[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 appellant1

. 

Dave Yost, Ohio Attorney General, and Christopher L. Kinsler, Assistant 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 County 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 disability. 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 VIII Having Weapons While Under 

Disability R.C. 2923.13(A)(4), along with firearm specifications for each count. 

{¶ 3} At trial, Tamika Athey testified that she had known appellant since he dated her sister, 

and two years ago she also became appellant’s friend. Athey had known Josh Cross about the same 

length of time, but she is not romantically involved with Cross or appellant. Athey stated that on 

August 31, 2016, she and appellant traveled to Circleville three times to buy heroin and cocaine. 

After the first two purchases, they injected the drugs. 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 midnight 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 because appellant had been shot. Athey, however, 

could not contact Cross, so she called appellant. Appellant 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 rather to consider when deciding 

whether appellant was drug dependent as it related to the weapons under disability charge. 
[Cite as State v. Conrad, 2019-Ohio-263.]

{¶ 4} Hocking County Deputy Sheriff Jason Miles testified that when he arrived at the home 

of the victim, Gary Stevens, in the early morning hours on August 31, 2016, he found a pickup truck 

backed into the driveway about fifteen feet off the roadway, and a male, later identified as appellant, 

on the ground about 20 yards from the truck. Miles stated that appellant could speak, but could not 

move his left side. Appellant also had a cell phone and money in his hands. Body camera video 

footage shows that appellant said, “the guy’s dead. * * * 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 shot me and I shot him.” When asked about his 

weapon, appellant stated, “I grabbed 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 also found the victim on the kitchen floor, dead and 

face down. 

{¶ 5} Hocking County Sheriff’s Deputy Emily Kineer testified that, after 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 you, 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 Cherry testified that, after appellant’s 

transport to OSU Hospital, Cherry collected a Puma shoe, size 10 1⁄2, a sock, a pair of shorts, 
HOCKING, 18CA4 4

underwear, some currency, jewelry, a piece of a bracelet 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 taken 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 the debris, and kitchen drawers and contents on the floor. Fortner 

testified that, in addition to blood stains, he collected a shovel, a muddy gray sock balled up halfway 

up the driveway, and two firearms - a Ruger .380 caliber semi-automatic pistol and a Springfield XD 

.45 caliber semi-automatic pistol. He found the .45 about a foot and 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 testified about the ballistic 

events at the scene and stated that he found two casings from the .380 and two from the .45. On 

cross-examination, Fortner testified that all doors had been locked, 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 Detective 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. Hocking 
HOCKING, 18CA4 5

County Sheriff’s Lieutenant Dustin Robison also testified that he met with Athey and took 

photographs from her phone. 

{¶ 10} Hocking County Sheriff’s Detective Lieutenant Ed Downs testified that he took an 

oral swab from appellant and an oral swab and a gun shot residue kit from Joshua Cross. Testimony 

later indicated that Cross’s hands had no gunshot residue. Downs also stated that he did not check 

appellant for gunshot residue because he had been life-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, Downs 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 bullet. McClelland stated that he tested both the 

Ruger .380 semi-automatic pistol and the Springfield XD .45 semi-automatic pistol 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 Kathryn 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 mixture with the major DNA profile consistent 

with the victim, and the minor DNA profile consistent with appellant. Testing excluded Cross from 
HOCKING, 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 victim and Cross from the major DNA 

profile; (2) on the handle, including the slide, a mixture of DNA profiles exists as well - appellant 

the major DNA profile, the victim the minor DNA profile, and excluded Cross; and (3) the blood on 

the barrel the DNA profile is consistent with appellant, and excluded 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 Cross is the major DNA profile, (2) excluded appellant and 

the victim as the major DNA profile, and (3) determined the boot DNA profile and the DNA swab 

from the front door handle not suitable for comparison. On cross-examination, Dailey testified that 

she could not conclusively exclude Cross’s handling of either firearm 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, testified that her father owned both a .380 and 

a .45. She also testified that she found a bullet the day after her father’s murder, but did not touch it 

and called police to retrieve it. She also found a set of unfamiliar keys on the floor, retrieved a hair 

from the kitchen counter and found sunglasses 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 typically kept money in the kitchen in a drawer under 

the microwave, but when she cleaned the house she did not find any money. Stevens further 

testified that her father kept his valuables, wallet and two-dollar bills in a wooden box. On the 
HOCKING, 18CA4 7

floor, she found the empty wallet and the wooden 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 mowed the lower portion of her 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 VIII. Also, the defense made a Crim.R. 29 motion for judgment of acquittal 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 convictions for receiving stolen property 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 testified that he and Athey met Cross at a Speedway and, around 

midnight, dropped Athey at a home in Circleville. 

{¶ 17} Appellant stated that in the early morning hours, he and Cross drove around “just 

going country cruising just to talk.” Appellant testified 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 said that Cross told him that he had a difficult relationship with 

the Stevens, so Cross would stay in the truck saying “my face don’t need to be seen.” Appellant 

explained that he parked his still-running truck headed 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 when he approached the house 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 show up on time or come when he said he would, 

and told appellant “I just want to give you this money and I’m just 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 motion 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 bullets to the head so, it had taken me completely 

unconscious. Well when I come to, I was like I couldn’t figure out where I was I couldn’t I didn’t 

know what happened. It took I don’t know how much time but you know like I remembered oh yea 

I heard gun shots and so.” Appellant, having been shot twice in his head, testified that he woke up 

with his head in a cabinet, had no movement on his 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, appellant claimed that Josh Cross came to the house and killed the 
HOCKING, 18CA4 9

victim. 

{¶ 19} On cross-examination, the state asked appellant why his pocket contained 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.” The 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 Kineer) that depicted appellant 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 renewed his Crim.R. 29 motion for a judgment 

of acquittal. Once again, the trial court overruled the motion. 

{¶ 21} After deliberation, the jury found appellant guilty on all eight 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 Count IV merged with Count I, and sentenced appellant 

to serve (1) a definite term of life with no possibility of parole on Count I (Aggravated Murder), (2) 

11 years in prison on Count V (Aggravated Robbery), (3) 11 years in prison on Count VI 

(Aggravated Burglary), (4) 36 months on Count VII (Grand Theft), and (5) 36 months on Count VIII 

(Weapons Under Disability), with sentences to be served consecutively to each other, for a combined 

term on Count V, Count VI, Count VII, and Count VIII of 28 years in prison. In addition, the court 
HOCKING, 18CA4 10

ordered the 3 year firearm specification on Count I, Count V, and Count VI be served consecutively 

to each other for a combined term of 9 years in prison. Thus, the court sentenced appellant to serve 

a total prison term of life in prison without parole, plus 37 years. 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, rather than characterizing Cross as responsible for the murder, (2) argue 

for the exclusion of appellant’s body camera “interview,” or, in the alternative, 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 testimony. 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 complains of the ineffectiveness of counsel's assistance, the defendant 

must show that counsel's representation fell below 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 unprofessional errors, the result of the proceeding 

would have been different. A reasonable probability 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), paragraphs 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 deficient, and (2) the deficient 
HOCKING, 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 instruction, and (2) asserting that 

Cross is responsible for the homicide. Appellant’s argument centers on the idea that accusing Cross 

as the perpetrator is implausible, and a better theory would have been to argue self-defense. 

However, as the state aptly points out, appellant, himself, 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 have undermined appellant’s testimony. 

{¶ 26} Generally, “debatable trial tactics do not establish ineffective 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 arguably 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 only 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 Stevens. Consequently, we see no reason for trial 

counsel to have requested a self-defense 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, counsel must advance an argument in light of the 

defendant’s version of the facts. Counsel may not simply create 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 fear of death or serious bodily harm, but that Cross 

shot the victim. Thus, an argument that appellant should have pursued a self-defense strategy fails 

under the weight of appellant’s own trial testimony. We recognize, however, that appellant’s 

statements at the scene appear to conflict with his trial testimony. Nevertheless, trial counsel cannot 
HOCKING, 18CA4 13

be faulted because of appellant’s inconsistent recitation of the facts. 

 B. 

{¶ 28} Appellant also asserts that trial counsel performed ineffectively 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 sustained 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 trial counsel should have obtained testimony from a 

neurological expert to support the contention that appellant’s statements 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. Speculation 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 ineffective 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 to 
HOCKING, 18CA4 14

indicate that he lackED the capacity to testify or to assist in his defense.2 Our review reveals that 

appellant’s conversation with 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 lucidity, he 

could pursue this claim through the post-conviction relief process. 

{¶ 30} Finally, appellant contends that trial counsel’s ineffectiveness caused the jury’s verdict 

to be against the manifest weight of the evidence 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 any 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 appellant’s version of the facts, not simply 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 review of the record, that appellant failed to show that 

counsel’s representation fell below an objective standard of reasonableness or that, but for counsel’s 

conduct, the result of the proceeding would have been different. Strickland, supra, at 687, 694. As 

such, we overrule appellant’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-seven 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 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 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. 

{¶ 34} The Supreme Court of Ohio recently examined the allied offense doctrine and 

affirmed that “R.C. 2941.25(A) allows only a single conviction for conduct that constitutes ‘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 meaning 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 conduct 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 defendant whose conduct supports multiple offenses 

may be convicted of all the offenses 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, or 
HOCKING, 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 permit separate convictions.” 

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

defendant bears the burden of establishing his entitlement to the 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 review 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 appellant’s second assignment of error involve arguments as to 

the merger. First, appellant contends that under Ruff, the trial court should have merged Counts V 

(Aggravated Robbery), VI (Aggravated Burglary), VII (Grand Theft), and VIII (Having Weapons 

Under Disability) into Count I (Aggravated Murder) and sentenced appellant only on aggravated 

murder. In particular, appellant argues that under the state’s theory of the case, appellant used a 

deadly weapon (an element of both aggravated burglary and aggravated robbery) to murder Stevens 

and steal while in his home. Thus, appellant contends, under the state’s theory of the case appellant 

committed these crimes simultaneously, as one course of conduct. Appellant thus argues that his 
HOCKING, 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 erred by failing to merge Count V 

(Aggravated Robbery) and Count VI (Grand Theft) because, appellant contends, 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 aggravated robbery conviction is based on R.C. 

2911.01(A)(1), which provides in pertinent part: “No person, in attempting or committing a theft 

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[.]’” Appellant’s conviction for aggravated burglary is based on R.C. 2911.11(A)(1), which 

provides in relevant part: “No person, by force, stealth, or deception, 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 grand theft is based on R.C. 2913.02(A)(1), which 

provides in pertinent part: “No person, with purpose to deprive the owner of property * * *, shall 

knowingly obtain or exert control over * * * the property * * * [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 relevant part: “Unless 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 dependent, in danger of drug 

dependence, or a chronic alcoholic.” 

{¶ 38} Appellant focuses on the first prong of the Ruff analysis and maintains the offenses are 
HOCKING, 18CA4 18

not of dissimilar import, as the harm from each of these charges is not separate 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 identifiable. We held that 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 offense when the victim suffered psychological injuries, as a result 

of the aggravated burglary, and separate physical injuries, 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 District has held that aggravated robbery and aggravated burglary have 

separate and identifiable harm, 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 (Aggravated Robbery) Stevens suffered the separate and 

identifiable economic harm of the 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 theft of the .45 caliber firearm. This harm is 

separate and distinct from the theft of money, or the fatal harm caused by the murder. In Count VIII 

(Having Weapons While Under Disability), the victim is the state of Ohio, which is separate and 
HOCKING, 18CA4 19

identifiable from the harm caused to Gary Stevens. 

{¶ 40} As for appellant’s merger argument regarding 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 identifiable harm, each is dissimilar in import 

and significance and not subject to merger. Thus, it is unnecessary to address the second or third 

prongs of the Ruff test. 

B. 

{¶ 41} The third part of appellant’s second assignment of error urges reversal of the sentence 

of life without possibility of parole for aggravated murder. In particular, appellant 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 imposed for aggravated murder or murder pursuant to sections 

2929.02 to 2929.06 of the Revised Code is not subject to review under this section.” The Supreme 

Court of Ohio has confirmed, “a sentence for aggravated 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 court’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 reasonable 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 release upon bail has been previously granted by the 

trial court or this court, it is temporarily continued 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 the Supreme Court of Ohio in the 

forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court 

of Ohio. Additionally, if the Supreme Court of Ohio 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.: Concur in Judgment & Opinion 

For the Court 
HOCKING, 18CA4 21

BY: 

 Peter B. Abele, Presiding Judge 

 

 

NOTICE TO COUNSEL 

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time 

period for further appeal commences from the date of filing with the clerk.