R.C. 2911.01(A)(3)),

complicity in felonious assault (R.C. 2923.03(A)(1) and 2903.11(A)(1)/(A)(2)), and

robbery (R.C. 2911.02(A)(2)).

       {¶5}   Appellant entered pleas of not guilty, and the merged cases proceeded to

a jury trial on April 5 and 6, 2010. Appellant did not dispute at trial that he had

committed theft, but he denied robbery and assault.

       {¶6}   Appellant was found not guilty of aggravated robbery but was found guilty

of robbery (R.C. 2911.02(A)(2)), complicity in felonious assault, and theft (R.C.

2913.02).

       {¶7}   Appellant was thereafter sentenced to four years for robbery, six years for

complicity in felonious assault, and 180 days for theft.

       {¶8}   On May 5, 2010, appellant filed a notice of appeal. He herein raises the

following three Assignments of Error:

       {¶9}   “I.   THE TRIAL COURT VIOLATED APPELLANTS’ [SIC] STATE AND

FEDERAL DOUBLE JEOPARDY PROTECTIONS, STATE AND FEDERAL RIGHTS TO

DUE PROCESS, AND R.C. 2941.25 BY FAILING TO MERGE THE ALLIED

OFFENSES OF ROBBERY IN VIOLATION OF R.C. 2911.02(A)(2) AND COMPLICITY

IN FELONIOUS ASSAULT IN VIOLATION OF R.C. 2923.03(A)(1)/2903.11(A)(1)

AND/OR (A)(2), WHICH WERE BASED ON THE SAME ACT OF VIOLENCE.

       {¶10} “II. THE TRIAL COURT VIOLATED APPELLANTS’ [SIC] STATE AND

FEDERAL DOUBLE JEOPARDY PROTECTIONS, STATE AND FEDERAL RIGHTS TO

DUE PROCESS, AND R.C. 2941.25 BY FAILING TO MERGE THE ALLIED
Licking County, Case No. 10 CA 50                                                      4


OFFENSES OF ROBBERY IN VIOLATION OF R.C. 2911.02(A)(2) AND THEFT IN

VIOLATION OF R.C. 2913.02, WHICH WERE BASED ON THE SAME ACT OF THEFT.

       {¶11} “III.   THE TRIAL COURT VIOLATED DUE PROCESS AND R.C.

2929.14(E)(4) BY IMPOSING CONSECUTIVE SENTENCES WITHOUT MAKING THE

REQUIRED STATUTORY FINDINGS.”

                                           I.

       {¶12} In his First Assignment of Error, appellant argues the trial court erred in

failing to merge his convictions for robbery and complicity to commit felonious assault.

We disagree.

       {¶13} R.C. 2941.25 reads as follows:

       {¶14} “(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.

       {¶15} “(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.”

       {¶16} There has been significant development in allied offense jurisprudence in

Ohio in recent years. For approximately the first decade of the new millennium, law

interpreting R.C. 2941.25 was based on State v. Rance, 85 Ohio St.3d 632, 636, 710

N.E.2d 699, 1999-Ohio-291, wherein the Ohio Supreme Court had held that offenses

are of similar import if the offenses “correspond to such a degree that the commission of
Licking County, Case No. 10 CA 50                                                      5

one crime will result in the commission of the other.” Id. The Rance court further held

that courts should compare the statutory elements in the abstract. Id.

       {¶17} Approximately one year after appellant's sentence, the Ohio Supreme

Court instructed as follows in State v. Cabrales, 118 Ohio St.3d 54, 886 N.E.2d 181,

2008-Ohio-1625, syllabus:

       {¶18} “In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), courts are required to compare the elements of offenses in the

abstract without considering the evidence in the case, but are not required to find an

exact alignment of the elements. Instead, if, in comparing the elements of the offenses

in the abstract, the offenses are so similar that the commission of one offense will

necessarily result in the commission of the other, then the offenses are allied offenses

of similar import.”

       {¶19} According to Cabrales, if the sentencing court has initially determined that

two crimes are allied offenses of similar import, the court then proceeds to the second

part of the two-tiered test and determines whether the two crimes were committed

separately or with a separate animus. Id. at 57, 886 N.E.2d 181, citing State v.

Blankenship (1988), 38 Ohio St.3d 116, 117, 526 N.E.2d 816.

       {¶20} However, subsequent to the oral arguments in the present appeal, the

Ohio Supreme Court decided State v. Johnson, 128 Ohio St.3d 153, 942 N.E.2d 1061,

2010-Ohio-6314, which specifically overruled the 1999 Rance decision. The Court held:

“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 the

syllabus. As cogently summarized in State v. Nickel, Ottawa App.No. OT–10–004,
Licking County, Case No. 10 CA 50                                                            6

2011-Ohio-1550, ¶ 5, the new test in Johnson for determining whether offenses are

subject to merger under R.C. 2921.25 is two-fold: “First, the court must determine

whether the offenses are allied and of similar import. In so doing, the pertinent question

is ‘whether it is possible to commit one offense and commit the other offense with the

same conduct, not whether it is possible to commit one without committing the other.’

(Emphasis sic.) Id. at ¶ 48. Second, ‘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.” ’ Id. at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008–Ohio–4569, ¶ 50

(Lanzinger, J., concurring in judgment). If both questions are answered in the

affirmative, then the offenses are allied offenses of similar import and will be merged.

Johnson, at ¶ 50.”

       {¶21} Appellant's complicity to commit felonious assault was based on the

following statutes: First, R.C. 2923.03(A)(1), which states: “No person, acting with the

kind of culpability required for the commission of an offense, shall *** [s]olicit or procure

another to commit the offense.” Secondly, on R.C. 2903.11(A)(1) and/or (A)(2), which

states: “No person shall knowingly do either of the following: (1) Cause serious physical

harm to another or to another's unborn; (2) Cause or attempt to cause physical harm to

another or to another's unborn by means of a deadly weapon or dangerous ordnance.”

       {¶22} Appellant's conviction for robbery was based on R.C. 2911.02(A)(2), which

states: “No person, in attempting or committing a theft offense or in fleeing immediately

after the attempt or offense, shall * * * [i]nflict, attempt to inflict, or threaten to inflict

physical harm on another.”
Licking County, Case No. 10 CA 50                                                       7

       {¶23} Thus, the first question we must address under a Johnson analysis is

whether it is possible to cause serious physical harm to another, or to cause or attempt

to cause physical harm to another by means of a deadly weapon or dangerous

ordnance, while inflicting or attempting to inflict physical harm to another in the

commission of a theft offense.1 We conclude it is possible to commit the offense of

complicity in felonious assault and the offense of robbery, as charged in the case sub

judice, with the same conduct.

       {¶24} Under the second Johnson step, however, we answer the “same conduct”

question in the negative. That is to say, the evidence supports the conclusion that after

appellant had exited the store and moved toward the pickup truck, he engaged in

additional conduct, not necessary to his fleeing of the scene, to direct the driver of the

pickup to run over the store security officer. We hold this action constituted both

separate conduct and separate animus under the circumstances.

       {¶25} Accordingly, we find no error under Johnson in the trial court’s failure to

merge the complicity in felonious assault and robbery convictions in the case sub judice.

       {¶26} Appellant’s First Assignment of Error is overruled.

                                            II.

       {¶27} In his Second Assignment of Error, appellant contends the trial court erred

in failing to merge his convictions for robbery and theft. We agree.

       {¶28} Appellant's conviction for robbery was based on R.C. 2911.02(A)(2), which

states: “No person, in attempting or committing a theft offense or in fleeing immediately

1
    We find the “complicity” aspect of the first charge against appellant does not impact
our analysis, because R.C. 2923.03(F) directs that where a person is guilty of complicity
in the commission of an offense, he “shall be prosecuted and punished as if he were a
principal offender.”
Licking County, Case No. 10 CA 50                                                            8


after the attempt or offense, shall * * * [i]nflict, attempt to inflict, or threaten to inflict

physical harm on another.”

       {¶29} Appellant's theft conviction was based on R.C. 2913.02(A)(1), which

states: “No person, with purpose to deprive the owner of property or services, shall

knowingly obtain or exert control over either the property or services * * * [w]ithout the

consent of the owner or person authorized to give consent.”

       {¶30} We first conclude it is possible to commit the offense of robbery and the

offense of theft, as charged in the case sub judice, with the same conduct. In regard to

the second step of the analysis, the facts of the case sub judice establish that the

robbery and theft both stem from appellant’s shoplifting of the same items from the

Kroger store. Accordingly, pursuant to Johnson, we find the trial court should have

merged the robbery and theft convictions for sentencing, although this conclusion does

not affect the guilty verdicts issued by the jury. The matter will be remanded to the trial

court to review merger of the robbery and theft offenses for sentencing, as provided by

the Ohio Supreme Court in the case of State v. Whitfield, 124 Ohio St.3d 319, 922

N.E.2d 182, 2010-Ohio-2.

       {¶31} Appellant’s Second Assignment of Error is sustained.

                                              III.

       {¶32} In his Third Assignment of Error, appellant argues the trial court erred in

failing to make findings of fact under R.C. 2929.14(E)(4) before imposing consecutive

sentences. We disagree.

       {¶33} Following the decision of the United States Supreme Court in Oregon v.

Ice (2009), --- U.S. ----, 129 S.Ct. 711, 172 L.Ed.2d 517, the courts of Ohio were
Licking County, Case No. 10 CA 50                                                      9

periodically presented with the argument that State v. Foster, 109 Ohio St.3d 1, 845

N.E.2d 470, 2006-Ohio-856, no longer severed the fact-finding requirements for

consecutive sentences. This Court took the position in several instances that such an

alteration of the Foster holding under Ice would have to await further review by the Ohio

Supreme Court. See, e.g., State v. Williams, Muskingum App. No. CT2009-0006, 2009-

Ohio-5296.

      {¶34} On December 29, 2010, the issue was reached by the Ohio Supreme

Court in State v. Hodge, 128 Ohio St.3d 1, 941 N.E.2d 768, 2010-Ohio-6320, wherein

the Court held, at paragraph two of the syllabus, that the United States Supreme Court's

decision in Ice does not revive Ohio's former consecutive-sentencing statutory

provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional in

Foster.

      {¶35} Appellant’s Third Assignment of Error is overruled on the authority of

Hodge.

      {¶36} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Licking County, Ohio, is hereby affirmed in part, reversed in part,

and remanded for further proceedings in accordance with this opinion.


By: Wise, J.
Farmer, P. J., and
Edwards, J., concur.
                                            ___________________________________

                                            ___________________________________

                                            ___________________________________

                                                                JUDGES
JWW/d 0407
Licking County, Case No. 10 CA 50                                                     10


             IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT




STATE OF OHIO                               :
                                            :
       Plaintiff-Appellee                   :
                                            :
-vs-                                        :         JUDGMENT ENTRY
                                            :
LOWELL JONES                                :
                                            :
       Defendant-Appellant                  :         Case No. 10 CA 50




       For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Licking County, Ohio, is affirmed in part,

reversed in part and remanded for further proceedings consistent with this opinion.

       Costs assessed to be split equally among the parties.




                                            ___________________________________


                                            ___________________________________


                                            ___________________________________

                                                               JUDGES
