[Cite as State v. Adams, 2013-Ohio-926.]



                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                           HAMILTON COUNTY, OHIO



STATE OF OHIO,                             :     APPEAL NO. C-120059
                                                 TRIAL NO. B-1100833
         Plaintiff-Appellee,               :

   vs.                                     :
                                                      O P I N I O N.
PAUL ADAMS,                                :

         Defendant-Appellant.              :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: March 15, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Wendy R. Calaway, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                    OHIO FIRST DISTRICT COURT OF APPEALS


FISCHER, Judge.


       {¶1}    Defendant-appellant Paul Adams appeals the judgment of the

Hamilton County Court of Common Pleas sentencing him to 21 years in the

department of corrections for aggravated burglary and two counts of aggravated

robbery with specifications. For the reasons that follow, we affirm the judgment of

the trial court.

       {¶2}    On December 16, 2010, University of Cincinnati (“UC”) student and

volleyball athlete Natalie Pierce planned to entertain some of her friends for dinner

at her apartment on Straight Street near UC’s campus. Pierce’s friends, Jamie Frey,

also a volleyball player, and two UC football players, Dominick Goodman and

Quentin Hines, were all at Pierce’s apartment that day.       At some point in the

afternoon, Hines left Pierce’s apartment, planning to return around 6:00 p.m. for

dinner.

       {¶3}    A few minutes before 6:00 p.m., Pierce heard a knock at her apartment

door. She looked through the peephole of the door, but she could not see who was

standing outside. When she asked who was there, a man replied, “Q.” She opened

the door, believing the person to be Hines returning for dinner. Instead, a large

African-American male in his early 20s with dreadlocks and wearing a knit cap

shoved the door open and put a gun in her face. He demanded that Pierce lie on the

floor. The intruder then ordered Goodman to the floor as well, putting the gun in

Goodman’s face. Goodman began moving around, and the intruder threatened, “Do

you want me to pull this?” Goodman also tried to conceal his cell phone, but the

intruder saw him and demanded that he give him the phone. The intruder then

demanded “more items” from Pierce, so Pierce told him that her iPod was on the

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kitchen countertop. The intruder left, telling Pierce and Goodman not to get up until

they heard the door close.

        {¶4}    In all, the intruder stole Pierce’s laptop, iPod, purse, Big East

Championship ring, and her cell phone.        The intruder also stole Goodman’s

camcorder, cell phone, and cash. Frey, who had been in the bathroom during the

robbery, also had her wallet and cell phone stolen. Frey had seen the armed intruder

through the bathroom door, but had shut it and had hidden in a closet attached to

the bathroom to avoid being seen.

        {¶5}    Pierce suspected that an acquaintance, former UC football player

Demetrius Jones, may have had a role in the crime. Jones had transferred to another

university, but Jones had been texting Pierce the day of the robbery and had told

Pierce that he was in town and wanted to “hang out.” Just before the robbery, Jones

had asked Pierce who was at her place. She had responded that Frey and Goodman

were there, and she had told him that “Q” or Hines would be coming over for dinner.

Given her suspicions, Pierce logged into her Facebook account so that she could look

through Jones’s Facebook “friends.”     She came across a picture of Adams, the

defendant.     Pierce gave the picture to Cincinnati Police Detective Kip Dunagan

because she was 100 percent sure that Adams had been the armed robber.

        {¶6}    Meanwhile, Detective Dunagan began his own investigation.

Dunagan learned that the robber had used Pierce’s U.S. Bank debit card to make a

purchase at Amazon.com. The customer email address used for transaction was

padams17@yahoo.com, and the shipment address listed an address in Chicago,

Illinois.   With the assistance of UC telecommunications employees, Dunagan was

able to pinpoint that the Amazon.com transaction was made with UC basketball

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player Anthony McClain’s wireless Internet identification in the area of the

University Park Apartments. Dunagan learned that Jones and Adams had been

staying with McClain and his roommate, fellow basketball player Dion Dixon, at the

University Park apartments during the day of the robbery.

        {¶7}   The grand jury returned an indictment charging Adams with

aggravated burglary under R.C. 2911.11(A)(2) accompanied by firearm specifications,

two counts of aggravated robbery under R.C. 2911.01(A)(1), one for Pierce and one

for Goodman, also accompanied by specifications, and two counts of robbery under

R.C. 2911.02(A)(2), one for Pierce and one for Goodman. The matter proceeded to a

jury trial.

        {¶8}   At trial, the state presented the testimony of Pierce, Goodman, and

Frey, who testified as to what had happened during the robbery, and Pierce’s

discovery of Adams on Facebook. The state also presented Detective Dunagan’s

testimony about the investigation that had led him to Adams and an interview that

he had had with Adams.         In the interview, Adams had admitted to using

padams17@yahoo.com as his email address, but had insisted that he had been in

Chicago, his hometown, on the day of the robbery.

        {¶9}   The state also presented the testimony of Henry McDavis. McDavis

testified that he had lived in the same apartment building as Pierce. The day of the

robbery, he had seen two African-American men getting out of a white car. He had

seen them trying to get through the front door of his building, which had required

them to “buzz” individual residents, who would then unlock the door. McDavis had

accessed the building through another door at the rear of the building, and then he

had seen both men inside the building. One of the men asked McDavis if he had seen

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“Dominick.” After the robbery, McDavis had identified Demetrius Jones in a photo

lineup as one of the two men he had seen, although he admitted at trial that he had

only been “40 percent sure” it was Jones.

          {¶10} Hines also testified for the prosecution. Hines stated that he had left

Pierce’s house with the intent of returning, but had not because he had spent time

with his girlfriend instead. Hines testified that he had also spoken with Jones shortly

after he had left Pierce’s apartment, and that he had told Jones that Goodman and

Frey had been at Pierce’s when he had left. Jones had told Hines that he was back in

town. Hines acknowledged that he had not called Pierce to let her know that he

would not be returning.

          {¶11} The state also presented the testimony of a Verizon wireless employee,

who substantiated the ingoing and outgoing communications from Pierce’s phone to

a phone that had been linked to Jones’s phone through earlier testimony from

Pierce.

          {¶12} Dixon testified that he had been living with McClain in December

2010, and that on December 16, Jones had visited their apartment with a friend.

Dixon identified Adams in court as the friend that had been with Jones. Dixon

testified that he and McClain had had basketball commitments that had required

them to be away from home from 2:00-2:30 p.m. until 7:00 p.m. that day. Jones

and Adams had been at the apartment when they had left and when they had

returned. UC basketball assistant Andrew Seidenberger’s testimony substantiated

that Dixon and McClain had been at practice and then a team meal that had started

at 5:30 p.m. Although Seidenberger acknowledged that Dixon and McClain could

have signed the sign-in sheet for the meal and then left.

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       {¶13} After the conclusion of the state’s case, Adams testified in his own

defense. Adams testified that he had been staying with Dixon and McClain on the

day of the robbery. Adams acknowledged that he had lied to Detective Dunagan

about being in Chicago at the time, stating that he had been frightened. Adams

testified that he had stayed at Dixon’s and McClain’s apartment all afternoon, talking

on the phone, while Jones had left for a short time. According to Adams, when Jones

had returned, he had used McClain’s laptop in another room. Adams admitted that

he had had an email address of padams17@yahoo.com, but Adams insisted that

Jones would have had access to his email address and password—although Adams

admitted that he had told Detective Dunagan that two people had had his email and

password combination, neither of which was Jones.

       {¶14} The jury found Adams guilty of all counts and accompanying

specifications.   The trial court sentenced Adams to five years in prison on the

aggravated-burglary charge, five years in prison on each of the aggravated-robbery

charges, and three years in prison on two of the underlying specifications, for a total

of 21 years in the department of corrections. This appeal ensued.

                  Sufficiency and Manifest Weight of the Evidence

       {¶15} Adams’s first assignment of error asserts that his convictions were not

supported by sufficient evidence and were against the manifest weight of the

evidence. When reviewing a challenge to the sufficiency of the evidence, we must

determine, after viewing the evidence in a light most favorable to the prosecution,

whether any rational trier of fact could have found the essential elements of the

offenses proved beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus. By contrast, when reviewing a

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challenge to the manifest weight of the evidence, we must determine whether the

jury clearly lost its way and created a manifest miscarriage of justice such that we

must reverse the convictions and order a new trial. State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1997).

       {¶16} Adams does not argue that the facts as presented by the state fail to

establish that the crimes of aggravated burglary and aggravated robbery occurred.

Instead, Adams contends that he was not the perpetrator. Adams argues that no

physical evidence tied him to the crimes, and that the state’s case against him was

circumstantial. He also attacks the identifications made by the victims, arguing that

the victims did not have the opportunity to make a reliable identification given the

circumstances of the stressful, chaotic situation.

       {¶17} Pierce testified that when she had seen Adams’s picture on Facebook,

she had been certain that Adams had been the intruder. Goodman also testified that

Adams had been the perpetrator. When Adams had been questioned by Detective

Dunagan as to his involvement, he had lied, stating that he had been in Chicago at

the time, but then admitting at trial that he had been staying at McClain’s near UC’s

campus the day of the robbery. Pierce’s stolen debit card had been used to purchase

online items using McClain’s Internet identification, and Adams’s email address.

The shipment address was an address in Chicago, Illinois, Adams’s hometown.

Adams testified at trial that Jones would have had access to his email address and

password combination, but this contradicted Adams’s statement to Detective

Dunagan that two people had had his combination, neither of which had been Jones.

The evidence presented by the state was sufficient to prove that Adams had

committed the offenses of which he was convicted. Nor can we determine that the

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jury clearly lost its way and created a manifest miscarriage of justice in finding

Adams guilty.

       {¶18} Adams’s first assignment of error is overruled.

                          Allied Offenses of Similar Import

       {¶19} In his second assignment of error, Adams argues that the trial court

erred in sentencing Adams separately on two counts of aggravated robbery and one

count of aggravated burglary because those offenses were allied offenses of similar

import under R.C. 2941.25.

       {¶20} Under R.C. 2941.25, Ohio’s multiple-count statute, a trial court, in a

single proceeding, may convict a defendant for two or more offenses having as their

genesis the same criminal conduct or transaction, if the offenses (1) were not allied

offenses of similar import, (2) were committed separately, or (3) were committed

with a separate animus as to each offense. State v. Anderson, 1st Dist. No. C-110029,

2012-Ohio-3347, 974 N.E.2d 1236, ¶ 15, citing State v. Bickerstaff, 10 Ohio St.3d 62,

65-66, 461 N.E.2d 892 (1984), and State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-

6314, 942 N.E.2d 1061, ¶ 51. Unless committed separately or with a separate animus,

allied offenses must be merged for purposes of sentencing following the state’s

election of which offense should survive. Anderson at ¶ 15, citing State v. Whitfield,

124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraph two of the syllabus.

       {¶21} This court reviews allied-offense issues by examining the evidence

adduced before the trial court, and if the evidence shows that the state relied upon

the same conduct to prove the offenses, and that the offenses were committed

neither separately nor with a separate animus as to each, then the defendant is




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afforded the protections of R.C. 2941.25, and the trial court errs by imposing

separate sentences for the offenses. Anderson at ¶ 20; Johnson at ¶ 56.

       {¶22} Adams argues that the two aggravated-robbery counts—one for each

victim—were part of one course of conduct, and that he should have only been

sentenced on one count of aggravated robbery. We disagree because we determine

that Adams committed the robberies with a separate animus as to each.              In

determining whether a separate animus exists as to each offense, this court has

explained that animus means “immediate motive,” and where “ ‘an individual’s

immediate motive involves the commission of one offense, but in the course of

committing that crime he must, a priori, commit another, then he may well possess

but a single animus, and in that event may be convicted of only one crime.’ ” State v.

Shields, 1st Dist. No. C-100362, 2011-Ohio-1912, ¶ 16, quoting State v. Logan, 60

Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979); see also Anderson at ¶ 34 (explaining

that “ordinarily * * * when there is more than one victim of the same crime” an

offender may be sentenced for more than one crime).

       {¶23} In this case, the evidence adduced at trial demonstrated that Adams

had committed the robbery offense against Pierce and the robbery offense against

Goodman with separate immediate motives. After bursting through the door to

Pierce’s apartment wielding a gun, Adams had forced Pierce to lie face-down on the

ground. Adams then had insisted the same of Goodman after placing a gun in

Goodman’s face. Adams had demanded that Goodman give Adams his cell phone,

which Goodman had tried to conceal, unsuccessfully, from Adams. Adams then had

demanded “more items” from Pierce, and Pierce had told him that her iPod was on

the kitchen countertop. Adams then had fled with Pierce’s laptop computer, iPod,

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purse, cell phone, and Big East Championship ring, as well as Goodman’s cell phone,

camcorder, and cash. This evidence supports Adams’s convictions for two counts of

aggravated robbery—one for Pierce and one for Goodman.

       {¶24} Adams further argues that he should have been sentenced on either

aggravated burglary or aggravated robbery, but not both, pursuant to the multiple-

count statute. Adams asserts that the aggravated burglary “could not have been

committed in this case without the aggravated robbery.” Adams’s argument is not

well-taken.

       {¶25} Adams was convicted of aggravated burglary under R.C. 2911.11(A)(2),

which provides that “[n]o person, by force, stealth, or deception, shall trespass in an

occupied structure or in a separately secured or separately occupied portion of an

occupied structure * * * with purpose to commit in the structure or in the separately

secured or separately occupied portion of the structure any criminal offense, if * * *

[t]he offender has a deadly weapon * * * .” He was also convicted of two counts of

aggravated robbery under R.C. 2911.01(A)(1), which provides that “[n]o person, in

attempting or committing a theft offense, * * * or in fleeing immediately after the

attempt or offense, shall * * * [h]ave a deadly weapon on or about the offender’s

person * * * and either display the weapon, brandish it, indicate that the offender

possesses it, or use it[.]”

       {¶26} The following evidence adduced at trial supported Adams’s

aggravated-burglary offense: While armed with a gun, Adams had knocked on

Pierce’s apartment door and had stood out of the doorway to avoid being seen

through the peephole. When Pierce had asked who was there, Adams had replied,

“Q,” presumably knowing through Jones that Pierce had been expecting her friend

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Quentin Hines to arrive for dinner. Once Pierce had unlocked the door, Adams had

forcefully pushed open the door. Through this conduct alone, the state presented

sufficient evidence from which the jury could have concluded beyond a reasonable

doubt that Adams had trespassed by force or deception into Pierce’s apartment while

possessing a gun with the purpose of committing a criminal offense once inside.

       {¶27} By contrast, Adams’s conduct once inside the apartment supports the

aggravated-robbery convictions: Adams had forced both of the victims to the ground

while brandishing a gun. Adams had demanded items from both victims separately,

and had stolen multiple items from both victims. Because the state relied upon

different conduct in proving the aggravated-robbery offenses, as compared to the

aggravated-burglary offense, those offenses are not allied offenses of similar import

in this case.

       {¶28} Therefore, the trial court did not err in sentencing Adams separately

for two counts of aggravated robbery and one count of aggravated burglary. We

overrule Adams’s second assignment of error.

                Specifications for Same Act or Transaction

       {¶29} In his third assignment of error, Adams argues that the trial court

erred in convicting him of multiple firearm specifications when those convictions

arose out of the same act or transaction.

       {¶30} R.C. 2929.14(B)(1)(a)(ii) requires a trial court to impose a three-year

prison term on an offender who is convicted of a firearm specification under R.C.

2941.145. R.C. 2929.14(B)(1)(b) provides that “[e]xcept as provided in division

(B)(1)(g) of this section, a court shall not impose more than one prison term on




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an offender under division (B)(1)(a) of this section for felonies committed as part of

the same act or transaction.” (Emphasis added.) R.C. 2929.14(B)(1)(g) provides,

              [i]f an offender is convicted of * * * two or more felonies,

              if one or more of those felonies [is] * * * aggravated

              robbery * * *, and if the offender is convicted of * * * a

              specification [under R.C. 2941.145] in connection with

              two or more of the felonies, the sentencing court shall

              impose on the offender the prison term specified under

              division (B)(1)(a) of this section for each of the two most

              serious specifications of which the offender is convicted

              * * * and, in its discretion, also may impose on the

              offender the prison term specified under that division

              for any or all of the remaining specifications.

       {¶31} Because Adams was convicted of two aggravated robberies, each

accompanied by a firearm specification under R.C. 2941.145, the trial court was

required to impose at least two prison terms for those firearm specifications under

R.C. 2929.14(B)(1)(g).    Therefore, the trial court’s sentence with respect to the

firearm specifications was authorized by law, and we overrule Adams’s third

assignment of error.

                         Specifications and Double Jeopardy

       {¶32} In his fourth assignment of error, Adams argues that R.C. 2941.25 is

unconstitutional as applied to his aggravated-robbery convictions, which were each

accompanied by a firearm specification. Adams argues that his convictions under

R.C. 2911.01(A)(1) for aggravated robbery required proof beyond a reasonable doubt

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that Adams had had a deadly weapon and had displayed, brandished, indicated

possession of, or used the deadly weapon. Similarly, firearm specifications under

R.C. 2941.145 require proof that an offender had a firearm and displayed,

brandished, indicated possession of, or used the firearm. Adams contends that the

firearm specifications amount to an additional punishment in violation of the Double

Jeopardy Clause.

       {¶33} The Double Jeopardy Clause “ ‘protects against multiple punishments

for the same offense.’ ” Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 678, 74

L.Ed.2d 535, 542 (1983), quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89

S.Ct. 2072, 23 L.Ed.2d 656 (1969). The United States Supreme Court has stated that

“with respect to cumulative sentences imposed in a single trial, the Double Jeopardy

Clause does no more than prevent the sentencing court from prescribing greater

punishment than the legislature intended.” Hunter at 366.

       {¶34} The Ohio Supreme Court has held that firearm specifications are not

“offenses” as that term is used in R.C. 2941.25, but “penalty enhancements,” and

therefore, specifications do not invoke Ohio’s multiple-count statute. State v. Ford,

128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, paragraph one of the syllabus.

Thus, per the reasoning of Ford, the Ohio legislature intended that an offender

receive additional prison time for specifications as provided in R.C. 2929.14(B).

Consequently, Adams’s double-jeopardy argument is without merit. We overrule

Adams’s fourth assignment of error.

                                    Conclusion

       {¶35} Because we overrule Adams’s assignments of error, we affirm the

judgment of the trial court.

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                                                                     Judgment affirmed.

HENDON, P.J., and DINKELACKER, J., concur.


Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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