[Cite as State v. Edwards, 2013-Ohio-1290.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT 

LAKE COUNTY, OHIO 

STATE OF OHIO, : O P I N I O N 

 Plaintiff-Appellee, :

CASE NO. 2012-L-034

 - vs - :

TARENCE E. EDWARDS, :

 Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 11 CR 

000592. 

Judgment: Affirmed. 

Charles E. Coulson, Lake County Prosecutor, and Alana A. Rezaee and Patrick J. 

Condon, Assistant Prosecutors, 105 Main Street, P.O. Box 490, Painesville, OH 

44077 (For Plaintiff-Appellee). 

Judson J. Hawkins, Parkhill Professional Building, 35104 Euclid Avenue, Suite 101, 

Willoughby, OH 44094 (For Defendant-Appellant). 

COLLEEN MARY O’TOOLE, J. 

{¶1} Appellant, Tarence E. Edwards, appeals from the April 5, 2012 judgment 

of the Lake County Court of Common Pleas, sentencing him for aggravated robbery, 

robbery, kidnapping, abduction, and theft. 

{¶2} On October 11, 2011, appellant was secretly indicted by the Lake County 

Grand Jury on six counts: count one, aggravated robbery, a felony of the first degree, in 

violation of R.C. 2911.01(A)(1), with an accompanying repeat violent offender 
 2

specification in violation of R.C. 2941.149; count two, robbery, a felony of the second 

degree, in violation of R.C. 2911.02(A)(2), with an accompanying repeat violent offender 

specification in violation of R.C. 2941.149; count three, robbery, a felony of the third 

degree, in violation of R.C. 2911.02(A)(3); count four, kidnapping, a felony of the second 

degree, in violation of R.C. 2905.01(A)(2), with an accompanying repeat violent offender 

specification in violation of R.C. 2941.149; count five, abduction, a felony of the third 

degree, in violation of R.C. 2905.02(A)(2); and count six, theft, a felony of the fifth 

degree, in violation of R.C. 2913.02(A)(1). Appellant pleaded not guilty to all charges. 

{¶3} A jury trial commenced on February 13, 2012. At trial, Omar Suleiman 

(“the victim”), owner of Raw Styles in Painesville, Lake County, Ohio, testified for 

appellee, the state of Ohio, that his store was robbed by three men on September 24, 

2011. While he was getting ready to close for the night, a man the victim knew by the 

name of “Speedy” came in. Speedy went to a shoe display and asked the victim if he 

could try on a pair of shoes in his size. As the victim was entering the back room, 

Speedy came behind him with a knife. Speedy told the victim it was a “shakedown.” 

{¶4} At that point, the victim testified that a second man wearing a skull cap 

and a bandana over his mouth entered the back room. The second man looked familiar 

to the victim, as he could see his face from beneath his nose to the middle of his 

forehead. During a struggle between the victim and the second man, the victim 

observed Speedy go behind the cash registers. The second man pushed the victim 

further into the back room, turned him around, held him down, and attempted to duct 

tape his hands behind his back. The victim heard a third man yell, “let’s go,” and the 

three men took off running. The victim pressed the store’s panic button. He attempted 
 3

to chase after the men, but was unsuccessful. After returning to the store, the victim 

discovered that almost $4,000 in cash was taken from the registers. 

{¶5} Officer William Smith (“Officer Smith”) with the Painesville City Police 

Department (“PCPD”) was dispatched to Raw Styles after learning that three African 

American male robbers were seen leaving in a white SUV. At the scene, Officer Smith 

spoke with the victim about the incident. Officer Smith testified for the state that he 

noticed that the victim was missing hair from his arm. Officer Smith saw a piece of duct 

tape located on the ground near the registers. 

{¶6} Later that night, the victim was shown two photo line-ups. He identified 

Lawrence Bolden, a.k.a. “Speedy,” in one and Joel Martin (“Martin”) in the other. The 

victim indicated that Martin used to work for him. Warrants were issued for Speedy and 

Martin. Officers continued to investigate the identity of the remaining suspect. 

{¶7} About a week after the incident, officers spoke with Martin following his 

arrest. Martin identified Speedy and appellant as being involved in the crime. Detective 

John Levicki (“Detective Levicki”) with the PCPD conducted another photo line-up, this 

time including a photo of appellant. On October 5, 2011, Detective Levicki met with the 

victim to administer the photo line-up. The victim identified appellant as the second 

man with the partially covered face who tried to duct tape him. The victim testified that 

he was familiar with appellant from past dealings. 

{¶8} About two weeks later, officers spoke with Speedy following his arrest. 

Speedy admitted to Detective Levicki that he was involved in the robbery at Raw Styles 

with Martin and appellant. Speedy told officers, as well as testified for the state, that he 

and Martin were friends and that appellant, who he called “T-Rex,” was Martin’s 
 4

nephew. According to Speedy, on the night of the robbery, he went to Martin’s house. 

They smoked crack cocaine and appellant arrived shortly thereafter. Speedy indicated 

that Martin was upset about being recently fired from Raw Styles. Speedy further stated 

that appellant was also upset and talked about robbing the store. The three men then 

devised and set their plan into motion. 

{¶9} Appellant drove his white Lexus SUV with Martin as the front seat 

passenger and Speedy in the back seat. They parked on a nearby street and entered 

Raw Styles. Speedy testified that he went into the store and asked the victim if he could 

try on a pair of shoes. Speedy followed the victim into the back room and pulled a knife 

on him. According to Speedy, Martin and appellant then ran into the store. Martin went 

to the cash registers while appellant, who wore a partial face mask, went to the back 

room and began wrestling with the victim. The three men ran out of the store to 

appellant’s car with cash in hand. After leaving the scene, Martin passed out money to 

Speedy and appellant. 

{¶10} Thereafter, on November 4, 2011, appellant went to Raw Styles to pay a 

bill. After recognizing appellant, the victim pressed the panic alarm. Officer Matt Tycast 

(“Officer Tycast”) with the PCPD testified for the state that he responded to the call. 

Officer Tycast arrested appellant and took him into custody. Appellant later spoke with 

Detective Levicki. In a recorded interview admitted at trial over appellant’s objection, 

Detective Levicki informed appellant that two individuals named appellant as being 

involved in the September 24, 2011 crime. Appellant denied any involvement. 

{¶11} While incarcerated, appellant’s jail calls were collected. A portion of one 

call between appellant and Yolanda Webber (“Webber”), the mother of appellant’s son, 
 5

was played for the jury, over appellant’s objection. In that call, appellant explained that 

he felt he needed to get money for Webber. Webber responded by asking appellant if 

this was all her fault. Appellant replied that it was not Webber’s fault but rather his own 

fault for the decisions he had made. 

{¶12} After the state rested, appellant called several witnesses to testify on his 

behalf, including: Webber, his sisters Fateria and Rebecca Edwards, his cousin Johnny 

Rivers (“Rivers”), and Rivers’ girlfriend Amy Darroch. Collectively, appellant’s witnesses 

testified that he was at his mother’s house and that his white SUV was in Fateria 

Edwards’ possession during the time frame of the robbery. 

{¶13} Following trial, the jury found appellant guilty on all counts. The trial court 

deferred sentencing and the matter was referred to the Adult Probation Department for 

a presentence investigation report and victim impact statement. 

{¶14} At the sentencing hearing, the trial court found appellant guilty of the 

repeat violent offender specification accompanying count one and found him to be a 

repeat violent offender. 

{¶15} Pursuant to its April 5, 2012 judgment, the trial court sentenced appellant 

to a 21-year total prison term. Specifically, appellant was sentenced to ten years on 

count one and five years on count four, to run consecutive to each other. Counts two, 

three, and six merged with count one, and count five merged with count four. The trial 

court further ordered appellant to serve an additional six years on the repeat violent 

offender specification, to be served prior to and consecutive to the foregoing prison 

term. Appellant filed a timely appeal asserting the following five assignments of error for 

our review: 
 6

{¶16} “[1.] The trial court committed prejudicial error and violated Appellant’s VI 

Amendment rights to confront the witnesses against him and the Ohio Rules of 

Evidence by introducing hearsay statements of co-defendants and others via the 

introduction of a recorded interview between the police and Appellant. 

{¶17} “[2.] The trial court committed prejudicial error in permitting the 

introduction of Appellant’s pre-trial denials of guilt. These statements were not relevant 

pursuant to Evid.R. 401 and, even if relevant, should have been excluded pursuant to 

Evid.R. 403(A). 

{¶18} “[3.] The trial court committed prejudicial error in permitting, over 

Appellant’s objection, the introduction of a brief segment of a jail house tape recorded 

telephone call between Appellant and Yolanda Webber that occurred several months 

after the crime. 

{¶19} “[4.] The trial court erred by treating both Aggravated Robbery and 

Kidnapping as separate crimes for the purposes of sentencing. 

{¶20} “[5.] The trial court erred in sentencing Appellant to consecutive sentences 

by using facts not presented to the jury and not found by the jury.” 

{¶21} In his first assignment of error, appellant argues that the trial court erred 

and violated his constitutional right to confront witnesses against him and the Ohio 

Rules of Evidence by introducing hearsay statements of co-defendants and others via 

the introduction of a recorded interview he had with police. 

{¶22} In his second assignment of error, appellant contends that the trial court 

erred in permitting the introduction of his pre-trial denials of guilt. Appellant maintains 

that his statements to Detective Levicki were not relevant pursuant to Evid.R. 401 and, 
 7

even if relevant, should have been excluded pursuant to Evid.R. 403(A). Appellant 

further argues that the trial court erred in permitting the state to introduce, over his 

objection, the video-taped interview in order to demonstrate to the jury his “demeanor” 

and “reaction” to Detective Levicki’s statement that his co-defendants had identified him 

as a participant in the crime. 

{¶23} Because appellant’s first and second assignments of error are interrelated, 

we will address them together. 

{¶24} Although we generally review decisions on the admission of evidence for 

an abuse of discretion, appellate courts apply a de novo standard of review to 

evidentiary questions raised under the Confrontation Clause. See State v. Hall, 8th 

Dist. No. 96680, 2012-Ohio-266, ¶21. 

{¶25} With regard to appellant’s constitutional argument, the Sixth Amendment 

to the United States Constitution states that “[i]n all criminal prosecutions, the accused 

shall enjoy the right * * * to be confronted with the witnesses against him[.]” Thus, the 

Confrontation Clause bars the “testimonial statements of a witness who did not appear 

at trial unless he was unavailable to testify, and the defendant had had a prior 

opportunity for cross-examination.” Crawford v. Washington, 541 U.S. 36, 53-54 

(2004). 

{¶26} The threshold inquiry is whether the challenged out-of-court statements 

were testimonial in nature and needed to be tested by confrontation. See State v. 

Lewis, 1st Dist. Nos. C-050989 and C-060010, 2007-Ohio-1485, ¶30. Statements are 

“testimonial when the circumstances objectively indicate that there is no * * * ongoing 

emergency, and that the primary purpose of the interrogation is to establish or prove 
 8

past events potentially relevant to later prosecution.” Davis v. Washington, 547 U.S. 

813, 822 (2006); see also State v. Stahl, 111 Ohio St.3d 186, 2006-Ohio-5482, 

paragraph one of the syllabus. 

{¶27} Confrontation Clause violations are subject to harmless error analysis. 

See State v. Kraft, 1st Dist. No. C-060238, 2007-Ohio-2247, ¶67, citing United States v. 

Summers, 414 F.3d 1287, 1303 (10th Cir.2005). “A constitutional error can be held 

harmless if we determine that it was harmless beyond a reasonable doubt.” State v. 

Conway, 108 Ohio St.3d 214, 2006-Ohio-791, ¶78, citing Chapman v. California, 386 

U.S. 18, 24 (1967). 

{¶28} With respect to appellant’s evidence argument, Evid.R. 401 states: 

“‘Relevant evidence’ means evidence having any tendency to make the existence of 

any fact that is of consequence to the determination of the action more probable or less 

probable than it would be without the evidence.” 

{¶29} Evid.R. 402 provides: “All relevant evidence is admissible, except as 

otherwise provided by the Constitution of the United States, by the Constitution of the 

State of Ohio, by statute enacted by the General Assembly not in conflict with a rule of 

the Supreme Court of Ohio, by these rules, or by other rules prescribed by the Supreme 

Court of Ohio. Evidence which is not relevant is not admissible.” 

{¶30} Evid.R. 403(A) states: “Although relevant, evidence is not admissible if its 

probative value is substantially outweighed by the danger of unfair prejudice, of 

confusion of the issues, or of misleading the jury.” 

{¶31} Hearsay is defined as, “a statement, other than one made by the declarant 

while testifying at the trial or hearing, offered in evidence to prove the truth of the matter 
 9

asserted.” Evid.R. 801(C). Hearsay is inadmissible at trial, unless it falls under an 

exception to the Rules of Evidence. Evid.R. 802. 

{¶32} Evid.R. 801(D)(2)(a) provides that a statement is “not hearsay” if, “The 

statement is offered against a party and is * * * the party’s own statement * * *.” 

{¶33} In this case, appellant’s own out-of-court statements denying his guilt, 

made during his interview with Detective Levicki and offered against him at trial, are 

relevant and admissible pursuant to Evid.R. 401, 402, and 801(D)(2)(a). The admission 

of the video-taped interview, as a whole, did not cause appellant unfair prejudice, 

confuse the issues, and/or mislead the jury under Evid.R. 403(A). The majority of the 

video-taped interview allowed the jury to observe appellant’s responses to Detective 

Levicki’s inquiries and his overall demeanor in order to determine his credibility. 

However, the trial court should not have allowed into evidence the portion of the tape 

where Detective Levicki stated that appellant’s co-defendants and “others” implicated 

him in the crime. 

{¶34} Prior to speaking with appellant, Detective Levicki interviewed appellant’s 

co-defendants, Speedy and Martin, about the robbery. During appellant’s recorded 

interview, Detective Levicki said that responses made by appellant’s co-defendants and 

“others” indicated that appellant was involved in the crime. Specifically, Detective 

Levicki informed appellant that “other people say you did it,” “people named you as 

being involved,” “two people * * * involved with the crime implicated you,” and “they both 

gave your name up.” Also, Detective Levicki said that “this was already taken to the 

Grand Jury and the Grand Jury listened to the case, listened to the evidence that we 

had, and the Grand Jury felt there was enough to give an indictment for your arrest.” 
 10

{¶35} We stress that Speedy testified at trial, however, Martin did not, and thus, 

was not subject to cross-examination by appellant. In addition, we do not know who the 

“others” are that Detective Levicki referred to and/or whether they testified at trial. Thus, 

these testimonial statements are barred by the Confrontation Clause and their 

admission violated appellant’s Sixth Amendment rights. See Crawford and Davis, 

supra. 

{¶36} The trial court attempted to “cure” the foregoing by providing the following 

limiting instruction to the jury: 

{¶37} “Evidence has been submitted of the police questioning of the Defendant. 

The police are permitted by law to engage in deception in an effort to elicit admissions 

from the Defendant. The jury is not to consider as evidence any statement made by the 

police during the questioning of the Defendant that has not been agreed to or adopted 

by the Defendant, or otherwise has not been proven by other evidence during the trial.” 

{¶38} Most testimonial statements are too damaging for a lay juror to separate 

and/or ignore. See e.g. State v. White, 8th Dist. No. 72011, 1998 Ohio App. LEXIS 

1622, *7 (April 16, 1998), citing Bruton v. United States, 391 U.S. 123 (1968). “The 

rationale of Bruton was that the introduction of a potentially unreliable confession of one 

defendant which implicates another defendant without being subject to crossexamination deprives the latter defendant of his right to confrontation guaranteed by the 

Sixth Amendment.” United States v. Fleming, 594 F.2d 598, 602 (7th Cir.1979). The 

Bruton rule also applies to statements of co-defendants that are not confessions. State 

v. Moritz, 63 Ohio St.2d 150, 155 (1980). This same concept applies here in regard to 

Crawford and its progeny. 
 11

{¶39} “Cases following Bruton have established that the error may be harmless.” 

State v. Holdsworth, 11th Dist. No. 90-P-2231, 1992 Ohio App. LEXIS 724, *14 (Feb. 

21, 1991). Thus, Bruton violations are subject to harmless error review. See State v. 

Burney, 10th Dist. No. 06AP-990, 2007-Ohio-7137, ¶53, citing Harrington v. California, 

395 U.S. 250, 252-254 (1969). “‘“The mere finding of a violation of the Bruton rule in 

the course of the trial * * * does not automatically require reversal of the ensuing 

criminal conviction. In some cases the properly admitted evidence of guilt is so 

overwhelming, and the prejudicial effect of the codefendant’s admission [or statements] 

is so insignificant by comparison, that it is clear beyond a reasonable doubt that the 

improper use of the admission was harmless error. (* * *)”’ Moritz at 156, citing 

Schneble v. Florida (1972), 405 U.S. 427, 430.” Holdsworth at *14. 

{¶40} Based on the facts of this case, the limiting instruction alone was not 

enough to cure the Bruton violation because the jury had already heard the testimonial 

statements of Detective Levicki that appellant’s co-defendants and “others” said that 

appellant committed the crime. Courts should be mindful that such testimonial 

statements may be too damaging for a lay juror to separate and/or ignore. However, 

the Bruton violation did not prejudice appellant as there was other evidence of his guilt. 

See e.g. Holdsworth, supra, at *14. The facts in the case before us are not sufficient 

given the overwhelming evidence of guilt properly before the jury. Thus, the trial court’s 

error was harmless. Id. 

{¶41} Appellant’s first and second assignments of error are without merit. 

{¶42} In his third assignment of error, appellant alleges that the trial court erred 

in permitting, over his objection, the introduction of a brief segment of the jail house tape 
 12

recorded telephone call between him and Webber that occurred several months after 

the crime. Appellant maintains that the call was not placed in context and was 

inaudible. 

{¶43} The Supreme Court of Ohio in State v. Robb, 88 Ohio St.3d 59, 72 (2000), 

stated: 

{¶44} “‘To be admissible, a tape recording must be “authentic, accurate and 

trustworthy.”’ State v. Coleman (1999), 85 Ohio St.3d 129, 141 * * *, quoting State v. 

Rogan (1994), 94 Ohio App.3d 140, 148 * * *. Whether to admit tape recordings that 

are partly inaudible rests within the sound discretion of the trial court. Coleman at 141 * 

* *. See, also, State v. Gotsis (1984), 13 Ohio App.3d 282, 283 * * *; United States v. 

Haldeman (C.A.D.C.1976), * * * 559 F.2d 31 (tape with unexplained gap held 

admissible); United States v. Slade (C.A.D.C.1980), * * * 627 F.2d 293, 301 (tapes are 

admissible unless inaudibility renders tape as a whole untrustworthy).” 

{¶45} In the case at bar, the trial court did not err in admitting a portion of the jail 

house tape recorded telephone call between appellant and Webber, the mother of his 

son who also testified at trial. Two detectives testified with respect to the recording. 

Detective Donald Seamon (“Detective Seamon”) with the Lake County Sheriff’s Office 

testified for the state regarding the jail’s call system. He explained the manner in which 

inmate phone calls are recorded. Detective Seamon further indicated his involvement in 

compiling all of appellant’s jail calls during the time period from November 4, 2011 

through January 31, 2012. Also, Detective Levicki testified that it was appellant’s voice 

on the recording. Thus, pursuant to the detectives’ testimony, the tape recording was 
 13

“authentic, accurate and trustworthy,” and therefore, properly admitted. Robb, supra, at 

72. 

{¶46} Although portions of the recording are somewhat inaudible, the inaudibility 

did not render the tape as a whole untrustworthy. Id. As such, the trial court acted 

within its discretion in admitting the recording. Id. Appellant claims that his 

conversation with Webber established that he needed money while in jail. However, the 

recording actually reveals that appellant had a prior need to get money for Webber. As 

stated, appellant explained on the recording that he felt that he needed to get Webber 

money. Webber responded by asking appellant if this was all her fault. Appellant 

replied that it was not Webber’s fault but rather his own fault for the decisions he had 

made. The portion of the recording at issue created a reasonable inference that 

appellant committed the robbery because he felt the need to get money for Webber. 

Thus, the state’s use of the recording was to establish a possible motive appellant may 

have had at the time of the crime. 

{¶47} Appellant’s third assignment of error is without merit. 

{¶48} In his fourth assignment of error, appellant argues that the trial court erred 

by treating aggravated robbery and kidnapping as separate crimes for the purposes of 

sentencing. Appellant stresses that the presence of duct tape found at the scene, 

without proof that it was brought to the crime, does not amount to a separate animus 

sufficient to prevent a merger of the crimes. 

{¶49} Our review of an allied offenses question is de novo. State v. Williams, 

Slip Opinion No. 2012-Ohio-5699, ¶12. “R.C. 2941.25 ‘codifies the protections of the 

Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and 
 14

Section 10, Article I of the Ohio Constitution, which prohibits multiple punishments for 

the same offense.’ State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, * * * ¶23. At 

the heart of R.C. 2941.25 is the judicial doctrine of merger; merger is ‘the penal 

philosophy that a major crime often includes as inherent therein the component 

elements of other crimes and that these component elements, in legal effect, are 

merged in the major crime.’ State v. Botta, 27 Ohio St.2d 196, 201 * * * (1971).” 

(Parallel citations omitted.) Williams at ¶13. 

{¶50} R.C. 2941.25 states: 

{¶51} “(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. 

{¶52} “(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.” 

{¶53} “To ensure compliance with both R.C. 2941.25 and the Double Jeopardy 

Clause, ‘a trial court is required to merge allied offenses of similar import at sentencing. 

Thus, when the issue of allied offenses is before the court, the question is not whether a 

particular sentence is justified, but whether the defendant may be sentenced upon all 

the offenses.’ Underwood at ¶27.” Williams, supra, at ¶15. 

{¶54} The method employed by courts in determining whether two crimes 

constitute allied offenses of similar import has evolved. In State v. Rance, 85 Ohio 
 15

St.3d 632 (1999), the Supreme Court of Ohio held that “[u]nder an R.C. 2941.25(A) 

analysis, the statutorily defined elements of offenses that are claimed to be of similar 

import are compared in the abstract.” Id., paragraph one of the syllabus. (Emphasis 

sic.) Since its release, Rance has gone through various modifications and revisions. 

See State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625; State v. Brown, 119 Ohio 

St.3d 447, 2008-Ohio-4569; State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059. 

{¶55} The Supreme Court of Ohio revisited the allied offenses analysis again in 

2010 and overruled Rance in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314. 

Under the new analysis, which this court later relied upon and embraced in State v. 

May, 11th Dist. No. 2010-L-131, 2011-Ohio-5233, “[w]hen determining whether two 

offenses are allied offenses of similar import subject to merger under R.C. 2941.25, the 

conduct of the accused must be considered.” Johnson, at the syllabus. The Johnson

court provided the new analysis as follows: 

{¶56} “In determining whether offenses are allied offenses of similar import 

under R.C. 2941.25(A), the question is whether it is possible to commit one offense and

commit the other with the same conduct, not whether it is possible to commit one 

without committing the other. * * * If the offenses correspond to such a degree that the 

conduct of the defendant constituting commission of one offense constitutes 

commission of the other, then the offenses are of similar import. 

{¶57} “If the multiple offenses can be committed by the same conduct, then the 

court must determine whether the offenses were committed by the same conduct, i.e., 

‘a single act, committed with a single state of mind.’ * * *. 
 16

{¶58} “If the answer to both questions is yes, then the offenses are allied 

offenses of similar import and will be merged. 

{¶59} “Conversely, if the court determines that the commission of one offense 

will never result in the commission of the other, or if the offenses are committed 

separately, or if the defendant has [a] separate animus for each offense, then, 

according to R.C. 2941.25(B), the offenses will not merge.” Id. at ¶48-51. (Citations 

omitted.) (Emphasis sic.) 

{¶60} This court went on to state in May, supra, at ¶50-51: 

{¶61} “‘In departing from the former test, the court developed a new, more 

context-based test for analyzing whether two offenses are allied thereby necessitating a 

merger. In doing so, the court focused upon the unambiguous language of R.C. 

2941.25, requiring the allied-offense analysis to center upon the defendant’s conduct, 

rather than the elements of the crimes which are charged as a result of the defendant’s 

conduct.’” [State v.] Miller[,11th Dist. No. 2009-P-0090, 2011-Ohio-1161,] at ¶47, citing 

Johnson at ¶48-52. 

{¶62} “‘The (Johnson) court acknowledged the results of the above analysis will 

vary on a case-by-case basis. Hence, while two crimes in one case may merge, the 

same crimes in another may not. Given the statutory language, however, this is not a 

problem. The court observed that inconsistencies in outcome are both necessary and 

permissible “(* * *) given that the statute instructs courts to examine a defendant’s 

conduct - an inherently subjective determination.”’ Miller at ¶52, quoting Johnson at 

¶52.” 
 17

{¶63} In our case, the issue is whether aggravated robbery and kidnapping are 

allied offenses of similar import subject to merger for purposes of sentencing, which we 

will review de novo. Williams, supra, at ¶12. 

{¶64} Aggravated robbery, under R.C. 2911.01(A)(1), states in part: “[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 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[.]” 

{¶65} Kidnapping, under R.C. 2905.01(A)(2), provides in part: “[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[.]” 

{¶66} The Supreme Court of Ohio has held that aggravated robbery and 

kidnapping are allied offenses of similar import. See State v. Wilson, 129 Ohio St.3d 

214, 2011-Ohio-2669, ¶11. Again, under R.C. 2941.25, Ohio’s multiple-count statute, if 

a defendant’s conduct results in allied offenses of similar import, the defendant may 

ordinarily be convicted of only one of the offenses. R.C. 2941.25(A). However, if the 

defendant commits each offense separately or with a separate animus, then convictions 

may be entered for both offenses. R.C. 2941.25(B); see also State v. Dean, 11th Dist. 

No. 2010-P-0003, 2010-Ohio-5185, ¶40 (holding that the trial court did not abuse its 

discretion in not merging aggravated robbery and kidnapping for sentencing because 

each had a separate animus.) 
 18

{¶67} Thus, although aggravated robbery and kidnapping are allied offenses, 

our treatment of appellant’s argument is not over. The specific facts of this case must 

be reviewed to determine whether appellant committed the charged offenses separately 

or with a separate animus so as to permit multiple punishments. 

{¶68} At the sentencing hearing, appellant’s counsel argued that the aggravated 

robbery and kidnapping charges should merge for purposes of sentencing. Following a 

lengthy discussion, the trial court determined that the offenses would not merge 

because each was committed with a separate animus. Based on the facts presented, 

we agree with the trial court. 

{¶69} The aggravated robbery was complete when Speedy held the victim at 

knife point, told him it was a “shakedown,” and Martin entered the store to empty the 

cash registers. Appellant, wearing a skull cap and a bandana over his mouth, continued 

to restrain the victim and a physical struggle ensued between appellant and the victim in 

the back room. The victim indicated that appellant pushed him further into the back 

room, while Martin was emptying the registers. Appellant attempted to duct tape the 

victim’s hands behind his back during the struggle, which resulted in hair loss to the 

victim’s arm. Although there is no evidence in the record that the duct tape used to 

restrain the victim was brought to the robbery, duct tape was nevertheless found at the 

scene, which corroborates appellant’s intent to physically restrain the victim. Thus, the 

plan to get the victim into the back room and the prolonged restraint involved subjected 

him to an increase in the risk of harm that was separate and apart from the aggravated 

robbery. See State v. Chaffer, 1st Dist. No. C-090602, 2010-Ohio-4471, ¶11, citing 

State v. Logan, 60 Ohio St.2d 126, syllabus (1979) (holding “that even without 
 19

prolonged restraint, secret confinement, or substantial movement, where the asportation 

or restraint exposes the victims to a substantial increase in the risk of harm separate 

and apart from the underlying crime of robbery, a separate animus exists for 

kidnapping.”) 

{¶70} Based on the facts of this case, the aggravated robbery and kidnapping 

were not committed with the same animus. Therefore, appellant was properly 

sentenced separately for each offense under R.C. 2941.25(B) and Johnson. 

{¶71} Appellant’s fourth assignment of error is without merit. 

{¶72} In his fifth assignment of error, appellant contends that the trial court erred 

in sentencing him to consecutive sentences by using facts not presented to and found 

by the jury. Appellant bases his argument on constitutional violations raised in Blakely 

v. Washington, 542 U.S. 296 (2004), and State v. Foster, 109 Ohio St.3d 1, 2006-Ohio856, claiming that the jury must make the finding that a separate animus exists before 

consecutive sentences can be imposed for allied offenses. 

{¶73} In reviewing sentences post-Foster, we note that “[t]he jury-trial guarantee 

of the Sixth Amendment to the United States Constitution does not preclude states from 

requiring trial court judges to engage in judicial fact-finding prior to imposing 

consecutive sentences. (Oregon v. Ice, 555 U.S. 160 * * * (2009), construed.)” State v. 

Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, paragraph one of the syllabus. This court 

stated in State v. Hamilton, 11th Dist. No. 2011-P-0044, 2012-Ohio-1457, ¶21, that 

“[t]rial judges have ‘“the discretion and inherent authority to determine whether a prison 

sentence within the statutory range shall run consecutively or concurrently.”’ [Hodge] at 
 20

¶12, quoting State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, * * * ¶18-19.” 

(Parallel citations omitted.) 

{¶74} With regard to allied offenses, the Supreme Court of Ohio in Johnson 

determined that R.C. 2941.25 “expressly instructs courts to consider the offenses at 

issue in light of the defendant’s conduct” and repeatedly stated that it is “the court” that 

determines prior to sentencing whether the offenses are committed by the same 

conduct or if a separate animus exists. Johnson, supra, at ¶46-51. 

{¶75} Thus, contrary to appellant’s argument, trial court judges have the 

discretion and inherent authority to determine whether offenses are committed by the 

same conduct or if a separate animus exists, and whether a prison sentence within the 

statutory range shall run consecutively. In this case, the trial court properly exercised its 

discretion and authority in finding that a separate animus existed. As stated, a lengthy 

discussion occurred at the sentencing hearing regarding the evidence and what the trial 

court could consider in making its merger determination. Again, although there is no 

evidence in the record that the duct tape used to restrain the victim was brought to the 

robbery, duct tape was nevertheless found at the scene, which corroborates appellant’s 

intent to physically restrain the victim. Also, the testimony from the jury trial revealed 

that appellant held the victim in the back room, which provided Martin with the 

opportunity to empty the cash registers. 

{¶76} In addition, before sentencing appellant consecutively, the trial court 

considered the record, oral statements, any victim impact statement, pre-sentence 

report and/or drug and alcohol evaluation as well as the principles and purposes of 

sentencing under R.C. 2929.11, and balanced the seriousness and recidivism factors 
 21

under R.C. 2929.12. Pursuant to R.C. 2929.14(C)(4) and 2929.19(B)(2)(b), the trial 

court further found that consecutive sentences are necessary to protect the public from 

future crime or to punish appellant and are not disproportionate to his conduct and the 

danger he poses to the public. 

{¶77} Appellant’s fifth assignment of error is without merit. 

{¶78} For the foregoing reasons, appellant’s assignments of error are not welltaken. The judgment of the Lake County Court of Common Pleas is affirmed. The court 

finds there were reasonable grounds for this appeal. 

DIANE V. GRENDELL, J., 

CYNTHIA WESTCOTT RICE, J., 

concur.