[Cite as State v. Kerby , 2014-Ohio-3358.]

IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO : Plaintiff-Appellee : C.A. CASE NO. 2013 CA 31

v. : T.C. NO. 02CR05 CARLOS L. KERBY : (Criminal appeal from Common Pleas Court) Defendant-Appellant :

:

. . . . . . . . . . O P I N I O N Rendered on the 1st day of August, 2014.

. . . . . . . . . . RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E. Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, 120 W. Second Street, Suite 706, Dayton, Ohio 45402 Attorney for Defendant-Appellant

. . . . . . . . . . DONOVAN, J. {¶ 1} Defendant-appellant Carlos L. Kerby, acting pro se, appeals from a decision2 of the Clark County Court of Common Pleas, Criminal Division, denying his post-conviction “motion to v acate and correct sentences pursuant to R.C. 2941.25 and Crim. R. 52(B).” Kerby filed a timely notice of appeal with this Court on March 25, 2013. {¶ 2} We set forth the history of the case in State v. Kerby, 2d Dist. Clark No. 09-CA-39, 2010-Ohio-562 , and repeat it here in in pertinent part: In November 2001, three men attemp ted to rob a Family Video Store in Springfield, Ohio. The men ente red the vestibule of the store and demanded money. When they saw one of the clerks, Chad Kautz, on the telephone, one of the men fired a shotg un blast through the glass window of

the vestibule. Kautz died as a result of the injuries he sustained, and the other clerk was extensively injured. After receiving some anonymous tips and investigating, the police questione d Kerby about one month later, and

obtained a confession. The two other men involved in the shooting were Carlos’s brother, William Kerby, and Jawhan Massey. See State v. Kerby , 162 Ohio App.3d 353, 2005-Ohio-3734, and State v. Kerby , Clark App. No. 03-CA-55, 2007-Ohio-187, at ¶ 9-11. Willia m Kerby pled no contest to one count of Aggravated Murder, one count of Aggravated Robbery, one count of Tampering with Evidence, and one count of Felonious Assault, and received a total aggregate sentence of life imprisonment, with parole eligibility after thirty-one (31) years. See State v. Kerby , Clark App. No. 2006 CA 73, 2007-Ohio-3810, at ¶¶ 1 and 13 (affirmin g William Kerby’s conviction and sentence).[Cite as State v. Kerby , 2014-Ohio-3358.] Carlos Kerby initially pled no c ontest to, and was convicted of, Aggravated Murder with a firear m specification, Murder, Aggravated Robbery and Felonious Assault. Kerby , 2007-Ohio-187, at ¶ 1, and 16-17. Carlos Kerby was then sentenced to life imprisonment, with parole eligibility after 27 years. Id. at ¶ 17. We re versed the convicti on and remanded the matter for further proceedings, because we concluded that Kerby’s confession was involuntary. Id. at ¶ 42-88.

After the matter was re manded, the State agreed to amend Count Two (the Murder charge) to Involuntary Ma nslaughter, to dismiss the firearm specifications in Count Two and Count Three (the Aggravated Robbery charge), and to dismiss the remaining c ounts. The parties also agreed to a ten-year sentence on both counts, and th at the sentences would be served consecutively, for a total of twenty years. Kerby then pled guilty to Involuntary Manslaughter and Aggravated Robbery, and was sentenced to ten years in prison on each charge, with the sentences to be served consecutively. The judgment entry of c onviction was filed on June 9, 2008. In December 2008, Kerby filed, pro se , a “Motion to Withdraw No Contest Plea Because of Manifest Injustice.” 1 The basis for the motion is that the indictment for Aggravated R obbery fails to allege mens rea with respect to possession of a deadly w eapon, and is therefore invalid for purposes of establishing an underl ying felony for the Involuntary

1 The motion is incorrectly styled – Kerby pled guilty.4 Manslaughter charge. Kerby further alleged that “mens rea” was not

mentioned when the trial cour t accepted his guilty plea. The trial court denied Kerby’s motion. The court held that the part of the Aggravated Robbery statute setting forth the deadly weapon element put Kerby on notice of the mens rea require d. The court also concluded that Kerby had been afforded a thoroug h and detailed Crim. R. 11 colloquy. {¶ 3} Kerby subsequently appealed the decisi on of the trial cour t. We concluded the trial court did not err when it denied Kerby’s motion to withdraw his guilty plea and

affirmed his conviction and sentence. Kerby , 2d Dist. Clark No. 09-CA-39, 2010-Ohio-562. {¶ 4} On May 10, 2012, Kerby filed a “moti on to vacate and correct sentences pursuant to R.C. 2941.25 and Crim. R. 52(B).” In his motion, Kerby argued that pursuant to the Ohio Supreme Court’s holding in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the tr ial court was required to merge his convictions for involuntary manslaughter and aggr avated robbery. In a decision and entry filed on February 22, 2013, the trial court denied Kerby’s motion, fi nding that under the specific facts of this case, involuntary manslaughter a nd aggravated robbery were not allied offenses of similar import. It is apparent from the decision that the trial court utilized the test set forth in

Johnson in order to determine whether th e offenses should be merged. {¶ 5} It is from this decision that Kerby now appeals. {¶ 6} Kerby’s sole assignment of error is as follows: {¶ 7} “THE TRIAL COURT ERRED WHEN IT DENIED KERBY’S MOTION

TO VACATE AND CORRECT SENTENCES.”5 {¶ 8} In his sole assignment, Kerby contends that the trial court erred when it denied his motion to vacate and correct his sentences. Specifically, Kerby argues that his convictions for involuntary mans laughter and aggravated robbe ry were allied offenses and should have been merged for sentencing purpos es based upon the new merger rule set forth

in Johnson . Kerby failed to argue at his original sentencing hearing before the trial court that his involuntary manslaughter and aggravat ed robbery offenses are allied offenses of similar import that must be merged. Kerby has therefore waived all error except plain error. State v. Coffey , 2d Dist. Miami No. 2006CA6, 2007-Ohio- 21, at ¶14. To prevail under the plain error standard, an appella nt must demonstrate both that there was an obvious error in the proceedings and that but for the error, the outcome of the trial clearly would have been

otherwise. State v. Noling , 98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88. {¶ 9} The merger of offenses is governed by R.C. 2941.25, which is a “prophylactic statute that pr otects a criminal defendant’s ri ghts under the Double Jeopardy

Clauses of the United States and Ohio Constitutions.” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 45. 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 c onstitutes two or more offenses of dissimilar import, or wher e his conduct results in tw o or more offenses of the same or similar kind committed separately or with a separate animus as to6 each, the indictment or information may contain counts for all such offenses, and the defendant may be c onvicted of all of them. {¶ 10} The defendant bears the burden to prove entitlement to merger. State v. Thomas, 10th Dist. Franklin No. 10AP-557, 2011-Ohio-1191, ¶ 16. {¶ 11} In Johnson, the Supreme Court of Ohio announced a new manner of applying R.C. 2941.25 to determine when offenses are allied offenses of similar import that must be merged. It abandoned th e previous test, set forth in State v. Rance , 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), which called for a compar ison of the statutory elements solely

in the abstract. Johnson held that, when determining whether two offenses are allied offenses of similar import subject to merg er under R.C. 2941.25, the conduct of the accused

must be considered. Id. at ¶ 44. The Suprem e Court explained: In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the question is wh ether it is possible to commit one

offense and commit the other with th e same conduct, not whether it is possible to commit one without committing the other. State v. Blankenship (1988), 38 Ohio St.3d 116, 119. (Whiteside , J., concurring) (“It is not necessary that both crimes are alwa ys committed by the same conduct but, rather, it is sufficient if both offenses can be committed by the same conduct. It is a matter of possibility, rather th an certainty, that the same conduct will constitute commission of both offenses.” [Emphasis sic] ). If the offenses correspond to such a degree that the conduct of the defe ndant constituting commission of one offense constitutes commission of the other, then the7 offenses are of similar import. 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.” State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, at ¶ 50 (Lanzinger, J., dissenting). If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged. Conversely, if the court deter mines 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 separate animus for each offense, then, according to R .C. 2941.25(B), the offenses will not merge.

Johnson at ¶ 48–51. {¶ 12} In the instant case, Kerby argues th at his offenses should have merged because his actions in committing the aggravated robbery and the involuntary manslaughter were committed with a single animus. Kerby was convicted and sent enced for involuntary manslaughter, in violation of R.C. 2903.04(A), and aggravated r obbery, in violation of R.C. 2911.01(A)(1). R.C. 2903.04(A) states, “No person shall cause the death of another *** as a proximate result of the offender’s committing or attempting to commit a felony.” R.C. 2911.01(A)(1), the relevant aggravated robbery statute, provides, “No person, in attempting or committing a theft offense, * * * , or in fleeing immediately after the attempt or offense, shall do any of the following: (1) [h]ave a d eadly weapon on or about the offender’s person8 or under the offender’s control a nd either display the weapon, br andish it, indicate that the offender possesses it, or use it.” {¶ 13} The commission of aggravated robbery pursuant to R.C. 2911.01(A)(1) necessarily entails that the offender displa y, brandish, or use a deadly weapon while committing a theft offense. We therefore conclude that it is possible that the victim could die through the offender’s use of a deadly wea pon in the course of the aggravated robbery, resulting in an involuntary manslaughter. Thus, it is possible to commit involuntary manslaughter under R.C. 2903.04( A) and aggravated robbery under R.C. 2911.01(A)(1) with the same conduct, thus satisfy ing the first prong of the Johnson test. {¶ 14} Because it is possible to commit invol untary manslaughter and aggravated robbery with the same conduct, we must exa mine Kerby’s conduct to determine whether he did, in fact, commit the two offenses with the same conduct and the same animus. Johnson at ¶ 50-51. At Kerby’s plea hearing on May 30, 2008, the following facts were read into the record by the State: In the late evening hours of Nove mber 27 into the early morning hours of the 28th of November of 2001, the Defendant[s], Jawhan Massie and William Kerby went to the Family Vide o Store located at 1202 Selma Road in the City of Springfield. The victim in this matter, Chad Tyler Couts, and a coworker Matt Brown, were in the process of closing the store at that time

when the Defendants arrived. They demanded money. At that point in time[,] Mr. Couts attempted to call 9-1-1. During this time, Jawhan Massie fired one shot with a 20-gauge shotgun, fatally wounding Mr. Couts. ***.9 {¶ 15} In State v. Jackson , 2d Dist. Montgomery No. 24430, 2012-Ohio-2335, at ¶ 140, we recently stated: Several courts have held that, where the force used to effectuate an aggravated robbery is far in excess of that required to complete the robbery, or where the circumstances suggest that a separate intent to kill existed, the offenses of aggravated robbery and murder do not merge. See [ State v.]Diggle, [3d Dist Auglaize No. 2-11-19, 2012-Ohio-1583] (evidence of prior conflict with victim and defendant’s use of force in excess of that required to complete robbery found to demonstrate separate animus for murder); State v. Ruby, 6th Dist. Sandusky No. S-10-028, 2011-Ohio-4864, ¶ 61 (beating of elderly, disabled victims demonstrated separate animus for aggravated robbery and attempted murd er, because the beating far exceeded that necessary to effectuate the robbery); State v. Tibbs , 1st Dist. Hamilton No. C-100378, 2011-Ohio-6716, ¶ 48 (shooting victim in face and head from close range during course of aggravat ed robbery demons trated a specific intent to kill). {¶ 16} In Jackson , the defendant was convicted of aggravated robbery and murder. We ultimately found that the trial court could have reasonably concluded that the

defendant’s use of force exceeded that necessary to complete the robbery or that he had a separate intent to kill the victim. Jackson , at ¶ 141. The victim was shot four times as he lunged toward the defendant in an apparent a ttempt to thwart the robbery; when one of the shots were fired, the gun was in contact with the top of the victim’s head. Id . This degree of10 force suggests the use of force in excess of that required to effectuate the robbery. Id . Based on these facts, we found that the aggravated robbery was committed w ith a separate animus from the murder. We therefore held that the trial court did not err when it refused to merge

the two offenses. {¶ 17} Although the charge in the instant cas e was involuntary manslaughter rather than murder, the facts present in the instant case require the same outcome as in Jackson

. Kerby and Massie, who was brandishing a shotgun, approached the video store and demanded money. Shortly thereafter, Massie observed that Couts was attempting to call 9-1-1. At that point, Massie shot Couts and killed him. No evidence was presented that the defendants planned or deci ded to shoot Couts in order to accomplish the aggravated robbery. Rather, a subsequent decision wa s made to shoot Couts to stop him from completing his call for help. Moreover, as we found in Jackson , the defendant’s use of force exceeded that necessary to complete the robbery. Id . at ¶ 141. The fact that Massie, not Kerby, was the shooter is irrelevant to th is analysis. Thus, the trial court did not err when it refused to merge Kerby’s convicti ons for aggravated robbery and involuntary manslaughter, and his “motion to vacate and correct sentences pursuant to R.C. 2941.25 and Crim. R. 52(B)” was properly denied. {¶ 18} Kerby’s sole assignment of error is overruled. {¶ 19} Kerby’s sole assignment of error havi ng been overruled, the judgment of the

trial court is affirmed.

. . . . . . . . . . HALL, J. and WELBAUM, J., concur.11 Copies mailed to: Ryan A. Saunders Robert Alan Brenner Hon. Richard J. O’Neill