[Cite as In re K.P., 2018-Ohio-4972.]



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




IN RE: K.P.                                  :       APPEAL NOS. C-180037
                                                                  C-180038
                                             :                    C-180039
                                                     TRIAL NOS. 17-0068Z
                                             :                  17-1681Z
                                                                17-4453Z
                                             :

                                             :          O P I N I O N.




Appeals From: Hamilton County Juvenile Court

Judgments Appealed From Are:            Affirmed in C-180038 and C-180039; Appeal
                                        Dismissed in C-180037

Date of Judgment Entry on Appeal: December 12, 2018



Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin,
Assistant Prosecuting Attorney, for Appellee State of Ohio,

The Office of the Ohio Public Defender and Lauren Hammersmith, Assistant Public
Defender, for Appellant K.P.
                 OHIO FIRST DISTRICT COURT OF APPEALS



MYERS, Judge.

       {¶1}   Fifteen-year-old K.P. phoned a food-delivery order to a restaurant, and

when the restaurant’s driver arrived to deliver the food, K.P. directed him to a place

where K.P.’s friends were waiting to ambush the driver. K.P. and his friends attacked

the driver, savagely beat him, and stole his money, cell phones, GPS device, and the

delivered food. K.P. was arrested within several hours.

       {¶2}   In the ensuing proceedings before the juvenile court, K.P. admitted to

conduct that, if committed by an adult, would have constituted aggravated robbery

and felonious assault. In addition, with regard to a separate delinquency complaint,

K.P. admitted to conduct that, if committed by an adult, would have constituted

burglary. In exchange for K.P.’s admissions, the state withdrew its motions for

relinquishment of jurisdiction to the general division of the common pleas court and

dismissed an evidence-tampering charge related to the robbery and assault offenses.

       {¶3}   The trial court rejected K.P.’s argument that the aggravated-robbery

and felonious-assault offenses merged for dispositional purposes. The court ordered

that K.P. be committed to the Department of Youth Services for a minimum term of

36 months for the aggravated-robbery adjudication and for minimum terms of one

year each for the felonious-assault and burglary adjudications. The court ordered all

the terms to be served consecutively, for a total minimum commitment of five years,

with the maximum commitment lasting until K.P. turns 21 years old. In addition, the

court imposed an aggregate seven-year prison term as a serious-youthful-offender

dispositional sentence, which was stayed pending the successful completion of the

juvenile dispositions imposed. K.P. now appeals.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}    In a single assignment of error, K.P. argues that the trial court erred by

failing to merge the offenses of aggravated robbery and felonious assault. Because

K.P. raised this argument before the trial court, and because the court made a merger

determination, we apply a de novo standard of review. See State v. Shelton, 1st Dist.

Hamilton No. C-170547, 2018-Ohio-3895, ¶ 44; State v. Williams, 134 Ohio St.3d

482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 1.

       {¶5}    In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

the Supreme Court of Ohio held that, pursuant to R.C. 2941.25, separate sentences

may be imposed on a defendant whose conduct supports multiple offenses if the

offenses were dissimilar in import, were committed separately, or were committed

with a separate animus. Ruff at paragraph three of the syllabus. The Ruff merger

analysis applies to juvenile-delinquency proceedings. In re A.G., 148 Ohio St.3d 118,

2016-Ohio-3306, 69 N.E.3d 646, syllabus.

       {¶6}    K.P. was adjudicated delinquent for committing acts that, if committed

by an adult, would have constituted aggravated robbery pursuant to R.C.

2911.01(A)(3), which states that “[n]o person, in attempting or committing a theft

offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately

after the attempt or offense, shall * * * [i]nflict, or attempt to inflict, serious physical

harm on another.” K.P. was also adjudicated delinquent for committing acts that, if

committed by an adult, would have constituted felonious assault in violation of R.C.

2903.11(A)(1), which provides, “No person shall knowingly * * * [c]ause serious

physical harm to another * * *.”

       {¶7}    Following our review of the record, we find that these two offenses

were committed with a separate animus. As we explained in State v. Bailey, 1st Dist.




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                   OHIO FIRST DISTRICT COURT OF APPEALS



Hamilton No. C-140129, 2015-Ohio-2997, ¶ 86, “[w]e determine the animus, one’s

immediate motive or purpose, by dissecting the facts and circumstances in evidence,

including the means used to commit the offense.”

       {¶8}     During the attack in this case, in what he later described as an

“adrenaline rage,” K.P. repeatedly struck the victim in the head with a large branch

until the branch broke. K.P. and the others kicked, stomped, punched, and beat the

victim with a metal pole even after he was rendered unconscious. While the victim

was on the ground, the four rifled through his pockets and his car, stealing money,

two cell phones, and a GPS device. Then they ran off with the food and stolen

property.     As a result of the attack, the victim suffered severe fractures and

lacerations to his face.

       {¶9}     This court has held that where, as here, the force used during a

felonious assault was greater than was necessary to effectuate an aggravated robbery,

it demonstrates that the defendant acted with a specific intent to harm, separate

from any animus to rob the victim. See Shelton, 1st Dist. Hamilton No. C-170547,

2018-Ohio-3895, at ¶ 50; see also Bailey at ¶ 87. In this case, the conduct of K.P.

indicates a separate animus for the assault and robbery because the force was

excessive beyond that necessary to effectuate the robbery. As further evidence of a

separate animus, K.P. continued to beat the victim after he was unconscious and only

then took the property. We hold that the felonious-assault and aggravated-robbery

offenses were committed with a separate animus and, thus, they were separately

punishable under R.C. 2941.25. Consequently, the trial court did not err by refusing

to merge the offenses.




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                  OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10} We overrule the sole assignment of error and affirm the judgments of

the trial court in the appeals numbered C-180038 and C-180039. Because K.P.

raises no assignment of error challenging the burglary adjudication, we dismiss the

appeal in the case numbered C-180037. See App.R. 16(A); see also State v. Harris,

2017-Ohio-5594, 92 N.E.3d 1283, ¶ 42-43 (1st Dist.).

                                                                   Judgment accordingly.


MOCK, P.J., and ZAYAS, J., concur.



Please note:

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




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