[Cite as State v. Brenson, 2011-Ohio-1880.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 09-CA-18 JAMES BRENSON : : Defendant-Appellant : OPINION
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-Ohio-
6314, 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 two-
part 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.
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[Cite as State v. Brenson, 2011-Ohio-1880.]
COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. 09-CA-18 JAMES BRENSON : : Defendant-Appellant : OPINION
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-Ohio-
6314, 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 two-
part 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.