[Cite as State v. Dixon, 2010-Ohio-5032.]


                             IN THE COURT OF APPEALS OF OHIO
                                FOURTH APPELLATE DISTRICT
                                      SCIOTO COUNTY

State of Ohio,                               :                    Case No. 09CA3312

        Plaintiff-Appellee,                  :

        v.                                   :                    DECISION AND
                                                                  JUDGMENT ENTRY
William Dixon,                               :

     Defendant-Appellant.       :                Released 09/22/10
______________________________________________________________________
                            APPEARANCES:

Gene Meadows, Portsmouth, Ohio, for appellant.

Mark E. Kuhn, Scioto County Prosecutor, Pat Apel, Scioto County Assistant Prosecutor,
and Danielle M. Parker, Scioto County Assistant Prosecutor, Portsmouth, Ohio, for
appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     A jury convicted William Dixon of aggravated robbery, felonious assault,

and attempted murder as the result of a violent robbery at a grocery store. The State

introduced evidence that Dixon, along with his co-defendant Wayne Murphy, viciously

assaulted a clerk in the grocery store with a hammer and then stole the clerk’s wallet

and the cash register. After the jury’s verdict, the trial judge sentenced Dixon to a total

of twenty-eight years in prison.

        {¶2}     Initially, Dixon argues that the court erred by admitting evidence of his

conviction for a similar robbery that occurred in Kentucky. However, evidence of the

Kentucky robbery was admissible for purposes of proving a material element of the

State’s case, i.e., Dixon’s identity. And although evidence of a rape that occurred

during the robbery was not admissible under Evid.R.404(B) and should have been
Scioto App. No. 09CA3312                                                                    2


excluded under Evid.R. 403(A), we conclude that the trial court’s error in admitting it

was harmless because of the substantial evidence of Dixon’s guilt.

       {¶3}   Next, Dixon contends that the trial court erred in its pretrial ruling that

certain testimony was admissible under the “excited utterance” exception to the general

prohibition on hearsay. We need not address the merits of this argument because the

contested testimony was never introduced at trial.

       {¶4}   Finally, Dixon argues that the trial court erred by sentencing him

consecutively for allied offenses of similar import. We conclude that aggravated robbery

is not an allied offense of either felonious assault or attempted murder. But we agree

with Dixon that felonious assault and attempted murder are allied offenses and that the

evidence at best supports a single animus for both offenses. Therefore we remand for

resentencing on these two crimes.

                                       I. Summary of Facts

       {¶5}   In July 2004, Art Waddell was working the cash register at a grocery store

in Franklin Furnace, Ohio. When he saw two males in the rear of the store at the meat

counter, he locked the cash register and went to help them. As he approached the

meat counter he was struck in the back of the head with a hammer and rendered

unconscious. He suffered serious injuries to the head, including a depressed skull

fracture. The robbers made away with Waddell’s wallet and the cash register, both of

which contained cash.

       {¶6}   After being arrested for a similar robbery in Kentucky, Murphy and Dixon

were indicted for the Ohio crime, where they were charged in separate indictments with

aggravated robbery, felonious assault, attempted murder, and conspiracy to commit
Scioto App. No. 09CA3312                                                                 3


aggravated robbery. Prior to the trial the court granted the State’s motion to consolidate

their trials. The court later held a hearing on several pending defense motions,

including a motion to exclude evidence of the Kentucky crime and a motion for separate

trials. The court found that evidence concerning the Kentucky robbery was admissible

for purposes of demonstrating identity and denied the motions for separate trials.

       {¶7}   The court also held a security hearing to determine whether Dixon and

Murphy would be placed in restraints for trial. Based on the violent nature of the crimes,

the fact that both defendants were incarcerated in Kentucky on similar charges, and that

jurors would know this because of the admission of “other acts” evidence, the court

ordered that both defendants be placed in restraints for trial.

                                           A. The Trial

                                1. Evidence of the Ohio Robbery

       {¶8}   Art Waddell testified that he was working alone at the Blanton and Graff

Grocery (B+G) in Franklin Furnace, Ohio around noon on July 5, 2004. Waddell began

his shift early because the employee on duty became ill and required hospitalization.

An ambulance picked up the sick employee and Waddell worked checking out shoppers

at the cash register.

       {¶9}   Shortly before the incident, Greg Russell was inside B+G playing lottery

tickets. He observed two men in the back of the store near the meat counter. One man

with long hair was staring at him. Russell later identified this man as Murphy after

seeing a picture of him on television.

       {¶10} Danny Clement testified that he arrived at B+G as the ambulance was

leaving with the sick employee. Clement noticed two men standing in the back of the
Scioto App. No. 09CA3312                                                                    4


store. He could not see their faces but he remembered one had long hair and the other

had short hair. As he left the store he saw a woman he recognized standing next to a

car in the parking lot. This was Tracy Chaffins, Murphy’s girlfriend.

       {¶11} Waddell testified that as he was checking out customers he observed

Murphy and Dixon in the back of the store in front of the meat counter. He recognized

Dixon from being in the store previously and vaguely recognized Murphy, maybe having

seen him once before. Waddell checked out the last customer in the store and saw that

both men were still standing at the meat counter. He locked the cash register and then

walked up a store aisle towards the meat counter to assist the two men.

       {¶12} Before he arrived at the meat counter Waddell observed that Dixon was

standing alone and he could not see Murphy. However, he believed Murphy had not left

the store because there was only one exit and it was near the cash register. Waddell

believed that Murphy was either hiding or stealing. Waddell was about ten to twelve

feet away from Dixon when he lost all memory and woke up in the hospital.

       {¶13} An unknown individual walked up to the local fire station and reported that

Waddell had been injured at B+G. When the ambulance crew arrived they found

Waddell perched on a stool bleeding profusely from the head. At the hospital, medical

staff determined that Waddell received multiple blows to the head including puncture

wounds that left bits of his brain in his hair. Waddell testified that he ultimately received

five blows to the head and twelve blows to his arms.

       {¶14} Jodi Conkel of the Scioto County Sheriff’s Office conducted the

investigation of the B+G robbery. At the crime scene she observed blood on the floor,

blood splatter, and bloody drag marks leading from the back of the store to the front,
Scioto App. No. 09CA3312                                                                   5


where the cash register, now missing, had been located. She explained some of the

photographs of the crime scene to the jury. She located evidence of blood splatter,

which indicated that an object was used to strike the victim.

       {¶15} At the hospital Detective Conkel attempted to interview Waddell who

initially could only communicate through vague written notes. In some of these notes he

repeatedly wrote “$1,000”. Waddell later testified that his wallet was missing after the

robbery. He said it contained $1,000, money he was planning on taking to the bank

after work.

       {¶16} Detective Tim Wilson, a Kentucky police officer, contacted Detective

Conkel about a week and a half later. He told her about a robbery at a video store in

Russell, Kentucky -- about fifteen miles from the B+G crime. When Detective Wilson

described the crime scene in Kentucky, Detective Conkel was struck by the similarities

and went to view it. After viewing the crime scene Detective Conkel believed the crimes

were perpetrated by the same person or persons.

       {¶17} Dixon was arrested by Kentucky police. When Detective Conkel later

interviewed Dixon about the B+G robbery, he made a statement concerning the crime.

Detective Conkel read a redacted summary of this statement at trial. Apparently, the

original statement implicated both Dixon and Murphy in the B+G robbery, but the

redacted version replaced all references to Murphy with the word “he.”

       {¶18} Dixon also told Detective Conkel that hammers were used in both

robberies and that she could find them at Murphy’s residence. Police went to Murphy’s

residence and retrieved three hammers, which they sent to a crime lab in Kentucky.

However, the test results were inconclusive for trace evidence.
Scioto App. No. 09CA3312                                                                  6


                             2. Evidence of the Kentucky Robbery

        {¶19} Melissa Ruffing testified that she was the sole employee working at the

video store on July 14, 2004. Murphy entered the store when there were no other

customers inside, walked the entire length of the store and “cased it,” apparently looking

for security cameras. He then went into an employee’s-only storage room.

        {¶20} Ruffing was afraid to confront Murphy while she was alone in the store.

But when two women entered the store, she went to the storage room and told Murphy

he could not be in there. He cursed her and brushed past her, going back out to the

video aisles. He finished walking around the store, looked up to the ceiling, and then

left.

        {¶21} Shortly afterwards Dixon walked in ostensibly to rent a video. Dixon did

not have a membership with the store and Ruffing helped him apply for one. He gave

her his identification card and she helped him fill out a membership form. Ruffing

informed him that the store had a special deal and he was entitled to rent a second

video for free. Dixon told her that he would go ask his friend to help him pick out the

second video. Ruffing told Dixon that she would be cleaning in one of the video aisles

and pointed out where she would be when he was ready to check out the second video.

        {¶22} As Ruffing was down on her hands and knees cleaning shelves, she

heard two people whispering. She looked underneath her arm and saw a pair of boots.

She was then hit in the head with a hammer. Murphy grabbed her, turned her over,

grabbed one foot, and ordered Dixon to hold the other. The two men dragged her back

to the video store office where Murphy ordered Dixon to get the cash register. Dixon left

the office. When Murphy demanded that Ruffing open the safe, she told him there was
Scioto App. No. 09CA3312                                                                  7


no money in it. Murphy began to hit her with his fists, knocking her down repeatedly.

Ruffing was wearing a ring and Murphy commented that “Tracy” would like it. Ruffing

removed the ring, threw it down and ran out of the office into the middle of the store.

There she observed a woman standing outside, near the door. But when Ruffing

screamed for help, the woman turned away. Ruffing later identified the woman as Tracy

Chaffins.

       {¶23} Before she could escape, she was dragged back to the office. Murphy

then raped her inside the office. After the rape Murphy hit her in the head with a

hammer and knocked her unconscious.

                               3. Murphy’s and Dixon’s Defenses

       {¶24} Dixon took the stand and testified that Murphy asked him for a ride to

Franklin Furnace. He gave Murphy a ride and Murphy later told him they were going to

B+G. He claimed he did not know that Murphy intended to rob the store.

       {¶25} While at B+G Dixon played lottery tickets. He would walk outside to his

car to play them, and then reenter the store to purchase more lottery tickets. He denied

any involvement in the actual robbery or assault. He also denied being in the store

when the robbery took place, and stated that he must have been sitting in his car when

it happened. Dixon admitted seeing blood on Murphy, from his neck, on the front of his

white shirt, and down to his pants and a bloody hammer in his waistband.

       {¶26} Dixon also admitted taking some hammers from Murphy’s mother’s house

and hiding them outside the residence because he was “paranoid” that Murphy would

use them again. On cross-examination, Dixon could not recall making many of the

statements that appeared in the redacted summary.
Scioto App. No. 09CA3312                                                                                    8


        {¶27} Murphy did not take the stand. For his defense he called James, Terry,

and Samantha Chaffins, the father, mother, and sister-in-law, respectively, of Tracy

Chaffins.1 Their testimony was that Tracy and Wayne arrived at James’ and Terry’s

residence the night before the B+G robbery and spent the night. James stated that the

family had a police scanner in the bedroom and the family was drinking coffee together

on the morning of the B+G robbery. The group heard a report come on the scanner

about James’ sister- in-law, who happened to be the employee who fell ill at B+G.

        {¶28} At some point, Dixon arrived in his car and wanted Murphy to leave with

him. Because Tracy did not want Murphy to leave, they remained with the family.

Later, all three testified that they heard another report on the police scanner that a man

was beaten at B+G and required assistance. This assertion was challenged by the

prosecutor, who asked them why a report would come on when earlier testimony

suggested an unknown individual reported the assault directly at the fire station.

        {¶29} Except for a brief moment in James Chaffins’ testimony, all three

witnesses remained consistent in their testimony that Murphy and Tracy did not go to

Franklin Furnace. At one point James Chaffin stated that “Wayne, her, and Ryan left.”

But the remainder of his testimony was consistent with the other two alibi witnesses.

        {¶30} The jury ultimately found Murphy and Dixon guilty of aggravated robbery,

felonious assault, and attempted murder. Dixon was sentenced to ten years for

aggravated robbery, eight years for felonious assault, and ten years for attempted

murder. After the court ordered the sentences to be served consecutively for a total

sentence of twenty-eight years, Dixon filed this appeal.


1
  The record reflects that Tracey Chaffins committed suicide sometime after the B+G and Kentucky
robberies. Apparently she was indicted for her participation in the Kentucky robbery but was never tried.
Scioto App. No. 09CA3312                                                                   9


                                 II. Assignments of Error

      {¶31} Dixon presents three assignments of error:

      1. The Trial Court erred to the prejudice of the Defendant’s substantial
      rights by admitting unduly prejudicial testimony about other acts, the only
      probative value of which was to establish the Defendant’s bad character
      and conduct in conformity therewith. The admission of this testimony was
      an abuse of discretion and violated the Defendant-Appellant, William
      Dixon’s right to due process under the Fourteenth Amendment.

      2. The Trial Court erred when ruling on the suppression motion by failing
      to exclude a statement made by Tracey Chaffin when the Trial Court ruled
      the statement made by Tracey Chaffin was an excited utterance, thus
      violating the Defendant-Appellant, William Dixon’s right to confront the
      witness against him.

      3. The Trial Court erred to the prejudice of the Defendant-Appellant and in
      violation of ORC 2941.25 when the Trial Court sentenced the Defendant-
      Appellant to consecutive sentences.

                                    III. Other Acts Evidence

      {¶32} In his first assignment of error, Dixon contends that the trial court abused

its discretion when it admitted evidence of the Kentucky robbery. Dixon contends that

this evidence was offered only to prove his bad character and propensity to commit the

B+G robbery. Dixon argues that the evidence did not prove any element of the B+G

crime, did not relate to any material issue in that crime, and was too remote in time from

the B+G crime. Finally, Dixon contends that the prejudicial effect of the evidence of the

Kentucky robbery, specifically, the gruesome details of the rape and the photographs of

the crime scene, outweighed whatever probative value it may possess. In response,

the State argues that evidence of the Kentucky robbery was properly admitted under

Evid.R.404(B) because there were a total of fourteen similarities between the crimes

and thus it helped proved Dixon’s identity in the B+G robbery.
Scioto App. No. 09CA3312                                                                    10


       {¶33} The admission of evidence is within the sound discretion of the trial court.

State v. Sage (1987), 31 Ohio St.3d 173, 510 N.E.2d 343, at paragraph two of the

syllabus. An abuse of discretion involves more than an error of judgment; it connotes an

attitude on the part of the court that is unreasonable, unconscionable, or arbitrary.

Franklin Cty. Sheriff’s Dept. v. State Emp. Relations Bd. (1992), 63 Ohio St.3d 498, 506,

589 N.E.2d 24; Wilmington Steel Products, Inc. v. Cleveland Elec. Illuminating Co.

(1991), 60 Ohio St.3d 120, 122, 573 N.E.2d 622. When applying the abuse of discretion

standard, a reviewing court is not free to merely substitute its judgment for that of the

trial court. In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 138, 566 N.E.2d 1181, citing

Berk v. Matthews (199), 53 Ohio St.3d 161, 169, 559 N.E.2d 1301.

       {¶34} Evidence of other acts is not admissible for the purpose of proving the

accused acted in conformity with that character on a particular occasion. State v.

Treesh, 90 Ohio St.3d 460, 482, 2001-Ohio-4, 739 N.E.2d 749; Evid.R. 404. However,

Evid.R. 404(B) provides other acts evidence may be admissible when it is offered for

some other purpose, such as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.

       {¶35} Additionally, R.C. 2945.59 provides that:

       In any criminal case in which the defendant’s motive or intent, the absence
       of mistake or accident on his part, or the defendant’s scheme, plan, or
       system in doing an act is material, any acts of the defendant which tend to
       show his motive or intent, the absence of mistake or accident on his part,
       or the defendant’s scheme, plan, or system in doing the act in question
       may be proved, whether they are contemporaneous with or prior or
       subsequent thereto, notwithstanding that such proof may show or tend to
       show the commission of another crime by the defendant.
Scioto App. No. 09CA3312                                                                   11


       {¶36} R.C. 2945.59 is to be strictly construed against the State, and to be

conservatively applied by a trial court. State v. DeMarco (1987), 31 Ohio St.3d 191, 194,

509 N.E.2d 1256.

       {¶37} Thus, evidence of other acts may be admissible if the evidence is offered

for a purpose other than to show the accused’s propensity to act in conformity with the

accused’s character, e.g., to commit a certain type of crime. State v. Jamison (1990), 49

Ohio St.3d 182, 552 N.E.2d 180, at the syllabus. For other acts evidence to be

admissible, the evidence must be relevant to proving the guilt of the offense in question.

State v. Gardner (1979), 59 Ohio St.2d 14, 20, 391 N.E.2d 337. See, also, State v.

Henderson (1991), 76 Ohio App.3d 290, 294, 601 N.E.2d 596. There must be

substantial evidence that the accused committed the act. State v. Carter (1971), 26

Ohio St.2d 79, 269 N.E.2d 115, at paragraph two of the syllabus. In addition, the prior

act must not be too remote and must be closely related in time and nature to the offense

charged. State v. Burson (1974), 38 Ohio St.2d 157, 159, 311 N.E.2d 526. If the act is

too distant in time or too removed in method or type, it has no probative value.

Henderson at 294.

       {¶38} Here, the other acts evidence established a significant number of

similarities between the B+G robbery and the Kentucky robbery. Among other

similarities, evidence was introduced that (1) two men were involved in both robberies;

(2) one person “cased” the place of business prior to the robbery; (3) a hammer or

hammers were used to assault the victim; (4) the victim was attacked from behind; (5)

the robberies took place at or around the noon hour; (6) the perpetrators dragged the

victim from the initial point of attack to another part of the store where the money was
Scioto App. No. 09CA3312                                                                   12


located, leaving a trail of blood; (7) a personal item was taken from the victim in both

robberies; and (8) Tracy Chaffins was seen at both robberies.

       {¶39} Contrary to Dixon’s argument, this evidence was clearly offered to prove a

material element of the State’s case, i.e., Dixon’s identification. Although Waddell

identified Dixon as being in the store prior to the attack and robbery, he was unable to

recall anything after the attack began. Dixon disputed that he was involved in the attack

at all and claimed he was outside in his car when it occurred. Given the similarity of the

two crimes, Dixon’s participation in the Kentucky robbery helped establish that Dixon

was a participant in the B+G robbery. Additionally, given the nine days separating the

two crimes, there is no question that the Kentucky crime is “closely related in time.”

See, e.g., State v. Chapman (1959), 111 Ohio App. 441, 168 N.E.2d 14 (evidence of

other act committed eight years prior to the time of crime charged inadmissible as being

too remote in time); Young v. State (1932), 44 Ohio App. 1, 184 N.E. 24 (evidence of

other act committed three years prior admitted to show scheme and intent).

       {¶40} Dixon also contends that the State should not have been allowed to

introduce the details of the rape that occurred during the course of the Kentucky

incident. At the onset, we note that Ruffing did not describe the “gruesome” details of

the rape as Dixon contends. Those were discussed at length at a pre-trial hearing. But,

the State was allowed to ask Ruffing if she was raped, a fact that she confirmed. We

agree with Dixon that evidence concerning the rape was not probative of his identity

under Evid.R. 404(B). No sexual assault was alleged to have occurred in the B+G

robbery and thus the evidence did not prove identity.
Scioto App. No. 09CA3312                                                                  13


       {¶41} We further agree that admission of evidence concerning the rape was also

inadmissible under Evid.R. 403(A). As with all evidence, other acts evidence is subject

to the relevancy and fairness requirements of Evid.R. 403(A) and must be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice. State v.

Soke (1995), 105 Ohio App.3d 226, 249, 663 N.E.2d 986; State v. Matthews (1984), 14

Ohio App.3d 440, 442, 561-562, 471 N.E.2d 849. Because its probative value was

substantially outweighed by the danger of unfair prejudice, the trial court erred by

admitting evidence of the rape. Nonetheless, we perceive this error as harmless.

       {¶42} Dixon objected to the admission of the evidence concerning the rape at

trial, thus harmless-error analysis is appropriate here. See State v. Haines, 112 Ohio

St.3d 393, 2006-Ohio-6711, 860 N.E.2d 91, at ¶62. We apply non-constitutional

harmless-error analysis to evidentiary errors such as this. State v. Elliott (Feb. 27,

1995), Highland App. No. 94CA836, 1995 WL 89732, at *3 (applying non-constitutional

harmless-error analysis to admission of irrelevant evidence). See, also, State v.

McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, at ¶88 (applying non-

constitutional harmless-error analysis to erroneous admission of other acts evidence);

State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶74 (same).

A non-constitutional error is harmless when there is substantial other evidence to

support the guilty verdict. State v. Webb, 70 Ohio St.3d 325, 335, 1994-Ohio-425, 638

N.E.2d 1023. For the following reasons, we conclude that the erroneous admission of

Ruffing’s testimony concerning the rape was harmless.

       {¶43} First, the State presented a substantial amount of other admissible

evidence of Dixon’s guilt, including a summary of his own inculpatory statement.
Scioto App. No. 09CA3312                                                                      14


Second, the jurors were already properly exposed to graphic evidence of other repulsive

conduct. Given the sadistic nature of the crimes for which Dixon was being tried, we

seriously doubt that evidence of the rape perpetrated by his codefendant added much in

terms of “aggravating” the jurors. In other words, evidence of the rape was not the

straw that broke the camel’s back. Third, at the close of evidence the court properly

instructed jurors that they could consider evidence about other crimes only for a limited

purpose and not to prove the character of the defendants. “A presumption always

exists that the jury has followed the instructions given to it by the trial court.” Pang v.

Minch (1990), 53 Ohio St.3d 186, 559 N.E.2d 1313, at paragraph four of the syllabus.

Thus, we conclude that the error was harmless and overrule this assignment of error.

                                   IV. Hearsay Testimony

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

during a pretrial hearing when, during the testimony of William Mollett, a potential state

witness, it ruled that his testimony concerning statements by Tracy Chaffins, deceased,

were admissible at trial. Dixon contends that the court improperly ruled these

statements would be admitted as “excited utterances.”

       {¶45} Dixon mistakenly argues that Mollett’s pretrial testimony came as part of a

“suppression motion.” In fact, Mollett’s testimony was presented as part of the State’s

pretrial efforts to introduce “other acts” evidence, i.e., the Kentucky robbery. Mollett’s

testimony had no relevance to Dixon’s suppression motion, which involved statements

Dixon made to police.

       {¶46} At the pretrial hearing, when Mollett attempted to testify about what the

deceased Chaffin told him, defense counsel objected. The State responded that
Scioto App. No. 09CA3312                                                                     15


Mollett’s testimony was merely a proffer of what Mollett might testify to at trial and the

trial court allowed Mollet to continue. Ultimately, Mollett did not testify at trial, so

Chaffins’ hearsay statements were never introduced to the jury.

       {¶47} Even if we were to consider Dixon’s objection as a motion in limine, a

ruling on it was not a final order when issued. State v. Edwards, 107 Ohio St.3d 169,

2005-Ohio-6180, 837 N.E.2d 752, at ¶17. This reflects the nature of a motion in limine,

which is designed to test the admissibility of proffered evidence before trial and outside

the presence of the jury. Accordingly, a trial court’s ruling on a motion in limine is

tentative, interlocutory, and precautionary and cannot serve as the basis for an

assignment of error on appeal. See State v. Baker, 170 Ohio App. 3d 331, 2006-Ohio-

7085, 867 N.E.2d 426, at ¶9. For such a ruling to be appealable, it must effectively

manifest itself in evidence actually admitted at trial and defense counsel must record an

objection. See State v. Brown (1988), 38 Ohio St.3d 305, 311-312, 528 N.E.2d 523.

That never happened because Mollett did not testify at trial and Chaffin’s statements

were never introduced.

       {¶48} Accordingly, this assignment of error is meritless.

                                         V. Allied Offenses

       {¶49} In his final assignment of error, Dixon argues that the trial court erred by

imposing consecutive sentences for attempted murder, felonious assault, and

aggravated robbery. Dixon contends that all three offenses are allied offenses of similar

import under Ohio’s multiple count statute, R.C. 2941.25. Dixon further contends that

all three offenses share a single animus. Therefore, Dixon argues that the trial court

erred by not merging his convictions. The State contends that felonious assault and
Scioto App. No. 09CA3312                                                                    16


aggravated robbery are not allied offenses of similar import and thus the trial court did

not have to merge those offenses. The State concedes that attempted murder and

felonious assault are allied offenses of similar import but argues that the evidence

demonstrated a separate animus for each charge.

       {¶50} Ohio’s multiple-count statute, R.C. 2941.25, provides:

       (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.

       {¶51} A two-step analysis is required to determine whether two crimes

are allied offenses of similar import. See, e.g., State v. Blankenship (1988), 38

Ohio St.3d 116, 117, 526 N.E.2d 816. Recently, in State v. Cabrales, 118 Ohio

St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, the Court stated: “In determining

whether offenses are allied offenses of similar import under R.C. 2941.25(A),

courts are required to compare the elements of offenses in the abstract without

considering the evidence in the case, but are not required to find an exact

alignment of the elements. Instead, if, in comparing the elements of the offenses

in the abstract, the offenses are so similar that the commission of one offense will

necessarily result in commission of the other, then the offenses are allied

offenses of similar import.” Id. at paragraph one of the syllabus. If the offenses

are allied, the court proceeds to the second step and considers whether the

offenses were committed separately or with a separate animus. Id. at ¶31.
Scioto App. No. 09CA3312                                                                  17


       {¶52} First, we compare aggravated robbery and felonious assault in the

abstract. In order to commit the offense of aggravated robbery, R.C.

2911.01(A)(1), one must, while attempting or committing a theft offense, have a

deadly weapon on or about the offender's person or under the offender's control

and either display the weapon, brandish it, indicate that the offender possesses

it, or use it. To commit the offense of felonious assault, R.C.

2903.11(A)(2)/(D)(1), one must cause serious physical harm to another. Clearly,

when compared in the abstract, these crimes are not allied offenses of similar

import. One could commit aggravated robbery without causing serious physical

harm to another. And one could commit felonious assault without committing a

theft offense or without having a deadly weapon. Thus, these offenses are not

“so similar that the commission of one offense will necessarily result in

commission of the other.” Cabrales at ¶26. See, also, State v. Preston (1986),

23 Ohio St.3d 64, 491 N.E.2d 685; State v. Wilson, Cuyahoga App. No. 91971,

2010-Ohio-1196, at ¶97; State v. Smith, Montgomery App. No. 08CA0060, 2009-

Ohio-5048, at ¶20; State v. Walker (June 30, 2000), Montgomery App. No.

17678, 2001 WL 873222; State v. Sherman (May 7, 2001), Clermont App. No.

CA99-11-106, 2001 WL 473795.

       {¶53} Next, we compare, the crimes of attempted murder and aggravated

robbery in the abstract. As stated above, to commit aggravated robbery, one must

while attempting or committing a theft offense, have a deadly weapon on or about the

offender’s person or under the offender’s control and either display the weapon,

brandish it, indicate that the offender possesses it, or use it. In order to commit the
Scioto App. No. 09CA3312                                                                 18


offense of attempted murder as defined in R.C. 2903.02(A), one must engage in

conduct that, if successful, would result in purposely causing the death of another.

Again, clearly, these are not allied offenses. One could commit aggravated robbery

without purposely causing the death of another. State v. Lockhart, Cuyahoga App. No.

74113, 1999 WL 728354. See, also, State v. Fortson, Cuyahoga App. No. 83895,

2004-Ohio-5220, at ¶9. And one could commit attempted murder without committing a

theft offense. Thus, merger was not required for the aggravated robbery conviction.

       {¶54} We next consider whether the felonious assault charge is an allied offense

of attempted murder. The State candidly directs our attention to a recent Supreme

Court case on point. In State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, 922

N.E.2d 937, the Court held that felonious assault as defined in R.C. 2903.11(A)(2) is an

allied offense of attempted murder as defined in R.C. 2903.02(A) and 2923.02. In the

absence of a separate animus for each crime, a criminal defendant “may be found guilty

of both offenses, [but] he may be sentenced for only one.” Id. at ¶27. Because of the

holding in Williams, we need not determine whether the elements align to such an

extent as to result in the offense being allied offenses. But we must still determine if the

offenses were committed with a separate animus.

       {¶55} The Supreme Court explained the meaning of the word “animus” in State

v. Logan (1979), 60 Ohio St.2d 126, 397 N.E.2d 1345. “R.C. 2941.25(B), by its use of

the term ‘animus’, requires us to examine the defendant’s mental state in determining

whether two or more offenses may be chiseled from the same criminal conduct. In this

sense, we believe that the General Assembly intended the term ‘animus’ to mean
Scioto App. No. 09CA3312                                                                   19


purpose or, more properly, immediate motive.” Id. at 131. In more detail, the court

further explained:

       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. For example, when a
       person commits the crime of robbery, he must, by the very nature of the
       crime, restrain the victim for a sufficient amount of time to complete the
       robbery. Under our statutes, he simultaneously commits the offense of
       kidnapping (R.C. 2905.01(A)(2) [sic] by forcibly restraining the victim to
       facilitate the commission of a felony. In that instance, without more, there
       exists a single animus, and R.C. 2941.25 prohibits convictions for both
       offenses. Likewise, where an individual’s immediate motive is to engage in
       sexual intercourse, and a so-called “standstill” rape is committed, the
       perpetrator may be convicted of either rape or kidnapping, but not both. In
       contradistinction, an individual who restrains his intended rape victim for
       several days prior to perpetrating the rape, or who transports her out of
       the state or across the state while intermittently raping her, may well be
       considered to have a separate animus as to each of the offenses of
       kidnapping and rape, and convictions on multiple counts could reasonably
       be sustained.

Id. at 131-132.

       {¶56} Dixon contends that the evidence supporting his conviction for felonious

assault and attempted murder all occurred from one singular incident causing harm to

Waddell. The State argues that evidence at trial indicated that Waddell was struck from

behind with a hammer as he was walking up the aisle towards Dixon. The State further

contends that photographs demonstrate that the initial blow knocked him to the ground,

but he was able to get up and may have grabbed a grocery cart, leaving a bloody

handprint. The State suggests that the evidence also indicates that Waddell fought with

his attackers and received defensive bruises to his hands and arms. Ultimately,

Waddell received five blows to the head and twelve blows to the arm. The State argues

that the initial blow, knocking Waddell out, was sufficient for purposes of providing an
Scioto App. No. 09CA3312                                                                20


animus or motive for the felonious assault. But the additional blows that came afterward

show evidence of a separate motive for attempted murder.

       {¶57} Recently, the Eighth District Court of Appeals addressed a similar situation

in State v. Carter, Cuyahoga App. No. 90504, 2009-Ohio-5961. The court first noted

that “[t]he fact that there were several wounds does not automatically mean that a

separate animus attaches to each injury.” Id. at ¶9. The court explained:

       [I]n determining whether a separate animus exists, courts have examined
       case-specific factors such as whether the defendant at some point broke
       “a temporal continuum started by his initial act” [citing State v. Williams,
       Cuyahoga App. No. 89726, 2008-Ohio-5286]; whether, at some point, the
       defendant created a “substantial independent risk of harm” [id.]; whether
       facts appear in the record that “distinguish the circumstances or draw a
       line of distinction that enables a trier of fact to reasonably conclude
       separate and distinct crimes were committed” [citing State v. Hines,
       Cuyahoga App. No. 90125, 2008-Ohio-4236]; and whether a “significant
       amount of time passed between the beginning of the felonious assault and
       the end of the attack [citing State v. Chaney, Stark App. No.
       2007CA00332, 2008-Ohio-5559].”

Id.

       {¶58} We find Carter instructive. In this case the evidence at best demonstrates

that Waddell was struck with an initial blow sufficient to cause total memory loss of what

occurred next. The jury could speculate from the additional blows to Waddell’s head

and blows to his arms that Waddell may have attempted to fight his attackers or

attempted to shield himself from their blows with his arms. Furthermore, the evidence

suggested that Waddell may have been dragged from the initial point of attack to a

different location in the store.

       {¶59} But none of this evidence indicates two distinct motives in the assault, i.e.,

that during the course of the robbery, Murphy and Dixon first decided to seriously injure

Waddell and then later decided to kill him, or vice versa. Moreover, no evidence
Scioto App. No. 09CA3312                                                                21


suggests that the attack took place over an extended period of time, which might permit

such an assumption. Neither does the evidence reasonably support the conclusion that

there was a temporal break in the attack. There is simply no way that reasonable jurors

could differentiate one of the approximate seventeen “blows” that Waddell received as a

result of the robbery.

       {¶60} At best, the evidence suggests a violent continuous attack with a single

motive: to cause serious injury or death to Waddell in order to allow Dixon and Murphy

to commit a robbery. Thus, the trial court erred in failing to merge Dixon’s sentences for

felonious assault and attempted murder.

                                         VI. Conclusion

       {¶61} Based on the foregoing, we overrule Dixon’s first and second assignments

of error. We partially sustain Dixon’s third assignment of error concerning the trial

court’s failure to merge his convictions for felonious assault and attempted murder.

Pursuant to the Supreme Court’s holding in State v. Whitfield, 124 Ohio St.3d 319,

2010-Ohio-2, 922 N.E.2d 182, at paragraph one of the syllabus, “[t]he state retains the

right to elect which allied offense to pursue on sentencing on a remand to the trial court

after appeal.”

                                                       JUDGMENT AFFIRMED IN PART,
                                                           REVERSED IN PART, AND
                                                                CAUSE REMANDED.
Scioto App. No. 09CA3312                                                                    22


                                    JUDGMENT ENTRY

       It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the
costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

McFarland, P.J. & Kline, J.: Concur in Judgment and Opinion.

                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
