[Cite as State v. Murphy, 2010-Ohio-5031.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      SCIOTO COUNTY

State of Ohio,                               :                    Case No. 09CA3311

        Plaintiff-Appellee,                  :

        v.                                   :                    DECISION AND
                                                                  JUDGMENT ENRY
Wayne Murphy,                                :

     Defendant-Appellant.       :                Released 9/22/10
______________________________________________________________________
                            APPEARANCES:

George L. Davis, IV, Portsmouth, Ohio, for appellant.

Mark E. Kuhn, Scioto County Prosecutor, Pat Apel, Scioto County Assistant Prosecutor,
and Danielle M. Parker, Scioto County Assistant Prosecutor, Portsmouth, Ohio, for
appellee.
______________________________________________________________________
Harsha, J.

        {¶1}    A jury convicted Wayne Murphy of aggravated robbery, felonious assault,

and attempted murder as the result of a violent robbery at a grocery store. The State

introduced evidence that Murphy, along with his co-defendant William Dixon, viciously

assaulted a clerk in the grocery store with a hammer and then stole the clerk’s wallet

and the cash register. After the jury’s verdict, the trial judge sentenced Murphy to a total

of twenty-eight years in prison.

        {¶2}    In spite of his failure to object on the record, Murphy contends that the trial

court erred by ordering him restrained during trial. The only evidence before the court

at the security hearing was that Murphy was serving a life sentence for a violent robbery

and rape in Kentucky. We agree that placing Murphy in restraints was error. Merely

being incarcerated for other crimes does not demonstrate the exceptional
Scioto App. No. 09CA3311                                                                     2


circumstances required to justify placing a defendant in shackles at his trial.

Nonetheless, we hold that restraining Murphy during his trial did not amount to plain

error because Murphy’s restraints were hidden from the jurors’ view, Murphy’s attorney

approved a cautionary instruction to jurors alerting them to the restraints, and the

evidence upon which Murphy was convicted was substantial, i.e., it is not clear that the

verdict would have been otherwise but for the error.

       {¶3}   Murphy also contends that the court erred by failing to sever his trial from

that of Dixon. Murphy argues that he was prejudiced because (1) their defenses were

mutually antagonistic; (2) he was limited on cross-examination of a State’s witness

concerning a redacted summary of a statement made by Dixon; and (3) Dixon’s

attorney improperly commented on his Fifth Amendment right to remain silent. First, we

conclude that Murphy’s and Dixon’s defenses were inconsistent, but separate trials

were not required because there was no evidence of a serious risk that Murphy would

be denied a specific trial right either before or during the consolidated trial. Second, the

limitation on cross-examination concerning the redacted summary was not prejudicial

because it was designed to prevent Murphy from opening the door to questioning that

would have led to him being implicated in the statement. And third, assuming Dixon’s

attorney’s comment on Murphy’s right to remain silent was improper, it did not amount

to plain error because we cannot say that “but for” this brief remark, Murphy would have

been acquitted.

       {¶4}   Murphy argues next that the trial court erred by allowing the State to

submit evidence to the jury about a rape that occurred during the robbery in Kentucky.

Evidence of the robbery clearly constituted “other acts” evidence that was admissible
Scioto App. No. 09CA3311                                                                   3


under Evid.R. 404(B) for purposes of proving identity. And although evidence of the

rape was not admissible under Evid.R.404(B) and should also have been excluded

under Evid.R. 403(A), we conclude that the trial court’s error was harmless because of

the substantial evidence of Murphy’s guilt.

       {¶5}   Next, Murphy contends that the trial court erred by failing to grant a

mistrial after the prosecutor swung a hammer within two feet of jurors during closing

arguments. Because the Prosecutor’s act was fair comment on blood spatter evidence

presented in the trial, the court did not abuse its discretion when it denied the motion for

a mistrial.

       {¶6}   Finally, Murphy argues that the trial court erred by sentencing him for

allied offenses of similar import committed with a single animus. We agree that the trial

court erred when it sentenced Murphy separately for the crimes of felonious assault and

attempted murder. These crimes are allied offenses of similar import and the evidence

at best supports a single animus for both crimes. Accordingly, we remand to the trial

court for re-sentencing.

                                   I. Summary of Facts

       {¶7}   In July 2004, Art Waddell was working the cash register at a grocery store

in Franklin Furnace, Ohio. Upon seeing two males in the rear of the store at the meat

counter he locked the cash register and went to help them. As he approached the meat

counter he was struck in the back of the head with a hammer and rendered

unconscious. He suffered serious injuries to the head, including a depressed skull

fracture. The robbers made away with Waddell’s wallet and the cash register, both of

which contained cash.
Scioto App. No. 09CA3311                                                                 4


       {¶8}   After being arrested for a similar robbery in Kentucky, Murphy and Dixon

were indicted for the Ohio crime, where they were charged in separate indictments with

aggravated robbery, felonious assault, attempted murder, and conspiracy to commit

aggravated robbery. Prior to trial the court granted the State’s motion to consolidate

their trials. The court later held a hearing on several pending defense motions,

including a motion to exclude evidence of the Kentucky crime and a motion for separate

trials. The court found that evidence concerning the Kentucky robbery was admissible

for purposes of demonstrating identity and denied the motions for separate trials.

       {¶9}   The court also held a security hearing to determine whether Dixon and

Murphy would be placed in restraints for trial. Based on the violent nature of the crimes,

the fact that both defendants were incarcerated in Kentucky on similar charges, and that

jurors would know this because of the admission of “other acts” evidence, the court

ordered that both defendants be placed in restraints for trial.

                                           A. The Trial

                                1. Evidence of the Ohio Robbery

       {¶10} Art Waddell testified that he was working alone at the Blanton and Graff

Grocery (B+G) in Franklin Furnace, Ohio around noon on July 5, 2004. Waddell began

his shift early because the employee on duty became ill and required hospitalization.

An ambulance picked up the sick employee and Waddell worked checking out shoppers

at the cash register.

       {¶11} Shortly before the incident, Greg Russell was inside B+G playing lottery

tickets. He observed two men in the back of the store near the meat counter. One man
Scioto App. No. 09CA3311                                                                 5


with long hair was staring at him. Russell later identified this man as Murphy after

seeing a picture of him on television.

       {¶12} Danny Clement testified that he arrived at B+G as the ambulance was

leaving with the sick employee. Clement noticed two men standing in the back of the

store. He could not see their faces but he remembered one had long hair and the other

had short hair. As he left the store he saw a woman he recognized standing next to a

car in the parking lot. This was Tracy Chaffins, Murphy’s girlfriend.

       {¶13}   Waddell testified that as he was checking out customers he observed

Murphy and Dixon in the back of the store in front of the meat counter. He recognized

Dixon from being in the store previously and vaguely recognized Murphy, maybe having

seen him once before. Waddell checked out the last customer in the store and saw that

both men were still standing at the meat counter. He locked the cash register and then

walked up a store aisle toward the meat counter to assist the two men.

       {¶14} Before he arrived at the meat counter, Waddell observed that Dixon was

standing alone and he could not see Murphy. But he believed Murphy had not left the

store because there was only one exit and it was near the cash register. Waddell

thought that Murphy was either hiding or stealing. Waddell was about ten to twelve feet

away from Dixon when he lost all memory and then woke up in the hospital.

       {¶15} An unknown individual walked up to the local fire station and reported that

Waddell had been injured at B+G. When the ambulance crew arrived, they found

Waddell perched on a stool, bleeding profusely from the head. At the hospital, medical

staff determined that Waddell received multiple blows to the head including puncture
Scioto App. No. 09CA3311                                                                    6


wounds that left bits of his brain in his hair. Waddell testified that he ultimately received

five blows to the head and twelve blows to his arms.

       {¶16} Jodi Conkel of the Scioto County Sheriff’s Office conducted the

investigation of the B+G robbery. At the crime scene she observed blood on the floor,

blood splatter, and bloody drag marks leading from the back of the store to the front,

where the cash register, now missing, had been located. She explained some of the

photographs of the crime scene to the jury. She located evidence of blood splatter,

which indicated that an object was used to strike the victim.

       {¶17} At the hospital Detective Conkel attempted to interview Waddell, who

initially could only communicate through vague written notes. In some of these notes he

repeatedly wrote “$1,000”. Waddell later testified that his wallet was missing after the

robbery. He said it contained $1,000, money he was planning on taking to the bank

after work.

       {¶18} Detective Tim Wilson, a Kentucky police officer, contacted Detective

Conkel about a week and a half later. He told her about a robbery at a video store in

Russell, Kentucky -- about fifteen miles from the B+G crime. When Detective Wilson

described the crime scene in Kentucky, Detective Conkel was struck by the similarities

and went to view it. After viewing the crime scene Detective Conkel believed the crimes

were perpetrated by the same person or persons.

       {¶19} After Kentucky police arrested Dixon, Detective Conkel interviewed him

about the B+G robbery. Dixon made a statement concerning the crime. Detective

Conkel read a redacted summary of this statement at trial. Apparently, the original
Scioto App. No. 09CA3311                                                                   7


statement implicated both Dixon and Murphy in the B+G robbery, but the redacted

version replaced all references to Murphy with the word “he.”

        {¶20} Dixon also told Detective Conkel that hammers were used in both

robberies and that she could find them at Murphy’s residence. Police went to Murphy’s

residence and retrieved three hammers, which they sent to a crime lab in Kentucky.

However, the test results were inconclusive for trace evidence.

                          2. Evidence of the Kentucky Robbery

        {¶21} Melissa Ruffing testified that she was the sole employee working at the

Kentucky video store on July 14, 2004. Murphy entered the store when there were no

other customers inside, walked the entire length of the store and “cased it,” apparently

looking for security cameras. He then went into an employees-only storage room.

        {¶22} Ruffing was afraid to confront Murphy while she was alone in the store.

But when two women entered the store, she went to the storage room and told Murphy

he could not be in there. He cursed her and brushed past her, going back out to the

video aisles. He finished walking around the store, looked up to the ceiling, and then

left.

        {¶23} Shortly afterwards Dixon walked in ostensibly to rent a video. Dixon

selected a video but did not have a membership with the store so Ruffing helped him

apply for one. He gave Ruffing his identification card and she helped him fill out a

membership form. Ruffing informed him that the store had a special deal and he was

entitled to rent a second video for free. Dixon told her that he would go ask his friend to

help him pick out the second video. Ruffing told Dixon that she would be cleaning in
Scioto App. No. 09CA3311                                                                   8


one of the video aisles and pointed out where she would be when he was ready to

check out the second video.

       {¶24} As Ruffing was down on her hands and knees cleaning shelves, she

heard two people whispering. She looked underneath her arm and saw a pair of boots.

She was then hit in the head with a hammer. Murphy grabbed her, turned her over,

grabbed one foot, and ordered Dixon to hold the other. The two men dragged her back

to the video store office where Murphy ordered Dixon to get the cash register. Dixon

then left the office. When Murphy demanded that Ruffing open the safe, she told him

there was no money it. Murphy began to hit her with his fists, knocking her down

repeatedly. Ruffing was wearing a ring and Murphy commented that “Tracy” would like

it. Ruffing removed the ring, threw it down and ran out of the office into the middle of

the store. There she observed a woman standing outside, near the door. But when

Ruffing screamed for help, the woman turned away. Ruffing later identified the woman

as Tracy Chaffins.

       {¶25} Before she could escape, she was dragged back to the office. Murphy

then raped her inside the office. After the rape Murphy hit her in the head with a

hammer and knocked her unconscious.

                               3. Murphy’s and Dixon’s Defenses

       {¶26} Dixon took the stand and testified that Murphy asked him for a ride to

Franklin Furnace. He gave Murphy a ride and Murphy later told him they were going to

B+G. He claimed he did not know that Murphy intended to rob the store.

       {¶27} While at B+G Dixon played lottery tickets. He would walk outside to his

car to play them, and then reenter the store to purchase more lottery tickets. He denied
Scioto App. No. 09CA3311                                                                                    9


any involvement in the actual robbery or assault. He also denied being in the store

when the robbery took place, but stated that he must have been sitting in his car when it

happened. Dixon admitted seeing blood on Murphy, from his neck, on the front of his

white shirt, and down to his pants and a bloody hammer in his waistband.

        {¶28} Dixon also admitted taking some hammers from Murphy’s mother’s house

and hiding them outside the residence because he was “paranoid” that Murphy would

use them again. On cross-examination, Dixon could not recall making many of the

statements that appeared in the redacted summary.

        {¶29} Murphy did not take the stand. For his defense he called James, Terry,

and Samantha Chaffins, the father, mother, and sister-in-law, respectively, of Tracy

Chaffins.1 Their testimony was that Tracy and Wayne arrived at James’ and Terry’s

residence the night before the B+G robbery and spent the night. James stated that the

family had a police scanner in the bedroom and the family was drinking coffee together

on the morning of the B+G robbery. The group heard a report come on the scanner

about James’ sister-in-law, who happened to be the employee who fell ill at B+G.

        {¶30} At some point, Dixon arrived in his car and wanted Murphy to leave with

him. Because Tracy did not want Murphy to leave, they remained with the family.

Later, all three testified that they heard another report on the police scanner that a man

was beaten at B+G and required assistance. This assertion was challenged by the

prosecutor, who asked them why a report would come on when earlier testimony

suggested an unknown individual reported the assault directly at the fire station.




1
  The record reflects that Tracey Chaffins committed suicide sometime after the B+G and Kentucky
robberies. Apparently she was indicted for her participation in the Kentucky robbery but was never tried.
Scioto App. No. 09CA3311                                                                10


      {¶31} Except for a brief moment in James Chaffins’ testimony, all three

witnesses remained consistent in their testimony that Murphy and Tracy did not go to

Franklin Furnace. At one point James Chaffin stated that “Wayne, her, and Ryan left.”

But the remainder of his testimony was consistent with the other two alibi witnesses.

      {¶32} The jury ultimately found Murphy and Dixon guilty of aggravated robbery,

felonious assault, and attempted murder. Murphy received a sentence of ten years for

aggravated robbery, eight years for felonious assault, and ten years for attempted

murder. After the court ordered the sentences to be served consecutively, for a total

sentence of twenty-eight years, Murphy filed this appeal.

                                   II. Assignments of Error

      {¶33} Murphy presents six assignments of error:

      {¶34} I. THE TRIAL COURT ERRED WHEN IT ORDERED THAT THE

DEFNEDANT [SIC] REMAIN IN SHACKLES DURING THE JURY TRIAL.

      {¶35} II. THE TRIAL COURT ERRED BY PERMITTING A SUMMARY OF A

STATEMENT OF A CO-DEFENDANT TO BE USED AGAINST THE DEFENDANT

WHILE RESTRICTING CROSS EXAMINATION OF A STATE’S WITNESS.

      {¶36} III. THE TRIAL COURT ERRED BY PERMITTING EVIDENCE OF THE

DEFENDANT’S PRIOR CONVICTIONS TO BE ADMITTED AGAINST THE

DEFENDANT WHEN SUCH CONVICTIONS WERE UNRELATED TO THE CURRENT

CHARGES.

      {¶37} IV. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT’S

MOTION FOR SEPARATE TRIALS.
Scioto App. No. 09CA3311                                                                    11


       {¶38} V. THE TRIAL COURT ERRED BY DENYING THE DEFENDANT’S

MOTION FOR A MISTRIAL.

       {¶39} VI. THE TRIAL COURT ERRED BY SENTENCING THE DEFENDANT

CONSECUTIVELY FOR ALLIED OFFENSES OF SIMILAR IMPORT.

                                           III. Restraints

       {¶40} In his first assignment of error, Murphy argues that the trial court violated

his due process rights when it ordered him to be placed in restraints during his trial.

However, Murphy failed to object to the use of restraints. At the security hearing, the

prosecutor argued that both defendants should be shackled. Dixon’s attorney offered

an argument contra but Murphy’s attorney stated “we don’t wish to be heard at this time

on this issue, your Honor.” We were unable to locate on the record any further

objections to restraints by Murphy. Consequently, Murphy must demonstrate plain error

or he has waived this issue.

       {¶41} “Plain error” exists only when it is clear the verdict would have been

otherwise but for the error. State v. Sanders, 92 Ohio St.3d 245, 263, 2001-Ohio-189,

750 N.E.2d 90. Plain error review places three limitations on a reviewing court’s

decision to correct an error not objected to during trial. First, there must be legal error.

Second, the error must be “plain.” Within the meaning of Crim.R. 52(B), an error is

“plain” if there is an “obvious” defect in the trial proceedings. Third, the error has to

affect “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759

N.E.2d 1240. The Supreme Court of Ohio has “interpreted this aspect of the rule to

mean that the trial court’s error must have affected the outcome of the trial.” Id. The

Court further explained “[e]ven if a forfeited error satisfies these three prongs, however,
Scioto App. No. 09CA3311                                                                     12


Crim.R. 52(B) does not demand that an appellate court correct it. Crim.R. 52(B) states

only that a reviewing court ‘may’ notice plain forfeited errors; a court is not obliged to

correct them. We have acknowledged the discretionary aspect of Crim.R. 52(B) by

admonishing courts to notice plain error ‘with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice.’” Id., quoting State

v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804.

       {¶42} Murphy contends that the trial court erred by ordering him to wear

restraints at trial because there was no evidence that he posed any risk of violence or

escape. Additionally, because he remained seated when in the jury’s view and the jury

only actually saw Dixon in restraints, Murphy argues that the court contributed to its own

error by announcing to the jury that he and Dixon were shackled.

       {¶43} We begin with the general rule that restraints tend to erode the

presumption of innocence that cloaks a defendant at his trial. State v. Hairston, Scioto

App. No. 06CA3089, 2007-Ohio-3707, at ¶28. Although the defendant generally should

be allowed to appear at his trial “unfettered,” see State v. Carter (1977), 53 Ohio App.2d

125, 131-132, 372 N.E.2d 622, this is not an absolute right. It is “widely accepted that a

prisoner may be shackled where there is danger of violence or escape.” State v. Fields,

Scioto App. No. 06CA3080, 2007-Ohio-4191, at ¶26, quoting State v. Franklin, 97 Ohio

St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, at ¶79. Ultimately, the decision to require a

defendant to wear restraints rests in a trial court’s sound discretion. Hairston at ¶30.

       {¶44} For effective appellate review of the court’s discretion, the trial court

should hold a hearing on the need for restraints or otherwise enter on the record the

factors relied upon in its decision to restrain the defendant. Carter at 132. Even without
Scioto App. No. 09CA3311                                                                     13


a hearing, an appellate court will not disturb the trial court’s exercise of its discretion to

impose restraints if the record demonstrates “a compelling need to impose exceptional

security procedures.” Franklin at ¶82.

       {¶45} In exercising its discretion the trial court should not merely defer to the

recommendation of security personnel. State v. Curry (Sept. 30, 1997), Scioto App. No.

95CA2339, 1997 WL 600056, at *11, citing Carter at 131. The court must balance the

rights of the defendant with the “competing interests of other courtroom participants and

society in general,” while keeping in mind that restraints are an extreme measure.

Carter at 132, quoting United States v. Theriault (C.A. 5, 1976), 531 F.2d 281, 284.

       {¶46} Certain factors tend to mitigate the prejudice that is presumed to arise

when a defendant is restrained at trial. First, prejudice may be lessened if a court takes

measures to ensure that jurors are unaware of a defendant’s shackles. The court might

employ “modesty” panels that hide the defendant’s legs or arms from view and seat the

defendant before the jurors enter the courtroom. Hairston at ¶¶27-28. And if the jury

becomes aware that a defendant is restrained, a court may also reduce prejudice by

cautioning the jurors that they cannot consider the restraints as an indication of guilt for

the crime being tried. Fields at ¶34.

       {¶47} The trial court held the security hearing at the conclusion of the pre-trial

hearing on defense motions. Earlier in the hearing the court ruled in favor of the State

on admitting evidence of “other acts,” i.e., the robbery and rape in Kentucky. At this

hearing the court heard detailed testimony about the robbery and rape committed by the

co-defendants in Kentucky. The court concluded that Murphy and Dixon should remain

in shackles in light of the fact the jurors would know that the men were incarcerated in
Scioto App. No. 09CA3311                                                                   14


Kentucky and because of “the nature of this crime and the nature of the crimes they’ve

already been convicted of.”

       {¶48} The trial court may have felt the sadistic and violent nature of Murphy’s

actions in Kentucky required precautions in order to assure the safety of jurors,

attorneys, staff, and others in attendance. This is understandable and we recognize

that a trial court need not wait for a defendant to act out before employing restraints.

Franklin at ¶79, citing Loux v. United States (C.A.9, 1968), 389 F.2d 911, 919-920. But

the fact that Murphy was convicted of violent crimes and serving a life sentence in

Kentucky, alone, was not sufficient to merit shackling. See Carter at fn. 2. In light of

other security measures available, the evidence relied upon by the court here does not

demonstrate the “unusual circumstances” or “compelling need” typically associated with

restraining a defendant during his own trial. See State v. Kidder (1987), 32 Ohio St.3d

279, 285, 513 N.E.2d 311; State v. Evans, Scioto App. No. 05CA3002, 2006-Ohio-2564,

at ¶39. The State presented no evidence indicating that Murphy had acted out violently

in a courtroom in the past, had made any threats to act violently at the trial, or had

otherwise alarmed court security personnel. Accordingly, we hold that it was error to

order Murphy restrained at trial. But for the following reasons the error here does not

rise to the level of “plain error.”

       {¶49} The record indicates that the trial court took steps to lessen any prejudice

stemming from placing Murphy in restraints. Murphy remained seated throughout the

trial and his legs and arms were shielded from the jurors’ view with the use of “modesty

panels.” Murphy admits that no juror observed him in restraints.
Scioto App. No. 09CA3311                                                                    15


       {¶50} But when Dixon took the stand, the attorneys and court realized that the

jurors would see Dixon’s handcuffs if he held the witness microphone. The court and

attorneys considered excusing the jury, apparently so that Dixon could position the

microphone so that the jurors would not see his restraints. But the court remarked that

the jurors would still be able to look over from the jury box and see Dixon’s restraints.

Then the following discussion took place:

       THE COURT: I think we ought to just give a cautionary instruction.

       [DIXON’S ATTORNEY]: I think a cautionary instruction in this case would be fine.

       THE COURT: They already know that they’re incarcerated in Kentucky.

       [DIXON’S ATTORNEY]: Yeah.

       [MURPHY’S ATTORNEY]: Yeah.

       PROSECUTOR: Yeah.

       {¶51} The trial court then admonished the jury:

       {¶52} “All right. Ladies and Gentlemen of the jury, because of the nature of the

charges and because you know, they’ve been convicted in Kentucky and they’re serving

a prison term I ordered that they be handcuffed and shackled. And I don’t like the jurors

to see a person like that because in no way do I want you to hold that against him, the

fact that I as a judge made a determination for your safety, everybody’s safety in the

courtroom, as well as the Defendant’s safety that he would be handcuffed and shackled

and remain that way during the trial. Now, the fact that he is handcuffed and shackled,

you cannot use that for any reason whatsoever to connect that with this case. Okay?

He’s serving a prison term in Kentucky. All right?”
Scioto App. No. 09CA3311                                                                   16


       {¶53} Thus, Murphy’s attorney approved the court’s decision to give a cautionary

instruction to the jury, alerting them that he was shackled. We approved a similar

cautionary instruction in Fields at ¶34. Moreover, if a jury is already aware that the

defendant is an inmate serving time on a different crime any prejudice that results from

viewing him in shackles is reduced. See State v. Garrett, Richland App. No. 03-CA-49,

2004-Ohio-2231, at ¶41. Finally, the State presented considerable evidence implicating

Murphy in the B+G robbery. Given that our standard of review is plain error, we are

unable to say that “but for” the jury’s awareness of Murphy’s restraints he would have

been acquitted or that a manifest miscarriage of justice occurred.

                                     IV. Consolidated Trials

       {¶54} In his fourth assignment of error, Murphy argues that the court erred by

denying his motion for separate trials. In his second assignment of error, Murphy

contends that the court erred by permitting Detective Conkel to read a redacted

summary of Dixon’s statement which implicated Murphy in the crime. Murphy also

argues the use of a redacted summary limited his ability to cross-examine Detective

Conkel about Dixon’s confession. Finally, in a portion of his fifth assignment of error,

Murphy argues that Dixon’s attorney improperly commented on his Fifth Amendment

right to remain silent. Together, these arguments present issues concerning whether

Murphy received a fair consolidated trial and we address them together.

                                 A. Standard of Review

       {¶55} We review the trial court’s denial of a motion seeking separate trials of co-

defendants under the abuse of discretion standard. State v. Torres (1981), 66 Ohio

St.2d 340, 343, 421 N.E.2d 1288. An abuse of discretion involves more than an error of
Scioto App. No. 09CA3311                                                                   17


judgment; it connotes an attitude on the part of the court that is unreasonable,

unconscionable, or arbitrary. Franklin Cty. Sheriff’s Dept. v. State Emp. Relations Bd.

(1992), 63 Ohio St.3d 498, 506, 589 N.E.2d 24; Wilmington Steel Products, Inc. v.

Cleveland Elec. Illuminating Co. (1991), 60 Ohio St.3d 120, 122, 573 N.E.2d 622. When

applying the abuse of discretion standard, a reviewing court is not free to merely

substitute its judgment for that of the trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d

135, 138, 566 N.E.2d 1181, citing Berk v. Matthews (1990), 53 Ohio St.3d 161, 169,

559 N.E.2d 1301.

       {¶56} Crim.R. 13 provides that a court “may order two or more indictments or

informations or both to be tried together, if the offenses or the defendants could have

been joined in a single indictment or information.” Crim.R. 13 embodies the belief that

joint trials “play a vital role in the criminal justice system” by conserving judicial

resources, by promoting efficiency, and by serving “the interests of justice by avoiding

the scandal and inequity of inconsistent verdicts.” Richardson v. Marsh (1987), 481 U.S.

200, 209-210, 107 S.Ct. 1702. Accordingly, Ohio courts favor the joinder of defendants.

Torres at 343; State v. Thomas (1980), 61 Ohio St.2d 223, 225, 400 N.E.2d 401.

       {¶57} But the Rules of Criminal Procedure also recognize that a joint trial has

the potential for prejudice to a defendant (or the State). Crim.R. 14 allows a court to

order separate trials “[i]f it appears that a defendant or the state is prejudiced by a

joinder of offenses or of defendants in an indictment, information, or complaint, or by

such joinder for trial together of indictments, informations or complaints, the court shall

order an election or separate trial of counts, grant a severance of defendants, or provide

such other relief as justice requires.” However, “[a] defendant claiming error in the trial
Scioto App. No. 09CA3311                                                                18


court’s refusal to allow separate trials of multiple charges” also “has the burden of

affirmatively showing that his rights were prejudiced.” Torres at 343.

                                B. Inconsistent Defenses

       {¶58} Murphy first contends that he was prejudiced because his defense and

that of Dixon were mutually antagonistic and irreconcilable. Various courts have

described defenses as antagonistic “where each defendant is trying to exculpate himself

and inculpate his co-defendant.” State v. Daniels (1993), 92 Ohio App.3d 473, 486, 636

N.E.2d 336, citing Romano v. State (Okla.Crim.App.1992), 827 P.2d 1335; see, also,

State v. Kleekamp, Montgomery App. No. 23533, 2010-Ohio-1906, at ¶103; State v.

Walters, Franklin App. No. 06AP-693, 2007-Ohio-5554, at ¶23; State v. Love, Mahoning

App. No. 02CA245, 2006-Ohio-1762, at ¶15. Antagonistic defenses between co-

defendants can be so prejudicial that they can deny a co-defendant a fair trial. Daniels

at 486. In order to warrant severance, the defenses must be both irreconcilable and

mutually exclusive. State v. Bunch, Mahoning App. No. 02CA196, 2005-Ohio-3309, at

¶43 (reversed in part on other grounds by In re Ohio Criminal Sentencing Statute

Cases, 109 Ohio St.3d 313, 2006-Ohio-2109, 847 N.E.2d 1174, at ¶92), citing United

States v. Berkowitz (C.A.5, 1981), 662 F.2d 1127, 1133. “The essence or core of the

defenses must be in conflict, such that the jury, in order to believe the core of one

defense, must necessarily disbelieve the core of the other.” Id.

       {¶59} In his pre-trial motion for separate trials, Murphy informed the court that he

intended to present an alibi defense and that he intended to produce other evidence

that Dixon may have committed the criminal acts. Murphy also asserted that he learned

through pre-trial conferences that Dixon intended to blame Murphy for the robbery. The
Scioto App. No. 09CA3311                                                                  19

State responded that severance was unwarranted and cited Walters, supra, for the

proposition that shifting the blame to another co-defendant and exculpating oneself do

not mandate separate trials.

       {¶60} However, Walters is clearly distinguishable from the present case. There

the court of appeals held that one co-defendant’s “defense of another” defense theory

was not mutually antagonistic to the other co-defendant’s “no causation defense.”

Walters at ¶36. That case involved a fight between the deceased victim and the two co-

defendants. At trial, one co-defendant’s defense was that he justifiably attacked the

victim because he was defending the other co-defendant, i.e., defense of another. The

other co-defendant claimed that whatever physical contact he had with the victim could

not have caused the victims death, i.e., a “no-causation defense.” The court explained

that “defense of another” is a variation of self-defense. Self-defense “does not merely

deny or contradict the evidence offered by the State, but rather admits the prohibited

conduct while claiming that surrounding facts or circumstances justify the conduct.” Id.,

quoting State v. Brown, Mahoning App. No. 03MA231, 2005-Ohio-4502, at ¶14. Thus,

jurors could believe one co-defendant was justified in attacking the victim under a

“defense of another theory” while simultaneously believing that the other co-defendant’s

physical contact did not ultimately cause the death of the victim.

       {¶61} In this case, Murphy supplied the court with sufficient information about

mutually antagonistic defenses that should have led the court to consider whether

prejudice would occur. If Murphy put forth evidence inculpating Dixon but also claimed

he was not present at the crime scene, i.e., put forth an alibi defense, and Dixon were to
Scioto App. No. 09CA3311                                                                   20


argue that it was Murphy acting alone who committed the crime, the jury is undoubtedly

faced with the situation where one or both co-defendants is lying.

       {¶62} However, merely because co-defendants may assert incongruous

defenses does not mean that a consolidated trial will compromise a specific trial right or

prevent the jury from making a reliable judgment about guilt or innocence. See Zafiro v.

United States (1993), 506 U.S. 534, 113 S.Ct. 933; Walters at ¶¶24-25. Murphy had the

burden of clearly demonstrating that he would be prejudiced or deprived of a specific

trial right. The pre-trial motion, although providing the court with sufficient information to

consider possible prejudice, did not clearly demonstrate a serious risk of loss of a

specific trial right. And in its memorandum contra, the State indicated it intended to

present evidence against both defendants.

       {¶63} After considering what ultimately occurred at the trial, we are convinced

that a consolidated trial did not prejudice Murphy’s rights. Ultimately, Murphy presented

an alibi defense but did not actively attempt to inculpate Dixon in the crime. His

witnesses alleged that Dixon wanted him to go to Franklin Furnace but that he declined,

staying with them. None of Murphy’s witnesses testified that Dixon committed any

crimes. Thus, although the two defenses were inconsistent, they were not mutually

antagonistic.

       {¶64} Furthermore, the State presented substantial incriminating evidence

against both defendants. In other words, the State was not a passive participant, sitting

by idly while Dixon or Murphy pointed the finger at one another and allowing the jury to

conclude that one or both was lying. At least two witnesses positively identified Murphy

in B+G prior to the incident. Waddell testified that Dixon was in the store and Murphy
Scioto App. No. 09CA3311                                                                            21


could not have left the store without him noticing. And the significant number of

similarities between the Kentucky robbery and the B+G robbery led jurors to reasonably

conclude that both men were involved. Accordingly, this argument is meritless.

              C. Limitation on Cross-Examination of Co-Defendant Statement

       {¶65} Murphy also asserts that the failure to sever his trial from Dixon’s

prejudiced him because he was limited on cross-examination of a redacted summary of

a statement Dixon made to Detective Conkel. The summary Conkel read at trial stated:

       William stated to me that he had been using cocaine for about a month before
       this event on July 5th, 2004. He went in his red Honda to the home of Tracey
       Chaffins’ parents. He then went to the Furnace *** and headed towards Blanton
       and Graph [sic]. 2 He knew that Jade went to the hospital and that Waddell
       would be at the store by himself. He was going to the store to rob it to get drug
       money.

       He left Tracey Chaffins’ parents[‘] house, stopped along the road and smoked a
       joint. He pulled the car to the left side of Blanton and Graphs Grocery and waited
       for someone. He went in and played lottery tickets for about one hour. Art
       waited on him. He had been in the grocery many times and knew Art by sight.
       He went out and played the lottery tickets in his car and got a little higher on
       cocaine. He went back in and cashed the lottery tickets in. It was definitely
       around noon. He knew there was going to be a robbery.

       The cash register was taken from the grocery. He stated that there were
       hammers in the car. Afterwards he went and got some beer and drugs. He said
       there was $1,400.00 taken from the store. He knew that a robbery was going to
       take place and he would get something out of it. He said he didn’t think anyone
       would get hurt. Afterward he said he drove back to Tracey’s parents’ house.

       William stated that he drove his car and that he was present during the robbery
       of Blanton and Graph Grocery. He stated that his car was used in both
       robberies; Blanton and Graphs Grocery and the video store in Russell, Kentucky.


       {¶66} Murphy concedes that he did not face a Bruton/Confrontation Clause

issue when Conkel read this summary into the record because Dixon later took the


2
 The star ellipsis denote a portion of Conkel’s testimony not from the redacted summary. She explained
what was meant by “the Furnace,” i.e., Franklin Furnace.
Scioto App. No. 09CA3311                                                                 22


stand and provided him with an opportunity to cross-examine on the statement. See

Bruton v. United States (1968), 391 U.S. 123, 132, 88 S.Ct. 1620. However, Murphy

argues that the redacted summary implicated him and he was unable to cross-examine

Detective Conkel regarding the full statement and was restricted in his cross-

examination concerning the redacted summary.

       {¶67} Our review of the record reveals that Murphy’s counsel began his cross-

examination of Detective Conkel by asking her if she felt the redacted summary was an

accurate reflection of the full statement made by Dixon. Conkel said it was not. The

prosecutor then asked for a bench conference where the prosecutor informed the Court

that if Murphy’s attorney continued on this line of questioning, it would open the door to

questions concerning Murphy’s participation in the crime. In other words, on re-direct

the State would say “Detective Conkel, why is this not an accurate representation of the

statement Dixon gave?” to which she would explain that it was redacted to omit

references to Murphy. Thus, the reason that Murphy was restricted in his cross-

examination of the statement was to prevent him from opening the door to a line of

questions from the State that would have clearly implicated Murphy in the statement.

       {¶68} But Murphy also proposes that the “vague” references to “he” throughout

the statement caused the jurors great suspicion as to who “he” was. We do not share a

similar impression when reviewing the statement. The statement begins with “William

[Dixon] told me” and then refers to a “he” through the remainder of the statement. The

statement makes sense if one were to replace “he” with “Dixon” throughout. Given the

evidence in the case, none of the instances of “he” would require jurors to assume that
Scioto App. No. 09CA3311                                                                  23


“he” was actually referring to Murphy. Accordingly, we do not view the redacted

summary as unfairly implicating Murphy. This argument is meritless.

                    D. Improper Comment by Co-Defendant Counsel

       {¶69} Finally, Murphy argues that he was prejudiced when Dixon’s attorney

commented on his Fifth Amendment right of remaining silent and electing not to take the

witness stand. During closing arguments, Dixon’s counsel said: “Now you’ve heard Mr.

Dixon. He actually came on the stand. He testified.” At the onset we note there was no

objection to this allegedly prejudicial remark. Accordingly, our review is limited to a

plain error analysis. See discussion of plain error analysis, supra, Section III.

Assuming we were to agree that the comment was improper, we cannot say that “but

for” Dixon’s attorney’s comment, the outcome of the trial would have been different.

This was a brief remark in a trial in which the State presented substantial incriminating

evidence against Murphy. Thus, there is no plain error. These assignments of error are

meritless.

                             V. Evidence of the Kentucky Robbery

       {¶70} Murphy argues in his third assignment of error that the trial court erred by

admitting evidence of the rape that occurred during the Kentucky robbery. Murphy

concedes that some elements between the B+G robbery and the Kentucky robbery

were similar and were admissible to prove identity. But Murphy argues that evidence of

the rape was inflammatory and prejudicial. The State does not directly respond to

Murphy’s argument that evidence of the rape was inflammatory, but rather concentrates

on the admissibility of the Kentucky robbery under Evid.R. 404(B) to prove Murphy’s

identity as the perpetrator of the B+G robbery.
Scioto App. No. 09CA3311                                                               24


      {¶71} The admission of evidence is within the sound discretion of the trial court.

State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343, at paragraph two of the

syllabus. See discussion of abuse of discretion standard, supra, Section IV.A.

      {¶72} Evidence of other acts is not admissible for the purpose of proving the

accused acted in conformity with that character on a particular occasion. State v.

Treesh, 90 Ohio St.3d 460, 482, 2001-Ohio-4, 739 N.E.2d 749. Evid.R. 404. However,

Evid.R. 404(B) provides other acts evidence may be admissible when it is offered for

some other purpose, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.

      {¶73} Additionally, R.C. 2945.59 provides that:

      In any criminal case in which the defendant’s motive or intent, the absence
      of mistake or accident on his part, or the defendant’s scheme, plan, or
      system in doing an act is material, any acts of the defendant which tend to
      show his motive or intent, the absence of mistake or accident on his part,
      or the defendant’s scheme, plan, or system in doing the act in question
      may be proved, whether they are contemporaneous with or prior or
      subsequent thereto, notwithstanding that such proof may show or tend to
      show the commission of another crime by the defendant.

      {¶74} R.C. 2945.59 is to be strictly construed against the State, and to be

conservatively applied by a trial court. State v. DeMarco (1987), 31 Ohio St.3d

191, 194, 509 N.E.2d 1256.

      {¶75} Thus, evidence of other acts may be admissible if the evidence is offered

for a purpose other than to show the accused’s propensity to act in conformity with the

accused’s character, e.g., to commit a certain type of crime. State v. Jamison (1990), 49

Ohio St.3d 182, 552 N.E.2d 180, at the syllabus. For prior acts evidence to be

admissible, the evidence must be relevant to proving the guilt of the offense in question.

State v. Gardner (1979), 59 Ohio St.2d 14, 20, 391 N.E.2d 337. See, also, State v.
Scioto App. No. 09CA3311                                                                    25

Henderson (1991), 76 Ohio App.3d 290, 294, 601 N.E.2d 596. There must be

substantial evidence that the accused committed the act. See State v. Carter (1971), 26

Ohio St.2d 79, 269 N.E.2d 115, at paragraph two of the syllabus. In addition, the prior

act must not be too remote and must be closely related in time and nature to the offense

charged. State v. Burson (1974), 38 Ohio St.2d 157, 159, 311 N.E.2d 526. If the act is

too distant in time or too removed in method or type, it has no permissible value.

Henderson at 294.

       {¶76} Both Murphy and the State agree that the many similarities between the

Kentucky robbery and the B+G robbery were admissible for the purpose of

demonstrating identity. Among other similarities, evidence was introduced that (1) two

men were involved in both robberies; (2) one person “cased” the place of business prior

to the robbery; (3) a hammer or hammers were used to assault the victim; (4) the victim

was attacked from behind; (5) the robberies took place at or around the noon hour; (6)

the perpetrators dragged the victim from the initial point of attack to another part of the

store where the money was located, which left a trail of blood; (7) a personal item was

taken from the victim in both robberies; and (8) Tracy Chaffins was seen at both

robberies.

       {¶77} Thus, due to the numerous similarities between the crimes and Waddell’s

inability to say who attacked him, this evidence was relevant to establishing a relevant

and material issue in the B+G robberies: identification of the perpetrators. Cf. State v.

Curry (1975), 43 Ohio St.2d 66, 73, 330 N.E.2d 720. This evidence was ultimately

instrumental in the State’s effort to prove Murphy’s guilt because Waddell was unable to

identify Murphy as his attacker, although he had seen him in the store previously. The
Scioto App. No. 09CA3311                                                                26


striking similarities between the B+G robbery and the Kentucky robbery were properly

introduced to resolve any doubt the jury had about Murphy’s participation in the crime.

      {¶78} But Murphy contends that the State should not have been allowed to

introduce evidence that he raped Ruffing in the course of the Kentucky robbery because

it bared no similarity to the B+G robbery and was prejudicial. As with all evidence, other

acts evidence is subject to the relevancy and fairness requirements of Evid.R. 403(A)

and must be excluded if its probative value is substantially outweighed by the danger of

unfair prejudice. State v. Soke (1995), 105 Ohio App.3d 226, 249, 663 N.E.2d 986;

State v. Matthews (1984), 14 Ohio App.3d 440, 442, 471 N.E.2d 849.

      {¶79} The State was allowed to ask Ruffing if she was raped, a fact that she

confirmed. We agree with Murphy that evidence concerning the rape was not probative

of his identity under Evid.R. 404(B). No sexual assault was alleged to have occurred in

the B+G robbery and thus the evidence did not prove identity. We further agree that

admission of the rape was inadmissible under Evid.R. 403(A) because its probative

value was substantially outweighed by the danger of unfair prejudice. Accordingly, the

trial court erred by admitting it. Nonetheless, we perceive this error as harmless.

      {¶80} We apply non-constitutional harmless-error analysis to evidentiary errors

such as this. State v. Elliott (Feb. 27, 1995), Highland App. No. 94CA836, 1995 WL

89732, at *3 (applying non-constitutional harmless-error analysis to admission of

irrelevant evidence). See, also, State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-

6046, 837 N.E.2d 315, at ¶88 (applying non-constitutional harmless-error analysis to

erroneous admission of other acts evidence); State v. Conway, 109 Ohio St.3d 412,

2006-Ohio-2815, 848 N.E.2d 810, at ¶74 (same). A non-constitutional error is harmless
Scioto App. No. 09CA3311                                                                    27

when there is substantial other evidence to support the guilty verdict. State v. Webb, 70

Ohio St.3d 325, 335, 1994-Ohio-425, 638 N.E.2d 1023. For the following reasons, we

conclude that the erroneous admission of Ruffing’s testimony concerning the rape was

harmless.

       {¶81} First, as previously noted, the State presented a substantial amount of

admissible evidence of Murphy’s guilt. Second, Ruffing described the details of the

vicious assault perpetrated on her by Murphy and Dixon. Jurors were also shown

bloody photographs of crimes scene at both the B+G robbery and the Kentucky robbery.

Thus, jurors were already exposed to evidence of other repulsive conduct. Given the

sadistic nature of the crimes for which he was being tried, we seriously doubt that

evidence of the rape added much in terms of “aggravating” the jurors. Third, at the

close of evidence the court properly instructed jurors that they could consider evidence

about other crimes only for a limited purpose and not to prove the character of the

defendants. “A presumption always exists that the jury has followed the instructions

given to it by the trial court.” Pang v. Minch (1990), 53 Ohio St.3d 186, 559 N.E.2d

1313, at paragraph four of the syllabus. Thus, we conclude that the error here was

harmless and overrule this assignment of error.


                                     V. Grounds for Mistrial

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

in overruling his motion for a mistrial. Murphy asked for a mistrial after the prosecutor

swung a hammer towards the jury and within two feet of them, apparently to

demonstrate the manner in which blood splatters patterns are created.
Scioto App. No. 09CA3311                                                                28


       {¶83} The grant or denial of a motion for mistrial rests within the sound

discretion of the trial court. Sage at 182. Under Crim.R. 33(A)(2) a trial court may grant

a mistrial for “misconduct” of a prosecuting attorney. However, the trial court should not

order a mistrial merely because of some intervening error or irregularity unless the

substantial rights of the accused are adversely affected. State v. Nichols (1993), 85

Ohio App.3d 65, 69, 619 N.E.2d 80. This determination is also within the sound

discretion of the trial court. Id.

       {¶84} Prosecutors are afforded a certain degree of latitude in their closing

arguments. State v. Keenan (1993), 66 Ohio St.3d 402, 409, 613 N.E.2d 203. To

determine whether comments made by a prosecutor during closing argument amount to

misconduct warranting a mistrial, a court must examine “whether the remarks were

improper and, if so, whether they prejudicially affected substantial rights of the

defendant.” State v. Smith (1984), 14 Ohio St.3d 13, 14, 470 N.E.2d 883. In order for a

defendant to successfully move for a new trial based upon prosecutorial misconduct,

the defendant must show that the prosecutor’s conduct deprived the defendant of a fair

trial. Keenan at 405; State v. Maurer (1984), 15 Ohio St.3d 239, 266, 473 N.E.2d 768. It

must be clear beyond a reasonable doubt that, absent the prosecutor’s conduct, the jury

would not have found the defendant guilty. Smith at 15.

       {¶85} We view nothing improper in the prosecutor briefly swinging a hammer to

demonstrate blood splatter pattern during rebuttal. Detective Conkel described blood

splatter to the jury earlier when reviewing photographs of the crime scene. The

prosecutor’s purpose, apparently, was to demonstrate how blood splatter observed in

certain crime scene photographs was created. This was fair comment on the evidence
Scioto App. No. 09CA3311                                                                     29


presented on trial. The trial court did not abuse its discretion in failing to grant a mistrial.

Accordingly, this assignment of error is meritless.

                                     VII. Allied Offenses

       {¶86} In his sixth assignment of error Murphy contends that the trial court erred

by sentencing him consecutively for allied offenses of similar import. Specifically,

Murphy contends that his conviction for attempted murder, a violation of R.C.

2923.02(A) and R.C. 2903.02(A), and felonious assault, a violation of R.C.

2903.11(A)(2)/(D)(1) are allied offenses of similar import and were committed with the

same animus. Therefore, Murphy argues that he should only have been sentenced for

either attempted murder or felonious assault, but not both.

       {¶87} Ohio’s multiple-count statute, 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 each, the
          indictment or information may contain counts for all such offenses, and the
          defendant may be convicted of all of them.


       {¶88} A two-step analysis is required to determine whether two crimes are allied

offenses of similar import. See, e.g., State v. Blankenship (1988), 38 Ohio St.3d 116,

117, 526 N.E.2d 816; Recently, in State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-

1625, 886 N.E.2d 181, the Court stated: “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
Scioto App. No. 09CA3311                                                                  30


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 commission of the other, then the offenses are

allied offenses of similar import.” Id. at paragraph one of the syllabus. If the offenses are

allied, the court proceeds to the second step and considers whether the offenses were

committed separately or with a separate animus. Id. at ¶31.

       {¶89} Although the first step in the Cabrales analysis requires us to compare the

elements of attempted murder with felonious assault in the abstract, both Murphy and

the State direct us to a recent Supreme Court case on point. In State v. Williams, 124

Ohio St.3d 381, 2010-Ohio-147, 922 N.E.2d 937, the Court held that felonious assault

as defined in R.C. 2903.11(A)(2) is an allied offense of attempted murder as defined in

R.C. 2903.02(A) and 2923.02. In the absence of a separate animus for each crime, a

criminal defendant “may be found guilty of both offenses, [but] he may be sentenced for

only one.” Id. at ¶27. In light of the holding in Williams, we need not independently

determine whether the elements align to such an extent as to result in the offenses

being allied offenses. However, we must still determine if the offenses were committed

with a separate animus.

       {¶90} The Supreme Court explained the meaning of the word “animus” in State

v. Logan (1979), 60 Ohio St.2d 126, 397 N.E.2d 1345. “R.C. 2941.25(B), by its use of

the term ‘animus’, requires us to examine the defendant’s mental state in determining

whether two or more offenses may be chiseled from the same criminal conduct. In this

sense, we believe that the General Assembly intended the term ‘animus’ to mean
Scioto App. No. 09CA3311                                                                 31


purpose or, more properly, immediate motive.” Id. at 131. In more detail, the Court

explained:

       Where an individual’s immediate motive involves the commission of one offense,
       but in the course of committing that crime he must, A priori, commit another, then
       he may well possess but a single animus, and in that event may be convicted of
       only one crime. For example, when a person commits the crime of robbery, he
       must, by the very nature of the crime, restrain the victim for a sufficient amount of
       time to complete the robbery. Under our statutes, he simultaneously commits the
       offense of kidnapping (R.C. 2905.01(A)(2) [sic] by forcibly restraining the victim to
       facilitate the commission of a felony. In that instance, without more, there exists a
       single animus, and R.C. 2941.25 prohibits convictions for both offenses.
       Likewise, where an individual's immediate motive is to engage in sexual
       intercourse, and a so-called “standstill” rape is committed, the perpetrator may be
       convicted of either rape or kidnapping, but not both. In contradistinction, an
       individual who restrains his intended rape victim for several days prior to
       perpetrating the rape, or who transports her out of the state or across the state
       while intermittently raping her, may well be considered to have a separate
       animus as to each of the offenses of kidnapping and rape, and convictions on
       multiple counts could reasonably be sustained.

       Id. at 131-132.

       {¶91} Murphy contends that Waddell could not remember anything after the

initial blow and although he testified that he received five blows to the head and twelve

blows to his body, he could not specify when those blows were dealt to him. Thus,

Murphy contends that we must consider the entire assault as one ongoing event with a

single motive, i.e., to cause serious injury or death to Waddell as a precursor to

committing robbery at B+G.

       {¶92} The State argues that the evidence at trial indicated that Waddell was

struck from behind with a hammer as he was walking up an aisle towards Dixon. The

State further alleges that photographs demonstrate that the initial blow knocked him to

the ground, but he was able to get up and may have grabbed a grocery cart near the

point of impact. The State suggests that the evidence further indicates that Waddell
Scioto App. No. 09CA3311                                                                   32


fought with his attackers and received defensive bruises to his hands and arms. The

State argues that the initial blow, knocking Waddell out, was sufficient for purposes of

providing an animus, or motive, for felonious assault. But the additional blows that

came afterward provide a separate motive for attempted murder.

       {¶93} Recently, the Eighth District Court of Appeals addressed a similar situation

in State v. Carter, Cuyahoga App. No. 90504, 2009-Ohio-5961. The court first noted

that “[t]he fact that there were several wounds does not automatically mean that a

separate animus attaches to each injury.” Id. at ¶9. The court further explained:

       In determining whether a separate animus exists, courts have examined
       case-specific factors such as whether the defendant at some point broke
       “a temporal continuum started by his initial act” [citing State v. Williams,
       Cuyahoga App. No. 89726, 2008-Ohio-5286]; whether, at some point, the
       defendant created a “substantial independent risk of harm” [ id.]; whether
       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” [citing State v. Hines,
       Cuyahoga App. No. 90125, 2008-Ohio-4236]; and whether a “significant
       amount of time passed between the beginning of the felonious assault and
       the end of the attack [citing State v. Chaney, Stark App. No.
       2007CA00332, 2008-Ohio-5559].

Id.

       {¶94} We find Carter instructive. In this case the evidence at best demonstrates

that Waddell was struck with an initial blow sufficient to cause total memory loss of what

occurred next. The jury could speculate from the additional blows to Waddell’s head

and blows to his arms that Waddell may have attempted to fight his attackers or

attempted to shield himself from their blows with his arms. Furthermore, the evidence

suggested that Waddell may have been dragged from the initial point of attack to a

different location in the store.
Scioto App. No. 09CA3311                                                                  33


       {¶95} But none of this evidence indicates two distinct motives in the assault.

That is, that during the course of the robbery, Murphy and Dixon first decided to

seriously injure Waddell and then later decided to cause his death, or vice versa.

Moreover, no evidence suggests that the attack took place over an extended period of

time, which could permit such an assumption. Neither does the evidence reasonably

support the conclusion that there was a temporal break in the attack. There is simply no

way that reasonable jurors could differentiate one of the approximate seventeen “blows”

that Waddell received as a result of the robbery.

       {¶96} At best, the evidence suggests a violent continuous attack with a single

motive: to cause serious injury or death to Waddell in order to allow Dixon and Murphy

to commit a robbery. Thus, the trial court erred in failing to merge Murphy’s sentence

for felonious assault and attempted murder.

                                         VIII. Conclusion

       {¶97} Based on the foregoing we overrule Murphy’s first, second, third, fourth,

and fifth assignments of error. We sustain Murphy’s sixth assignment of error

concerning the trial court’s failure to merge his convictions for felonious assault and

attempted murder. Pursuant to the Supreme Court’s holding in State v. Whitfield, 124

Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at paragraph one of the syllabus, “[t]he

state retains the right to elect which allied offense to pursue on sentencing on a remand

to the trial court after appeal.”

                                                       JUDGMENT AFFIRMED IN PART,
                                                           REVERSED IN PART, AND
                                                                CAUSE REMANDED.
Scioto App. No. 09CA3311                                                                    34


                                    JUDGMENT ENTRY

       It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the
costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

McFarland, P.J. & Kline, J.: Concur in Judgment and Opinion.

                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
