[Cite as State v. Brenson, 2011-Ohio-1880.]

COURT OF APPEALS 

DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsJAMES BRENSON 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. John W. Wise, J. 

: Hon. Patricia A. Delaney, J. 

: 

: 

: Case No. 09-CA-18 

: 

: 

: O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of 

Common Pleas, Case No. 08-CRI-04-

0207A 

JUDGMENT: Affirmed in part, Reversed in part 

 Remanded 

DATE OF JUDGMENT ENTRY: April 15, 2010 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

DAVID A. YOST WILLIAM T. CRAMER 

DELAWARE PROSECUTING ATTORNEY 470 Olde Worthington Road, Ste. 200 

BY: KYLE ROHRER Westerville, OH 43082 

140 N. Sandusky St., 3rd Fl. 

Delaware, OH 43015 
Gwin, P.J. 

{¶1} Upon remand from the Supreme Court of Ohio, this Court is asked to revisit 

only one of the fourteen assignments of error raised by appellant and addressed by this 

court in State v. Brenson, Delaware App. No. 09-CA-18, 2010-Ohio-4645. [“Brenson I”]. 

See, State v. Brenson (March 30, 2011), Slip Opinion No. 2011-Ohio-1425. Appellant's 

Fourteenth Assignment of Error stated as follows: 

{¶2} “BRENSON'S CONVICTIONS SHOULD HAVE MERGED INTO ONE 

COUNT OF AGGRAVATED MURDER AND ONE COUNT OF KIDNAPPING OR 

AGGRAVATED ROBBERY.” 

XIV. 

{¶3} Upon remand from the Supreme Court of Ohio, this court is asked to 

consider whether this Court's ruling on appellant’s fourteenth assignment of error should 

be modified in light of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 

N.E.2d 1061. 

{¶4} In Brenson I, we held the trial court should have merged the two aggravated 

murder counts and imposed only a single sentence. Id. at ¶ 401. We further held 

appellant's conviction for aggravated robbery, R.C. 2911.01(A)(1), and for kidnapping 

R.C. 2905.01(A)(2) should have been merged for sentencing purposes. Id. at ¶420. 

{¶5} However, based upon the Ohio Supreme Court’s decisions in State v. 

Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, and State v. Cabrales, 118 Ohio 

St.3d 54, 2008-Ohio-1625, 884 N.E.2d 181, we found that the trial court was correct to 

sentence appellant on two counts of kidnapping and two counts of aggravated robbery. 

Id. at ¶ 411; 418. 
Delaware County, Case No. 09-CA-18 3 

{¶6} Shortly after our decision in Brenson I was released in the present appeal1, 

the Ohio Supreme Court decided State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio6314, 942 N.E.2d 10612

, which specifically overruled the 1999 Rance decision. 

{¶7} In State v. Johnson, the Ohio Supreme Court revised its allied-offense 

jurisprudence. The Johnson court overruled State v. Rance, (1999), 85 Ohio St.3d 632, 

710 N.E.2d 699, “to the extent that it calls for a comparison of statutory elements solely 

in the abstract under R.C. 2941.25.” The Ohio Supreme Court established a new twopart test for determining whether offenses are allied offenses of similar import under 

R.C. 2941.25. 

{¶8} The first inquiry focuses on whether it is possible to commit both offenses 

with the same conduct. Id. at ¶ 48, 710 N.E.2d 699. It is not necessary that the 

commission of one offense will always result in the commission of the other. Id. Rather, 

the question is whether it is possible for both offenses to be committed by the same 

conduct. Id., quoting State v. Blankenship (1988), 38 Ohio St.3d 116, 119, 526 N.E.2d 

816. Conversely, if the commission of one offense will never result in the commission of 

the other, the offenses will not merge. Johnson at ¶ 51. 

{¶9} If it is possible to commit both offenses with the same conduct, the court 

must next determine whether the offenses were in fact committed by a single act, 

performed with a single state of mind. Id. at ¶ 49, quoting State v. Brown, 119 Ohio 

St.3d 447, 895 N.E.2d 149, 2008-Ohio-4569, ¶ 50 (Lanzinger, J., concurring in 

judgment only). If so, the offenses are allied offenses of similar import and must be 

 1

 September 28, 2010 

2

 December 29, 2010. 
Delaware County, Case No. 09-CA-18 4 

merged. Johnson at ¶ 50. On the other hand, if the offenses are committed separately 

or with a separate animus, the offenses will not merge. Id. at ¶ 51. 

{¶10} Under Johnson, “the court need not perform any hypothetical or abstract 

comparison of the offenses at issue in order to conclude that the offenses are subject to 

merger.” Id. at ¶ 47, 942 N.E. 2d 1061. Rather, the court simply must ask whether the 

defendant committed the offenses by the same conduct. Id. 

{¶11} Upon review of Johnson, we find as we did in Brenson I, “Appellant is 

correct; aggravated murder counts involving the same victim are merged for sentencing. 

State v. O'Neal, 87 Ohio St.3d 402, 721 N.E.2d 73, State v. Lawson (1992), 64 Ohio 

St.3d 336, 351, 595 N.E.2d 902, 913; R.C. 2941.25(A). Here, the trial court should have 

merged the two aggravated murder counts and imposed only a single sentence. See 

Id.; State v. Huertas, 51 Ohio St.3d at 28, 553 N.E.2d at 1066. Further the trial court 

should have merged appellant’s conviction for aggravated robbery, R.C. 2911.01(A) and 

for kidnapping, R.C. 2905.01(A) for sentencing purposes.” Id. at ¶420. 

{¶12} Appellant further argued that the two counts of aggravated robbery 

pursuant to R.C. 2911.01(A)(1) and (3) should merge, and further, that the two counts of 

kidnapping pursuant to R.C. 2905.01 (A)(2) and (3) should also have merged for 

sentencing. (See also, State v. Brenson, Ohio Sup. Ct. Case No. 10-2206, 

Memorandum in Support of Jurisdiction of Appellant James Brenson, filed December 

20, 2010). 

{¶13} Appellant was convicted of two (2) counts of kidnapping pursuant to R.C. 

2905.01. Specifically appellant was convicted under (A) (2) and (3): 
Delaware County, Case No. 09-CA-18 5 

{¶14} “(A) No person, by force, threat, or deception, or, in the case of a victim 

under the age of thirteen or mentally incompetent, by any means, shall remove another 

from the place where the other person is found or restrain the liberty of the other 

person, for any of the following purposes: 

{¶15} “ * * * 

{¶16} “(2) To facilitate the commission of any felony or flight thereafter; 

{¶17} “(3) To terrorize, or to inflict serious physical harm on the victim or another 

{¶18} “ * * * ” 

{¶19} Applying the Johnson analysis, we conclude it is possible to commit 

kidnapping pursuant to R .C. 2905.01. (A)(2) and (3) with the same conduct. 

{¶20} We next determine whether appellant in fact committed both offenses by 

way of a single act, performed with a single state of mind, or whether he had separate 

animus for each offense. Johnson, 2010-Ohio-6314 at ¶ 49, 51; R.C. 2941.25(B). 

{¶21} Upon review of Johnson, we depart from our holding in Brenson I and now 

hold that the trial court should have merged appellant’s convictions for kidnapping 

pursuant to R .C. 2905.01 (A)(2) and (3) for sentencing. 

{¶22} Finally, appellant argues that the two aggravated robbery counts should 

merge. Appellant was convicted of two counts of aggravated robbery. R.C. 2911.01 

provides in relevant part, 

{¶23} “(A) No person, in attempting or committing a theft offense, as defined in 

section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or 

offense, shall do any of the following: 
Delaware County, Case No. 09-CA-18 6 

{¶24} “(1) 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; 

{¶25} “ * * * 

{¶26} “(3) Inflict, or attempt to inflict, serious physical harm on another.” 

{¶27} Applying the Johnson analysis, we conclude it is possible to commit 

aggravated robbery under R.C. 2911.01(A)(1) and (A)(3) with the same conduct. 

{¶28} We next determine whether appellant in fact committed both offenses by 

way of a single act, performed with a single state of mind, or whether he had separate 

animus for each offense. Johnson, 2010-Ohio-6314 at ¶ 49, 51; R.C. 2941.25(B). 

{¶29} In reviewing Johnson, we depart from our holding in Brenson I and now 

hold that the trial court should have merged appellant’s convictions for aggravated 

robbery, R.C. 2911.01(A) (1), and (A)(3) for sentencing. 

{¶30} Accordingly, in compliance with the remand from the Ohio Supreme Court 

the appellant’s Fourteenth Assignment of Error is sustained. In accordance with the 

Ohio Supreme Court's decision in State v. Whitfield, 124 Ohio St.3d 319, 922 N.E.2d 

182, 2010-Ohio-2 at ¶ 25, we remand this case to the trial court for further proceedings 

consistent with that opinion. This decision in no way affects the guilty verdicts issued by 

the jury. It only affects the entry of conviction and sentence. Appellant's convictions are 

affirmed. 
Delaware County, Case No. 09-CA-18 7 

{¶31} For the foregoing reasons, the judgment of the Court of Common Pleas of 

Delaware County, Ohio, is affirmed in part, reversed in part and this matter is remanded 

for proceedings in accordance with our opinion and the law. 

By Gwin, P.J., 

Wise, J., and 

Delaney, J., concur 

_________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. JOHN W. WISE 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

WSG:clw 0331 
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

JAMES BRENSON : 

 : 

 : 

 Defendant-Appellant : CASE NO. 09-CA-18 

 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of 

the Court of Common Pleas of Delaware County, Ohio, is affirmed in part, reversed in 

part and this matter is remanded for proceedings in accordance with our opinion and the 

law.. Costs to appellee. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. JOHN W. WISE 

 _________________________________ 

 HON. PATRICIA A. DELANEY