[Cite as State v. Sanders, 2013-Ohio-4824.]




          IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                            :

        Plaintiff-Appellee                               :        C.A. CASE NO.     25505

v.                                                       :        T.C. NO.   11CR4311

AISHA SANDERS                                            :        (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                    :

                                                         :

                                              ..........

                                              OPINION

                         Rendered on the           1st       day of      November         , 2013.

                                              ..........

CARLEY J. INGRAM, Atty. Reg. No. 0020084, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Blvd., Springboro,
Ohio 45066
      Attorney for Defendant-Appellant

                                              ..........

FROELICH, J.

        {¶ 1} Aisha Sanders was found guilty on her no contest pleas to aggravated murder

(prior calculation and design), aggravated murder (felony murder), aggravated robbery

(deadly weapon), aggravated robbery (serious physical harm), and tampering with evidence.
                                                                                          2

At sentencing, the trial court merged the two aggravated murder charges and the two

aggravated robbery charges, and sentenced Sanders to 25 years to life for aggravated murder

(prior calculation and design), three years for aggravated robbery (serious physical harm),

and 36 months for tampering with evidence. The tampering with evidence sentence was to

run concurrently with the other sentences, but the court ordered the aggravated robbery

sentence to run consecutively to the aggravated murder sentence, for an aggregate sentence

of 28 years to life in prison.

        {¶ 2}    Sanders appeals from her conviction, claiming that the trial court erred in

failing to consider merging the aggravated murder and aggravated robbery counts as allied

offenses of similar import.

        {¶ 3}     R.C. 2941.25 provides that:

                (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.

        {¶ 4}     “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
                                                                                          3

considered.” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 106,

syllabus. The Ohio Supreme Court explained:

               * * * [T]he 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. * * * If the offenses correspond

       to such a degree that the conduct of the defendant constituting commission of

       one offense constitutes commission of the other, then the offenses are of

       similar import.

               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.” * * *

               If the answer to both questions is yes, then the offenses are allied

       offenses of similar import and will be merged.

               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.

(Citations and quotations omitted.) Johnson at ¶ 47–51.

       {¶ 5}   The defendant bears the burden to prove entitlement to merger. State v.

Jackson, 2d Dist. Montgomery No. 24430, 2012-Ohio-2335, ¶ 134, citing State v. Thomas,

10th Dist. Franklin No. 10AP–557, 2011-Ohio-1191, ¶ 16. Sanders did not ask the trial

court to merge the aggravated murder and aggravated robbery charges as allied offenses of
                                                                                            4

similar import. Accordingly, we review the trial court’s decision for plain error.

       {¶ 6}    In Jackson, we stated that aggravated murder and aggravated robbery “each

requires an act of violence, and it is possible that the victim could die from the serious

physical harm inflicted in the course of the aggravated robbery, resulting in the victim’s

murder. Thus, it is possible to commit murder under R.C. 2903.02(B) and aggravated

robbery under R.C. 2911.01(A)(3) with the same conduct.” Id. at ¶ 139. The same is true

with respect to aggravated murder under R.C. 2903.02(A) and aggravated robbery under

R.C. 2911.01(A)(3). Because it is possible to commit aggravated murder and aggravated

robbery with the same conduct, we must examine Sanders’s conduct to determine whether

she did, in fact, commit the two offenses with the same conduct and the same animus.

Johnson at ¶ 50–51.

       {¶ 7}     As an initial matter, Sanders asserts that the record is inadequate for us to

conduct a meaningful evaluation of whether her aggravated murder and aggravated robbery

charges should have merged. She asks us to remand the matter to the trial court for “a

proper analysis of the facts to determine whether or not these counts should merge for the

purpose of sentencing.”

       {¶ 8}    Sanders entered no contest pleas in this case. Consequently, the underlying

facts of Sanders’s offenses were not elucidated through a trial. Nevertheless, the trial court

held a hearing on Sanders’s motion to suppress evidence, at which time the State offered

into evidence a DVD of Sanders’s oral confession to Detective Clymer of the Montgomery

County Sheriff’s Office and her written statements.       In addition, the parties submitted

sentencing memoranda and the court ordered a presentence investigation; that report is part
                                                                                          5

of the record. We conclude that the record contains sufficient information from which to

determine whether the trial court should have merged Sanders’s aggravated murder and

aggravated robbery charges for sentencing.

       {¶ 9}    “Several courts have held that, where the force used to effectuate an

aggravated robbery is far in excess of that required to complete the robbery, or where the

circumstances suggest that a separate intent to kill existed, the offenses of aggravated

robbery and murder do not merge.” Jackson at ¶ 140, citing State v. Diggle, 3d Dist.

Auglaize No. 2-11-19, 2012-Ohio-1583 (evidence of prior conflict with victim and

defendant's use of force in excess of that required to complete robbery found to demonstrate

separate animus for murder), State v. Ruby, 6th Dist. Sandusky No. S-10-028,

2011-Ohio-4864, ¶ 61 (beating of elderly, disabled victims demonstrated separate animus for

aggravated robbery and attempted murder, because the beating far exceeded that necessary to

effectuate the robbery), and State v. Tibbs, 1st Dist. Hamilton No. C-100378,

2011-Ohio-6716, ¶ 48 (shooting victim in face and head from close range during course of

aggravated robbery demonstrated a specific intent to kill).

       {¶ 10} According to record before us, Sanders beat her 87-year-old grandmother,

who had raised her and with whom she lived, with a frying pan in the kitchen of their home.

Sanders placed her grandmother in a bin that she got from the garage and put the bin in the

bathroom attached her grandmother’s bedroom. Sanders quickly cleaned the kitchen floor

and the frying pan and changed her clothes. She then took her grandmother’s television, left

in her grandmother’s car, and traded the television for crack cocaine. Sanders drove around

until her grandmother’s car ran out of gas. Sanders was located and apprehended by the
                                                                                             6

Ohio State Patrol.

       {¶ 11} During Sanders’s subsequent interview with Detective Clymer, Sanders

stated that she had checked her grandmother’s bank account balances and discovered that

there was no money left in the accounts. Sanders stated that she “hadn’t realized what

damage [she] had done * * * to the finances” due to her crack addiction. When Sanders

realized that they did not have enough money to eat, she took some of her grandmother’s

Ativan and smoked some crack.          At that time, Sanders thought that if she hit her

grandmother over the head with a frying pan, her grandmother “would pass on and she

[grandmother] wouldn’t have to deal with this.” Sanders planned to trade the television for

crack cocaine and then come home and commit suicide by running the car in the garage.

Sanders told the detective that she believed that she would only need to hit her grandmother

once, but she hit her grandmother “a few times after I put the towel over her” in order to kill

her.

       {¶ 12} The coroner’s report indicated that Sanders’s grandmother suffered multiple

blunt force traumas to the head, causing fractures of the skull; the coroner determined that

she was struck two or three times with a frying pan. She also had lacerations to the back

and lower left side of her head. Her right wrist and right hip were fractured; both injuries

occurred prior to her death.

       {¶ 13} Under the facts presented in this case, the trial court could have reasonably

concluded that Sanders’s use of force far exceeded that necessary to complete the robbery

and/or that she had a separate intent to kill her grandmother. Sanders’s statement to the

detective indicated that Sanders’s grandmother had fallen after being hit once, but Sanders
                                                                                           7

hit her repeatedly afterward. Sanders had also indicated that she had killed her grandmother

so that her grandmother “wouldn’t have to deal with” the financial problems Sanders had

created. Thus, the trial court did not err in when it did not merge the aggravated murder and

the aggravated robbery charges for sentencing.

       {¶ 14} Sanders’s assignment of error is overruled.

       {¶ 15} The trial court’s judgment will be affirmed.

                                        ..........

DONOVAN, J. and WELBAUM, J., concur.

Copies mailed to:

Carley J. Ingram
Marshall G. Lachman
Hon. Mary Katherine Huffman
