[Cite as State v. Jackson, 2014-Ohio-3583.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100125




                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                               CLIFFORD D. JACKSON
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED

                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-11-551409-A

        BEFORE: Keough, P.J., E.T. Gallagher, J., and Stewart, J.
      RELEASED AND JOURNALIZED:   August 21, 2014


ATTORNEY FOR APPELLANT

Britta M. Barthol
P.O. Box 218
Northfield, Ohio 44067


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brian McDonough
       Stephanie N. Hall
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, P.J.:

       {¶1} Defendant-appellant, Clifford Jackson, appeals his convictions and sentence.

For the reasons that follow, we affirm.

       {¶2} In 2012, Jackson was charged in a 21-count indictment for crimes associated

with a 2011 home invasion that resulted in the shooting death of David Thompson

(“David”). Those charges included aggravated murder, in violation of R.C. 2903.01(A)

and (B) (Counts 1 and 2), aggravated burglary, in violation of R.C. 2911.11(A)(1) and (2)

(Counts 3 and 4), kidnapping, in violation of R.C. 2905.01(A)(3) (Counts 5 through 12),

attempted aggravated murder, in violation of R.C. 2923.02 and 2903.01(A) and (C)

(Counts 13 through 19); and having weapons while under disability, in violation of R.C.

2923.13(A)(2) and (3) (Counts 20 and 21). Accompanying a majority of these charges

were various specifications, including notice-of-prior conviction, repeat violent offender,

and one- and three-year firearm specifications

       {¶3} The case proceeded to trial where Jackson waived his right to a jury on the

notice-of-prior conviction and repeat violent offender specifications, and Counts 20 and

21 — having weapons while under disability. The remaining counts were tried to the

jury where the following evidence was considered.
       {¶4} In the early morning hours of June 10, 2011, Donna D. Luster (“Donna D.”)

was at the home of her parents with her son and daughter. She was talking on the phone

and sitting in the front room with her son and her sisters, Bernadette Luster

(“Bernadette”) and Gloria Luster (“Gloria”), when suddenly Jackson, Donna D.’s

ex-boyfriend, barged into the home wielding a gun. He immediately questioned who she

was on the phone with and stated that “everybody in this bitch about to die.” Jackson

smacked her in the face with the gun about three times while saying “Bitch I’m going to

kill you. You’re going to die.” She stated that she saw her mother’s boyfriend, David,

exit the bedroom and that Jackson immediately shot David in the face. When she

questioned Jackson why he was doing this, he hit her with the gun again.

       {¶5} Donna D. testified that when Gloria tried to help her, Jackson hit Gloria in the

head with the gun. After Donna D. and Gloria retreated to the bedroom, Jackson kicked

in the door even though Gloria was trying to hold the door shut. Jackson pushed Donna

D. onto the bed and repeatedly stabbed her in the head with a knife. After Gloria pushed

Jackson off of her, the knife fell, and Donna D. ran to the kitchen. Jackson ran after her,

and when he saw Bernadette, Jackson pointed the gun at Bernadette, spun the barrel of

the gun, and pulled the trigger; the gun did not fire.

       {¶6} Donna D. then ran to her mother’s room and hid in the closet with her

mother. Jackson entered the bedroom, stood on the bed, and pointed the gun at them
while saying, “you bitches about to die.” Donna D., fearing for her mother’s safety,

charged at Jackson, and they began fighting. Donna D. chased after Jackson as he tried

to run after her mother, but Jackson struck Donna D. in the head with the gun again,

causing her to fall. After she got up off the floor, Donna D. climbed out of her mother’s

window and hid in her neighbor’s garage. While hiding, she saw Jackson by the side of

the house lifting his bicycle over the fence. Jackson then climbed over the fence and left

the area. Two days later, Jackson was arrested without incident after he was seen riding

his bicycle.

       {¶7} A 911 call placed by Gloria was played for the jury where Gloria can be

heard telling the dispatcher that “he’s trying to shoot my sister.” Gloria testified that

when Jackson was trying to shoot her sister, she “rushed” at him, and he struck her with

the butt of the gun on the left side of her face, which caused her to fall to the floor. After

getting up, she and Donna D. ran to a bedroom, where Jackson stabbed Donna D. in the

head with a knife. When Gloria rushed at Jackson again and the knife fell, Jackson

chased her into another bedroom. Although Gloria tried to hold the door shut, Jackson

wedged his arm in the doorway, while pointing and clicking the gun, but it did not fire.

Once Jackson left, she ran to the downstairs neighbor.
       {¶8} Gloria told the jury that Jackson was trying to shoot all of them, but the gun

did not discharge. According to Gloria, Jackson was saying “Bitch ya’ll going to die.

All ya’ll bitches going to die.”

       {¶9} Bernadette testified that when Jackson burst through the door, she saw

Jackson with a gun in his hand, and she immediately ran into her parents’ bedroom to tell

them that Jackson was in the house. According to Bernadette, her parents left the room,

with her father, David exiting first. When David asked “What’s going on?”— Jackson

responded, “This is what’s going on,” and shot David in the face.

       {¶10} After David was shot, Bernadette ran to her bedroom and put the children,

including her niece and Donna D.’s son and daughter, into the bedroom closet and pushed

the bed up against the closet door. Bernadette testified that as she ran to the kitchen,

Jackson pointed the gun at her and pulled the trigger, but it did not fire. She stated that

she hid in a closet until she did not hear any further commotion, then she climbed out of

the second-floor window. She eventually went back into the house and took the children

downstairs to the neighbors. On cross-examination, Bernadette admitted that she did not

tell the police that Jackson tried to shoot her.

       {¶11} Donna D.’s mother, Donna Luster (“Donna”) testified that when she and

David came out of their bedroom, Jackson shot David in the face. She stated that

Jackson then tried to shoot her, but the gun did not fire. She stated that Jackson was
“clicking” it — meaning that he was pulling the trigger. Donna testified that she ran into

her bedroom. She was hiding in her closet with Donna D. when Jackson stood on the

bed stating that he was “going to kill us.” Donna testified that after she escaped out of

the bedroom, she went to the downstairs neighbor, who called 911.

         {¶12} The jury also heard testimony from all three of the children who were

present in the house. They all stated they heard screaming while hiding in the closet.

         {¶13} Additionally, the 911 calls that were placed by neighbors were played for

the jury. Each neighbor testified regarding the circumstances surrounding the calls, that

they heard females screaming, and heard either a loud thump or a gunshot.

         {¶14} Terence Richardson, a former inmate at the county jail with Jackson,

testified that while he was in jail, Jackson told him about the murder. According to

Richardson, Jackson stated that someone tried to intervene and “found himself dead.”

The jury further heard that Richardson was facing nine charges for a total possible

sentence of 60 years in prison, but after he contacted the police with the information he

had in Jackson’s case, he pled guilty to one charge and received a sentence of seven

years.

         {¶15} Medical examiner Dr. Thomas Gilson testified that he signed off on the

autopsy of David.     Based on the stippling around the gunshot entrance wound and

fouling, Gilson opined that the barrel of the gun was approximately five to seven inches
away from David’s face. Gilson testified that the cause of death was a gunshot wound

through the cheek of David that passed through the brain and the manner of death was

homicide.

       {¶16} Following the state’s presentation of its case, the court granted Jackson’s

Crim.R. 29 motion for judgment of acquittal on Counts 5 (kidnapping), 13 (attempted

aggravated murder), and 15 (attempted aggravated murder).

       {¶17} Jackson called two witnesses in his defense — Ronald Shobert, the warden

of the Cuyahoga County Jail, and Michelle Johnson, a certified fingerprint examiner at

the Cleveland Police Department. Shobert testified that Jackson had written a letter

dated March 29, 2012, to inform the department that legal documents pertaining to his

case had been taken from his jail cell, which included discovery documents. Shobert

testified that those documents were never recovered.

       {¶18} Johnson testified that Jackson’s fingerprints were not found on the ginger

ale soda bottle or on the knife recovered, even though various witnesses testified to seeing

Jackson drink from the soda bottle. Johnson admitted that overlapping of fingerprints

on both the bottle and the knife could have distorted any identifiable prints.

       {¶19} The trial court denied Jackson’s renewed Crim.R. 29 motion for judgment of

acquittal, and the case was submitted to the jury on the remaining counts, including the

state’s request for the lesser included offense of murder to be considered.
       {¶20} The jury found Jackson not guilty of Count 14 (attempted aggravated

murder). The jury also found Jackson not guilty of Count 1, aggravated murder, but

guilty of the lesser-included offense of murder. The jury also found Jackson guilty of all

the remaining counts — Count 2 (aggravated murder), Counts 3 and 4 (aggravated

burglary), Counts 6 through 12 (kidnapping), and Counts 16 through 19 (attempted

aggravated murder). Additionally, the jury found Jackson guilty of all the attendant one-

and three-year firearm specifications.    The trial court found Jackson guilty of both

Counts 20 and 21, having weapons while under disability, and also the

notice-of-prior-conviction and repeat violent offender specifications.

       {¶21} Prior to sentencing, the court considered the issue of merging allied

offenses.   While Jackson maintained that all the offenses merged for sentencing

purposes, the state contended that Counts 1 and 2 merged, Counts 3 and 4 merged, Counts

6 and 16 merged, Counts 7 and 17 merged, Counts 9 and 18 merged, Counts 8 and 19

merged, and Counts 20 and 21 merged; all other counts were independent (Counts 10, 11,

and 12). The trial court agreed with the state, and the state elected that Jackson be

sentenced on Counts 2, 3, 16, 17, 18, 19, and 20, in addition to the other independent

counts.

       {¶22} Jackson was sentenced to two consecutive three-year firearm specifications

pursuant to R.C. 2929.14(B)(1)(g) to be served consecutive and prior to all other
sentences.    He was sentenced to life in prison without parole on Count 2, to run

concurrently with the ten-year, concurrent sentences on each of Counts 3, 10, 11, 12, 16,

17, 18 and 19, and the three-year sentence on Count 20.

       {¶23} Jackson appeals, raising six assignments of error.

                              I. Sufficiency of the Evidence

       {¶24} In his first assignment of error, Jackson contends that the evidence was

insufficient as a matter of law to support a finding beyond a reasonable doubt that he was

guilty of attempted aggravated murder, as charged in Counts 16, 17, 18, and 19 of the

indictment. Specifically, he challenges the element that he acted with prior calculation

and design.

       {¶25} The test for sufficiency requires a determination of whether the prosecution

met its burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

2009-Ohio-3598, ¶ 12. An appellate court’s function when reviewing the sufficiency of

the evidence to support a criminal conviction is to examine the evidence admitted at trial

to determine whether such evidence, if believed, would convince the average mind of the

defendant’s guilt beyond a reasonable doubt. The relevant inquiry is whether, after

viewing the evidence in a light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997).
      {¶26} Counts 16, 17, 18, and 19 charged Jackson with attempted aggravated

murder, which is defined as purposely attempting, and with prior calculation and design,

to cause the death of another. R.C. 2923.02 and 2903.01(A). The victims identified

under each count were Donna D., Donna, Gloria, and Bernadette.

      {¶27}    Prior calculation and design “indicates studied care in planning or

analyzing the means of the crime as well as a scheme encompassing the death of the

victim.” State v. Taylor, 78 Ohio St.3d 15, 19, 676 N.E.2d 82 (1997). The Revised

Code does not define “prior calculation and design,” but the Ohio Supreme Court

      [h]as interpreted the phrase to require evidence of “more than the few
      moments of deliberation permitted in common law interpretations of the
      former murder statute, and to require a scheme designed to implement the
      calculated decision to kill.” State v. Cotton, 56 Ohio St.2d 8, 11, 381
      N.E.2d 190. While “‘[n]either the degree of care nor the length of time the
      offender takes to ponder the crime beforehand are critical factors in
      themselves,” momentary deliberation is insufficient. State v. D’Ambrosio,
      67 Ohio St.3d 185, 196, 1993-Ohio-170, 616 N.E.2d 909, quoting the 1973
      Legislative Service Commission Comment to R.C. 2903.01.

State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 38.

      {¶28} The existence of prior calculation and design is determined on a

case-by-case analysis of the facts and evidence. State v. Jones, 91 Ohio St.3d 335, 345,

744 N.E.2d 1163 (2001). Although there is no bright-line test for determining prior

calculation and design, the Ohio Supreme Court has found that several factors, including

whether the accused and the victim knew each other, whether there was thought or
preparation in choosing the murder weapon or murder site, and whether the act was

“drawn out” or “an almost instantaneous eruption of events” should be weighed with the

totality of the circumstances surrounding the murder to determine whether there was prior

calculation and design. Taylor; State v. Jenkins, 48 Ohio App.2d 99, 102, 355 N.E.2d

825 (8th Dist.1976).

      {¶29} In this case, considering these factors and the totality of the circumstances,

we find that construing the evidence in a light most favorable to the prosecution, there

was sufficient evidence of prior calculation and design. This was not a sudden eruption

of events, but rather a pre-calculated drawn out event where Jackson burst into the

residence of his ex-girlfriend’s parents and sisters with a gun and the intent to kill. He

immediately started hitting Donna D. in the head with the butt of the gun, and Jackson

repeatedly stated during the entire home invasion that everyone was going to die.

Furthermore, he chased each victim throughout the house, pointed the gun at each victim,

and pulled the trigger. At one point, he hit Gloria in the head with the gun when she

tried to help her sister. He additionally grabbed a knife from the kitchen and repeatedly

stabbed Donna D. in the head. He terrorized the occupants with threats of violence and

acts of violence, including breaking through doors, stabbing Donna D., pistol-whipping

both Donna D. and Gloria, attempting to shoot each occupant of the house, and ultimately

murdering David.
       {¶30}    Accordingly, viewing the evidence in a light most favorable to the

prosecution, we find that more than sufficient evidence was presented supporting

Jackson’s convictions for attempted aggravated murder. Jackson’s first assignment of

error is overruled.

                           II. Manifest Weight of the Evidence

       {¶31} In his second assignment of error, Jackson contends that his convictions for

aggravated murder, murder, aggravated burglary, kidnapping, attempted aggravated

murder, and having weapons while under disability were against the manifest weight of

the evidence.

       {¶32} “‘A manifest weight challenge * * * questions whether the prosecution met

its burden of persuasion.’”        State v. Ponce, 8th Dist. Cuyahoga No. 91329,

2010-Ohio-1741, ¶ 17, quoting State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356

(1982). The manifest-weight-of-the-evidence standard of review requires us to review

the entire record, weigh the evidence and all reasonable inferences, consider the

credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the

trier of fact clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. State v. Otten, 33 Ohio App.3d

339, 515 N.E.2d 1009 (9th Dist.1986), paragraph one of the syllabus. The discretionary

power to grant a new trial should be exercised only in exceptional cases where the
evidence weighs heavily against the conviction. Thompkins, 78 Ohio St.3d at 386, 678

N.E.2d 541.

      {¶33} Jackson argues that his convictions are against the manifest weight of the

evidence because there was no physical evidence linking him to the crime. Specifically,

Jackson focuses on the fact that neither his DNA nor fingerprints were detected on the

knife identified as the weapon used to stab Donna D. or on the soda bottle that Jackson

allegedly drank from. However, although no physical evidence linking Jackson to these

items was detected, there was physical evidence placing Jackson at the crime scene.

      {¶34} Lisa Moore, from the Cuyahoga County Medical Examiner’s office, DNA

department, testified that she performed the DNA analysis on samples and items

recovered from the crime scene. She testified that the blood found on the front door’s

interior door knob was consistent with Jackson’s DNA profile. No testimony was given

that Jackson had ever injured himself on a prior occasion that would explain the presence

of his blood on the door knob.

      {¶35} Morever, as Johnson testified, overlapping contact on the soda bottle and

knife could have compromised any fingerprints. Considering that Donna D. had several

stab wounds to her head and both she and Gloria identified the knife that Jackson used,

Moore’s explanation about overlapping fingerprints was possible.
       {¶36} Jackson also contends his convictions were against the manifest weight of

the evidence because inconsistent testimony was given by the witnesses regarding the

clothing Jackson was wearing, the description of the gun, and whether David made a

statement to Jackson prior to being murdered.         He further argues that Richardson’s

testimony lacked credibility and reliability.

       {¶37} Under well-settled precedent, we are constrained to adhere to the principle

that the credibility of witnesses and the weight to be given to their testimony are matters

for the trier of fact to resolve. See State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d

212 (1967). Although we consider the credibility of witnesses in a manifest weight

challenge, we are mindful that the determination regarding witness credibility rests

primarily with the trier of fact because the trier of fact is in the best position to view the

witnesses and observe their demeanor, gestures, and voice inflections — observations that

are critical to determining a witness’s credibility. State v. Clark, 8th Dist. Cuyahoga No.

94050, 2010-Ohio-4354, ¶ 17, citing State v. Hill, 75 Ohio St.3d 195, 205, 661 N.E.2d

1068 (1996), and State v. Antill, 176 Ohio St. 61, 66, 197 N.E.2d 548 (1964). The trier of

fact is free to accept or reject any or all the testimony of any witness. State v. Smith, 8th

Dist. Cuyahoga No. 93593, 2010-Ohio-4006, ¶ 16.              As this court has previously

recognized, a defendant is not entitled to a reversal on manifest-weight grounds merely

because inconsistent evidence was presented at trial.         State v. Gaughan, 8th Dist.
Cuyahoga No. 90523, 2009-Ohio-955, ¶ 32, citing State v. Raver, 10th Dist. Franklin No.

02AP-604, 2003-Ohio-958, ¶ 21.

          {¶38} As the state correctly points out, the only conflicting evidence relates wholly

to immaterial information such as the specific outfit worn by Jackson or the gun he was

using. All material facts, including that Jackson was identified as the perpetrator, the

crimes he committed, the victims, and the location and sequence of the crimes, that were

actually relevant to the conviction remained static. Moreover, Richardson’s testimony

was not of great significance in Jackson’s conviction.           In fact, his testimony was

successfully discounted by the defense and the jury’s questions.

          {¶39} The jury’s verdict demonstrates that it considered all the evidence, weighed

the testimony of all the witnesses, and discounted and accepted testimony where the jury

determined it was appropriate. Accordingly, based on the record before us, we cannot

say that this is the exceptional case where the jury clearly lost its way in finding Jackson

guilty.

          {¶40} The second assignment of error is overruled.

                                  III. Flight Jury Instruction

          {¶41} In his third assignment of error, Jackson contends the trial court erred by

giving the jury a flight instruction.
          {¶42} The giving of jury instructions is within the sound discretion of the trial

court, and we review it for an abuse of discretion. State v. Howard, 8th Dist. Cuyahoga

No. 100094, 2014-Ohio-2176, ¶ 35, citing State v. Martens, 90 Ohio App.3d 338, 629

N.E.2d 462 (3d Dist.1993).

          {¶43} In this case, the trial court gave the following instruction to the jury on

flight:

          There may be evidence in this case to indicate the defendant fled from the

          scene of the crime. Flight does not in and of itself raise a presumption of

          guilt, but it may show consciousness of guilt or a guilty connection with the

          crime. If you find the defendant did flee from the scene of the crime, you

          may consider the circumstance in your consideration with the guilt or

          innocence of the defendant.

          {¶44} Similar versions of this flight instruction have been upheld by this court in

numerous cases, including State v. Gibson, 8th Dist. Cuyahoga No. 98725,

2013-Ohio-4372, State v. Vanderhorst, 8th Dist. Cuyahoga No. 97242, 2012-Ohio-2762,

¶ 55, and State v. Hamilton, 8th Dist. Cuyahoga No. 86520, 2006-Ohio-1949. However,

the instructions given in those cases were upheld because the evidence demonstrated that

the instruction was warranted.
       {¶45} “‘[A] mere departure from the scene of the crime is not to be confused with

deliberate flight from the area in which the suspect is normally to be found.’” State v.

Santiago, 8th Dist. Cuyahoga No. 95516, 2011-Ohio-3058, ¶ 30, quoting State v.

Norwood, 11th Dist. Lake Nos. 96-L-089 and 96-L-090, 1997 Ohio App. LEXIS 4420

(Sept. 30, 1997).

       {¶46} In Norwood, the court found that the flight instruction was error, albeit

harmless error, because the defendant did not “leave the general area in which he may

have normally been found. Additionally, we do not equate appellant’s attempt to hide in

[a friend’s] kitchen with flight.” Id. at *15. The court further found that “the facts are

also insufficient to justify a flight instruction because appellant did not flee to a situs

where he could not have been easily located.” Id. at *15-16. Accordingly, it must be

clear that the defendant took affirmative steps to avoid detection and apprehension

beyond simply not remaining at the scene of the crime.

       {¶47} Recently this court held in State v. Johnson, 8th Dist. Cuyahoga No. 99715,

2014-Ohio-2638, ¶ 110, that the defendant’s conduct of leaving the scene of the crime did

not warrant a flight instruction because there was no evidence of deliberate flight in the

sense of evading police. See also State v. Wesley, 8th Dist. Cuyahoga No. 80684,

2002-Ohio-4429 (flight instruction not warranted based on insufficient evidence).
       {¶48} Much like in Johnson, the evidence in this case did not warrant a flight

instruction. Jackson’s leaving the scene was not deliberate flight in the sense of evading

police and detection. In fact, Detective Jeff Sampson testified that after Jackson was

identified as the suspect, he did not make any effort to locate him.     Furthermore, Officer

Daniel Rescina testified that when Jackson was arrested two days following the murder,

he was arrested without fleeing, resisting, or protesting in any way. There was no

evidence presented that Jackson fled to a location where he could not be located or that he

evaded police once detected. Accordingly, we find the trial court abused its discretion

instructing the jury on flight.

       {¶49} Despite the court’s error, we cannot say, nor has Jackson demonstrated,

that the error was prejudicial. “A reviewing court may not reverse a conviction in a

criminal case due to jury instructions unless it is clear that the jury instructions constituted

prejudicial error.”       State v. McKibbon, 1st Dist. Hamilton No. C-010145,

2002-Ohio-2041, ¶ 4, citing State v. Adams, 62 Ohio St.2d 151, 154, 404 N.E.2d 144

(1980). In order to determine whether an erroneous jury instruction was prejudicial, a

reviewing court must examine the jury instructions as a whole. State v. Harry, 12th Dist.

Butler No. CA2008-01-013, 2008-Ohio-6380, ¶ 36, citing State v. Van Gundy, 64 Ohio

St.3d 230, 233-234, 594 N.E.2d 604 (1992). “A jury instruction constitutes prejudicial

error where it results in a manifest miscarriage of justice.” State v. Hancock, 12th Dist.
Warren No. CA2007-03-042, 2008-Ohio-5419, ¶ 13. Conversely, “[a]ny error, defect,

irregularity, or variance which does not affect substantial rights shall be disregarded.”

Crim.R. 52(A).

      {¶50} Reviewing the jury instructions as a whole, we cannot say that the trial

court’s instruction on flight was prejudicial, such that a manifest miscarriage of justice

occurred. The instruction given, although improper, allowed the jury to make its own

conclusions on flight and to consider whether Jackson left the scene and, if so, his

motivation for leaving. Thus, the instruction did not change the underlying facts of the

case; the instruction was harmless beyond a reasonable doubt.

      {¶51} Accordingly, we overrule Jackson’s third assignment of error.

                                  IV. Allied Offenses

      {¶52} In his fourth assignment of error, Jackson contends that the trial court erred

when it failed to merge all allied offenses.        Specifically, Jackson contends that

aggravated burglary is allied to the convictions for aggravated murder, kidnapping, and

attempted aggravated murder because they were committed with the same conduct and

animus.

      {¶53} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

the court held that a defendant’s conduct must be considered when determining whether
two offenses are allied offenses of similar import subject to merger under R.C. 2941.25.

Johnson at ¶ 44. Thus,

       a defendant can be convicted and sentenced on more than one offense if the
       evidence shows that the defendant’s conduct satisfies the elements of two or
       more disparate offenses. But if the conduct satisfies elements of offenses
       of similar import, then a defendant can be convicted and sentenced on only
       one, unless they were committed with separate intent.

State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, 922 N.E.2d 937, ¶ 36 (Lanzinger,

J., concurring in part and dissenting in part).

       {¶54} In other words,

       [i]f 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.

Johnson at ¶49-50, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895

N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting).

       {¶55} In this case, Jackson was convicted of aggravated burglary in violation of

R.C. 2911.11(A)(1), aggravated murder in violation of R.C. 2903.01(B); and seven counts

of kidnapping in violation of R.C. 2905.01(A)(3).

       {¶56} Jackson contends that the crimes of aggravated burglary and kidnapping

were committed simultaneously and arose out of the same conduct such that the

kidnapping against the victim occurred only to facilitate the aggravated burglary.
       {¶57} Jackson also claims that the crimes of aggravated burglary and aggravated

murder were committed with the same conduct and animus because the aggravated

burglary was not complete until the aggravated murder was committed. Specifically, he

argues that the conduct relied upon to establish the physical harm in the aggravated

murder was the same as the conduct relied upon by the state to establish the “physical

harm” element for aggravated burglary. While this may have been true for the guilt

phase of trial; the state is not bound to this theory at sentencing.

       {¶58} The Supreme Court recently decided State v. Washington, 137 Ohio St.3d

427, 2013-Ohio-4982, 999 N.E.2d 661, that held that “[m]erger is a sentencing question,

not an additional burden of proof shouldered by the state at trial.” Id. at ¶ 18. In

reversing the appeals court, the Ohio Supreme Court held,

       when deciding whether to merge multiple offenses at sentencing pursuant to
       R.C. 2941.25, a court must review the entire record, including arguments
       and information presented at the sentencing hearing, to determine whether
       the offenses were committed separately or with a separate animus. The
       court of appeals erred by looking solely to what it perceived as the state’s
       theory of the case at trial and by refusing to consider the information
       presented at the sentencing hearing.

Id. at ¶ 24.

       {¶59} The crime of aggravated burglary was complete moments after Jackson

invaded the home. As soon as Jackson forced his way through the door, he immediately

struck Donna D. in the head with the butt of the gun.              These actions constituted
aggravated burglary and were separate from the subsequent crimes of attempted

aggravated murder (stabbing Donna D. in the head with a knife or trying to shoot Donna

D., Gloria, Bernadette, or Donna), aggravated murder of David, and kidnapping (chasing,

terrorizing, and restraining the liberty of the other seven occupants of            house).

Jackson’s animus was separate and distinct for each crime after he initially forced his way

into the house with the purpose to harm Donna D.

       {¶60} Accordingly, aggravated burglary did not merge with any of the other

offenses for sentencing purposes. Jackson’s fourth assignment of error is overruled.

                                       V. Sentence

       {¶61} In his fifth assignment of error, Jackson contends that the trial court abused

its discretion when it imposed a sentence of life without parole. Jackson contends that

the trial court did not consider the factors set out in R.C. 2929.12 regarding mitigation of

his conduct, specifically, that the trial court did not consider his mental illness as a

mitigating factor.

       {¶62} As the state correctly points out, Jackson fails to recognize that the general

felony sentencing statutes are inapplicable to aggravated murder because “aggravated

murder is governed by a special statutory scheme, carries a mandatory punishment, is not

classified by degree of felony, and is expressly exempted from * * * sentencing
requirements inapplicable to felonies of lesser degrees.” State v. Hollingsworth, 143

Ohio App.3d 562, 567-568, 758 N.E.2d 713 (8th Dist.2001).

       {¶63} Jackson was convicted of aggravated murder pursuant to R.C. 2903.01(B),

which carries, in this particular case, a life sentence. R.C. 2929.02(A). Pursuant to R.C.

2929.03(A)(1)(a)-(d), the life sentence can either be without or with parole eligibility

after serving 20 to 30 years. In this case, Jackson was sentenced to life in prison, without

parole. Jackson concedes that his sentence falls within the statutory range for aggravated

murder.

       {¶64} R.C. 2953.08 governs review of felony sentencing. R.C. 2953.08(D)(3)

provides, “[a] sentence imposed for aggravated murder or murder pursuant to sections

2929.02 to 2929.06 of the Revised Code is not subject to review under this section.” The

Ohio Supreme Court has held that this is unambiguous: a sentence for aggravated murder

imposed pursuant to R.C. 2929.02 to 2929.06 cannot be reviewed. State v. Porterfield,

106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, citing Hollingsworth. Accordingly,

evidentiary review of a sentence imposed by a trial court pursuant to R.C.

2929.03(A)(1)(a) is precluded.

       {¶65} Even addressing Jackson’s argument that the trial court did not consider his

mental illness in imposing a life sentence on aggravated murder, we find that the trial

court addressed, considered, and factored in at length, Jackson’s mental illness when the
trial court discussed Jackson’s psychological report prepared by Dr. Fabian.

Accordingly, the record supports the sentence and is not contrary to law. Jackson’s fifth

assignment of error is overruled.

                                    VI. Imposition of Costs

          {¶66} In his sixth assignment of error, Jackson contends that the trial court abused

its discretion when it imposed court costs.

          {¶67} R.C. 2947.23(A)(1) governs the imposition of court costs and provides in

pertinent part: “In all criminal cases * * * the judge * * * shall include in the sentence

the costs of prosecution * * * and render a judgment against the defendant for such

costs.”

          {¶68} “R.C. 2947.23 does not prohibit a court from assessing costs against an

indigent defendant; rather it requires a court to assess costs against all convicted

defendants.” State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8.

In that case, the Ohio Supreme Court held that “a trial court may assess court costs

against an indigent defendant convicted of a felony as part of the sentence.” Id. at

paragraph one of the syllabus. Therefore, a “defendant’s financial status is irrelevant to

the imposition of court costs.” State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006,

871 N.E.2d 589, ¶ 3.
        {¶69} However, court costs may be waived at the discretion of the court if the

court first determines that the defendant is indigent. White at ¶ 14. The “indigent

defendant must move a trial court to waive payment of costs at the time of sentencing. If

the defendant makes such a motion, then the issue is preserved for appeal and will be

reviewed under an abuse-of-discretion standard. Otherwise, the issue is waived and costs

are res judicata.” State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164,

¶ 23.

        {¶70} In this case, Jackson moved the trial court for waiver of court costs and filed

the appropriate affidavit of indigency. While the trial court found Jackson indigent for

purposes of appeal, the court ordered that Jackson pay for the court costs associated with

the case by specifically ordering, “I’m going to impose the court cost on Mr. Jackson. * *

* He’s got to pay for crimes like these.” (Tr. 1364-1367.)

        {¶71} While Jackson was declared indigent for appeal purposes and is serving a

life sentence, the trial court’s decision ordering him to pay costs was not an abuse of

discretion.     Unlike in State v. Phillips, 2d Dist. Montgomery No. 23252,

2009-Ohio-5305, *3, where the Second District held that an “indiscernible record” may

have led the trial court to conclude it did not have the authority to waive costs, the trial

court here was fully apprised of Jackson’s request to waive costs, that he had been in jail

pending trial, and that he was receiving a life sentence. The court felt the assessment of
costs was appropriate in this case, and nothing in the record shows this decision was

arbitrary, unconscionable, or unreasonable. Costs for criminal cases that are assessed at

sentencing “are not punishment, but more akin to a civil judgment for money.” Threatt,

108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, at ¶ 15. “The state may use any

collection method that is available * * * to collect from a prisoner’s account.” Id at ¶ 24.

 Accordingly, we do not find that the trial court abused its discretion in imposing court

costs against Jackson, and his sixth assignment of error is overruled.

       {¶72} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR
