[Cite as State v. Freeders, 2011-Ohio-4871.]




           IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                    :

        Plaintiff-Appellee                       :   C.A. CASE NO. 23952

vs.                                             :    T.C. CASE NO. 09CR1888

CODY A. FREEDERS                                 :

        Defendant-Appellant                      :

                                       . . . . . . . . .

                                           O P I N I O N

                 Rendered on the 23rd day of September, 2011.

                                       . . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Johnna M. Shia, Asst. Pros.
Attorney, Atty. Reg. No. 0067685, P.O. Box 972, Dayton, OH 45422
     Attorney for Plaintiff-Appellee

Daniel E. Brinkman, Atty. Reg. No. 0025365, 120 West Second Street,
Suite 2000, Liberty Tower, Dayton, OH 45402
     Attorney for Defendant-Appellant

                                       . . . . . . . . .

GRADY, P.J.:

        {¶ 1} On June 8, 2009, Defendant Cody Freeders, accompanied

by David Rupp, drove to 14990 Brookville-Pyrmont Road in Perry

Township, the home of Jeffrey Todd.                    Defendant was armed with a

handgun.         Rupp had a baseball bat.            Defendant believed that Todd
                                                                        2

owed him money, and his purpose or intent was to assault and/or

rob Todd.

     {¶ 2} Defendant and Rupp entered Todd’s residence without

permission.    A physical altercation occurred inside the residence,

 during which Defendant assaulted Todd with the gun and pointed

it at him.    Todd’s roommate ran to a neighbor’s house and called

police.

     {¶ 3} Defendant’s   vehicle    was   later   stopped   by   police.

Defendant told police a gun was under the front seat, and police

saw a baseball bat on the back seat.           Defendant was arrested.

Rupp told police that Defendant had a gun inside Todd’s residence.

     {¶ 4} Defendant was indicted on two counts of aggravated

burglary, one in violation of R.C. 2911.11(A)(1) and the other

in violation of R.C. 2911.11(A)(2), one count of felonious assault

in violation of R.C. 2903.11(A)(2), and one count of having weapons

under disability in violation of R.C. 2923.13(A)(2).        A three year

firearm   specification,   R.C.    2941.145,    was   attached   to   the

aggravated burglary and felonious assault charges.

     {¶ 5} Defendant entered a plea of guilty to the weapons under

disability charge.    Following trial to the court, Defendant was

found guilty of the remaining charges and specifications.             The

trial court sentenced Defendant to concurrent five year prison

terms on each of the charges, merged the firearm specifications,
                                                                         3

and imposed one additional and consecutive three year prison term

on those, for a total sentence of eight years.

     {¶ 6} Defendant   timely   appealed   to   this   court    from   his

conviction and sentence.    Defendant’s appellate counsel filed an

Anders brief, Anders v. California (1967), 386 U.S. 738, 87 S.Ct.

1396, 19 L.Ed.2d 493, stating that he could find no meritorious

issues for appellate review.         We notified Defendant of his

appellate counsel’s representations and afforded him ample time

to file a pro se brief.    None was received.

     {¶ 7} In performing our independent review of the record

pursuant to Penson v. Ohio (1988), 488 U.S. 75, 109 S.Ct, 346,

102 L.Ed. 2d 300, we discovered one non-frivolous error that merited

review: whether Defendant’s convictions for aggravated burglary

in two forms, R.C. 2911.11(A)(1) (serious physical harm), and R.C.

2911.11(A)(2) (deadly weapon/dangerous ordnance), are on this

record and per State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569

allied offenses of similar import that must be merged pursuant

to R.C. 2941.25.   We appointed new appellate counsel to argue that

issue.   This matter is now before us for a decision on the merits

of that issue.

     ASSIGNMENT OF ERROR

     {¶ 8} “WHETHER    DEFENDANT’S    CONVICTIONS      FOR     AGGRAVATED

BURGLARY IN TWO FORMS, R.C. 2911.11(A)(1) (SERIOUS PHYSICAL HARM),
                                                                        4

AND R.C. 2911.11(A)(2) (DEADLY WEAPON/DANGEROUS ORDNANCE), ARE,

ON THE RECORD AND PER STATE V. BROWN, 119 OHIO ST.3D 447,

2008-OHIO-4569, ALLIED OFFENSES OF SIMILAR IMPORT THAT MUST BE

MERGED PURSUANT TO R.C. 2941.25.”

     {¶ 9} R.C. 2911.11 defines the offense of aggravated robbery

and provides:

     {¶ 10} “(A) No person, by force, stealth, or deception, shall

trespass in an occupied structure or in a separately secured or

separately occupied portion of an occupied structure, when another

person other than an accomplice of the offender is present, with

purpose to commit in the structure or in the separately secured

or separately occupied portion of the structure any criminal

offense, if any of the following apply.

     {¶ 11} “(1) The offender inflicts, or attempts or threatens

to inflict physical harm on another;

     {¶ 12} “(2) The offender has a deadly weapon or dangerous

ordnance on or about the offender’s person or under the offender’s

control.”

     {¶ 13} The   Double   Jeopardy   Clause   of   the   United   States

Constitution, which applies to the States through the Fourteenth

Amendment prohibits multiple punishments for the same offense.

State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶10.

However, the Double Jeopardy Clause only prohibits a sentencing
                                                                       5

court from prescribing greater punishment than the legislature

intended.    Id., at ¶11.    The two-tiered test set forth in R.C.

2941.25,    Ohio’s   multiple   count   statute,   resolves   both   the

constitutional and state statutory inquiries regarding the General

Assembly’s intent to permit cumulative punishments for the same

conduct.    Id., at ¶12.    However, it is not necessary to resort

to that test when the legislature’s intent to impose multiple

punishments is clear from the language of the statute.         Id., at

¶37.

       {¶ 14} Ohio’s multiple counts statue, R.C. 2941.25, provides:

       {¶ 15} “(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.

       {¶ 16} “(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.”

       {¶ 17} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314,

the Ohio Supreme Court announced a new test for determining when

offenses are allied offenses of similar import that must be merged
                                                                   6

pursuant to R.C. 2941.25.    Johnson overruled the previous test

announced in State v. Rance (1999), 85 Ohio St.3d 632, and held:

“When determining whether two offenses are allied offenses of

similar import subject to merger under R.C. 2941.25, the conduct

of the accused must be considered.”   Id. at syllabus.   The Supreme

Court explained its holding at ¶47-51, stating:

     {¶ 18} “Under R.C. 2941.25, the court must determine prior to

sentencing whether the offenses were committed by the same conduct.

 Thus, the court need not perform any hypothetical or abstract

comparison of the offenses at issue in order to conclude that the

offenses are subject to merger.

     {¶ 19} “In determining whether offenses are allied offenses

of similar import under R.C. 2941.25(A), the question is whether

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

the same conduct, not whether it is possible to commit one without

committing the other.    Blankenship, 38 Ohio St.3d at 119, 526

N.E.2d 816 (Whiteside, J., concurring) (‘It is not necessary that

both crimes are always committed by the same conduct but, rather,

it is sufficient if both offenses can be committed by the same

conduct.   It is a matter of possibility, rather than certainty,

that the same conduct will constitute commission of both offenses.’

[Emphasis sic]).   If the offenses correspond to such a degree that

the conduct of the defendant constituting commission of one offense
                                                                       7

constitutes commission of the other, then the offenses are of

similar import.

       {¶ 20} “If the multiple offenses can be committed by the same

conduct, then the court must determine whether the offenses were

committed by the same conduct, i.e., ‘a single act, committed with

a     single    state   of   mind.’   Brown,   119   Ohio   St.3d   447,

2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J.,dissenting).

       {¶ 21} “If the answer to both questions is yes, then the offenses

are allied offenses of similar import and will be merged.

       {¶ 22} “Conversely, if the court determines that the commission

of one offense will never result in the commission of the other,

or if the offenses are committed separately, or if the defendant

has separate animus for each offense, then, according to R.C.

2941.25(B), the offenses will not merge.”

       {¶ 23} Johnson is a welcome relief from the abstractions of

Rance and is more consistent with R.C. 2941.25 in that the tests

it imposes apply to the conduct in which the defendant actually

engaged.       If that conduct can be construed to violate two or more

sections of the criminal code, the offenses involved are allied

offenses of similar import per R.C. 2941.25(A).      The offenses must

then be merged unless the conduct in which Defendant engaged was

committed separately or with a separate animus as to each offense.

    R.C. 2941.25(B).
                                                                       8

     {¶ 24} The record demonstrates that after Defendant kicked open

Todd’s back door and forcibly entered Todd’s residence while armed

with a gun, an altercation ensued inside the residence between

Todd and Defendant during which Defendant struck Todd in the side

of the head with the gun and pointed the gun at Todd while demanding

money.     That   conduct   violates   both   R.C.   2911.11(A)(1)   and

2911.11(A)(2).     Therefore, Defendant’s violations of both R.C.

2911.11(A)(1) and 2911.11(A)(2) are allied offenses of similar

import for purposes of R.C. 2941.25(A).         Johnson, at ¶48.     The

further issue is whether the exception to merger in R.C. 2941.25(B)

applies.

     {¶ 25} The State concedes that Defendant’s violations of R.C.

2911.11(A)(1) and 2911.11(A)(2) are allied offenses of similar

import per R.C. 2941.25(A).     We agree.     The State argues that the

offenses are nevertheless not subject to merger per R.C. 2941.25(B)

because they were committed with a separate animus as to each.

The State distinguishes the (A)(1) offense, hitting Todd in the

side of his head with a pistol, from the (A)(2) offense, pointing

the pistol at Todd’s face and demanding money from him.

     {¶ 26} The test that R.C. 2941.25(A) imposes examines the

defendant’s criminal conduct instrumentally, in relation to the

statutory elements of the multiple offenses concerned.               The

“animus” test that R.C. 2941.25(B) imposes is different.              It
                                                                   9

examines the defendant’s evil purpose or evil immediate motive

for engaging in that criminal conduct.     State v. Logan (1979),

60 Ohio St.2d 126.     In the present case, unless Defendant’s

violations of R.C. 2911.11(A)(1) and (A)(2) were committed with

an animus separate from the other, per R.C. 2941.25(B), their merger

is mandated by R.C. 2941.25(A).      Merger is likewise mandated

unless, per R.C. 2941.25(B), the allied offenses were committed

separately as to time, place, and circumstance.

     {¶ 27} R.C. 2941.25(A) is complete in its terms, requiring a

merger of allied offenses.       R.C. 2941.25(B) operates as an

exception to the merger that R.C. 2941.25(A) requires.     In State

v. Hodge, 124 Ohio St.3d 319, 2010-Ohio-2, the Supreme Court held

that an erroneous failure to merge convictions for allied offenses

requires a new sentencing hearing.      We believe that, on this

record, that hearing should include determination of whether the

exceptions in R.C. 2941.25(B) apply to permit separate convictions.

     {¶ 28} The assignment of error is sustained.       Defendant’s

sentences for violations of R.C. 2911.11(A)(1) and 2911.11(A)(2)

are reversed and vacated.   The case is remanded to the trial court

for further proceedings pursuant to this section.

FROELICH, J. And CANNON, J., concur.

(Hon. Timothy P. Cannon, Eleventh District Court of Appeals,
sitting by assignment of the Chief Justice of the Supreme Court
of Ohio.)
                           10



Copies mailed to:

Johnna M. Shia, Esq.
Daniel E. Brinkman, Esq.
Hon. Mary Lynn Wiseman
