[Cite as State v. Corker, 2013-Ohio-5446.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : 

 No. 13AP-264 

v. : (C.P.C. No. 12CR-04-1955)

 

Ja Michael Corker, : (REGULAR CALENDAR) 

 

 Defendant-Appellant. : 

 : 

State of Ohio, 

 : 

 Plaintiff-Appellee, 

 : No. 13AP-265 

v. (C.P.C. No. 12CR-05-2343)

 : 

Ja Michael Corker, (REGULAR CALENDAR) 

 : 

 Defendant-Appellant. 

 : 

State of Ohio, : 

 

 Plaintiff-Appellee, : 

 No. 13AP-266 

v. : (C.P.C. No. 12CR-05-2344)

 

Ja Michael Corker, : (REGULAR CALENDAR) 

 

 Defendant-Appellant. : 

 

 

D E C I S I O N 

Rendered on December 12, 2013 

 
Nos. 13AP-264, 13AP-265 and 13AP-266 2 

Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, 

for appellee. 

Stephen Dehnart, for appellant. 

 

APPEALS from the Franklin County Court of Common Pleas 

CONNOR, J. 

{¶ 1} Defendant-appellant, Ja Michael Corker ("defendant"), appeals from the 

judgment of the Franklin County Court of Common Pleas convicting him of aggravated 

robbery, kidnapping, two counts of robbery, four count of felonious assault, and a firearm 

specification for each conviction. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} In the spring of 2012, defendant was the subject of three indictments 

handed down by the Franklin County Grand Jury, arising out of three separate incidents 

that occurred in early 2012.1

{¶ 3} The first incident took place on January 1, 2012, involving victim Larry 

Fraganato. At approximately 8:30 p.m., Fraganato arrived at the Sunoco gas station on 

Georgesville Road, in Columbus, Ohio. As he entered the store to buy a drink, Fraganato 

noticed two men standing beside a white Impala. According to Fraganato, the two men 

appeared to be waiting for someone to jump start the car. 

{¶ 4} When Fraganato exited the building after paying for his gas, the two men 

approached him and asked for his help. Fraganato attempted to help the two men jump 

start the car but his efforts were unsuccessful. As Fraganato attempted to drive away, one 

of the men, later identified as defendant, jumped into the passenger seat brandishing a 

handgun. According to Fraganato, defendant ordered him to drive away from the gas 

station as the other man followed in the Impala. 

{¶ 5} Fraganato testified that he was forced to drive a short distance down the 

road and to take a right-hand turn onto Industrial Boulevard. Shortly after making the 

turn onto Oakwood, defendant ordered Fraganato to stop the vehicle at Nationwide 

Boulevard and to empty his pockets. Defendant took Fraganato's cell phone, a play 

station portable game, and $30 to $40. At that point, defendant pressed the gun to 

 

1 Case Nos. 12CR-04-1955, 12CR-05-2343, and 12CR-05-2344. 
Nos. 13AP-264, 13AP-265 and 13AP-266 3 

Fraganato's head and demanded his wallet. When Fraganato told defendant he did not 

have his wallet with him, defendant became angry. As defendant fled the scene, he 

threatened to kill Fraganato and his family if he went to police. 

{¶ 6} The second incident, also involving Fraganato, occurred on February 3, 

2012, in the Walmart store on Georgesville Road, in Columbus, Ohio. Fraganato testified 

that he and his girlfriend, Dominique Nickel, and their two children, were sitting in the 

Subway restaurant located inside the Walmart store when he saw defendant and some of 

defendant's friends enter the store and walk by the restaurant. Fraganato believed that 

defendant had recognized him. 

{¶ 7} Fraganato told his girlfriend to take the kids to the car and to call police. 

Fraganato also called the police to report that the man who had robbed him was in the 

store. When Fraganato confronted defendant in the Walmart store, a fight ensued. 

Fraganato sustained a blow to the head from one of defendant's friends, and a slight 

laceration on his arm from a box cutter wielded by defendant. Defendant ran from the 

store and escaped police. Surveillance video from the store reveals that defendant was 

wearing a black jacket with a distinctive white design on the back. 

{¶ 8} On February 4, 2012, just hours after the Walmart incident, defendant was 

involved in a shooting at Burnzie's Bar. According to witnesses, a fight between two 

women erupted just outside the entrance of the bar and that the fight quickly escalated 

into a melee involving as many as ten individuals. As the brawl moved out onto the 

sidewalk, defendant was seen running away from a group of men. Stephanie Clark 

testified that when she saw the same men running back toward the bar, several shots rang 

out. Clark sustained a gunshot wound to her right leg, and Katrina Sparks took a bullet in 

her left shoulder. Both victims survived the attack and Clark testified for the prosecution 

at trial. Burnzie's Bar co-owner, Wayne Scanlon, testified that he saw defendant fire 

several shots at a group of men as they ran back toward the bar. Witnesses described the 

shooter as a black man wearing a black jacket with a distinctive design on the back. Much 

of the incident was captured on video surveillance equipment, and the footage was shown 

to the jury at trial. 

{¶ 9} On April 19, 2012, a Franklin County Grand Jury indicted defendant on two 

counts of felonious assault arising out of the February 4, 2012 shooting at Burnzie's Bar. 
Nos. 13AP-264, 13AP-265 and 13AP-266 4 

Each count contained a firearm specification. The grand jury handed down two more 

indictments on May 10, 2012, charging defendant with the following offenses: felonious 

assault, kidnapping, aggravated robbery, and two counts of robbery in connection with 

the January 1, 2012 incident; and felonious assault in connection with the February 3, 

2012 incident at Walmart. Each count contained a firearm specification. 

{¶ 10} The jury found defendant guilty of all charges. Following a sentencing 

hearing on February 28, 2013, the trial court sentenced defendant to a total of 38 years in 

prison, which includes a two-year term for an unrelated conviction. 

II. ASSIGNMENTS OF ERROR 

{¶ 11} Defendant filed his appeals to this court, assigning the following 

assignments of error: 

[I.] The trial court erred in joining 12CR-1955 with 12CR2343 and 12CR-2344 where there were no common victims, 

were not part of the same act or transaction and were not part 

of a common scheme or plan or course of criminal conduct. 

This error deprived appellant of due process of law under the 

U.S. Constitution and Ohio Constitution. 

[II.] The trial court erred in entering multiple convictions and 

sentences for offenses that were allied offenses of similar 

import committed with a single animus. 

[III.] The trial court erred in imposing consecutive sentences 

without making the necessary findings in violation of O.R.C. 

2929.14(C)(4). 

III. STANDARD OF REVIEW 

{¶ 12} We typically review a trial court's decision on joinder of offenses for trial 

under an abuse of discretion standard. State v. Banks, 10th Dist. No. 09AP-1087, 2010-

Ohio-5714, ¶ 30, citing State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128. However, 

where the defendant fails to object to improper joinder at trial, the error is waived for 

purposes of appeal. State v. Cameron, 10th Dist. No. 09AP-56, 2009-Ohio-6479, ¶ 37, 

citing State v. Burks, 10th Dist. No. 07AP-553, 2008-Ohio-2463, ¶ 50. "Plain error does 

not exist unless the appellant establishes that the outcome of the trial clearly would have 

been different but for the trial court's allegedly improper [joinder]." State v. McGee, 8th 
Nos. 13AP-264, 13AP-265 and 13AP-266 5 

Dist. No. 92019, 2010-Ohio-2081, ¶ 24, citing State v. Waddell, 75 Ohio St.3d 163, 166 

(1996). 

{¶ 13} Although defendant objected to the joinder of indictments prior to trial, he 

failed to move the trial court to sever the indictments either at the close of the State's casein-chief or at the close of all evidence. Thus, defendant waived all but plain error with 

regard to improper joinder. Id. See also State v. Shipley, 9th Dist. No. 03CA008275, 

2004-Ohio-434.

IV. JOINDER OF INDICTMENTS 

{¶ 14} In his first assignment of error, defendant contends that the trial court 

committed plain error when it joined the indictment arising from the Burnzie's Bar 

incident with the two indictments arising from the crimes against Fraganato. We 

disagree. 

{¶ 15} "The court may order two or more indictments * * * to be tried together, if 

the offenses * * * could have been joined in a single indictment." Crim.R. 13. Crim.R. 

8(A) states that two or more offenses may be charged in the same indictment if they are of 

"the same or similar character, or are based on the same act or transaction, or are based 

on two or more acts or transactions connected together or constituting parts of a common 

scheme or plan, or are part of a course of criminal conduct." State v. Sullivan, 10th Dist. 

No. 10AP-997, 2011-Ohio-6384, ¶ 21. The law favors joining multiple offenses in a single 

trial because it conserves judicial and prosecutorial time, lessens the considerable 

expenses associated with multiple trials, diminishes inconvenience to witnesses, and 

minimizes the possibility of inconsistent results in successive trials before different juries. 

Id., citing State v. Walters, 10th Dist. No. 06AP-693, 2007-Ohio-5554, ¶ 21. 

A. Same or Similar Character 

{¶ 16} The threshold argument in this case is whether the indicted offenses arising 

from the Burnzie's Bar incident and the indicted offenses arising out of defendant's crimes 

against Fraganato are of the "same or similar character."2 We believe the offenses 

charged in the indictments are of the same or similar character. 

 

2 Appellant concedes that the two indictments arising from the offenses committed against Fraganato are of 

similar character and that the two indictments were properly joined for trial. 
Nos. 13AP-264, 13AP-265 and 13AP-266 6 

{¶ 17} In this instance, defendant committed all of the charged offenses within a 

short period of time. In fact, the incident at Burnzie's Bar occurred just one day after the 

incident at Walmart. All three incidents occurred at business establishments, during 

business hours. Both the Burnzie's Bar and the Walmart incidents arise from physical 

altercations during which defendant resorted to the use of a weapon. Additionally, 

defendant was charged with felonious assault with a handgun specification in both the 

Burnzie's Bar incident and the incident that began at Sunoco. And, in each of the 

incidents, witnesses identified defendant as wearing a black jacket with a distinctive 

design. 

{¶ 18} There is no doubt that the joinder of the indictments for a single trial 

conserved judicial and prosecutorial resources, lessened the expenses associated with 

multiple trials, and minimized the possibility of inconsistent results in successive trials 

before different juries. While the specific crimes charged in the indictments are not 

identical and the circumstances surrounding the charged offenses differ in many respects, 

we find that there are enough similarities to justify the joinder of the indictments under 

Crim.R. 13 and 8(A). Accordingly, we find that the initial joinder of the indictments for 

trial was not plain error. 

B. Defendant's Claim of Prejudice 

{¶ 19} An accused may move the trial court, pursuant to Crim.R. 14, to sever 

counts of an indictment on the grounds that he or she will be prejudiced by the joinder of 

multiple offenses. LaMar at ¶ 49. And, "[i]f it appears that a defendant * * * is prejudiced 

by a joinder of offenses * * * in an indictment, * * * the court shall order * * * separate trial 

of counts* * * or provide such other relief as justice requires." Crim.R. 14. Additionally, 

inasmuch as defendant did not move the court to sever the indictments, we will reverse 

the decision of the trial court only if there is plain error. 

{¶ 20} As a general rule, in order for the accused to establish that the trial court 

erred by refusing to sever the indictments, the accused must show "(1) that his rights were 

prejudiced, (2) 'that at the time of the motion to sever he provided the trial court with 

sufficient information so that it could weigh the considerations favoring joinder against 

the defendant's right to a fair trial,' and (3) 'that given the information provided to the 

court, it abused its discretion in refusing to separate the charges for trial.' " McGee, 
Nos. 13AP-264, 13AP-265 and 13AP-266 7 

quoting State v. Schaim, 65 Ohio St.3d 51, 59 (1992), citing State v. Torres, 66 Ohio St.2d 

340 (1981), syllabus. 

{¶ 21} Defendant's only claim of prejudice in this case is his bare assertion that he 

might have testified in his own defense as to the offenses charged in one of the 

indictments had they not been joined for trial. Defendant does not specify which of the 

indictments his testimony would have been applicable. We note that "there is always the 

possibility of prejudice in joining separate instances of any offense in the same 

indictment." State v. Strobel, 51 Ohio App.3d 31, 32 (3d Dist.1988). Defendant bares the 

burden to " 'either affirmatively demonstrate before trial that his rights would be 

prejudiced by the joinder, or to show at the close of the state's case, or at the conclusion of 

all the evidence, that his rights actually had been prejudiced by the joinder.' " (Emphasis 

sic.) Id. at 33, quoting State v. Williams, 1 Ohio App.3d 156, 159 (10th Dist.1981). In our 

view, defendant has completely failed to demonstrate prejudice arising from the joinder of 

the indictments for trial, and no such prejudice is revealed in the record. 

{¶ 22} Moreover, when defendant asserts that his defense will be prejudiced by the 

joinder of two or more indictments in a single trial, the prosecution may negate 

defendant's claim of prejudice with a showing that: (1) the evidence of the other crimes 

would be admissible even if the counts were severed, or (2) if not, whether the evidence of 

each crime is simple and distinct. Banks, citing Schaim at 59. The two tests are 

disjunctive, so that the satisfaction of one negates a defendant's claim of prejudice without 

consideration of the other. Sullivan at ¶ 22, citing State v. Gravely, 188 Ohio App.3d 825, 

2010-Ohio-3379 (10th Dist.). 

{¶ 23} Although most of the evidence relevant the Burnzie's Bar incident would be 

inadmissible if offered in a separate trial of defendant's crimes against Fraganato, we find 

that the evidence relevant to each indictment was both simple and distinct. Indeed, the 

bulk of the evidence in support of defendant's guilt of the offenses committed against 

Fraganato came from Fraganato's testimony at trial. Fraganato was not involved in the 

Burnzie's Bar shooting so there was no danger that the jury would connect Fraganato's 

testimony to the shooting at Burzie's Bar or consider his testimony when determining 

defendant's guilt of the offenses charged in the Burnzie's Bar indictment. 
Nos. 13AP-264, 13AP-265 and 13AP-266 8 

{¶ 24} Moreover, the primary factual issue with respect to the Burnzie's Bar 

incident was the identification of defendant as the shooter. The State presented testimony 

from the victim and several eyewitnesses, video surveillance footage, and forensic 

evidence connecting defendant to the gun that fired ten of the spent shell casings 

recovered at the scene. There was little chance that the jury would consider such evidence 

in determining defendant's guilt of the offenses committed against Fraganato or that the 

jury could become confused about the relevance of such evidence. 

{¶ 25} In short, we find that the State negated any possible prejudice to defendant 

arising from the joinder of the indictments for trial by showing that the evidence 

presented at trial was both simple and distinct. After reviewing the entire record, we 

cannot say that it was an abuse of the trial court's discretion, let alone plain error, for the 

court to allow the indictments to remain joined throughout the trial. 

{¶ 26} For the foregoing reasons, defendant's first assignment of error is overruled. 

V. MULTIPLE SENTENCES/ALLIED OFFENSES 

{¶ 27} Pursuant to R.C. 2941.25(A), where defendant's conduct " '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.' " State v. Roush, 10th Dist. No. 12AP-201, 2013-Ohio-3162, ¶ 66, quoting R.C. 

2941.25(A). Where, however, " 'the defendant's conduct constitutes two or more offenses 

of dissimilar import' or '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.' " Id., quoting R.C. 2941.25(B). 

{¶ 28} The analysis adopted by the Supreme Court of Ohio in State v. Johnson, 128 

Ohio St.3d 153, 2010-Ohio-6314, requires a court to ask whether "multiple offenses can be 

committed by the same conduct" and "whether the offenses were committed by the same 

conduct, i.e., 'a single act, committed with a single state of mind.' " Id. at ¶ 49, quoting

State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶ 50. If the answer to both 

questions is yes, the court must merge the allied offenses prior to sentencing. Id. at ¶ 50 

"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 
Nos. 13AP-264, 13AP-265 and 13AP-266 9 

defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the 

offenses will not merge." (Emphasis sic.) Id. at ¶ 51. As an appellate court, we must 

employ a de novo standard in reviewing the trial court's determination whether R.C. 

2941.25 requires merger of multiple convictions. Roush at ¶ 47, citing State v. Williams, 

134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1. 

{¶ 29} A conviction for aggravated robbery, as defined in R.C. 2911.01(A)(1), 

requires proof that defendant brandished a deadly weapon in order to facilitate the theft 

offense. Kidnapping, in accordance with R.C. 2905.01, requires proof that defendant 

restrained Fraganato of his liberty or removed him from the place where he was found. 

The Supreme Court has recognized that the commission of aggravated robbery necessarily 

involves the restraint of the victim. See State v. Jenkins, 15 Ohio St.3d 164, 198 (1984), fn. 

29. 

{¶ 30} However, aggravated robbery and kidnapping are not allied offenses of 

similar import where (1) "the restraint is prolonged, the confinement is secretive, or the 

movement is substantial so as to demonstrate a significance independent of the other 

offense," or (2) "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." State v. Logan, 60 Ohio St.2d 126 (1979), syllabus. 

{¶ 31} Here, defendant forced Fraganato to drive away from the gas station at gun 

point, followed by a second vehicle driven by his accomplice, and then ordered Fraganato 

to stop the vehicle in a more secluded area where he assaulted and robbed him. Thus, the 

facts of this case show that defendant transported his victim from the location where he 

first confronted him and that such transportation was both secretive and greater than was 

necessary to commit the underlying robbery offense. 

{¶ 32} In State v. Cobb, 10th Dist. No. 90AP-793 (July 30, 1991), appellant made 

the victim drive his car several miles from a parking lot before ordering him out of the car 

and robbing him at gunpoint. In affirming the trial court's refusal to merge the 

kidnapping and aggravated robbery convictions, we found that the restraint of the victim 

exceeded that necessary to complete the offense of aggravated robbery and that there was 

a separate animus for each offense. Id., citing State v. Moss, 69 Ohio St.2d 515 (1982). In 

holding that kidnapping and aggravated burglary were not allied offenses of similar 
Nos. 13AP-264, 13AP-265 and 13AP-266 10 

import and that separate sentences were appropriate, we noted that "if appellant had left 

his victim in the parking lot, the kidnapping and aggravated robbery would have been 

allied offenses of similar import." Id. 

{¶ 33} As was the case in Cobb, had defendant robbed Fraganato in his car and 

then left him at the gas station, the kidnapping and aggravated robbery convictions likely 

would have merged for purposes of sentencing. However, the facts of this case establish 

that defendant's restraint and asportation of Fraganato exceeded that which was 

necessary to complete the offense of aggravated robbery, and that the kidnapping and 

aggravated robbery were committed with a separate animus. Accordingly, the convictions 

do not merge and defendant is subject to a separate conviction for each offense. See, e.g., 

State v. Ross, 8th Dist. No. 98763, 2013-Ohio-3130, ¶ 57-58 (When contrasted to the 

moments it took to steal victim's cell phone, the time it took defendant to drive the victim 

approximately two blocks in a van was a prolonged restraint sufficient to establish that 

the aggravated robbery and kidnapping were not allied offenses); State v. Helms, 7th Dist. 

No. 08 MA 199, 2012-Ohio-1147, ¶ 47 (Where defendant pushed a vehicle containing 

injured victim off the main road in order to avoid detection while he searched for items to 

steal, a separate animus existed for the kidnapping conviction and such conviction did not 

merge with defendant's conviction for aggravated robbery). 

{¶ 34} Based upon the foregoing, defendant's second assignment of error is 

overruled. 

VI. CONSECUTIVE SENTENCES 

{¶ 35} "R.C. 2929.14(C)(4) now requires the trial court to make three findings 

before imposing consecutive sentences: (1) that consecutive sentences are necessary to 

protect the public from the future crime or to punish the offender; (2) that consecutive 

sentences are not disproportionate to the seriousness of the offender's conduct and to the 

danger the offender poses to the public; and (3) that one of the subsections (a), (b), or (c) 

apply." Roush at ¶ 76. " The trial court is not required to give reasons explaining these 

findings, nor is the court required to recite any 'magic' or 'talismanic' words when 

imposing consecutive sentences." Id., quoting State v. Farnsworth, 7th Dist. No. 12 CO 

10, 2013-Ohio-1275, ¶ 8. "Nevertheless, the record must reflect that the court made the 

findings required by the statute." Id. 
Nos. 13AP-264, 13AP-265 and 13AP-266 11 

{¶ 36} There is no dispute that trial court failed to make the required findings in 

this case. It is also clear that defendant failed to raise the error in the trial court. 

Accordingly, we review the alleged error under the plain error standard. State v. Hunter, 

10th Dist. No. 13AP-196, 2013-Ohio-4013. 

{¶ 37} The State argues that the trial court's failure to make the required findings 

does not constitute "plain error" absent some showing of prejudice to defendant. 

However, at least two recent decisions from this court have rejected the State's argument, 

without further discussion, based upon the established authority in this district. State v. 

Howze, 10th Dist. No. 13AP-386, 2013-Ohio-4800, ¶ 21; State v. Hunter, 10th Dist. No. 

13AP-196, 2013-Ohio-4013, ¶ 9.3 We see no reason to depart from established precedent 

in this case. 

{¶ 38} "[W]hen the trial court fails to articulate the appropriate findings required 

by R.C. 2929.14(C)(4), the case is to be remanded for the trial judge to consider whether 

consecutive sentences are appropriate under [R.C. 2929.14(C)(4)] and, if so, to enter the 

proper findings on the record." State v. Bass, 10th Dist. No. 12AP-622, 2013-Ohio-4503, 

¶ 44. Accordingly, defendant's third assignment of error is sustained. 

VII. CONCLUSION 

{¶ 39} Based upon the foregoing, we overrule defendant's first and second 

assignments of error but we sustain defendant's third assignment of error. The judgment 

of the Franklin County Court of Common Pleas is affirmed in part and reversed in part, 

and the case is hereby remanded to the trial court for further proceedings consistent with 

this decision. 

Judgment affirmed in part 

and reversed in part; 

cause remanded. 

BROWN and O'GRADY, JJ., concur. 

_________________ 

 

3State v. Wilson, 10th Dist. No. 12AP-551, 2013-Ohio-1520, ¶ 18 ("Because the record demonstrates that the 

trial court failed to make the findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences 

on appellant's multiple offenses, appellant's sentence is contrary to law and constitutes plain error"); State v. 

Bender, 10th Dist. No. 12AP-934, 2013-Ohio-2777, ¶ 7 ("Our recent cases indicate a tendency of this court to 

view a failure to precisely comply with R.C. 2929.14 as plain error as a matter of law") State v. Bailey, 10th 

Dist. No. 12AP-699, 2013-Ohio-3596, ¶ 46 ("Failure to fully comply with R.C. 2929.14(C)(4) is plain error as 

a matter of law."). 
Nos. 13AP-264, 13AP-265 and 13AP-266 12