[Cite as State v. McLaughlin, 2018-Ohio-2333.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

STATE OF OHIO                                       JUDGES:
                                                    Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                          Hon. Patricia A. Delaney, J.
                                                    Hon. Earle E. Wise, Jr., J.
-vs-
                                                    Case No. CT2017-0104
KENNETH MCLAUGHLIN

        Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                         Appeal from the Muskingum County Court
                                                 of Common Pleas, Case No. CR2017-0296


JUDGMENT:                                        Affirmed in part, Vacated in part, and
                                                 Remanded for Sentencing

DATE OF JUDGMENT ENTRY:                          June 11, 2018

APPEARANCES:

For Plaintiff-Appellee                           For Defendant-Appellant

D. MICHAEL HADDOX                                JAMES ANZELMO
Prosecuting Attorney                             446 Howland Drive
Muskingum County, Ohio                           Gahanna, OH 43230

By: GERALD V. ANDERSON II
Assistant Prosecuting Attorney
27 North Fifth St., P.O. Box 189
Zanesville, OH 43702-0189
Muskingum County, Case No. CT2017-0104                                                        2

Hoffman, P.J.

       {¶1}   Appellant Kenneth McLaughlin appeals the judgment entered by the

Muskingum County Common Pleas Court convicting him of aggravated robbery (R.C.

2911.01(A)(1)), felonious assault with a firearm specification (R.C. 2903.11(A)(2), R.C.

2941.145), kidnapping with a firearm specification (R.C. 2905.01(A)(2), R.C. 2941.141),

theft of firearms (R.C. 2913.02(A)(1)) and theft of an elderly victim (R.C. 2913.02(A)(1)),

and sentencing him to sixteen years incarceration. Appellee is the state of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}   Before 3:00 a.m. on August 24, the 87-year-old victim woke up to use the

bathroom. He did not have his hearing aids in his ears. While sitting on the toilet, he

realized there was a person in the bathroom talking to him, but he could not hear what

the person was saying. He described the person, later identified as Appellant, as a white

male with a bandana on his face. Appellant had a knife which he waved at the victim.

Appellant continued to yell and talk at the victim, who could not hear what Appellant was

saying.

       {¶3}   Appellant took the victim from the toilet, walked him to a chair in the living

room, and told the victim to sit in the chair. Appellant tied the victim’s feet with an electric

extension cord and pushed the chair, with the victim in it, to the bedroom. The chair would

not fit through the bedroom door, so Appellant took the victim out of the chair, placed him

on the bed, and pushed him backwards.

       {¶4}   Appellant yelled at the victim, asking for the keys to two safes in the

bedroom. Appellant tied the victim’s hands together, and used packaging tape to cover
Muskingum County, Case No. CT2017-0104                                                   3


his mouth. Appellant found an AK47 on a gun rack, which he threatened to hit the victim

with unless he was given the keys to the safe.

       {¶5}   Appellant then took the butt of the rifle and hit the victim in the forehead.

The gun discharged into the ceiling. Appellant took six guns and a guitar from the house

and left.

       {¶6}   The victim waited until he believed Appellant was gone, then unbound his

hands and feet and drove to his son’s house. He was so nervous and shaken he could

not pull the tape off his mouth, so he sat outside the house and honked his car horn until

his son came out.

       {¶7}   Family members identified Appellant as a possible suspect in the case. On

the garage floor of the home, police found a wallet and identification belonging to

Appellant.

       {¶8}   Appellant was indicted by the Muskingum County Grand Jury with one count

of aggravated burglary with a firearm specification, one count of aggravated robbery with

a firearm specification, one count of felonious assault with a firearm specification, two

counts of kidnapping with firearm specifications, one count of theft of firearms, and one

count of theft from an elderly victim. The State dismissed the charge of aggravated

burglary and the accompanying firearm specification, and one count of kidnapping with a

firearm specification, as well as the firearm specification attached to the charge of

aggravated robbery. Appellant entered a plea of guilty to the remaining charges.

       {¶9}   The trial court sentenced Appellant to six years incarceration for aggravated

robbery, two years incarceration for felonious assault with an additional three years

incarceration for the accompanying firearm specification, three years incarceration for
Muskingum County, Case No. CT2017-0104                                                      4


kidnapping with an additional one year for the firearm specification, twelve months

incarceration for theft of firearms, and twelve months incarceration for theft from an elderly

victim. The court ordered all sentences to be served consecutively except for the twelve

months for theft from an elderly victim which was to be served concurrently to the

remaining charges, for an aggregate term of sixteen years.

       {¶10} It is from the December 20, 2017 judgment of conviction and sentence

Appellant prosecutes this appeal, assigning as error:




              I. THE TRIAL COURT COMMITTED PREJUDICIAL PLAIN ERROR

       IN SENTENCING APPELLANT TO CONSECUTIVE SENTENCES IN

       VIOLATION OF R.C. §2941.25(A) THUS MANDATING THE REVERSAL

       OF HIS CONVICTIONS AND SENTENCES FOR AGGRAVATED

       ROBBERY, FELONIOUS ASSAULT, THEFT OF A FIREARM, THEFT

       FROM AN ELDERLY VICTIM AND KIDNAPPING ALONG WITH THE

       FIREARM SPECIFICATIONS FOR EACH.1

              II. SHOULD THIS COURT FIND THAT IT CANNOT CONSIDER

       APPELLANT’S MERGER ARGUMENT BECAUSE TRIAL COUNSEL

       FAILED TO PRESERVE THE ISSUE BY RAISING IT AT SENTENCING

       PURSUANT TO STATE V. ROGERS, 143 OHIO ST. 3D 385, 2015-OHIO-

       2459, 38 N.E.3D 860, APPELLANT WAS DENIED THE EFFECTIVE




1, 2
   Though Appellant seeks reversal of his convictions based upon R.C. 2941.25(A), the
statute only provides for election of sentencing, not reversal of convictions.
Muskingum County, Case No. CT2017-0104                                                      5


       ASSISTANCE OF COUNSEL THUS MANDATING THE REVERSAL OF

       HIS CONVICTIONS AND SENTENCES FOR AGGRAVATED ROBBERY,

       FELONIOUS ASSAULT, THEFT OF A FIREARM, THEFT FROM AN

       ELDERLY VICTIM AND KIDNAPPING ALONG WITH THE FIREARM

       SPECIFICATIONS FOR EACH.2




       {¶11} We note, this matter comes before this Court pursuant to the accelerated

calendar and App. Rule 11.1. Accordingly, it is sufficient compliance with Appellate Rule

12(A) for the statement of the reason for the court's decision as to each error to be in brief

and conclusionary form.

                                                 I.

       {¶12} In his first assignment of error, Appellant argues the court committed plain

error in failing to find all offenses were allied and should have merged.

       {¶13} 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
Muskingum County, Case No. CT2017-0104                                              6


      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.




      {¶14} In the syllabus of State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, 34

N.E.2d 892, the Ohio Supreme Court revised its allied-offense jurisprudence:




             1. In determining whether offenses are allied offenses of similar

      import within the meaning of R.C. 2941.25, courts must evaluate three

      separate factors-the conduct, the animus, and the import.

             2.Two or more offenses of dissimilar import exist within the meaning

      of R.C. 2941.25(B) when the defendant's conduct constitutes offenses

      involving separate victims or if the harm that results from each offense is

      separate and identifiable.




      {¶15} The Court further explained:




             A trial court and the reviewing court on appeal when considering

      whether there are allied offenses that merge into a single conviction under

      R.C. 2941.25(A) must first take into account the conduct of the defendant.

      In other words, how were the offenses committed? If any of the following is
Muskingum County, Case No. CT2017-0104                                                  7


       true, the offenses cannot merge and the defendant may be convicted and

       sentenced for multiple offenses: (1) the offenses are dissimilar in import or

       significance—in other words, each offense caused separate, identifiable

       harm, (2) the offenses were committed separately, or (3) the offenses were

       committed with separate animus or motivation.

               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. The

       evidence at trial or during a plea or sentencing hearing will reveal whether

       the offenses have similar 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 of multiple counts. Also, a

       defendant's conduct that constitutes two or more offenses against a single

       victim can support multiple convictions if the harm that results from each

       offense is separate and identifiable from the harm of the other offense. We

       therefore hold that two or more offenses of dissimilar import exist within the

       meaning of R.C. 2941.25(B) when the defendant's conduct constitutes

       offenses involving separate victims or if the harm that results from each

       offense is separate and identifiable.

       Id. at ¶¶ 25-26.




       {¶16} The Ohio Supreme Court has recently clarified the standard of review for

plain error:
Muskingum County, Case No. CT2017-0104                                                    8


            Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain

     errors or defects affecting substantial rights” notwithstanding an accused's

     failure to meet his obligation to bring those errors to the attention of the trial

     court. However, the accused bears the burden to demonstrate plain error

     on the record, State v. Quarterman, 140 Ohio St.3d 464, 2014–Ohio–4034,

     19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a deviation from a legal

     rule” that constitutes “an ‘obvious' defect in the trial proceedings,” State v.

     Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

            Even if the error is obvious, it must have affected substantial rights,

     and “[w]e have interpreted this aspect of the rule to mean that the trial

     court's error must have affected the outcome of the trial.” Id. We recently

     clarified in State v. Rogers, 143 Ohio St.3d 385, 2015–Ohio–2459, 38

     N.E.3d 860, that the accused is “required to demonstrate a reasonable

     probability that the error resulted in prejudice—the same deferential

     standard for reviewing ineffective assistance of counsel claims.” (Emphasis

     sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74,

     81–83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).

            If the accused shows that the trial court committed plain error

     affecting the outcome of the proceeding, an appellate court is not required

     to correct it; we have “admonish[ed] courts to notice plain error ‘with the

     utmost caution, under exceptional circumstances and only to prevent a

     manifest miscarriage of justice.’ ” (Emphasis added.) Barnes at 27, 759
Muskingum County, Case No. CT2017-0104                                                    9

       N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804

       (1978), paragraph three of the syllabus.

       State v. Thomas, 152 Ohio St.3d 15, 92 N.E.3d 821, 2017–Ohio–8011, ¶¶ 32–34.



       {¶17} Appellant was convicted of two counts of theft in violation of R.C.

2913.02(A)(1), which provides, “No person, with purpose to deprive the owner of property

or services, shall knowingly obtain or exert control over either the property or services

….[w]ithout the consent of the owner or person authorized to give consent.” Count Six of

the indictment alleged Appellant took six firearms, while Count Seven alleged he took a

six-string Taylor guitar from an elderly person.

       {¶18} In State v. Skapik, 2nd Dist. Champaign No. 2015-CA-5, 2015-Ohio-4404,

42 N.E.3d 790, the defendant was convicted of four separate theft counts for stealing a

bulletproof vest, two firearms, and other items from a deputy sheriff’s vehicle. The court

concluded this conduct constituted a single offense committed with a single animus

resulting in a single harm against a single victim, and thus under Ruff, supra, the theft

offenses were allied offenses. Id. at ¶13.

       {¶19} The facts as set forth in the recitation of facts at the time Appellant entered

his guilty plea demonstrate Appellant took all six firearms and the guitar from the victim’s

home on the same night. Appellant has demonstrated a reasonable probability had

counsel raised an allied offense claim as to the two counts of theft, the offenses would

have been found to be allied offenses of similar import. We find plain error in the failure

to merge the two counts of theft.
Muskingum County, Case No. CT2017-0104                                                  10


      {¶20} Appellant further was convicted of aggravated robbery in violation of R.C.

2911.01(A)(1), which provides:




             (A)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[.]




      {¶21} This Court has previously found theft counts should merge with an

aggravated robbery conviction. See State v. Lewis, 5th Dist. Richland No. 15 CA 106,

2016-Ohio-7002, 72 N.E.3d 48, ¶27 (merged theft offenses should have been merged

with aggravated robbery occurring during the same home invasion); State v. Lewis, 5th

Dist. Licking No. 15 CA 106, 2016-Ohio-7002, 72 N.E.3d 48, ¶¶ 25-27 (robbery and theft

convictions should merge where both offenses stemmed from appellant’s shoplifting of

the same items).

      {¶22} In the instant case, Appellant’s aggravated robbery conviction stemmed

from the same incident in which he entered the victim’s home and stole six firearms and

a guitar. The thefts were part and parcel to the conduct of Appellant that formed the basis

of his conviction for aggravated robbery. Based on case precedent from this Court,

Appellant has demonstrated a reasonable probability had counsel argued the offenses
Muskingum County, Case No. CT2017-0104                                                 11


were allied, the result of the sentencing proceeding would have been different as to those

convictions. We therefore find plain error in failing to merge the theft offenses and the

aggravated robbery conviction.

      {¶23} Appellant was also convicted of kidnapping in violation of R.C.

2905.01(A)(2), which provides:




             (A) No person, by force, threat, or deception, or, in the case of a

      victim under the age of thirteen or mentally incompetent, by any means,

      shall remove another from the place where the other person is found or

      restrain the liberty of the other person, for any of the following purposes:

             (2) To facilitate the commission of any felony or flight thereafter[.]




      {¶24} In State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979), at the

syllabus, the Ohio Supreme Court established a framework to analyze whether

kidnapping and another offense were committed with a separate animus as to each

pursuant to R.C. 2941.25(B):

             (a)Where the restraint or movement of the victim is merely incidental

      to a separate underlying crime, there exists no separate animus sufficient

      to sustain separate convictions; however, where the restraint is prolonged,

      the confinement is secretive, or the movement is substantial so as to

      demonstrate a significance independent of the other offense, there exists a
Muskingum County, Case No. CT2017-0104                                                       12


       separate animus as to each offense sufficient to support separate

       convictions;

              (b)Where the asportation or restraint of the victim subjects the victim

       to a substantial increase in risk of harm separate and apart from that

       involved in the underlying crime, there exists a separate animus as to each

       offense sufficient to support separate convictions.




       {¶25} Applying Logan, this Court found in State v. Small, 5th Dist. Delaware No.

10CAA110088, 2011-Ohio-4086 the defendant’s commission of kidnapping was merely

incidental to aggravated burglary where he took the victims to another room and tied them

up in order to commit the aggravated burglary. The kidnapping was part and parcel of

the burglary, the restraint of movement had no significance apart from facilitating the

commission of the burglary, and the restraint did not subject the victims to a substantial

increase in the risk of harm separate from that involved in the underlying crime. Id. at

¶95.

       {¶26} The facts as set forth in the guilty plea transcript demonstrate a reasonable

probability the offense of kidnapping was allied to the aggravated robbery charge.

Appellant took the victim from the toilet, walked him to a chair in the living room, and told

the victim to sit in the chair. Appellant tied the victim’s feet with an electric extension cord

and pushed the chair, with the victim in it, to the bedroom. The chair would not fit through

the bedroom door, so Appellant took the victim out of the chair, placed him on the bed,

and pushed him backwards.          Appellant tied the victim’s hands together, and used

packaging tape to cover his mouth. During this time, Appellant yelled for the keys to the
Muskingum County, Case No. CT2017-0104                                                 13


safe. The limited record before this court demonstrates a reasonable probability the

kidnapping was part and parcel of the aggravated robbery and the restraint of the victim’s

movement had no significance apart from facilitating the commission of the aggravated

robbery.    Nor does the record demonstrate the restraint subjected the victim to a

substantial increase in the risk of harm separate from that involved in the underlying

crime.

         {¶27} However, because appellant failed to raise this issue, the State was not

placed on notice of a need to place in the record potential additional facts which might

demonstrate the restraint of movement had significance apart from facilitating

commission of the aggravated robbery, or the restraint subjected the victim to a

substantial increase in the risk of harm separate from that involved in the underlying

crime. We therefore remand to the trial court for further hearing on the issue of whether

the kidnapping conviction should merge with the aggravated robbery conviction.

         {¶28} Appellant was also convicted of felonious assault in violation of R.C.

2903.11(A)(2), which provides no person shall knowingly cause or attempt to cause

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

         {¶29} In State v. Napier, 5th Dist. Muskingum No. CT2015-0044, 2016-Ohio-

2967, ¶ 32, we found the offenses of felonious assault and aggravated robbery did not

merge:




               We find Appellant caused separate identifiable harm in the

         commission of both the felonious assault offense and the offense of

         aggravated robbery. First, Appellant committed felonious assault when he
Muskingum County, Case No. CT2017-0104                                                 14


       struck Thompson in the mouth causing serious physical harm by knocking

       out Thompson's tooth. Thereafter, Appellant committed aggravated

       robbery, by using a deadly weapon while taking Thompson's money. We

       find separate harm resulted from each offense. Accordingly, we find the trial

       court did not error in convicting and sentencing Appellant on both the

       offense of felonious assault and the offense of aggravated robbery.




       {¶30} In the instant case, Appellant has not demonstrated a reasonable probability

the offense of felonious assault would have merged with the remaining charges. The

charge of aggravated robbery was completed when Appellant attempted to commit the

theft and brandished the knife. Subsequently, hitting the victim in the head with the

firearm caused a risk of harm to the victim separate and distinct from the aggravated

robbery, kidnapping, or theft offenses. The record does not suggest the felonious assault

was part and parcel of the remaining charges.           Accordingly, Appellant has not

demonstrated plain error in failing to merge the offense of felonious assault with any of

the other offenses.

       {¶31} The first assignment of error is sustained as to the sentences for theft,

aggravated robbery and kidnapping, but overruled as to the sentence of felonious assault.

                                                II

       {¶32} Appellant’s second assignment of error is rendered moot by our disposition

of his first assignment of error.

       {¶33} Appellant’s convictions on all charges and the firearm specification are

affirmed. The sentence is vacated as to the remaining charges and this case is remanded
Muskingum County, Case No. CT2017-0104                                                   15


to the trial court for a hearing on the issue of whether the kidnapping offense should merge

with aggravated robbery as an allied offense of similar import, and for resentencing in

accordance with such determination and with our decision regarding merger of the thefts

and aggravated robbery offenses.




By: Hoffman, P.J.

Delaney, J. and

Wise, Earle, J. concur
