[Cite as State v. Johnson, 2018-Ohio-1657.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                        Court of Appeals No. L-16-1282

        Appellee                                     Trial Court No. CR0201601889

v.

Jawaun Johnson aka Ja’Waun                           DECISION AND JUDGMENT

        Appellant                                    Decided: April 27, 2018

                                               *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

        Karin L. Coble, for appellant.

                                               *****

        OSOWIK, J.
                                              Background

        {¶ 1} This appeal concerns a juvenile offender, Jawaun Johnson, who was alleged

to be delinquent of aggravated robbery and felonious assault, each with accompanying

firearm specifications. Jawaun appeared before the Lucas County Juvenile Court for a
probable cause hearing, and the juvenile court determined that it was required to transfer

Jawaun’s case to adult court pursuant to the mandatory bindover provisions of R.C.

2152.10(A)(2)(b), 2152.12(A)(1)(b)(ii) and 2152.02(BB)(1). The juvenile court

transferred the case to the Lucas County Court of Common Pleas, General Division.

       {¶ 2} Following a jury trial, Jawaun was found guilty as to both offenses and both

firearm specifications, and the court sentenced him to serve eight years in prison. On

appeal, Jawaun challenges (1) the constitutionality of the mandatory transfer statutes;

(2) the manifest weight of the evidence at trial; and (3) the trial court’s failure to merge

his aggravated robbery and felonious assault convictions. For the reasons set forth

herein, we affirm the judgment below.

                              Facts and Procedural History

       {¶ 3} This case concerns an aggravated robbery and felonious assault by Jawaun

on March 8, 2016. On that date, “A.R.,” (hereinafter “the victim”), then aged 19, drove

his friend “A.K.,” then 15, to meet Jawaun. The purpose in meeting was so that A.K.

could show, and hopefully sell, a pair of “Jordan” sneakers to Jawaun. The victim did

not know Jawaun before that evening.

       {¶ 4} A.K. and Jawaun did know each other. They had met in the juvenile justice

system about a year previous, and the two were “friends” on the social media website,

Facebook. Earlier in the day, on March 8, 2016, A.K. sent a Facebook message to

Jawaun, asking if Jawaun was interested in purchasing a size 10.5 pair of shoes for “$115




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obo,” i.e., or best offer. Jawaun said that he was interested, although he did not think that

the shoes would fit.

       {¶ 5} The agreed-upon location was a Church’s Fried Chicken restaurant on the

corner of Bancroft and Upton Avenue in Toledo, Ohio. The victim and A.K. arrived at

Church’s sometime after 8:00 p.m. and waited in the car. Within a few minutes, Jawaun

and a taller, unidentified male, emerged from the bushes bordering the parking lot and got

into the backseat of the victim’s car. Jawaun sat behind A.K., who was in the passenger

seat, and the other person sat behind the victim, who was in the driver’s seat.

       {¶ 6} Jawaun inspected the shoes and said that they would not fit him but that he

had a cousin who might be interested. He also said that he needed to “make change” and

asked the victim to drive across the street (Upton) to a Family Dollar Store. The victim

drove there, and Jawaun entered the store, twice, once by himself and then again with his

friend. Video footage from Family Dollar was entered into evidence and shows Jawaun

and his friend exiting the store. After returning to the car and reclaiming their same seats,

Jawaun called someone on his cell phone, purportedly his cousin. He then asked the

victim to drive to his cousin’s house, which was close by, in the neighborhood behind the

Family Dollar Store. The victim’s car was captured by surveillance video exiting the

parking lot at 8:13 p.m.

       {¶ 7} The victim drove there, to Macomber Street, and parked the car. He

testified, “[w]hen I parked my car, [Jawaun] got out of the car. While he was getting out,

[A.K.] told him to put the shoes back until he got the money. And then * * * [Jawaun]




3.
and his friend got back in the car. They both pulled out guns and they said, run it.”

According to the victim and A.K., to “run it” means to “give up all your stuff.” A.K.

expressed disbelief and asked if this was “for real, bro?” Jawaun responded, “shut up

before I bust this bitch.”

       {¶ 8} According to both witnesses, Jawaun pointed his gun at the victim, and the

other person pointed his gun at A.K. Jawaun’s gun was described as a revolver that was

smaller in size than the other weapon. With Jawaun’s gun pointed at the victim’s head,

the victim “handed” over his IPhone and began to take off his shoes. As he turned to

surrender his left sneaker to Jawaun, the victim “heard a gun go off right in [his] face.”

The victim felt “really disoriented,” and his hearing was impacted. Jawaun and the other

person got out of the car, and the victim sped off. The victim testified that he thought

“everything was okay” and didn’t realize that he had been shot until A.K. told him. The

victim then noticed “two holes in [his] arm and * * * blood everywhere.” The victim

drove himself and A.K. to the hospital, where they arrived at 8:24 p.m. The victim

received care for two wounds, an entrance wound to his right bicep and an exit wound to

his right tricep.

       {¶ 9} Toledo Police Officer Adam Eilerts was dispatched to the hospital and spoke

with the victim and A.K. A.K. provided the officer with Jawaun’s first name and a

nickname. Eilerts then put that information into a law enforcement database and

identified Jawaun as a potential suspect. Eilerts then contacted Detective Raynard

Cooper who works in the Investigative Services Bureau of the Toledo Police Department.




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Cooper also interviewed the victim and A.K. that night. According to Cooper, A.K.

identified Jawaun as the shooter and offered his first and last name. Cooper showed a

picture of Jawaun, and A.K. verified that it was, in fact, Jawaun.

        {¶ 10} Officer Martin Rocha processed the victim’s vehicle that night. Rocha

found a “small caliber projectile,” i.e., bullet, on the floor of the vehicle between the

driver’s seat and the console. Rocha also found, and photographed, a picture of the

victim’s left shoe, with what appears to be blood on it and an empty Jordan shoe box.

Neither the Jordan sneakers nor the victim’s IPhone were found.

        {¶ 11} A warrant was issued for Jawaun’s arrest. Officer Nora Mugler testified

that, while attempting to arrest Jawaun at his home on March 11, 2016, he escaped out of

a second story window and fled. The police were able to apprehend him on March 19,

2016.

        {¶ 12} On March 9, 2016, the state filed complaints in delinquency against Jawaun

in the Juvenile Division of the Lucas County Court of Common Pleas. The state alleged

that Jawaun engaged in conduct that would be considered aggravated robbery and

felonious assault, if committed by an adult. Each charge included a firearm specification.

The state also moved the juvenile court to relinquish jurisdiction over D.M. and to

transfer him to the adult court so that he could be tried as an adult.

        {¶ 13} A hearing was held in juvenile court on April 21, 2016, attended by

Jawaun, his mother, and Jawaun’s counsel. Through counsel, Jawaun stipulated that he

was 17 years old. The victim, A.R., and Detective Cooper all testified at the hearing. At




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its conclusion, the court found that there was probable cause to believe that Jawaun had

engaged in the conduct alleged in the complaints. It recognized that it no longer had

jurisdiction over the aggravated robbery offense and transferred it, pursuant to the

mandatory bindover provisions of R.C. 2152.10(A)(2)(b) and 2152.12(A)(1)(b). In light

of the mandatory transfer of the aggravated robbery charge, it also transferred the

felonious assault charge, pursuant to R.C. 2152.12(F).

       {¶ 14} On May 12, 2016, the Lucas County Grand Jury indicted Jawaun of

aggravated robbery, in violation of R.C. 2911.01(A)(1) (Count 1), which included a

firearm specification, pursuant to R.C. 2941.145; and felonious assault, in violation of

R.C. 2903.11(A)(2) and (D) (Count 2), which also included a firearm specification,

pursuant to R.C. 2941.145.

       {¶ 15} A three day trial began on September 19, 2016, at the conclusion of which

the jury found Jawaun guilty as to both counts and both corresponding gun specifications.

On October 24, 2016, after a presentence investigation, the trial court sentenced Jawaun

to serve five years in prison as to Count 1 and five years as to Count 2, to be served

concurrently. It “merged” the three year gun specifications with one another, for a total

prison term of eight years.

       {¶ 16} Through his appointed appellate counsel, Jawaun asserts three assignments

of error for our review.




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              Assignment of Error One: Appellant’s right to Due Process pursuant

       to the U.S. Constitution was violated when he was certified to stand trial as

       an adult without an amenability hearing.

              Assignment of Error Two: Appellant’s convictions are against the

       manifest weight of the evidence.

              Assignment of Error Three: The trial court committed plain error by

       not merging the aggravated robbery conviction and the felonious assault

       convictions.

                      Mandatory Transfer to the General Division

       {¶ 17} R.C. 2151.23(A) grants juvenile courts with exclusive jurisdiction over

children who are alleged to have engaged in conduct that would constitute a crime if

committed by an adult.

       {¶ 18} R.C. 2152.12, however, creates a “narrow exception to the general rule that

juvenile courts have exclusive subject matter jurisdiction over any case involving a

child.” State v. Wilson, 73 Ohio St.3d 40, 42, 652 N.E.2d 196 (1995). Under R.C.

2152.12, a juvenile court must transfer an offender to adult court for criminal prosecution

if the “mandatory” transfer provisions apply, and may transfer an offender to adult court

if the “discretionary” transfer provisions apply.

       {¶ 19} Mandatory transfers are “special measures for extraordinary cases,

involving older or violent [juvenile] offenders.” State v. Aalim, 150 Ohio St.3d 489,

2017-Ohio-2956,       N.E.3d   , ¶ 36 (“Aalim II”), citing State v. Hanning, 89 Ohio St.3d




7.
86, 89, 2000-Ohio-436, 728 N.E.2d 1059. “A juvenile who has committed a qualifying

offense and who meets certain age requirements is automatically removed from the

jurisdiction of the juvenile division and transferred to the adult court.” Id. at ¶ 2. The

mandatory transfer statutes are set forth in R.C. 2152.10(A) and 2152.12(A).

       {¶ 20} If a child is not subject to mandatory transfer, the child may be eligible for

discretionary transfer to the appropriate court for criminal prosecution if the child is

charged with an act that would be a felony if committed by an adult and the juvenile

court determines at a hearing that all of the following apply: (1) the child was fourteen

years of age or older at the time of the act charged; (2) there is probable cause to believe

that the child committed the act charged, and (3) the court determines that the child is not

amenable to care or rehabilitation within the juvenile system and the safety of the

community may require the child to be subject to adult sanctions, after considering any

relevant factors including but not limited to specific factors that are outlined by the

statute. R.C. 2152.12(B), (D), and (E).

       {¶ 21} In this case, after the state filed its initial charges in juvenile court, Jawaun

was mandatorily bound over to adult court because he was 17 years old at the time of the

alleged offenses, the juvenile court found that there was probable cause to believe that he

had engaged in the alleged conduct, and he was accused of committing a qualifying

offense (aggravated robbery) with a firearm. See R.C. 2152.10(A)(2)(b) and

2152.12(A)(1)(b)(ii) and 2152.02(BB)(1). Accordingly, the juvenile court immediately




8.
transferred jurisdiction over Jawaun’s case to adult court without considering whether

Jawaun would be amenable to care or rehabilitation within the juvenile system.

       {¶ 22} In his first assignment of error, Jawaun argues that his transfer to the

general division, without an amenability hearing, violated his right to due process, as

guaranteed by Article I, Section 16 of the Ohio Constitution. Jawaun concedes that this

proposition—that mandatory transfer statutes are unconstitutional—was recently

reconsidered, and rejected, by the Supreme Court of Ohio.

       {¶ 23} That is, in State v. Aalim, 150 Ohio St.3d 463, 2016-Ohio-8278,        N.E.

3d   , ¶ 3 (“Aalim I”), the court found that the process of automatically transferring a

juvenile, without a hearing, violated the juvenile’s right to due process under Ohio law.

In Aalim II, the court reversed itself, finding that its previous decision “usurped the

General Assembly’s exclusive constitutional authority to define the jurisdiction of the

courts of common pleas by impermissibly allowing a juvenile-division judge discretion to

veto the legislature’s grant of jurisdiction to the general division of a court of common

pleas over this limited class of juvenile offenders.” Id. at ¶ 3. Jawaun concedes that

Aalim II is dispositive here and that it compels this court to affirm the juvenile court’s

transfer of his case to the general division. Jawaun asserts that he raised the argument as

an attempt to preserve the issue for further appellate review, in the event that Aalim II

was appealed to, and reversed by, the United States Supreme Court. We note that no

further appeal was taken in Aalim II, and in any event, we are bound by it. Jawaun’s first




9.
assignment of error, challenging his mandatory transfer from the juvenile division to the

general division, is not well-taken.

       {¶ 24} In his second assignment of error, Jawaun argues that his conviction was

against the manifest weight of the evidence.

       {¶ 25} In determining whether a verdict is against the manifest weight of the

evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). We review the entire record, weigh the evidence and all reasonable

inferences, and consider the credibility of witnesses. Id. Additionally, we determine

“whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and a

new trial ordered.” Id. We reverse a conviction on manifest weight grounds for only the

most “exceptional case in which the evidence weighs heavily against the conviction.”

Thompkins at 387. “‘[I]t is inappropriate for a reviewing court to interfere with factual

findings of the trier of fact * * * unless the reviewing court finds that a reasonable juror

could not find the testimony of the witness to be credible.’” State v. Miller, 6th Dist.

Lucas No. L-08-1056, 2009-Ohio-2293, ¶ 21, quoting State v. Brown, 10th Dist. Franklin

No. 02AP-11, 2002-Ohio-5345, ¶ 10.

       {¶ 26} Jawaun’s defense theory in this case is that A.K. accidentally shot the

victim, which they “attempt[ed] to pin” on Jawaun. At trial, each witness denied that

A.K. was the shooter and/or that he had a weapon that night.




10.
       {¶ 27} Jawaun cites four instances of inconsistent testimony by A.K. and the

victim to support his claim that neither witness was credible. First, Jawaun points to a

treatment record from the hospital which states “[a]ccidental discharge from an

unspecified firearms or gun, initial encounter.” As noted by the state, the notation was

unattributed to anyone and unverified. Moreover, it was contradicted by each person

who testified at trial, i.e., that Jawaun was the shooter. It was also contradicted by a

nurse’s report, which indicates that the victim complained that he had been “set up * * *

robbed * * * and shot in the arm.”

       {¶ 28} Second, Jawaun argues that A.K. and the victim’s failure to call “911” and

the victim’s decision to go to St. Vincent’s Medical Center, even though Toledo Hospital

was closer, are suspicious. On cross-examination, the victim explained that he lives in a

different part of town, was not familiar with the area, and did not know that another

hospital was closer. By contrast, the victim did know where St. Vincent’s was located

because it was close to his high school.

       {¶ 29} Third, Jawaun appears to dispute A.K.’s testimony that Jawaun “blocked”

A.K. from accessing his Facebook page on the day of the shooting, only to allow A.K. to

view it the next day, after Jawaun changed his Facebook name. Jawaun ponders, “[w]hy

would a person change their Facebook name after a shooting, and then ‘refriend’ A.K.

after the shooting?” Jawaun fails to explain the significance, or lack thereof, of A.K.’s

testimony.




11.
       {¶ 30} Finally, Jawaun points to communications between A.K. and Jawaun, after

the shooting. According to the transcript, A.K. called Jawaun while in route to the

hospital, demanding to know why Jawaun had shot the victim and Jawaun acted as

though nothing had happened, asking “are you still going to come?” A.K. screamed at

Jawaun and hung up on him. Later, at the hospital, their communications continued via

test message. Jawaun wrote to A.K., “[s]hit, just bring me ‘em tomorrow, little bro.”

A.K. answered, “[a]ll right. I got you,” and Jawaun responded, “[g]ood looks.” Jawaun

argues that A.K.’s failure to share that text exchange with the police is evidence that “no

attempted transaction * * * occurred.” By contrast, the state suggests that A.K. may have

felt the need to “go along” with Jawaun, to avoid retaliation.

       {¶ 31} Although we consider the credibility of witnesses under a manifest-weight

standard, we must, nonetheless, extend special deference to the fact finder’s credibility

determinations, given that it is the fact finder who has the benefit of seeing the witnesses

testify, observing their facial expressions and body language, hearing their voice

inflections, and discerning qualities such as hesitancy, equivocation, and candor. State v.

Fell, 6th Dist. Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14. Here, the jury, as finder of

fact and the sole judge of the weight of the evidence and the credibility of the witnesses,

may believe or disbelieve all, part, or none of a witness’s testimony. State v. Caudill, 6th

Dist. Wood No. WD-07-009, 2008-Ohio-1557, ¶ 62, citing State v. Antill, 176 Ohio St.

61, 67, 197 N.E.2d 548 (1964). Moreover, “[a] conviction is not against the manifest

weight of the evidence merely because the jury believed the prosecution testimony.”




12.
State v. Houston, 10th Dist. No. 04AP-875, 2005-Ohio-4249, ¶ 38 (reversed and

remanded in part on other grounds).

         {¶ 32} Upon review of the entire record, we find that the jury did not clearly lose

its way or create a manifest miscarriage of justice. Having found that Jawaun’s

convictions are not against the manifest weight of the evidence, his second assignment of

error is not well-taken.

         {¶ 33} In his third assignment of error, Jawaun argues that his aggravated robbery

and felonious assault convictions are allied offenses of similar import and the two

convictions should have merged at the sentencing phase under R.C. 2941.25. Because

Jawaun failed to raise the argument before the trial court, he has forfeited all but plain

error.

         {¶ 34} As a preliminary matter, we note that the trial court sentenced Jawaun to

serve five years as to the aggravated robbery conviction and five years as to the felonious

assault conviction, to be served concurrently to one another (but consecutively to the

three-year term imposed for the firearm specifications). Jawaun’s merger argument is not

moot, even though the court ordered concurrent sentences. “[E]ven when the sentences

are to be served concurrently, a defendant is prejudiced by having more convictions than

are authorized by law.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922

N.E.2d 923, ¶ 31.

         The Double Jeopardy Clause of the Fifth Amendment to the U.S. Constitution,

applicable to the state through the Fourteenth Amendment, “protects against three abuses:




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(1) ‘a second prosecution for the same offense after acquittal,’ (2) ‘a second prosecution

for the same offense after conviction,’ and (3) ‘multiple punishments for the same

offense.’” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10,

quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656

(1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201,

104 L.Ed.2d 865 (1989). R.C. 2941.25 codifies the Double Jeopardy Clause’s third

protection, which prohibits multiple punishments for the same offense. The statute

prohibits multiple convictions for “allied offenses of similar import” arising out of the

same conduct. R.C. 2941.25 states:

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

       offenses, and the defendant may be convicted of all of them.

       {¶ 35} “At its heart, the allied-offense analysis is dependent upon the facts of a

case because R.C. 2941.25 focuses on the defendant’s conduct.” Ruff at ¶ 26. This means

that the “analysis may be sometimes difficult to perform and may result in varying results




14.
for the same set of offenses in different cases. But different results are permissible, given

that the statute instructs courts to examine a defendant’s conduct—an inherently

subjective determination.” Id. at ¶ 32.

       {¶ 36} In Ruff, the Supreme Court of Ohio announced that whenever a court

considers whether there are allied offenses that merge into a single conviction, the court

“must first take into account the conduct of the defendant. In other words, how were the

offenses committed?” Id. at ¶ 25. When considering this overarching question, the court

must address three sub-questions: (1) Were the offenses “dissimilar in import,” meaning

did the offenses involve either separate victims or “separate and identifiable” harm? (2)

Were the offenses committed separately? and (3) Were the offenses committed with

separate animus? Id. at ¶ 23-25. “An affirmative answer to any of the above will permit

separate convictions. The conduct, the animus, and the import must all be considered.”

(Emphasis added.) State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266,

¶ 12. The defendant bears the burden to establish that R.C. 2941.25 prohibits multiple

punishments. State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d

661, ¶ 18.

       {¶ 37} We review de novo a trial court’s ruling as to whether convictions merge

under the allied-offenses doctrine. State v. Corker, 10th Dist. Franklin No. 13AP-264,

2013-Ohio-5446, ¶ 28, citing State v. Roush, 10th Dist. Franklin No. 12AP-201, 2013-

Ohio-3162, ¶ 47.




15.
       {¶ 38} A defendant who fails to raise the issue of allied offenses of similar import

in the trial court forfeits all but plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-

Ohio-2459, 38 N.E.3d 860, ¶ 3. “Forfeited error is not reversible error unless it affected

the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage

of justice.” Id. A defendant must “demonstrate a reasonable probability that the

convictions are for allied offenses of similar import committed with the same conduct

and without a separate animus,” and “absent that showing, the accused cannot

demonstrate that the trial court committed plain error by failing to inquire whether the

convictions merge for purposes of sentencing.” Id. “Notice of plain error under Crim.R.

52(B) is to be taken with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d

804 (1978), paragraph two of the syllabus.

       {¶ 39} Here, Jawaun was convicted of aggravated robbery, in violation of R.C.

2911.01(A)(1) (“No person, in attempting or committing a theft offense, as defined in

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

offense, shall do any of the following: (1) Have a deadly weapon on or about the

offender’s person or under the offender’s control and either display the weapon, brandish

it, indicate that the offender possesses it, or use it;”) and felonious assault, in violation of

R.C. 2903.11(A)(2). (“No person shall knowingly * * * cause or attempt to cause

physical harm to another * * * by means of a deadly weapon.”)




16.
       {¶ 40} In considering the first prong of the Ruff analysis, i.e., whether the

convictions were of dissimilar import, we must determine whether the two offenses

involved separate victims or “separate and identifiable” harm. Ruff, 143 Ohio St.3d 114,

2015-Ohio-995, 34 N.E.3d 892, at ¶ 23. Offenses are of dissimilar import when a

defendant’s conduct “victimizes more than one person, the harm for each person is

separate and distinct, and therefore, the defendant can be convicted on multiple counts.”

Ruff at ¶ 26.

       {¶ 41} Here, the indictment did not identify a victim with regard to the aggravated

robbery offense. During closing arguments, however, the state argued, and the record

supports the argument, that Jawaun committed an aggravated robbery as to both

individuals because, while using a deadly weapon, he committed a theft offense as to

each (the victim’s IPhone and A.K.’s Jordan sneakers). Therefore, if the aggravated

robbery conviction relates to the Jordan sneakers, then the offenses do not merge because

there are separate victims: A.K. who sustained an aggravated robbery and the victim who

was feloniously assaulted. See, e.g., State v. Bankston, 6th Dist. Ottawa No. OT-17-016,

2017-Ohio-9305, ¶ 23 (Where girlfriend’s father was the felonious assault victim and

girlfriend’s mother was the attempted burglary victim, the harm to each is separate and

identifiable). If, on the other hand, the aggravated robbery conviction relates to the

victim’s IPhone, then there was only one victim, but the two offenses do not merge

because they caused separate and identifiable types of harm (i.e., by robbing and shooting

the victim). See, e.g., State v. Napier, 5th Dist. Muskingum No. CT2015-0044,




17.
2016-Ohio-2967, ¶ 32 (Defendant caused separate and identifiable harm where he

committed felonious assault by striking the victim in the mouth and knocking out a tooth

and thereafter committed an aggravated robbery by using a deadly weapon to take the

victim’s money).

       {¶ 42} Next, we consider the second and third prongs of the Ruff analysis—

whether the offenses were committed separately or with a separate animus—together. In

State v. Woods, 6th Dist. Lucas No. L-13-1181, 2014-Ohio-3960, we recognized:

              Separate conduct or separate animus may occur when a court

       determines the defendant at some point broke a temporal continuum started

       by his initial act. * * * Alternatively, a separate conduct or animus may

       exist when “facts appear in the record that distinguish the circumstances or

       draw a line of distinction that enables a trier of fact to reasonably conclude

       separate and distinct crimes were committed.” (Internal citations omitted.)

       Id. at ¶ 35 quoting State v. Nuh, 10th Dist. Franklin No. 10AP-31, 2010-

       Ohio-4740, ¶ 16.

       {¶ 43} In support of merging his convictions, Jawaun argues that the robbery and

felonious assault “both happened essentially simultaneously” and therefore the latter was

“in furtherance of the robbery.”

       {¶ 44} In this instance, we cannot say that the trial court erred in refusing to merge

the offenses because the record contains evidence to establish that the crimes were

committed with separate animus. Where a defendant uses greater force than necessary to




18.
complete aggravated robbery, he shows a separate animus. State v. Sutton, 8th Dist.

Cuyahoga Nos. 102300 and 102302, 2015-Ohio-4074, ¶ 62. Here, the aggravated

robbery occurred when Jawaun demanded the victims’ property (“run it”) while

brandishing a weapon, and it was completed before his felonious assault. State v. Fields,

12th Dist. Clermont No. CA2014-03-025, 2015-Ohio-1345, ¶ 18. After the victim

“handed over” his IPhone and was in the process of surrendering his own sneakers,

Jawaun shot him and committed the felonious assault. We find that the shooting was not

necessary to complete the robbery at that point. Because the evidence established that

Jawaun broke a “temporal continuum” that allow us to “distinguish the circumstances or

draw a line of distinction” between the aggravated robbery and the felonious assault, the

latter was not merely incidental to, or in furtherance of, the aggravated robbery.

       {¶ 45} We conclude that Jawaun failed to demonstrate a reasonable probability

that the aggravated robbery and felonious assault convictions would have merged.

Accordingly, we find that Jawaun’s third assignment of error is not well-taken.

                                        Conclusion

       {¶ 46} We find that (1) Jawaun’s mandatory transfer to the general division was

lawful and not violative of his due process rights; (2) Jawaun’s convictions were not

against the manifest weight of the evidence; and (3) the trial court did not commit plain

error in not merging the aggravated robbery and felonious assault convictions. Therefore,




19.
we affirm the April 25, 2016 judgment of the Lucas County Court of Common Pleas,

Juvenile Division, and the October 24, 2016 judgment of the General Division. Jawaun

is ordered to pay the costs of this appeal pursuant to App.R. 24.

                                                                      Judgments affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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