[Cite as State v. Sanders, 2012-Ohio-3566.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 97383




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                   WILLIAM SANDERS
                                                    DEFENDANT-APPELLANT




                              JUDGMENT:
                          AFFIRMED IN PART,
                    REVERSED IN PART AND REMANDED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                     Case No. CR-551265

        BEFORE: Keough, J., Celebrezze, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED: August 9, 2012
ATTORNEY FOR APPELLANT

Ruth Fischbein-Cohen
3552 Severn Road
Suite 613
Cleveland Hts., OH 44118

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Mary Court Weston
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
KATHLEEN ANN KEOUGH, J.:

       {¶1} Defendant-appellant, William Sanders, appeals from the trial court’s

judgment, rendered following a jury verdict, finding him guilty of aggravated robbery,

felonious assault, and discharge of a firearm. For the reasons that follow, we affirm the

findings of guilt, but reverse Sanders’s sentence and remand for resentencing.

       {¶2} In June 2011, Sanders was charged in a seven-count indictment with two

counts of aggravated robbery (Counts 2 and 3), two counts of felonious assault against

alleged victim Jason Furcsik (Counts 4 and 5), one count of felonious assault against

alleged victim James Butler (Count 6), one count of kidnapping (Count 1), and one count

of discharge of a firearm (Count 7). All counts contained one- and three-year firearm

specifications. The matter proceeded to a jury trial.

       {¶3} The jury heard testimony regarding an incident that occurred on May 24,

2011, around 11:45 p.m. in the area of West 83rd Street and Detroit Road in Cleveland.

The victim, Jason Furcsik, testified that while seated in his vehicle on West 83rd Street

and Detroit Road, he heard a man say to him, “[g]et out of the car or I’ll kill you.”

Furcsik then felt a gun pointed at the side of his head. He testified that he saw another

person on the passenger side of his car. When the person tried to open the passenger
door, Furcsik shifted his car into drive and sped away. As he started to drive away, the

gun was fired and Furcsik was shot in the leg.

       {¶4} James Butler was walking with his friend along Detroit Road when he

noticed two men running from an alley to a vehicle parked off West 83rd and Detroit.

He did not recognize the male who approached the driver’s side of the vehicle but heard

him tell the driver to “give me your money and everything in the car.” Butler testified

that he heard yelling and then saw a gun. Butler recognized the other male, whom he

knew as “Will,” and saw him approach the passenger’s side of Furcsik’s car. Butler

testified that he knew “Will” from the streets and had seen and talked with him on prior

occasions.   According to Butler, “Will” was trying to enter the vehicle from the

passenger side when the car sped off. He testified that the male with the gun shot once

as the vehicle sped off and, after making eye contact with Butler, shot the gun in his

direction. Butler then fled the scene on foot, locating a police cruiser in the area of West

65th Street and Detroit Road. He told the officers he had just witnessed a shooting on

West 83rd Street. Butler admitted on direct examination that out of fear for his safety, he

did not immediately disclose to the police that he knew one of the perpetrators.

However, after speaking with Detective Beverly Fraticelli, he disclosed the identity of the

man on the passenger side of Furcsik’s vehicle as “Will.”

       {¶5} Detective Fraticelli testified that she was assigned to investigate the shooting.

 Fraticelli learned that the possible suspect was named “Will” and obtained his physical
description — black male, age 19, about 5 foot 9 to 10 inches tall — that she gave to

Detective Robert Beveridge for further investigation.

      {¶6} Detective Beveridge testified that he utilized the police department’s Record

Marking System (“RMS”) to help determine the identity of “Will.” While interviewing

individuals in the West 83rd Street and Detroit Road area, he would run their names

through the RMS to find and identify any individuals associated with them. According

to Beveridge, his efforts led him to one person named “Will” — William Sanders. He

then ran Sanders’s name through the RMS and saw that his physical description matched

the physical description of “Will” given by Butler. From there, he ran Sanders’s name

and information in OHLEG (Ohio Law Enforcement Gateway) and printed out his

photograph.

      {¶7} From this photograph, the police prepared a photo array and conducted a

photo array identification with Butler. Butler positively identified Sanders’s photograph

as the male he knew as “Will” and the man who tried to gain access to Furcsik’s car

through the passenger door on May 24th. In open court, Butler also identified Sanders as

the person who was at the passenger’s door of Furcsik’s car that evening.

      {¶8} At the close of the State’s case, the trial court granted Sanders’s Crim.R. 29

motion for judgment of acquittal on the kidnapping charge. The jury found Sanders

guilty of both counts of aggravated robbery, Counts 4 and 5 of felonious assault, and

discharge of a firearm. Additionally, he was found guilty of the one- and three-year
firearm specifications corresponding to each count. The jury found Sanders not guilty of

Count 6, felonious assault against Butler.

       {¶9} At sentencing, the parties agreed that both counts of aggravated robbery

merged for sentencing, and the State elected that Sanders be sentenced on Count 2, with

the firearm specification; both counts of felonious assault merged, and the State elected

that Sanders be sentenced on Count 4. Sanders’s conviction for discharge of a firearm

stood on its own; thus it did not merge with any other count. Sanders was sentenced to

an aggregate prison term of six years.

       {¶10} Sanders appeals, raising three assignments of error.

                         I. Jury “Conviction” of Allied Offenses

       {¶11} In his first assignment of error, Sanders contends that “the jury erred to [his]

prejudice * * * in separately convicting him on allied offenses of similar import.” He

claims the jury violated his double jeopardy rights by “convicting” him of both

aggravated robbery and felonious assault.

       {¶12} As the State correctly argues, no error occurred because the jury cannot

“convict” a defendant; rather, the jury found him guilty of the separate offenses of

aggravated robbery and felonious assault. Sanders was not “convicted” until he was

sentenced by the trial court.

       {¶13} R.C. 2941.25(A) prohibits multiple punishments for the same conduct.

State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 10. “[F]or

purposes of R.C. 2941.25, a ‘conviction’ consists of a guilty verdict and the imposition of
a sentence or penalty.” (Emphasis deleted.) Id. at ¶ 12. Because there may be only one

conviction under R.C. 2941.25(A), “[a] defendant may be indicted and tried for allied

offenses of similar import, but may be sentenced on only one of the allied offenses.” Id.

at ¶ 17. The State retains the right to elect which allied offense to pursue at sentencing.

Id. at ¶ 20. Upon the State’s election, the court is required to “merge the crimes into a

single conviction for sentencing, * * * and impose a sentence that is appropriate for the

merged offense.” (Citation omitted.) Id. at ¶ 24. Although a defendant may not be

punished for both allied offenses, the finding of guilt remains intact, both before and after

the merger of allied offenses for sentencing. Id. at ¶ 27. Accordingly, Sanders’s first

assignment of error is overruled.

           II. Allied Offenses — Aggravated Robbery and Felonious Assault

       {¶14} In his second assignment of error, Sanders contends that the trial court erred

in separately convicting him on allied offenses of similar import. Again, Sanders argues

that his convictions for aggravated robbery and felonious assault are allied offenses; thus,

he should have only received one sentence.

       {¶15} The Ohio Supreme Court redefined the test for determining allied offenses

of similar import subject to merger under R.C. 2941.25 in State v. Johnson, 128 Ohio

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. The Johnson court expressly overruled

State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), which required a “comparison

of the statutory elements in the abstract” to determine whether the statutory elements of

the crimes correspond to such a degree that the commission of one crime will result in the
commission of the other. The Johnson court held that rather than compare the elements

of the crimes in the abstract, courts must consider the defendant’s conduct. Johnson at

syllabus. “If 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.’” Id., quoting State v. Brown, 119 Ohio St.3d

447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50, (Lanzinger, J., dissenting).                The

determination of whether offenses are allied is to be made prior to sentencing the

defendant. Johnson at ¶ 47. Moreover, the Ohio Supreme Court has found that the

failure to merge allied offenses of similar import constitutes plain error and a sentence

that contains an allied offense error is contrary to law. State v. Underwood, 124 Ohio

St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 26, 31, citing State v. Yarbrough, 104 Ohio

St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845; R.C. 2953.08(A)(4).

      {¶16} At sentencing, defense counsel and the State asserted that the two counts

of aggravated robbery merged for sentencing, the two counts of felonious assault merged

for sentencing, and the discharge of a firearm count did not merge with any other offense.

 In fact, it was defense counsel who initially set forth the offenses that he believed were

allied offenses.   Nevertheless, we do not find that defense counsel and the State’s

recommendation regarding allied offenses precludes our review, considering the Ohio

Supreme Court’s holding in Underwood that “R.C. 2953.08(D)(1) does not bar appellate

review of a sentence that has been jointly recommended by the parties and imposed by the
court when the sentence includes multiple convictions for offenses that are allied offenses

of similar import.” (Emphasis added.) Id. at ¶ 33.

       {¶17} Accordingly, we find that defense counsel and the State’s agreement as to

which offenses were allied and merged for sentencing does not preclude our plain error

review of this issue. To hold otherwise would effectively bind a defendant to any

misstatement of law or conclusion of law made by his defense counsel and then agreed to

by the State.        See, e.g., State v. Corbin, 8th Dist. No. 77079, 2001-Ohio-4140

(misstatement of maximum penalty, although agreed to by both defense counsel and the

State, warranted reversal of plea).

       {¶18} Sanders argues on appeal that all counts of aggravated robbery and felonious

assault are allied offenses and should have merged for sentencing and thus one sentence

should have been imposed. The trial court declared that both counts of aggravated

robbery merged with each other and both counts of felonious assault merged with each

other; thus Sanders was sentenced on one court of aggravated robbery and one count of

felonious assault.

       {¶19} Count 2 of the indictment charged Sanders with aggravated robbery in

violation of R.C. 2911.01(A)(1). The indictment stated that Sanders “did in attempting

or committing a theft offense * * * or fleeing immediately after the attempt or offense

upon Jason F. Furcsik did have a deadly weapon, to wit: a firearm and/or a handgun, on

or about [his] person or under [his] control and either displayed the weapon, brandished

it, indicated that [he] possessed it, or used it.”
       {¶20} Count 5 of the indictment charged Sanders with felonious assault in

violation of R.C. 2903.11(A)(2). The indictment stated that Sanders “did knowingly

cause or attempt to cause physical harm to Jason F. Furcsik by means of a deadly weapon

or dangerous ordnance, to wit: a firearm and/or a handgun.”

       {¶21} Count 3 charged Sanders with aggravated robbery, in violation of R.C.

2911.01(A)(3). The indictment stated that Sanders “did, in attempting or committing a

theft offense * * * or in fleeing immediately after the attempt or offense upon Jason F.

Furcsik did inflict, or attempt to inflict, serious physical harm on Jason F. Furcsik.”

       {¶22} Count 4 charged Sanders with felonious assault in violation of R.C.

2903.11(A)(1), which, as indicted, provided that Sanders “did knowingly cause serious

physical harm to Jason F. Furcsik.”

       {¶23} Applying Johnson, we find that Count 2, aggravated robbery, and Count 5,

felonious assault, are allied offenses of similar import.           Sanders committed the

aggravated robbery under R.C. 2911.01(A)(1) when his companion stuck the gun to

Furcsik’s head while demanding money and that Furcsik get out of his car. Sanders also

committed the felonious assault under R.C. 2903.11(A)(2) when the gun was pointed to

Furcsik’s head and Furcsik was threatened that he would be killed if he did not get out of

his car. We find that these offenses were committed with the same animus.

       {¶24} Moreover, we find that Count 3, aggravated robbery and Count 4 felonious

assault are allied offenses and thus should have merged for sentencing.              Sanders

committed the aggravated robbery under R.C. 2911.01(A)(3) when his companion shot at
Furcsik as he tried to flee from the robbery. Sanders committed the felonious assault

under R.C. 2903.11(A)(1) when the bullet from that shot struck Furcsik in the leg.

Therefore, we find that these offenses were committed with the same animus.

        {¶25} In summary, we find that two different events unfolded in this case. The

first being when Sanders and his companion planned to rob Furcsik and held a gun to his

head.    This event and these actions constitute both aggravated robbery under R.C.

2911.01(A)(1) and felonious assault in violation of R.C. 2903.11(A)(2). Thus, these

offenses were committed with the same animus. The second event then becomes when

Furcsik attempted to flee and was shot. This event constitutes both aggravated robbery

under R.C. 2911.01(A)(3) and felonious assault under R.C. 2903.11(A)(1). Thus, these

offenses were committed with the same animus.

        {¶26} Accordingly, the trial court committed plain error by merging the aggravated

robbery counts together and the felonious assault counts together. Rather, the trial court

should have merged Count 2, aggravated robbery, with Count 5, felonious assault; and

then should have merged Count 3, aggravated robbery, with Count 4, felonious assault;

all counts, however, do not merge together as Sanders argues on appeal. While we

recognize that our decision in this case may yield the same sentence, upon remand, we

nevertheless reverse Sanders’s sentence and remand to the trial court for resentencing for

the State to elect which counts to proceed with sentencing.

                          III. Manifest Weight of the Evidence
       {¶27} In his final assignment of error, Sanders argues that his convictions are

against the manifest weight of the evidence.

       {¶28} The manifest weight of the evidence standard of review requires this court

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. Kronenberg, 8th Dist. No.

96797, 2012-Ohio-589, ¶ 12, citing State v. Otten, 33 Ohio App.3d 339, 515 N.E.2d 1009

(9th Dist.1986), paragraph one of the syllabus. The use of the word “manifest” means

that the trier of fact’s decision must be plainly or obviously contrary to all of the

evidence. This is a difficult burden for an appellant to overcome because the resolution

of factual issues resides with the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212 (1967), paragraph one of the syllabus. The trier of fact has the authority to

“believe or disbelieve any witness or accept part of what a witness says and reject the

rest.” State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

       {¶29} We find that the jury did not lose its way in finding Sanders guilty of

aggravated robbery and felonious assault. The jury heard eyewitness testimony that

Butler saw a male try to enter the passenger side of Furcsik’s vehicle, knew that person as

“Will,” and picked “Will” out of the photo array as the person who was trying to gain

access.   Although Butler did not disclose “Will’s” identity to police until a week

following the incident, the jury was in the best position to consider Butler’s credibility
and his justification for not disclosing this information.                  Moreover, the record

demonstrates that the jury carefully considered the evidence in rendering its verdict. 1

This is not the exceptional case to warrant reversal under a manifest weight challenge and

order a new trial. See State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

       {¶30} Accordingly, Sanders’s final assignment of error is overruled.

       {¶31} Judgment affirmed in part, reversed in part, and remanded to the trial court

for further proceedings consistent with the law and this opinion.

       It is ordered that the parties share equally the 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.

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

the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

FRANK D. CELEBREZZE, JR., P.J., CONCURS; and
COLLEEN CONWAY COONEY, J., CONCURS IN PART AND DISSENTS IN PART
WITH SEPARATE OPINION


         The record shows that the jury deliberated for three days, submitted multiple questions during
       1


its deliberations to the trial court, and ultimately received the Howard charge before finally rendering
its verdict. See State v. Howard, 42 Ohio St.3d 18, 537 N.E.2d 188 (1989), paragraph two of the
syllabus.
COLLEEN CONWAY COONEY, J., CONCURRING IN PART, DISSENTING IN
PART:
     {¶32} I concur in all but the majority’s resolution of the second assignment of

error dealing with allied offenses. I dissent on this portion only and would affirm the

trial court judgment completely. I find the instant case analogous to State v. Stone, 8th

Dist. No. 92949, 2010-Ohio-3308, ¶ 24, in which we stated:

      The facts in this case suggest Stone planned to rob Coleman and Hill by
      holding them up at gunpoint. Because of Hill’s attempt to disarm the other
      assailant, Stone chose to pistol-whip Hill. At this point, what had begun as
      aggravated robbery evolved into felonious assault. And while we agree that
      Stone’s pistol-whipping of Hill constitutes an element of R.C.
      2911.01(A)(3), we nonetheless find that it began as the separate crime of
      felonious assault, and therefore Stone can be convicted of both. We find
      that Stone’s convictions for felonious assault and aggravated robbery were
      not allied offenses because Hill’s testimony supports separate convictions
      where Stone engaged in a separate animus to commit each crime.

      {¶33} Likewise, Sanders planned to rob the victim while his companion held a gun

to his head. Then when the victim attempted to flee, he was shot. Shooting the victim is

the separate crime of felonious assault, thus not an allied offense under these

circumstances.

      {¶34} I disagree with the majority’s finding plain error in the offenses merged,

especially when this is not the argument Sanders’s counsel is raising in this appeal. As

the majority recognizes, counsel is seeking merger of all four offenses into one sentence,

not the change in which offenses the parties agreed to merge. Sanders was convicted of

two alternative means of committing aggravating robbery and two ways of committing

felonious assault. He should be convicted of and sentenced on one aggravated robbery

charge and one felonious assault charge. Therefore, I would affirm.
