[Cite as State v. Jefferson, 2017-Ohio-1192.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                     MONTGOMERY COUNTY

 STATE OF OHIO                                        :
                                                      :
          Plaintiff-Appellee                          :   C.A. CASE NO. 27135
                                                      :
 v.                                                   :   T.C. NO. 16-CR-330
                                                      :
 TERRY L. JEFFERSON, JR.                              :   (Criminal Appeal from
                                                      :    Common Pleas Court)
          Defendant-Appellant                         :
                                                      :

                                                 ...........

                                                OPINION

                 Rendered on the ___31st __ day of _____March_____, 2017.

                                                 ...........

MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

CARL BRYAN, Atty. Reg. No. 0086838, 120 W. Second Street, #603, Dayton, Ohio
45402
      Attorney for Defendant-Appellant

                                                .............

FROELICH, J.

        {¶ 1} Terry L. Jefferson, Jr. pled guilty in the Montgomery County Court of

Common Pleas to two counts of felonious assault (serious physical harm and deadly

weapon), felonies of the second degree, and to one count of aggravated robbery (serious

physical harm), a felony of the first degree. He was convicted and sentenced to six years
                                                                                         -2-


on each offense, with the sentences to be served concurrently. The trial court also

imposed post-release control and ordered Jefferson to pay costs.

       {¶ 2} Jefferson appeals, arguing that the felonious assaults should have been

merged into the aggravated robbery, because they were allied offenses of similar import.

For the following reasons, the judgment of the trial court will be affirmed.

                                         I.      Facts

       {¶ 3} The incident that led to the charges against Jefferson occurred on January

28, 2016. Jefferson had a history of doing odd jobs and handyman work for James Reid,

and sometime earlier, Jefferson had repaired a roof on a property owned by Reid;

Jefferson had not been paid for this work. Although the timeline was unclear, the roofing

work appears to have been performed at least several months, and possibly as much as

two years, before the altercation in question.

       {¶ 4} On January 28, 2016, Jefferson and Reid ran into each other by chance at

a grocery store, and they exchanged words inside the store over the money that was

allegedly owed. They then proceeded to their own vehicles in the parking lot. As Reid

was attempting to leave the parking lot, Jefferson drove his pick-up truck into the driver’s

side door of Reid’s SUV. Reid believed that he was briefly knocked unconscious.

       {¶ 5} Jefferson then got out of his truck, reached through the broken window of

Reid’s SUV, and choked and beat Reid. Reid stated that he regained consciousness as

he was being choked. Jefferson jumped through the window and continued to assault

Reid; the two men eventually moved or fell into the back seat of the SUV and then fell out

onto the pavement and grass, as Jefferson kicked and punched Reid in the head. During

the altercation, Jefferson was demanding money from Reid. Jefferson eventually took a
                                                                                         -3-


necklace off of Reid’s neck and some lottery tickets that he had just purchased, which

had been in the front pocket of his pants. Jefferson then left the scene.

       {¶ 6} Reid suffered serious injuries, including broken bones in his face, and he

needed reconstructive surgery.

       {¶ 7} Several bystanders witnessed the altercation between Jefferson and Reid,

and two people videotaped a substantial portion of the altercation. One of these videos

was played at the sentencing hearing.

       {¶ 8} On February 5, 2016, Jefferson was indicted on two counts of felonious

assault and one count of aggravated robbery, as described above. He pled guilty to each

of the offenses and was sentenced to concurrent six-year terms.             The trial court

concluded that the offenses were not allied offenses of similar import and did not merge

them for sentencing.

                                   II.   Allied Offenses

       {¶ 9}   The first count of felonious assault (deadly weapon) was based upon

Jefferson’s crashing his truck into Reid’s vehicle. The second count of felonious assault

(serious physical harm) was based on Jefferson’s beating and kicking Reid in and around

Reid’s vehicle. The aggravated robbery was based on Jefferson’s removal of Reid’s

necklace and lottery tickets during the altercation.

       {¶ 10} The Ohio Supreme Court’s jurisprudence on allied offenses has evolved

over time, but it recently addressed this issue in State v. Ruff, 143 Ohio St.3d 114, 2015-

Ohio-995, 34 N.E.3d 892. It stated:

               When the defendant’s conduct constitutes a single offense, the

       defendant may be convicted and punished only for that offense. When the
                                                                                 -4-


conduct supports more than one offense, however, a court must conduct an

analysis of allied offenses of similar import to determine whether the

offenses merge or whether the defendant may be convicted of separate

offenses. R.C. 2941.25(B).

       A trial court and the reviewing court on appeal when considering

whether there are allied offenses that merge into a single conviction under

R.C. 2941.25(A) must first take into account the conduct of the defendant.

In other words, how were the offenses committed? If any of the following is

true, the offenses cannot merge and the defendant may be convicted and

sentenced for multiple offenses: (1) the offenses are dissimilar in import or

significance -- in other words, each offense caused separate, identifiable

harm, (2) the offenses were committed separately, or (3) the offenses were

committed with separate animus or motivation.

       At its heart, the allied-offense analysis is dependent upon the facts

of a case because R.C. 2941.25 focuses on the defendant’s conduct. The

evidence at trial or during a plea or sentencing hearing will reveal whether

the offenses have similar import. When a defendant’s conduct victimizes

more than one person, the harm for each person is separate and distinct,

and therefore, the defendant can be convicted of multiple counts. Also, a

defendant’s conduct that constitutes two or more offenses against a single

victim can support multiple convictions if the harm that results from each

offense is separate and identifiable from the harm of the other offense. We

therefore hold that two or more offenses of dissimilar import exist within the
                                                                                        -5-


       meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes

       offenses involving separate victims or if the harm that results from each

       offense is separate and identifiable.

Id. at ¶ 24-26.

       {¶ 11} The evidence presented at the sentencing hearing demonstrated that there

was substantial damage to both vehicles as a result of the collision, and Reid believed

that he had briefly been rendered unconscious. The video showed how the cars were

positioned immediately after the collision, as a bystander approached. The video also

showed Jefferson atop Reid in the back seat of Reid’s vehicle, as Reid’s head hung out

the open back door. Jefferson was intermittently punching Reid in the face, yelling about

the money owed to him (Jefferson), digging in Reid’s pockets, pausing, and talking with

a bystander about his grievance against Reid. The altercation continued for several

minutes.    Throughout this time, Reid was pleading for help from the bystander-

videographer.     Jefferson then kicked Reid in the head from the inside of the SUV,

stepped out of the car, and pushed or dragged Reid out with him, whereupon he continued

to hit Reid in the face and head. It is unclear from the video when Jefferson took Reid’s

necklace, but Jefferson does not deny this fact, and the necklace was later recovered

from Jefferson’s wife, who admitted that it had blood on it when Jefferson gave it to her.

       {¶ 12} Jefferson left the parking lot before the police arrived. The police officer

who responded to the scene testified that it was difficult to determine which of Reid’s

injuries had been caused by the collision as opposed to the beating.

       {¶ 13} The trial court concluded that the two felonious assaults were committed

separately: “the felonious assault with a deadly weapon was committed by the vehicle
                                                                                        -6-


collision that Mr. Jefferson caused and * * * that offense was separate from and distinct

from the felonious assault, serious physical harm, which was the result of the beating that

we saw in the video.” The court also concluded that the items taken from Reid during

the aggravated robbery constituted a separate harm from the felonious assault offenses,

and therefore the aggravated robbery and felonious assault counts did not merge.

      {¶ 14} The trial court correctly determined that the felonious assaults did not

merge with the aggravated robbery. As the court pointed out, the harm caused by the

beating was different from the harm caused by the robbery, and under Ruff, conduct “can

support multiple convictions if the harm that results from each offense is separate and

identifiable from the harm of the other offense.”     Moreover, Jefferson’s conduct, as

reflected in the video, supports the conclusion he was motivated by anger and vengeance

over non-payment of the debt as well as his desire to obtain repayment. We have held

that the use of force far in excess of that required to commit a robbery may indicate a

separate animus for another offense. See, e.g., State v. Jackson, 2d Dist. Montgomery

No. 24430, 2012-Ohio-2335 (involving aggravated robbery and murder). On this basis,

the court could have reasonably concluded that Jefferson had a separate animus for the

felonious assaults and the aggravated robbery. The court did not err in refusing to merge

the counts of felonious assault with the aggravated robbery.

      {¶ 15} The assignment of error is overruled.

                                    III.    Conclusion

      {¶ 16} The judgment of the trial court will be affirmed.

                                           .............

DONOVAN, J. and WELBAUM, J., concur.
                                                        -7-




Copies mailed to:

Michael J. Scarpelli
Carl Bryan
Montgomery County Common Pleas Court
c/o Hon. Mary Katherine Huffman, Administrative Judge
