[Cite as State v. Conrad , 2019-Ohio-263.] IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT HOCKING COUNTY

STATE OF OHIO, : Plaintiff-Appellee, : Case No. 18CA4

vs. : JOSHUA M. CONRAD, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

_________________________________________________________________ APPEARANCES: Ryan Shepler, Logan, Ohio, for appellant 1

. Dave Yost, Ohio Attorney Genera l, and Christopher L. Kinsler, A ssistant Ohio Attorney General, Columbus, Ohio for appellee.

CRIMINAL APPEAL FROM COMMON PLEAS COURT DATE JOURNALIZED:1-18-19 ABELE, P.J. {¶ 1} This is an appeal from a Hocking C ounty Common Pleas Court judgment of conviction and sentence. A jury found Joshua Conrad, defendant below and appellant herein, guilty of aggravated murder, murder, aggravated robbery, aggravated burglary, grand theft, and having weapons while under di sability. Appellant assigns two errors for review:

FIRST ASSIGNMENT OF ERROR:

“MR. CONRAD WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL, AS TRIAL COUNSEL’S

1 Different counsel represented appellant at trial.PERFORMANCE WAS DEFICIENT, AND THE DEFICIENT PERFORMANCE PREJUDICED THE DEFENSE.” SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN SENTENCING MR. CONRAD TO LIFE WITHOUT PAROLE PLUS THIRTY-SEVEN YEARS.” {¶ 2} In February 2017, a Hocking County Grand Jury returned an indictment that charged appellant with: Count I Aggravated Murder R. C. 2903.01(B); Count II Aggravated Murder R.C. 2903.01(B); Count III Murder R.C. 2903.02(A); Count IV Murder R.C. 2903.02(B); Count V Aggravated Robbery R.C. 2911.01(A)(1); Count VI Aggravated Burglary R.C. 2911.11(A)(1); Count VII Grand Theft R.C. 2913.02(A)(1); and Count V III Having Wea pons While Under Disability R.C. 2923.13(A)(4), along with fi rearm specifications for each count. {¶ 3} At trial, Tamika Athey testif ied that she had known appellant since he dated her sister, and two years ago she also became appellant’s fri end. Athey had known Josh Cross about the same length of time, but she is not romantically involve d with Cross or appellant . Athey stated that on August 31, 2016, she and appellant traveled to Circ leville three times to buy heroin and cocaine. After the first two purchases, they injected the drug s. After the third purchase, she saved the drugs for later use. Later that evening, appellant asked Athey to contact Cross. Athey stated that Cross and appellant disliked each other. After they picked up Cross, around midni ght Cross and appellant dropped Athey and her two-year old daughter at a home in Circleville . At approximately 2:30 a.m., appellant called Athey to tell her to call Cross b ecause appellant had been shot. Athey, however, could not contact Cross, so she ca lled appellant. A ppellant then sent a message to “call Josh.” At the conclusion of Athey’s testimony, the trial court gave a limiting instruction that the drug use testimony should not be considered as character evidence, but rath er to consider when deciding whether appellant was drug de pendent as it related to the weapons under disability charge.[Cite as State v. Conrad , 2019-Ohio-263.] {¶ 4} Hocking County Deputy Sheriff Jason Miles tes tified that when he arrived at the home of the victim, Gary Stevens, in the early mo rning hours on August 31, 2016, he found a pickup truck backed into the driveway about fi fteen feet off the roadway, and a male, later identif ied as appellant, on the ground about 20 yards from the truck. Miles st ated that appellant c ould speak, but could not

move his left side. A ppellant also had a cell phone and mone y in his hands. Body camera video footage shows that appellant said, “the guy’s d ead. * * * The guy up there.” When Miles asked “what happened to him?,” appellant responded, “Exchange fire. All I did was mow his grass and he told me to come and get my money I went there and he pulled the gun on me . That was my payment for mowing his grass.” Appellant continued, “He s hot me and I shot him.” When asked about his weapon, appellant stated, “I grabbe d his gun from him.” When asked if anyone else was there, appellant replied “No.” When the back-up deputy arrived, Miles went to the home and found blood on the porch leading to the front door. Officers al so found the victim on the kitchen floor, dead and

face down. {¶ 5} Hocking County Sheriff’s Deputy Emily Kineer testified that, af ter she arrived and stayed with appellant, she noticed that he held a cell phone and a $20 bill. Kineer stated that appellant told her, “That guy’s mean, I don’t understand I just came to get my money. * * * I mowed his grass, he said you come by tonight I’ll pay y ou, I stopped by to get my money. * * * that’s when he just, when he answered the door he had a gun in his pocket.” Kineer also testified that while she waited with appellant for EMS to arrive, Cross came up behind her. Kineer was not sure whether

Cross came from the woods or where he had been prior to his appearance. {¶ 6} Hocking County Sheriff’s Detective Aaron Ch erry testified that , after appellant’s transport to OSU Hospital, Cherry collected a Pu ma shoe, size 10 1⁄2, a sock, a pair of shorts,HOCKING, 18CA4 4 underwear, some currency, jewelry, a piece of a br acelet and a neck brace. The currency included 8 two-dollar bills in a plastic bag in appellant’s shorts. Cherry also stated that appellant had one shoe when he arrived at the hospital. The next day, Cherry returned to the victim’s home and collected a spent bullet from the floor and a pair of sun glasses. Cherry also explained that he drove to the Franklin County Coroner’s Office, where Stevens’ body had been ta ken for autopsy, to collect a

DNA slide. {¶ 7} BCI Crime Scene Investigator Todd Fortner testified that he found the victim on the kitchen floor, two firearms in th e debris, and kitchen drawers and contents on the floor. Fortner testified that, in addition to blood stains, he coll ected a shovel, a muddy gray sock balled up halfway up the driveway, and two firearms - a Ruger .380 ca liber semi-automatic pistol and a Springfield XD .45 caliber semi-automatic pistol. He found the .45 about a foot a nd a half from the victim’s feet

and the .380 under the victim’s feet. Fortner also collected a gray Puma size 10 1⁄2 shoe and approximately $190 in cash found along the driveway. Fortner further testif ied about the ballistic

events at the scene a nd stated that he found two casings from the .380 and two from the .45. On cross-examination, Fortner testif ied that all doors had been lock ed, except the front door, and all three vehicles in the driveway had been locked. He also testified that a front porch motion detector

makes an audible tone inside the home. {¶ 8} Hocking County Sheriff’s Detec tive Derrick Shirey testified that he collected from the front porch light two bulbs and the glass cover. Shirey noted that both bulbs seemed “like they had

been loosened.” {¶ 9} Hocking County Sheriff’s Deputy Adam Wagner testified that he visited to the scene two days later and retrieved two sets of keys and a hair that had belonged to the victim. HockingHOCKING, 18CA4 5 County Sheriff’s Lieutenant Dus tin Robison also testified that he met with Athey and took photographs from her phone. {¶ 10} Hocking County Sheriff’s Det ective Lieutenant Ed Downs testified that he took an oral swab from appellant and an or al swab and a gun shot residue k it from Joshua Cross. Testimony later indicated that Cross’s hands had no gunshot re sidue. Downs also stated that he did not check appellant for gunshot residue because he had been lif e-flighted to a hospital. Downs explained that the victim’s daughter called them after she noticed that the front porch light did not come on and discovered that the bulbs appeared to have been loosened. The bulbs and the two-dollar bills were also submitted to the lab for fingerprint analysis. On cross-examination, Do wns testified that his investigation led to the conclusion that the victim owned both guns. {¶ 11} BCI Forensic Firearms Examiner Andrew McClelland testified that he tested the two firearms, four fired cartridge casings, and a fired bu llet. McClelland stated that he tested both the Ruger .380 semi-automatic pistol and the Springfi eld XD .45 semi-automatic pi stol and determined that they are both operable, and that two casings and the bullet had been fired from the .45 and two casings had been fired from the .380. Additionally , the autopsy photographs indicated that the victim sustained gunshot wounds to the right upper part of the chest and the left armpit/shoulder area, with an exit wound on the back. {¶ 12} BCI Forensic Scientist Kath ryn Dailey testified that she conducted DNA tests on the firearms, an oral swab from Cross, an oral swab from the victim, jeans that belonged to Cross, a DNA standard from Cross and a pair of boots and swab from the front exterior door handle. Dailey determined that the Ruger .380 contained a DNA mix ture with the major DNA profile consistent with the victim, and the minor DNA profile consistent w ith appellant. Testin g excluded Cross fromHOCKING, 18CA4 6 the entire mixture. As for the Springfield .45 (1) the trigger area contained a mixture of DNA profiles - appellant the major DNA profile and excluded the vic tim and Cross from the major DNA profile; (2) on the handle, including the slide, a mixture of DNA profiles exis ts as well - appellant the major DNA profile, the victim the minor DNA pr ofile, and excluded Cross; and (3) the blood on the barrel the DNA profile is cons istent with appellant, and excl uded both the victim and Cross. Cross’s jeans, belt and boots had also been collected and sent to BCI and Dailey’s tests (1) indicated

that three of four stains are a mixture and Cro ss is the major DNA profile, (2) excluded appellant and the victim as the major DNA profile, and (3) de termined the boot DNA profile and the DNA swab from the front door handle not suitable for comparis on. On cross-examinati on, Dailey testified that she could not conclusively exclude Cross’s handling of either fir earm even without the presence of

his DNA. {¶ 13} BCI Forensic Scientist Ashley Owen testified that she tested the baggie, the currency found in the driveway and the porch light bulbs, but the tests are either negative or insufficient for legible fingerprints. {¶ 14} The victim’s daughter, Stacey Stevens, tes tified that her father owned both a .380 and

a .45. She also testified that she found a bullet the da y after her father’s murder, but did not touch it and called police to retrie ve it. She also found a set of unfamilia r keys on the floor, retrieved a hair

from the kitchen counter and found s unglasses that did not appear to belong to her father. Stevens also testified that she found a receipt from an ATM that shows her father had withdrawn $200 on August 31. Stevens explained that her father typi cally kept money in the kitchen in a drawer under the microwave, but when she cleaned the house sh e did not find any money. Stevens further testified that her father kept his valuables, wallet a nd two-dollar bills in a wooden box. On theHOCKING, 18CA4 7 floor, she found the empty wallet and the woode n box, overturned and broken. Also, Stevens indicated that the porch lights had been loosened and the light cover sitting on a porch chair. She also stated that her father’s neighbor usually mo wed the lower portion of he r father’s yard, and his home health care worker had also mowed for him, but when she arrived a few hours after the murder the grass did not appear to have been recently mowed. {¶ 15} At the close of the state’s case the state dismissed the firearm specifications as to

Counts VII and V III. Also, the defense made a Crim.R. 29 motion for judgment of acqu ittal as to the remaining counts and specifications, but the trial court denied the motion. {¶ 16} The appellant, the sole witness for the defense, testified that he struggled with drug addiction for six years and had convi ctions for receiving stolen propert y and drugs. Appellant stated that he met Josh Cross in the local drug circle and had known him for about two and one-half years. Appellant explained that on August 31, 2016 he and Cross were not friends, but Athey wanted to rekindle their friendship. He te stified that he and Athey me t Cross at a Speedway and, around midnight, dropped Athey at a home in Circleville. {¶ 17} Appellant stated that in the early morn ing hours, he and Cr oss drove around “just going country cruising just to talk.” Appellant te stified that after about thirty minutes (approximately 2:00 a.m.), Cross told him to stop at Stevens’s home because Stevens owed Cross “a couple hundred bucks.” Appellant sa id that Cross told him that he had a difficult relationship with the Stevens, so Cross would stay in the truck sa ying “my face don’t need to be seen.” Appellant explained that he parked his still-running truck h eaded toward the road because he missed the turn and backed into the driveway. Appellant stated that when he exited the truck, Cross sat in the passenger seat.[Cite as State v. Conrad , 2019-Ohio-263.] {¶ 18} Appellant testified that wh en he approached the hous e and knocked, Stevens opened the door and was “calm, fine, friendly. ” Appellant stated that Stevens told him that Cross had a bad work ethic, didn’t know how to plumb and didn’t s how up on time or come wh en he said he would, and told appellant “I just want to give you this money and I’m ju st going to be done with him.” Then, according to appellant, Stevens gave him the money and, as appellant put it in his shorts, he

heard a doorbell sound that turned out to be the moti on sensor. At that point, according to appellant, Stevens’s demeanor changed and he appeared to get angry - “He instantly has a gun right here at his right hip and the barrel is looking straight up at me.” Appellant stated that he tried to grab the gun and “that’s where my memory shuts down because I heard a gunshot and * * * I don’t know if it was

five minutes or an hour later but * * * I took two bu llets to the head so, it had taken me completely unconscious. Well when I come to, I was like I c ouldn’t figure out where I was I couldn’t I didn’t know what happened. It took I don’t know how mu ch time but you know like I remembered oh yea I heard gun shots and so.” Appella nt, having been shot twice in hi s head, testified that he woke up with his head in a cabinet, had no movement on hi s left side, and pulled out drawers to help him stand. Appellant stated that he did not see the victim get shot and that he did not shoot him, and when asked, “could you have caused him to be shot when you were grasping for his gun,” appellant replied, “I really didn’t, I really, I mean maybe.” Appellant further testified that (1) he did not call 911 because he could not talk and he did not know the address, so he did not know how to give the dispatcher his location, (2) he called Athey, but did not recall talking to her, (3) he had no recollection how he got from the home to the driveway , (4) at the hospital, he learned that one bullet lodged in his brain, and (5) he entered the victim’s home only to retrieve money for Cross, not to rob or kill the victim. Instead, a ppellant claimed that Josh Cro ss came to the house and killed theHOCKING, 18CA4 9

victim. {¶ 19} On cross-examination, the state asked appe llant why his pocket c ontained 8 two-dollar bills enclosed in a plastic bag. Appellant did not know. The state asked, “And it’s your testimony that you never touched the gun accept (sic) I guess when you came to and the gun was on the floor and your (sic) trying to get up. Is that correct?” Appellant: “Correct.” Th e state: “And in so doing you put your DNA on the gun correct?” Appellant: “I assume yes.” On cross-examination, the state asked, “But your testimony today would be that you never grabbed his gun correct?” Appellant: “Well when he pulled it on me I, I you know, I went to be like you know hey what are you doing? But I didn’t, I don’t, he shot me so fast I don’t know if I touched it or not.” The state also highlighted two body cam videos (from Miles and Kin eer) that depicted appe llant telling the deputies at the scene that he was at the house trying to get money because he mowed Stevens’s grass. {¶ 20} At the close of the evidence, appellant re newed his Crim.R. 29 motion for a judgment of acquittal. Once again, the tr ial court overruled the motion. {¶ 21} After deliberation, the jury found appellant guilty on all ei ght counts and all firearm specifications. At sentencing, the state conceded that Counts II (Aggravated Murder), Count III (Murder) and Count IV (Murder) merged with Count I (Aggravated Murder). The trial court agreed and concluded that Count II, Count III, and C ount IV merged with Count I, and sentenced appellant to serve (1) a definite term of life with no possib ility of parole on Count I (Aggravated Murder), (2) 11 years in prison on Count V (Aggravated R obbery), (3) 11 years in prison on Count VI (Aggravated Burglary), (4) 36 m onths on Count VII (Grand Theft) , and (5) 36 months on Count V III (Weapons Under Disability), with sentences to be se rved consecutively to each other, for a combined term on Count V, Count VI , Count VII, and Count V III of 28 years in pris on. In addition, the courtHOCKING, 18CA4 10 ordered the 3 year firearm specifi cation on Count I, Count V, and C ount VI be served consecutively to each other for a combined term of 9 years in pr ison. Thus, the court sent enced appellant to serve a total prison term of life in prison without parole, plus 37 y ears. This appeal followed.

I. {¶ 22} In his first assignment of error, appellant asserts that his trial counsel provided constitutionally ineffective assistance by failing to (1) argue self-defense and requesting a self-defense jury instruction, rath er than characterizing Cross as re sponsible for the murder, (2) argue for the exclusion of appellant’s body camera “interview,” or, in the a lternative, to obtain an expert witness to explain the severity of appellant’s brain injury and the discrepancies between his body

camera “interview” and his trial te stimony. Appellant also contends that counsel’s actions caused the verdict to be against the manifest weight of the evidence, thereby prejudicing appellant. {¶ 23} In Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, the United States Supreme Court set forth the standard for judging ineffective assistance claims. “When a convicted defendant compla ins of the ineffectiveness of c ounsel's assistance, the defendant must show that counsel's representation fell be low an objective standard of reasonableness.” Id . at 687-688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Further, “[ t]he defendant must show that there is a reasonable probability that, but for counsel's unpr ofessional errors, the result of the proceeding would have been different. A reasonable proba bility is a probability sufficient to undermine

confidence in the outcome.” Id. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. See also State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragr aphs two and three of the syllabus. {¶ 24} A reversal of a conviction on the basis of ineffective assistance of counsel requires that a defendant show that (1 ) counsel’s performance was defi cient, and (2) the deficientHOCKING, 18CA4 11 performance prejudiced the defense so as to deprive the defendant of a fair trial. State v. Drummond , 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 205. To establish prejudice, an appellant must show that a reasonable probability exists that, but for the alleged errors, the result of the proceeding would have been different. State v. Conway (2006), 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95, citing Strickland, supra , and Bradley , supra. A. {¶ 25} Once again, appellant contends that counsel provided ineffective assistance by (1) failing to argue self-defense and requesting a self-defense jury in struction, and (2) asserting that Cross is responsible for the homic ide. Appellant’s argument cente rs on the idea that accusing Cross as the perpetrator is implausible, and a better th eory would have been to argue self-defense. However, as the state aptly points out, appellant, h imself, insisted during his trial testimony that

Cross is indeed the killer: “Counsel: Based on everything you know now did you fire that weapon that killed Mr. Stevens? Appellant: Absolutely not. Counsel: Based on what you know now, who killed Mr. Stevens? Appellant: Josh Cross did.” In view of appellant’s own testimony, the state contends that counsel could not have argued self-defense because doing so would ha ve undermined appella nt’s testimony. {¶ 26} Generally, “debatable trial t actics do not establish ineffec tive assistance of counsel.” State v. Hoffner , 102 Ohio St.3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 45, citing State v. Campbell , 90 Ohio St.3d 320, 339, 738 N.E.2d 1178 (2000); State v. Otte, 74 Ohio St.3d 555, 565,HOCKING, 18CA4 12 660 N.E.2d 711 (1996). Here, while self-defense ar guably would have been a reasonable trial strategy, our review of the record reveals that appellant, himself, asserted that he did not kill Stevens. Instead, appellant asserted that Cross killed Stevens. Self-defense is an affirmative defense that requires a defendant to prove three elements by a preponderance of the evidence: (1) the defendant is not at fault in creating the violent situation, (2 ) the defendant had a bona fide belief of imminent danger of death or great bodily harm and that the onl y means of escape is the use of force, and (3) the defendant did not violate any duty to retreat or avoid the danger. State v. Goff , 128 Ohio St.3d 169, 2010-Ohio-6317, 942 N.E.2d 1075, ¶ 36, quoting State v. Thomas , 77 Ohio St.3d 323, 326, 673 N.E.2d 1339 (1997); R.C. 2901.05. {¶ 27} In the case at bar, we do not believe, in light of the evidence adduced at trial, that appellant could have established the elements of self-defense. Once again, appellant testified that he did not shoot the victim, but instead, Cross shot St evens. Consequently, we see no reason for trial counsel to have requested a self-d efense instruction when appellant testified that he did not kill the victim. While one may argue that the physical evidence may have made appellant’s argument that he did not shoot the victim less plausible, counsel may not simply select in the abstract the most arguably effective theory of defense. Rather, c ounsel must advance an argument in light of the

defendant’s version of the facts. Counsel may not simply creat e or manufacture facts. Again, appellant, in the case sub judice, denied shooting the victim. During appellant’s trial testimony, he did not testify that he shot the victim due to a f ear of death or serious bodily harm, but that Cross shot the victim. Thus, an argume nt that appellant shoul d have pursued a self-d efense strategy fails under the weight of appellant’s own trial testimony. We recogn ize, however, that appellant’s statements at the scene appear to conflict with hi s trial testimony. Neverthe less, trial counsel cannotHOCKING, 18CA4 13 be faulted because of appellant’s in consistent recitation of the facts.

B. {¶ 28} Appellant also asserts that tr ial counsel performed ineffec tively because counsel either failed to (1) object to the admission into evidence the statements appellant made to officers at the scene, as recorded on body cameras, or (2) present expert testimony to explain appellant’s statements as a product of serious brain injuries sustaine d from the gun shot wound. Thus, the thrust of appellant’s argument is that his injury rendered him incapable of making lucid or accurate

statements. {¶ 29} Initially, we point out that appellant’s statements are admissible in evidence. See Evid.R. 801(D)2). As for the suggestion that tr ial counsel should have obtained testimony from a neurological expert to support the contention that appellant’s statem ents were a product of confusion that resulted from brain injury, appellant bears the burden to show that such expert testimony would have impacted the outcome of this case. Specula tion on appellant’s part, however, is not sufficient to satisfy this burden. See State v. Perez , 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 217 (nothing in record justifies inference that state promised immunity to witness), citing State v.

Were , 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 219 (failure to cross-examine

witness about other witness testimony was not ineffectiv e and was speculative), and State v. Elmore , 111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 121 (failure to call witness was not ineffective when it was fully speculative whether witness could have given favorable testimony). Our review of the record reveals that appellant’s testimony and trial participation does not appear toHOCKING, 18CA4 14 indicate that he lackED the capacity to testify or to assist in his defense. 2 Our review reveals that appellant’s conversation w ith the deputies at the scene appears to have served appellant’s goal of denying responsibility for the crime and, instead, setting forth his claim that he arrived at the victim’s home, unannounced and at approximately 2:00 a.m., merely to collect his fee for mowing the victim’s yard.

C.

2 If, however, appellant does have evidence outside this record that could have a bearing on appellant’s competence, memory or lu cidity, he could pursue this claim through the post-conviction relief process. {¶ 30} Finally, appellant conte nds that trial counsel’s ineffec tiveness caused the jury’s verdict to be against the manifest weight of the eviden ce and, therefore, prejudiced appellant. Appellant alleges that, had counsel advanced the “appropriate theory of the case,” the jury would have found that the victim invited appellant into the house, that any “exchange” of gunfire occurred in self-defense, and appellant would not have been convicted of an y crime. However, as we point out above, these assertions are mere speculation. Once again, trial counsel is obligated to present a theory consistent with the appella nt’s version of the facts, not s imply concoct a defense that, in counsel’s judgment, could possibly prove to be more effective than the appellant’s version of the facts, as stated at trial. {¶ 31} Thus, we believe, after our re view of the record, that a ppellant failed to show that counsel’s representation fell below an objective standard of reasonabl eness or that, but for counsel’s conduct, the result of the proceedin g would have been different. Strickland , supra , at 687, 694. As such, we overrule a ppellant’s first assignment of error.HOCKING, 18CA4 15

II. {¶ 32} In his second assignment of error, appellant asserts that the trial court erred in sentencing him to life without parole plus thirty-sev en years. We first consider the standard of our

review. {¶ 33} R.C. 2941.25 sets forth the scenarios when multiple punishments can be imposed: (A) Where the same conduct by defendant can be construed to cons titute two or more allied offenses of similar import, the indi ctment or informati on may contain counts for all such offenses, but the defe ndant may be convicted of only one. (B) Where the defendant’s conduct constitute s two or more offenses of dissimilar import, or where his conduct re sults in two or more offens es 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 su ch offenses, and the defendant may be convicted of all of them. {¶ 34} The Supreme Court of Ohio recently ex amined the allied offense doctrine and affirmed that “R.C. 2941.25(A) allo ws only a single conviction fo r conduct that c onstitutes ‘allied offenses of similar import.’” State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 13, citing State v. Moss , 69 Ohio St.2d 515, 519, 433 N.E.2d 181 (1982). “In determining whether

offenses are allied offenses of similar import within the mean ing of R.C. 2941.25, courts must evaluate three separate factors - the conduct, the animus, and the import.” Ruff at paragraph one of the syllabus. Further, “[t]wo or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s conduc t constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.” Ruff , paragraph two of the syllabus. Finally, “[u]nder R.C. 2941.25(B), a defe ndant whose conduct suppor ts multiple offenses may be convicted of all the offens es 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, orHOCKING, 18CA4 16 (3) the conduct shows that the offenses were committed with separate animus.” Ruff , paragraph three of the syllabus. {¶ 35} The Ruff court wrote that “when determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must ask three questions when the defendant’s conduct supports multiple offenses: (1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? And (3) Were they committed with separate

animus or motivation? An affirmative answer to any of the above will per mit separate c onvictions.”

Ruff at ¶ 31. Further, unlike at trial where the stat e bears the burden of proof, at sentencing “[t]he

defendant bears the burden of es tablishing his entitlement to th e protection, provided by R.C. 2941.25, against multiple punishments for a single criminal act.” State v. Washington , 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d 661, ¶ 18, quoting State v. Mughni , 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987). Finally, we re view the trial court’ s determination of allied offenses de

novo. State v. Williams , 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

A. {¶ 36} The first two parts of appella nt’s second assignment of e rror involve arguments as to the merger. First, appe llant contends that under Ruff , the trial court should have merged Counts V (Aggravated Robbery), VI (Aggravated Burglary), VII (Grand Theft), and V III (Having Wea pons Under Disability) into Count I (Aggravated Murd er) and sentenced appellant only on aggravated murder. In particular, a ppellant argues that under the state’s th eory of the case, appellant used a deadly weapon (an element of both aggravated burgl ary and aggravated robbery) to murder Stevens

and steal while in his home. Thus , appellant contends, under the stat e’s theory of the case appellant committed these crimes simultaneously, as one course of conduct. A ppellant thus argues that hisHOCKING, 18CA4 17 sentences for aggravated robbery , aggravated burglary, grand theft and having weapons under disability “are not dissimilar import, as the harm from each of these charges is not separate and identifiable.” Second, appellant alleges that the trial court e rred by failing to merge Count V (Aggravated Robbery) and Count VI (Grand Theft) because, appellant conte nds, aggravated robbery includes theft as an element and theft is, therefore, a lesser included offense of aggravated robbery. {¶ 37} In the case sub judice, appellant’s aggrav ated robbery conviction is based on R.C. 2911.01(A)(1), which provides in pe rtinent part: “No person, in attempting or committing a theft offense, * * * shall * * * [h]ave a deadly w eapon on or about the offender's person or under the offender's control and either disp lay the weapon, brandish it, indicat e that the offender possesses it, or use it[.]’” Appellant’s convi ction for aggravated burglary is based on R.C. 2911.11(A)(1), which provides in relevant par t: “No person, by force, stealth, or d eception, shall trespass in an occupied structure * * * when another person * * * is present, with purpose to commit in the structure * * * any criminal offense, if * * * [t]he offender inflicts, or attempts or threatens to inflict physical harm on another [.]” Appellant’s conviction for gr and theft is based on R.C. 2913.02(A)(1), which provides in pertinent pa rt: “No person, with purpose to depriv e the owner of property * * *, shall knowingly obtain or exert control over * * * the prope rty * * * [w]ithout the consent of the owner or person authorized to give consent[.]” Finally , appellant’s conviction for having weapons under disability is based on R.C. 2923.13(A )(4), which provides in releva nt part: “Unle ss relieved from disability under operation of law or legal process, no person shall knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if * * * [t ]he person is drug depende nt, in danger of drug dependence, or a chronic alcoholic.” {¶ 38} Appellant focuses on the first prong of the Ruff analysis and maintains the offenses areHOCKING, 18CA4 18 not of dissimilar import, as the harm from each of th ese charges is not separa te and identifiable. We, however, disagree with appellant. In State v. Gillman , 4th Dist. Vinton No. 14CA699, 2015-Ohio-4421, 46 N.E.3d 130, this court held that burglary and theft are not allied offenses because the harm from each offense is separate and id entifiable. We held th at the victim’s sense of privacy had been invaded and compromised as the harm that resulted from the burglary offenses, and the victim suffered economic damage as a result of the theft offenses. Gillman at ¶ 23. This court

has also held that felonious assault and aggravated burglary do not merge when a separate

identifiable harm exists for each o ffense when the victim suffered psyc hological injuries, as a result of the aggravated burglary, and separate physical in juries, as a result of the felonious assault that occurred during the burglary. State v. Craig , 4th Dist. Athens No. 15CA22, 2017-Ohio-4342, ¶ 32. Furthermore, the Fifth Di strict has held that aggravated r obbery and aggravated burglary have separate and identifiable ha rm, in that one involves the separate harm of violating the sanctity of a

citizen’s home. State v. Lewis, 5th Dist. Richland No. 15CA106, 2016-Ohio-7002, 72 N.E.3d 48, ¶ 30, citing State v. Howard , 5th Dist. Stark No. 2012CA00061, 2013-Ohio-2884, ¶ 58, in part citing

Minnesota v. Carter , 525 U.S. 83, 100, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). {¶ 39} Turning to the case sub judice, in Count I (Aggravated Murder) Gary Stevens suffered two gunshot wounds, one fatal. In Count V (Aggrav ated Robbery) Stevens su ffered the separate and

identifiable economic harm of th e theft of money from his home. In Count VI (Aggravated Burglary) Stevens suffered the invasion of privacy, similar to what the victim articulated in Gillman

. In Count VII (Grand Theft) Stevens suffered the th eft of the .45 caliber firearm. This harm is separate and distinct from the thef t of money, or the fatal harm cau sed by the murder. In Count V III (Having Weapons While Under Disab ility), the victim is the state of Ohio, which is separate andHOCKING, 18CA4 19 identifiable from the harm caused to Gary Stevens. {¶ 40} As for appellant’s merger argument regard ing aggravated robbery and grand theft, although the Fifth District found in State v. Lewis , supra , at ¶ 26-27, that aggravated robbery and grand theft are allied offenses, the court emphasized that both offenses stemmed from appellant’s stealing of the same items . Here, however, appellant ’s convictions are based on the theft of separate items - the grand theft pertained to the firearm, and the underlying theft in the aggravated robbery

addressed the firearm and the money found on appellant and folded up in the driveway near appellant. Because each offense has a separate and id entifiable harm, each is dissimilar in import and significance and not subject to merger. Thus , it is unnecessary to addr ess the second or third prongs of the Ruff test.

B. {¶ 41} The third part of appellant’s second assignment of error ur ges reversal of the sentence of life without possibility of parole for aggravated murder. In particular, a ppellant asserts that the trial court did not consider the principles of felony sentencing, noting that he will be disabled as a result of his crimes, and indicating that his prior criminal record consists of low-level, non-violent felonies. However, a sentence for aggravated murder is not subject to appellate review. R.C. 2953.08(D)(3) provides: “[a] sentence im posed for aggravated murder or murder pursuant to sections 2929.02 to 2929.06 of the Revised Code is not subject to review under this s ection.” The Supreme Court of Ohio has confirmed, “a sentence for aggravat ed murder * * * is not subject to review under [R.C. 2953.08].” State v. Porterfield , 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 18. Moreover, this court has held “pursuant to R.C. 2953.08(D)(3), we lack statutory authority to review * * * [a] sentence [for aggravated murder] on an evidentiary basis.” State v. Hawkins , 4th Dist.HOCKING, 18CA4 20 Gallia No. 13CA3, 2014-Ohio-1224, ¶ 15; see also State v. Payton, 4th Dist. Scioto No. 17CA3793, 2018-Ohio-1376, ¶ 2, and State v. Vance , 4th Dist. Jackson No. 16CA11, 2018-Ohio-1313, ¶ 38. Thus, we overrule appellant’s second assignment of error. {¶ 42} Accordingly, based upon the foregoing reasons, we affirm the trial c ourt’s judgment.

JUDGMENT AFFIRMED.

JUDGMENT ENTRY It is ordered that the judgment be affirmed and that appellee recover of appellant the costs herein taxed.

The Court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Hocking County Common Pleas Court to carry this judgment into execution. If a stay of execution of sentence and releas e upon bail has been previously granted by the trial court or this court, it is temporarily c ontinued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of the proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the appellant to file a notice of appeal with th e Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, S ec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Oh io dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal. A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure. McFarland, J. & Hoover, J.: C oncur in Judgment & Opinion

For the CourtHOCKING, 18CA4 21

BY: Peter B. Abele, Presiding Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a final judgme nt entry and the time period for further appeal commences from the date of filing with the clerk.