         [Cite as State v. Jackson, 2019-Ohio-2027.]

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




STATE OF OHIO,                                     :   APPEAL NO. C-180341
                                                       TRIAL NO. B-1704855A
        Plaintiff-Appellee,                        :
                                                          O P I N I O N.
  vs.                                              :

DERRICK JACKSON,                                   :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: May 24, 2019



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

Timothy J. McKenna, for Defendant-Appellant.
                      OHIO FIRST DISTRICT COURT OF APPEALS




MYERS, Judge.
        {¶1}   Defendant-appellant Derrick Jackson appeals the trial court’s
judgment convicting him of aggravated robbery with an accompanying firearm

specification and kidnapping. He argues that the trial court erred in failing to merge
his convictions because they are allied offenses of similar import, and that the record

does not support the sentences imposed. Finding no merit to Jackson’s assignments
of error, we affirm the trial court’s judgment.
        {¶2}   Jackson pled guilty to aggravated robbery pursuant to R.C.

2911.01(A)(1) with an accompanying firearm specification, and kidnapping pursuant
to R.C. 2905.01(A)(2). At the plea hearing, the prosecutor provided the court with a
brief recitation of facts, which were admitted by Jackson.
        {¶3}   On the evening of July 27, 2017, Marvin Brown and Danielle Fugua

were approached outside their residence in Madeira as they were returning home by
Jackson and his codefendant Ray Martin. Jackson and Martin grabbed Brown and
Fugua and held them at gunpoint, forcing them into their garage, through the

basement, up a common stairway, and into their apartment.            Once inside the
apartment, Fugua was forced onto the floor while Martin escorted Brown through
the apartment, hitting him with a handgun and demanding the couple’s valuables.
        {¶4}   Jackson saw Fugua attempting to call 911 while she was on the floor,
and he tried to take her phone. As they struggled, Jackson shot Fugua in the leg.

Jackson and Martin then fled from the apartment with various items of the victims’
property, including a handgun, Fugua’s phone, and an undetermined amount of
cash.
        {¶5}   After accepting Jackson’s plea, the trial court continued the case for
sentencing.    At the sentencing hearing, Jackson argued that his convictions for
aggravated robbery and kidnapping were allied offenses of similar import that were
subject to merger, and he introduced statements from Fugua and Brown in support

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of his argument. These statements of Fugua and Brown corroborated the facts
offered by the prosecutor at the plea hearing.
       {¶6}   The trial court found that Jackson’s convictions for aggravated robbery
and kidnapping were not allied offenses of similar import subject to merger. It

sentenced Jackson to 11 years’ imprisonment for the offense of aggravated robbery
and to a mandatory consecutive three years’ imprisonment for the accompanying

firearm specification. A sentence of 11 years’ imprisonment was imposed for the
offense of kidnapping.        The sentences imposed for aggravated robbery and
kidnapping were made concurrent, resulting in an aggregate sentence of 14 years’

imprisonment.
       {¶7}   In his first assignment of error, Jackson argues that the trial court
erred when it failed to merge his convictions for aggravated robbery and kidnapping

because they are allied offenses of similar import. Because Jackson 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.
       {¶8}   Under R.C. 2941.25(B), a defendant may be convicted of multiple

offenses arising from the same conduct if any one of the following is true: (1) the
conduct constitutes offenses of dissimilar import, (2) the conduct shows that the
offenses were committed separately, or (3) the conduct shows that the offenses were

committed with separate animus. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,
34 N.E.3d 892, paragraph three of the syllabus; State v. Bailey, 1st Dist. Hamilton
No. C-140129, 2015-Ohio-2997, ¶ 76.
       {¶9}   Jackson was convicted of aggravated robbery pursuant to R.C.
2911.01(A)(1), which provides 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 * * * [h]ave a deadly weapon on or about the


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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.” And he was convicted
of kidnapping pursuant to R.C. 2905.01(A)(2), which provides that “[n]o person, by
force, threat, or deception, * * * shall remove another from the place where the other

person is found or restrain the liberty of the other person, * * * [t]o facilitate the
commission of any felony or flight thereafter.”
       {¶10} A brief restraint of the victim is present in every aggravated robbery.
State v. Morris, 1st Dist. Hamilton No. C-150421, 2016-Ohio-5490, ¶ 17, citing State
v. Jenkins, 15 Ohio St.3d 164, 198, 473 N.E.2d 264 (1984), fn. 29. To determine
whether kidnapping and another offense are subject to merger, the primary question

is “whether the restraint or movement of the victim is merely incidental to a separate
underlying crime or, instead, whether it has a significance independent of the other
offense.” State v. Logan, 60 Ohio St.2d 126, 135, 397 N.E.2d 1345 (1979); Morris at

¶ 17. Where the restraint of the victim is prolonged, the confinement of the victim
secretive, or the movement of the victim is substantial, there exists a separate animus

for each offense. Logan at syllabus; Morris at ¶ 17. A separate animus also exists

where “the asportation or restraint of the victim subjects the victim to a substantial
increase in risk of harm separate and apart from that involved in the underlying
crime.” Logan at syllabus.
       {¶11} Here, Jackson and Martin detained Brown and Fugua at gunpoint,
forcing them into the garage, through the basement, up a set of stairs, and into their

apartment, where they were then forced onto the floor. Jackson then shot Fugua to
keep her restrained and prevent her from calling for help.            And Brown was
continually restrained as he was repeatedly hit in the head. The movement of Brown

and Fugua was substantial, and their restraint was longer than necessary to
effectuate the aggravated robbery, manifesting a separate animus for the kidnapping
offense. See Morris at ¶ 18 (where the defendant ordered the victim out of a car, up a
set of stairs, and into a house at knifepoint, and then further restrained the victim in


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the house with the threat of violence, the prolonged restraint of the victim
demonstrated a separate animus for the offense of kidnapping from the offense of
aggravated robbery).

       {¶12} We hold that the trial court did not err in failing to merge Jackson’s
convictions for kidnapping and aggravated robbery. The first assignment of error is
overruled.
       {¶13} In his second assignment of error, Jackson argues that the record does
not support the sentence imposed by the trial court.
       {¶14} Pursuant to R.C. 2953.08(G)(2)(a), we may modify or vacate a
defendant’s sentence only if we clearly and convincingly find that the record does not
support the mandatory sentencing findings or that the sentence is contrary to law.
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22-

23; State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 5 (1st Dist.).
       {¶15} Jackson specifically argues that the trial court erred in imposing a
maximum sentence for each offense, and that the trial court failed to consider the

principles and purposes of sentencing pursuant to R.C. 2929.11 and 2929.12. This
court has consistently held that R.C. 2929.11 and 2929.12 are not fact-finding
statutes, and that, in the absence of an affirmative demonstration by the defendant to

the contrary, we may presume that the trial court considered them.           State v.

Patterson, 1st Dist. Hamilton No. C-170329, 2018-Ohio-3348, ¶ 60. Jackson has
made no such affirmative demonstration.
       {¶16} The trial court was not required to make any mandatory sentencing
findings before sentencing Jackson. And Jackson’s sentence fell within the available
sentencing range and was not otherwise contrary to law.
       {¶17} We accordingly overrule the second assignment of error and affirm the
judgment of the trial court.
                                                                 Judgment affirmed.




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                      OHIO FIRST DISTRICT COURT OF APPEALS



ZAYAS, P.J., and CROUSE, J., concur.




Please note:

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




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