[Cite as State v. Knight, 2016-Ohio-7991.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

BUTLER COUNTY 

STATE OF OHIO, : 

 

 Plaintiff-Appellee, : CASE NO. CA2016-02-028 

 : O P I N I O N 

 - vs - 12/5/2016 

 : 

JESSE C. KNIGHT, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS 

Case No. CR2015-06-0870 

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government 

Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45011, for plaintiff-appellee 

Charles M. Conliff, P.O. Box 18424, Fairfield, Ohio 45018-0424, for defendant-appellant 

 PIPER, J.

{¶ 1} Defendant-appellant, Jesse Knight, appeals his convictions in the Butler County 

Court of Common Pleas after pleading guilty to aggravated robbery with a firearm 

specification, kidnapping, and felonious assault. 

{¶ 2} Knight, along with an accomplice, robbed a Papa John's Pizza store while 

employees were present. Knight and his accomplice, who were armed with a gun, 

demanded that employees open the cash registers. While Knight took money from the cash 
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registers, Knight's accomplice duct-taped the employees and forced them into the freezer. 

{¶ 3} Knight and his accomplice later removed the manager from the freezer, made 

the manager open the vault, and then stole money from inside the vault. After robbing the 

vault, Knight and his accomplice forced the manager back toward the freezer, and Knight 

used a gun to hit the manager on the side of the head. Knight and his accomplice also stole 

money and cell phones from the employees. 

{¶ 4} Police arrived while Knight and his accomplice were still in the Papa John's, 

and the men fled when they became aware of police presence. A police dog located Knight 

in a water pipe near the scene of the crime where he was immediately arrested. Police also 

located the stolen cash and cell phones in the same pipe in which Knight was found. 

{¶ 5} Knight was charged with several counts of aggravated robbery, kidnapping, and 

felonious assault, as well as several firearm specifications. Knight pled guilty to one count of 

aggravated robbery with a firearm specification, one count of kidnapping, and one count of 

felonious assault, and the remaining counts and specifications were dismissed. During the 

trial court's plea colloquy, Knight waived a recitation of the facts from the state. The trial 

court discussed with Knight the charges, possible sentences, and other required aspects of a 

plea colloquy. 

{¶ 6} While Knight confirmed that he understood all the information presented, 

defense counsel indicated that Knight would be making an allied offense argument before 

sentencing. However, the trial court clearly expressed that it was not going to make an allied 

offense determination at the plea hearing, and that Knight was facing a possible 31-year 

sentence if the crimes were not allied offenses and all sentences were to run consecutive to 

each other. Knight indicated that he understood the sentence he was facing should the trial 

court not merge the convictions. The trial court ordered a presentence investigation, and set 

sentencing for a future date. 
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{¶ 7} At sentencing, the trial court considered the presentence investigation report 

("PSI"), and merged the kidnapping conviction into the aggravated robbery conviction as 

allied offenses. The trial court then sentenced Knight to ten years on the aggravated robbery 

charge, one year on the specification, and four years on the felonious assault. The trial court 

ran the sentences consecutive for an aggregate sentence of 15 years in prison. Knight now 

appeals the trial court's decision not to merge the felonious assault conviction into the 

aggravated robbery conviction, raising the following assignment of error. 

{¶ 8} THE TRIAL COURT ERRED IN IMPOSING MULTIPLE PUNISHMENTS FOR 

THE SAME OFFENSE. 

{¶ 9} Knight argues in his assignment of error that the trial court erred by not merging 

his convictions for felonious assault and aggravated robbery. 

{¶ 10} R.C. 2941.25 prohibits the imposition of multiple punishments for the same 

criminal conduct, and provides that: 

(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. 

{¶ 11} In determining whether offenses are allied, courts are instructed to consider 

three separate factors: the conduct, the animus, and the import. State v. Ruff, 143 Ohio 

St.3d 114, 2015-Ohio-995, paragraph one of the syllabus. Convictions do not merge and a 

defendant may be sentenced for multiple offenses if any of the following are true: (1) the 

conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses 

were committed separately, or (3) the conduct shows that the offenses were committed with 
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separate animus. Id. at ¶ 25. Two or more offenses of dissimilar import exist "when the 

defendant's conduct constitutes offenses involving separate victims or if the harm that results 

from each offense is separate and identifiable." Id. at paragraph two of the syllabus. 

{¶ 12} "At its heart, the allied-offense analysis is dependent upon the facts of a case 

because R.C. 2941.25 focuses on the defendant's conduct." Id. at ¶ 26. As a result, this 

analysis "may result in varying results for the same set of offenses in different cases." State 

v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 52. When determining whether multiple 

offenses merge pursuant to R.C. 2941.25, a court must review the entire record. State v. 

Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, ¶ 24. The burden is on the defendant to 

establish his entitlement to the protection provided by R.C. 2941.25 against multiple 

punishments for a single criminal act. State v. Lewis, 12th Dist. Clinton No. CA2008-10-045, 

2012-Ohio-885, ¶ 14. 

{¶ 13} While the trial court must consider whether convictions that result from a 

defendant's plea must merge as allied offenses, we have "recognized the 'challenges 

inherent in allowing a criminal defendant to raise, on appeal, an allied offense attack to a 

negotiated plea because the reviewing court has a limited record of facts, if any, upon which 

to make an allied offenses analysis.'" State v. Tannreuther, 12th Dist. Butler No. CA2013-04-

062, 2014-Ohio-74, ¶ 16, quoting State v. Vitt, 9th Dist. Medina App. No. 11CA0071-M, 2012-

Ohio-4438, ¶ 10. Even when salient facts are lacking, a trial court must make an allied 

offenses determination, and will look to the information contained in the record to make its 

determination, including the indictment, bill of particulars, and the presentence investigation 

report ("PSI"). See State v. Gebhardt, 8th Dist. Cuyahoga Nos. 97865, 97866, 2013-Ohio166 (affirming trial court's decision not to merge several counts of gross sexual imposition 

where the facts contained in the PSI indicated that the offenses were each committed with a 

separate animus); and State v. Cisco, 5th Dist. Delaware App. No. 13 CAA 04 0026, 2013-
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Ohio-5412 (analyzing why a trial court is permitted to consider facts in the PSI when 

determining whether convictions should be merged as allied offenses). 

{¶ 14} We note that the record in the case at bar contains limited facts to be used 

when conducting the necessary analysis given that Knight chose to waive a recitation of the 

facts by the state. Even so, the record contains sufficient facts, taken from the discussions at 

the plea hearing and the PSI, for us to perform a meaningful review. The record does not 

indicate that Knight objected to the information contained in the PSI, and again, he chose to 

waive the reading of facts during his plea. 

{¶ 15} Within Knight's appellate brief, he quotes from portions of a transcript from his 

sentencing hearing. However, the record does not contain a transcript of that particular 

sentencing hearing. It appears that the trial court held two sentencing hearings, a second of 

which was conducted so that the trial court could make findings necessary for consecutive 

sentences. The record contains a transcript of this second hearing. However, a transcript of 

the main sentencing hearing, which occurred on January 21, 2016, is absent from the record. 

Regardless, Knight asserts in his brief that the trial court stated its intention during the 

January 21st hearing to not rely on any facts stated during that sentencing hearing. While 

Knight now asserts that the state invited an error by not giving more facts during the plea 

hearing and trying to supplement the record at the sentencing hearing, we remind Knight that 

he chose to waive the reading of facts during his plea hearing, and that he had the burden to 

establish that his convictions were allied offenses. 

{¶ 16} Knight now argues that his convictions for felonious assault and aggravated 

robbery should merge because he perpetrated the crimes upon the same victim and with a 

single animus. The record demonstrates that the three charges to which Knight pled guilty 

were specific to the manager, whom Knight robbed, locked in a freezer, and later hit on the 

side of the head with a gun. Despite the charges being specific to one victim, however, we 
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find that the trial court correctly found that the two convictions should not merge. 

{¶ 17} Knight was convicted of aggravated robbery in violation of R.C. 2911.01(A)(1), 

which provides, "No person, in attempting or committing a theft offense, * * * shall do any of 

the following: Have 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." Knight was also convicted of felonious assault in violation of R.C. 

2903.11(A)(2), which provides, "No person shall knowingly * * * [c]ause or attempt to cause 

physical harm to another or to another's unborn by means of a deadly weapon or dangerous 

ordnance." 

{¶ 18} The facts in the record, from multiple sources, indicate that Knight committed 

aggravated robbery while using a gun to commit a theft offense. More specifically, Knight 

and his accomplice removed the manager from the freezer at gun point, took him to the 

store's safe, and then forced the manager to open the safe. Knight and his accomplice then 

stole money from the safe. At that point, the aggravated robbery was complete and all 

elements of the offense were present. Knight then separately committed felonious assault 

when he caused the manager physical harm by hitting him on the side of the head with a 

gun, or as explained in the PSI, when he "pistol whipped" the manager in the head. Although 

limited, the facts show that after the aggravated robbery had already occurred, Knight and his 

accomplice took the manager back to the freezer. At that time, Knight used the gun to hit the 

manager in the head, thus causing him physical harm separate and apart from the alreadycompleted aggravated robbery. 

{¶ 19} Thus, and according to the Ruff standard, the conduct and harm of robbing the 

manager at gunpoint was separate from the conduct and harm of hitting the manager in the 

head with a gun. The aggravated robbery occurred when Knight used a gun while stealing 

money from the vault. The felonious assault occurred later when Knight hit the manager on 
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the head with a gun, which resulted in the manger being physically injured. Knight had the 

burden to establish that he committed aggravated robbery and felonious assault with the 

same conduct and animus, but failed to offer sufficient facts to demonstrate as much. 

Instead, the limited facts in the record indicate that the crimes were separate, and not allied 

offenses of similar import. 

{¶ 20} Given the facts and circumstances of the case, we find that Knight separately 

committed aggravated robbery and felonious assault and they are not crimes of similar 

import. As such, the trial court was correct in not merging the convictions for sentencing 

purposes, and Knight's single assignment of error is overruled. 

{¶ 21} Judgment affirmed. 

 M. POWELL, P.J., and HENDRICKSON, J., concur.