[Cite as State v. Osman, 2014-Ohio-294.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ATHENS COUNTY 

STATE OF OHIO, : 

 : 

 Plaintiff-Appellee, : Case No. 13CA22 

 : 

 vs. : 

 : 

MAHAT OSMAN, AKA MAHAD : DECISION AND JUDGMENT 

OSMAN, AKA MOHAMUD : ENTRY

JAMA, AKA TAZ, : 

 : 

 Defendant-Appellant. : Released: 01/22/14 

_____________________________________________________________ 

APPEARANCES:

Sam B. Weiner, Samuel B. Weiner Co., L.P.A., Columbus, Ohio, and David 

J. Graeff, Westerville, Ohio, for Appellant. 

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. 

Saunders, Assistant Prosecuting Attorney, Athens, Ohio, for Appellee. 

_____________________________________________________________ 

 

McFarland, J. 

{¶1} Mahat Osman appeals the convictions and sentences imposed, 

post remand, by the Athens County Court of Common Pleas after a jury 

found him guilty of six felony offenses. On appeal, Appellant raises only 

one assignment of error, contending that the trial court erred at the resentencing hearing when it convicted and sentenced him again on both the 

charge of felony murder, in violation of R.C. 2903.02(B), and aggravated 

robbery, in violation of R.C. 2911.01, claiming that the offenses are allied 
Athens App. No. 13CA22 2

offenses of similar import under R.C. 2941.25. However, because we 

conclude that these two crimes had separate victims, we find they were 

committed separately and thus are of dissimilar import. As such, 

Appellant’s sole assignment of error is overruled. Accordingly, the decision 

of the trial court is affirmed. 

FACTS 

{¶2} This case is before us for a second time on appeal, following a 

prior remand to the trial court for the purposes of re-sentencing. The facts 

are as follows, primarily set forth in our prior decision related to this matter. 

The exchange of gunfire during an aggravated robbery between three men 

outside a trailer and three other men inside a trailer resulted in the death of 

bystander Donnie Putnam (hereinafter “victim”) on February 14, 2009. The 

victim's death occurred outside Billie Osbourne, Jr.'s trailer. 

{¶3} Three men, Osman, Philip Boler, and Abdifatah Abdi, and one 

woman, Hamda Jama went in two cars to Osbourne's trailer intent on 

committing a robbery. A fifth individual, Eric Fussner, went with them 

because someone ordered him at gunpoint to drive his car. Fussner drove 

Osman and Abdi while Boler drove Jama to the trailer. When the group 

arrived at the trailer, Osman and Abdi ordered Fussner to back out of the 

driveway so that they could confer with Boler and establish a plan of action. 
Athens App. No. 13CA22 3

Before Fussner pulled into the driveway a second time, Osman and Abdi had 

him turn off his lights. 

{¶4} Osman, Abdi, and Boler exited the vehicles. Boler carried a .22 

Marlin, and Fussner overheard Boler say to Osman that he (i.e., Boler) 

would have “his” head in his sights the whole time. (The record is not clear 

whose head Boler was referring to.) Osman and Abdi then walked up to 

Osbourne's trailer. Inside Osbourne's trailer that evening, Shane Benson and 

his friend John Perry Jr. were in the dining room smoking crack cocaine. 

Someone (the record is not precisely clear on who) had noticed the two cars 

approaching the trailer. 

{¶5} Because of information he had received previously, Osbourne 

was concerned that the individuals in the cars wanted to rob him. Earlier that 

day, Osbourne had retrieved several guns and had placed them in readily 

accessible locations in the trailer. He placed a 9mm semi-automatic pistol on 

top of the television. He placed an SKS semi-automatic rifle next to the front 

door. And finally, he leaned a shotgun up against a countertop. 

{¶6} Osman and Abdi knocked on the front door. Osbourne partially 

opened it and asked what they wanted. Osman and Abdi demanded to speak 

with “Johnny.” Osbourne said that Johnny was not there and that there were 

children in the trailer. Osbourne testified that Abdi then drew a .40 caliber 
Athens App. No. 13CA22 4

semi-automatic Smith and Wesson pistol and pressed it against Osbourne's 

gut. Osbourne grabbed the pistol and pushed it aside. As the two men 

struggled over the pistol, Abdi fired the gun twice. Eventually, Osbourne 

manipulated the pistol so that it pointed towards Abdi's head. At this point, 

Abdi turned and ran letting go of the pistol. 

{¶7} The front door of Osbourne's trailer opened to the outside. After 

Osbourne wrested the pistol away from Abdi, Osbourne stood slightly 

outside his trailer. Osman then slammed against the front door knocking 

Osbourne against the wall. Osbourne shoved the door back open and 

knocked Osman backwards. Osman then ran from the porch. At this point, a 

gunfight ensued. Inside or near the trailer, Osbourne fired the gun he wrested 

from Abdi until it ran out of bullets. Osbourne then retrieved his SKS 

semiautomatic rifle and fired several rounds until it jammed. Osbourne's two 

visitors inside the trailer joined the gunfight. That is, Perry fired four rounds 

from a 9mm pistol, and Benson fired at least one shell from a shotgun. 

{¶8} Outside the trailer, Boler fired at least three rounds from the .22 

Marlin rifle. And Fussner testified that both Osman and Abdi fired at the 

trailer as they retreated from the porch. During the struggle on the porch, 

the victim arrived on the scene with his girlfriend Misty Swartz. The victim 

and Osbourne were friends. The victim got out of his car and started to move 
Athens App. No. 13CA22 5

towards the porch. A 9mm round struck the victim during the exchange of 

gunfire. The bullet punctured the middle and lower lobes of the victim's 

right lung. Mortally wounded, the victim fell to the ground and died shortly 

thereafter. 

{¶9} During the gunfight, Fussner backed his car out of the driveway 

and drove off. As a result, Osman, Boler, Abdi, and Jama all piled into the 

remaining car. Due to the speed of the escape, however, the car crashed and 

overturned shortly after leaving Osbourne's trailer. Boler remained in the 

area of the wreck, but his co-conspirators fled on foot. Paramedics were 

called to the scene of the shooting. One of the dispatched squads instead 

encountered the overturned car. The paramedics found Boler who appeared 

dazed and confused after the accident. While one of the paramedics was 

treating Boler, officers from the Athens County Sheriff's Office arrived and 

arrested Boler. Officers of the Ohio State Highway Patrol eventually 

apprehended Boler's coconspirators, including Osman. 

{¶10} As we noted in our prior opinion, Osman had a different 

version of the events. Following his arrest, Osman made several statements 

to police. Initially, Osman gave a statement to Trooper Glendon Ward when 

Trooper Ward was transporting Osman from the scene of Osman's arrest to 

the Athens County Sherriff's Department. In this statement, Osman informed 
Athens App. No. 13CA22 6

Trooper Ward that he and his coconspirators were the victims of a car 

accident. Osman stated that another vehicle hit their car from behind. At that 

time, however, the police had not advised Osman of his Miranda rights. 

Shortly after Trooper Ward brought Osman to the Sherriff's Department, 

Trooper Ward advised Osman of his Miranda rights. Osman again claimed 

that he and his co-conspirators were the victims of a hit-and-run accident. 

Osman claimed that he was travelling to a friend's house when another 

vehicle caused the car to crash. 

{¶11} Lt. Bryan Cooper of the Athens County Sherriff's Department 

interviewed Osman several hours later. Lt. Cooper re-advised Osman of his 

Miranda rights. During the interview, Osman admitted that he and his coconspirators took weapons to Osbourne's trailer to commit a robbery. Osman 

also admitted that he drew his firearm during the struggle with Osbourne on 

the porch. (Osman initially stated to Lt. Cooper that Abdi first pulled the gun 

on Osbourne. Osman, however, changed his story during the interview and 

stated that he, and not Abdi, first pulled the gun on Osbourne). 

{¶12} Ultimately, the jury returned a verdict finding Osman (1) guilty 

of aggravated robbery and complicity to aggravated robbery, both with a 

firearm specification, in violation of R.C. 2911.01(A)(1) & 2941.145; (2) 

aggravated robbery and complicity to aggravated robbery, both with a 
Athens App. No. 13CA22 7

firearm specification, in violation of R.C. 2911.01(A)(3) & 2941.145; and 

(3) murder and complicity to murder, both with a firearm specification, in 

violation of R.C. 2903.02(B) & 2941.145. 

{¶13} The trial court merged the counts of aggravated robbery and 

complicity to aggravated robbery, and the court sentenced Osman to ten 

years incarceration for those counts. The trial court also merged the murder 

and complicity to murder convictions, and the court imposed a mandatory 

fifteen years to life incarceration for the murder conviction plus three years 

for the firearm specification. The trial court ordered all sentences to be 

served consecutively, imposing a total sentence of twenty-eight years to life. 

{¶14} Osman filed a direct appeal of his convictions and sentences. 

This Court affirmed Appellant’s convictions and sentences in part, reversed 

in part, and remanded the matter to the trial court. State v. Osman, 4th Dist. 

Athens No. 09CA36, 2011-Ohio-4626. With one exception, this Court 

upheld Osman’s convictions and sentences. Of importance to the present 

appeal, we concluded that aggravated robbery and felony murder were allied 

offenses of similar import and remanded the matter to the trial court for 

further proceedings to determine if the two crimes were committed 

separately or with a separate animus. Osman at ¶ 1. 
Athens App. No. 13CA22 8

{¶15} As a result of this Court’s remand order, the trial court held a 

re-sentencing hearing on April 9, 2013. The trial court determined that the 

two crimes at issue were committed separately as they had separate victims. 

In particular, the court noted that the victim of the aggravated robbery 

charges was Billy Jo Osbourne while the victim of the murder charge was 

Donnie Putnam. As a result, the trial court found the crimes were not allied 

offenses of similar import and thus refused to merge them for purposes of 

sentencing. As such, Appellant was once again sentenced for both of these 

crimes separately. It is from the trial court’s April 24, 2013, judgment entry 

re-sentencing him that Osman now brings his current appeal, assigning a 

single error for our review. 

ASSIGNMENT OF ERROR 

“I. THE TRIAL COURT ERRED, AT THE RE-SENTENCING 

HEARING, WHEN IT CONVICTED AND SENTENCED THE 

DEFENDANT AGAIN ON BOTH THE CHARGE OF MURDER, 

IN VIOLATION OF R.C. 2903.02(B) WHICH PROSCRIBED 

CAUSING THE DEATH OF ANOTHER AS A PROXIMATE 

RESULT OF AGGRAVATED ROBBERY, IN VIOLATION OF 

R.C. 2911.01, SINCE THE OFFENSES ARE ALLIED OFFENSES 

OF SIMILAR IMPORT UNDER R.C. 2941.25 WHICH 

PRECLUDES MULTIPLE CONVICTIONS IN SENTENCING FOR 

THE SAME CONDUCT AND BECAUSE THE 

CONSTITUTIONAL PROVISIONS OF THE DOUBLE JEOPARDY 

CLAUSE PROHIBIT THE INFLICTION OF CUMULATIVE 

PUNISHMENT FOR BOTH GREATER AND LESSER INCLUDED 

OFFENSES.” 
Athens App. No. 13CA22 9

LEGAL ANALYSIS 

{¶16} In his sole assignment of error, Appellant contends that the 

trial court erred in convicting him of both felony murder and aggravated 

robbery, crimes which he claims arose from the same conduct, were 

committed with a single animus and, as a result, should have merged for 

purposes of sentencing, as allied offenses of similar import. Appellate 

courts apply a de novo standard of review in reviewing a trial court's 

application of the merger statute, R.C. 2941.25. State v. Williams, 134 Ohio 

St.3d 482, 488, 2012-Ohio-5699, 983 N.E.2d 1245, ¶¶ 25-28 . “Appellate 

courts apply the law to the facts of individual cases to make a legal 

determination as to whether R.C. 2941.25 allows multiple convictions.” Id. 

{¶17} R.C. 2941.25 “codifies the protections of the Double Jeopardy 

Clause of the Fifth Amendment to the United States Constitution and 

Section 10, Article I of the Ohio Constitution, which prohibit[ ] multiple 

punishments for the same offense.” State v. Underwood, 124 Ohio St.3d 

365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. The statute states: 

“(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. 
Athens App. No. 13CA22 10

(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.” 

{¶18} In State v. Nguyen, 4th Dist. Athens No. 12CA14, 2013-Ohio3170, ¶ 103, we set forth the analysis that applies when determining if 

offenses should merge under R.C. 2941.25: 

“ ‘Through a series of opinions the Supreme Court of Ohio has 

advised and re-advised lower courts on the difficult task of 

applying Ohio's multiple-count statute to determine which 

criminal convictions require merger.’ [State v. Delawder, 4th 

Dist. Scioto App. No. 10CA3344, 2012-Ohio-1923, ¶ 39]. In 

the plurality decision of State v. Johnson, 128 Ohio St.3d 153, 

2010-Ohio-6314, 942 N.E.2d 1061, the Court expressly 

overruled its then current test for merger. Under the new test, 

the trial court must first determine ‘whether it is possible to 

commit one offense and commit the other with the same 

conduct, not whether it is possible to commit one without 
Athens App. No. 13CA22 11

committing the other.’ (Emphasis sic). Johnson at ¶ 48. If the 

offenses are so alike that the same conduct can subject the 

accused to potential culpability for both, they are ‘of similar 

import’ and the court must proceed to the second step. The 

court must then determine whether the offenses in fact were 

committed by the same conduct, i.e., committed as a single act 

with a single animus. Id. at ¶ 49. If so, merger is necessary. 

However, if the offenses resulted from separate acts or were 

performed with a separate animus, or if the commission of one 

offense will never result in the commission of the other, the 

offenses will not merge. Id. at ¶ 51.” 

{¶19} This Court has already determined that, here, it was possible 

for Osman to commit felony murder and aggravated robbery with the same 

conduct. State v. Osman, supra, at ¶ 32. However, as the trial court had not 

considered whether Osman committed these crimes separately or with a 

separate animus prior to imposing sentence, we remanded the matter for 

further proceedings and re-sentencing. On remand, the trial court 

determined that “[i]n the instant case, Billy Jo Osbourne was the victim of 

the aggravated robbery charges. Donnie Putman was the murder victim 

although he was an innocent bystander.” As such, the trial court further 
Athens App. No. 13CA22 12

determined that “each crime has a separate victim, and were thus of 

dissimilar import[,]” and that Osman’s conduct “resulted in two or more 

offenses committed separately or with a separate animus to each.” Based 

upon our review of the record as well as recent case law, we agree with the 

trial court’s determination. 

{¶20} This Court recently addressed and rejected a similar argument 

in State v. Clay, 4th Dist. Lawrence No. 11CA23, 2013-Ohio-4649. In Clay, 

we reasoned as follows at ¶ 84: 

“Ohio courts have routinely recognized that separate 

convictions and sentences are permitted when the same course 

of conduct affects multiple victims. State v. Franklin, 97 Ohio 

St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 48 (finding the 

court could impose multiple punishments for aggravated arson 

as defendant ‘caused six offenses of dissimilar import because 

six different people were placed at risk’ when defendant set one 

structure on fire); State v. Jones, 18 Ohio St.3d 116, 480 N.E.2d 

408 (1985) (determining that defendant could be sentenced for 

two convictions of aggravated vehicular homicide, even though 

the convictions arose out of the same conduct, when the 

conduct resulted in the death of two individuals); State v. Crisp, 
Athens App. No. 13CA22 13

4th Dist. Scioto No. 10CA3404, 2012-Ohio-1730, ¶ 36 (finding 

that ‘[i]n situations where a defendant has knowledge that more 

than one victim could be harmed, courts have concluded there 

is a separate animus for each victim at risk’). Thus, ‘multiple 

sentences for a single act committed against multiple victims is 

permissible where the offense is defined in terms of conduct 

toward “another as such offenses are of dissimilar import; the 

import being each person affected.” ’ State v. Tapscott, 7th 

Dist. Mahoning No. 11 MA26, 2012-Ohio-4213, ¶ 41, quoting 

Jones, 18 Ohio St.3d at 118, 480 N.E.2d 408; accord State v. 

Angus, 10th Dist. No. 05AP-1054, 2006-Ohio-4455, 2006 WL 

2474512, ¶ 34 (‘Where a defendant's conduct injures multiple 

victims, the defendant may be convicted and sentenced for each 

offense involving a separate victim.’).” 

{¶21} Based upon the foregoing, we reject Osman’s argument that 

the crimes of felony murder and aggravated robbery were committed with a 

single animus. We further reject Osman’s argument that because the felony 

murder statute fails to specify a mens rea element but instead relies upon the 

mens rea specified in the predicate offense, the he committed felony murder 

with the same animus as the predicate offense. See State v. Ragland, 5th
Athens App. No. 13CA22 14

Dist. Stark No. 2010CA00023, 2011-Ohio-2245, ¶ 71 (concluding that 

because the crimes of felony murder and aggravated robbery had two 

separate victims, the conduct constituted “two offenses of dissimilar 

import.”). Likewise, we reject Appellant’s further argument that the felony 

murder offense was committed with no animus whatsoever. For us to 

conclude that there was no animus in the commission of the felony murder 

offense would seem to invalidate Appellant’s conviction for that offense. 

Rather, we affirmed Appellant’s conviction for that offense and noted that 

“[u]nder Ohio law, ‘it is irrelevant whether the killer is the defendant, an 

accomplice or a third party.’ ” State v. Osman at ¶ 47. 

{¶22} In response to these arguments, we instead are persuaded by 

the reasoning set forth above with respect to crimes stated in terms of 

conduct towards “another” being of dissimilar import when multiple victims 

are involved. State v. Clay at ¶ 84; citing State v. Tapscott at ¶ 41. Here, the 

crimes of felony murder and aggravated robbery are both defined in terms of 

conduct towards another. Specifically, R.C. 2903.02(B) provides that “[n]o 

person shall cause the death of another * * *.” (Emphasis added). Further, 

R.C. 2911.01(A)(1) and (3) provides that: 

“[n]o person, in attempting or committing a theft offense * * * 

or in fleeing immediately after the attempt or offense, shall do 
Athens App. No. 13CA22 15

any of the following: (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; * * * (3) Inflict, or attempt to inflict, 

serious physical harm on another.” (Emphasis added). 

{¶23} As recently noted by the First District Court of Appeals in a 

case involving multiple victims as a result of the commission of the offenses 

of aggravated vehicular homicide and aggravated vehicular assault: 

“In 1985, the Ohio Supreme Court identified the General 

Assembly's intention to provide for multiple punishments in 

cases like this one where the offense is defined in terms of 

conduct towards ‘another,’ and the offender has committed a 

single act resulting in multiple victims. In State v. Jones, 18 

Ohio St.3d 116, 480 N.E.2d 408 (1985), the Ohio Supreme 

Court held that multiple convictions for aggravated-vehicular 

homicide, in violation of R.C. 2903.06, can arise from a single 

instance of a person's reckless operation of his vehicle. The 

Supreme Court first examined the text of the vehicularhomicide statute that prohibited recklessly causing the death ‘of 

another.’ Id. at 118. Holding that the statute, by being framed 
Athens App. No. 13CA22 16

in terms of an offender's conduct towards another, authorized a 

conviction for each person killed by a reckless driver, the 

Supreme Court concluded that the killing of the two passengers 

in the defendant's vehicle as a result of the defendant's reckless 

operation of the vehicle constituted two offenses of dissimilar 

import. The conduct of recklessly causing the death of two 

persons with the defendant's automobile represented ‘two 

offenses of dissimilar import-the “import” under R.C. 2903.06 

being each person killed.’ Id.” State v. Watkins, 1st Dist. No. C120567, 2013-Ohio-4222, ¶ 12. 

{¶24} Although Watkins involved offenses quite different from the 

ones sub judice, it relied on cases more similar to the one presently before 

this Court. For instance, the Watkins court cited State v. Ellison, supra, in 

support of its reasoning, which involved the offenses of kidnapping and 

abduction, with separate victims. Watkins also cited State v. Wright, supra, 

which involved the offenses of murder and felonious assault, involving a 

woman and her unborn child. Finally, we again look to the reasoning of 

State v. Ragland, which was discussed supra. Relying on the reasoning set 

forth in State v. Jones, supra, which involved aggravated vehicular 

homicide, the Ragland court determined that the offenses of felony murder 
Athens App. No. 13CA22 17

and aggravated robbery committed against two separate victims were not 

allied offenses of similar import. State v. Ragland at ¶ 71. 

{¶25} Because Osman’s felony murder and aggravated robbery 

convictions involved different victims, the imposition of multiple 

punishments does not offend double jeopardy principles or R.C. 2941.25. 

The offenses are of dissimilar import because each offense involved a 

different victim. Consequently, the trial court did not err by failing to merge 

the convictions. 

{¶26} Accordingly, we overrule Osman’s sole assignment of error 

and affirm the decision of the trial court. 

JUDGMENT AFFIRMED. 
Athens App. No. 13CA22 18

JUDGMENT ENTRY

 It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to 

Appellant. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the Athens 

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 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 the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

Abele, P.J. & Harsha, J.: Concur in Judgment and Opinion. 

 

For the Court, 

 BY: ___________________________________ 

 Matthew W. McFarland, 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.