[Cite as State v. Byrd, 2021-Ohio-2961.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : ELIJAH S. BYRD : Case No. 2020 CA 0018 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 20CR0088
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 26, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PAULA M. SAWYERS LISA M. TOME 20 S. Second Street 511 South High Street Fourth Floor Columbus, OH 43215 Newark, OH 43055 Coshocton County, Case No. 2020 CA 0018 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Elijah S. Byrd appeals the November 9, 2020
judgment entry of the Coshocton County Court of Common Pleas sentencing him to an
aggregate total of 13 years incarceration. Plaintiff-Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 1, 2020, Appellant acting in concert with others, lured 17-year-old
C.H. to a location in Coshocton County where C.H. believed he would purchase marijuana
from Appellant and his co-defendants.
{¶ 3} Appellant and one co-defendant, armed with handguns, were dropped off
on State Route 16 where they hid while others went to pick up C.H. and bring him to their
location. Once C.H. arrived, Appellant and a co-defendant got in the car, pointed their
guns at C.H. and ordered him to empty his pockets. C.H. complied, surrendering the cash
he had in his pocket.
{¶ 4} Appellant and his accomplices then drove C.H. to a second location 5 to 10
miles away where they ordered C.H. out of the car at gunpoint and made him get down
on his knees. With a gun at C.H.'s head Appellant and his cohorts demanded C.H.'s
shoes, phone, sweatshirt, necklace, and pocket knife. C.H. was advised to keep his eyes
closed and that if he opened them or said anything, they would shoot him. C.H. was then
left to walk home barefoot.
{¶ 5} As a result of these events, on July 20, 2020, Appellant was charged with
one count of aggravated robbery, a felony of the first degree. This count contained a Coshocton County, Case No. 2020 CA 0018 3
firearm specification as well as a forfeiture specification. Appellant was further charged
with one count of kidnapping, also a felony of the first degree.
{¶ 6} On September 14, 2020, Appellant entered pleas of guilty to the charges
and a presentence investigation was ordered.
{¶ 7} Before sentencing, both Appellant and the state filed presentence
memoranda advancing allied offenses arguments. At the sentencing hearing the state
presented testimony of Detective Eric DeMattio of the Coshocton County Sheriff's
Department who investigated this matter. The state argued the offenses were not allied
offenses:
In this particular case, Your Honor, the aggravated robbery was
completed. They had already placed [sic] guns upon entry into the
Honda CRV at the victim who was at the time 17 years of age. They
already had his items that had value, at least from their perspective.
They went to a separate location. They got him out of the car,
finished going through his person, and then walked him to a ditch
and have him kneel in the ditch, and put a firearm to his head and
threaten him with death. Your Honor, we believe that this additional
placement of firearms to his head placed fear of death and warrants
a separate sentence.
{¶ 8} Transcript of sentencing (T) at 14. Appellant, on the other hand argued C.H.
was "kidnapped for the purpose of committing aggravated robbery" and "[t]he purpose of Coshocton County, Case No. 2020 CA 0018 4
the gun to his head was to commit a robbery." Appellant further argued "[t]hey didn't
kidnap him. The kidnapping was tenuous [sic] to the facts of the robbery." T. 17-18.
{¶ 9} The trial court rejected Appellant's argument and found:
There is no bright line rule but there are certain facts which can
create that separate and distinct animus. And one of those facts old
legal word called asportation. And it's about taking someone
somewhere. In this case it's about taking someone somewhere. And
the fact that defendant and the co-defendants took the 17-year-old
[C.H.] from a location near the initial buy. And, by the way, this was
a set-up buy that was actually an ambush. There was never going to
be a drug transaction. This was an ambush. And the ambush was
sprung, and [C.H.], a juvenile, was put in a motor vehicle and
transported to another location there is the separate animus and
separate act that distinguishes this from aggravated robbery.
{¶ 10} The trial court then sentenced Appellant to 10 years on each count to be
served concurrently with each other and consecutive to a three-year sentence for the
firearm specification.
{¶ 11} Appellant filed an appeal and the matter is now before this court for
consideration. He raises one assignment of error for our consideration as follows:
I
{¶ 12} "THE TRIAL COURT ERRED BY FAILING TO MERGE APPELLANT'S
AGGRAVATED ROBBERY AND KIDNAPPING OFFENSES, IN VIOLATION OF THE Coshocton County, Case No. 2020 CA 0018 5
DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED
STATES CONSTITUTION."
{¶ 13} In his sole assignment of error, Appellant argues the trial court erred in
finding kidnaping and aggravated robbery were not allied offenses of similar import. We
disagree.
{¶ 14} R.C. 2941.25(A) provides, "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." A "conviction" consists of a guilty verdict and the imposition of a sentence
or penalty. State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶
135.
{¶ 15} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
syllabus, the Supreme Court of Ohio held the following:
1. 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.
2. Two 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.
3. Under R.C. 2941.25(B), a defendant whose conduct supports
multiple offenses may be convicted of all the offenses if any one of Coshocton County, Case No. 2020 CA 0018 6
the following is 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 separate animus.
{¶ 16} The Ruff court explained at ¶ 26:
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.
The evidence at trial or during a plea or sentencing hearing will reveal
whether the offenses have similar import. When a defendant's
conduct victimizes more than one person, the harm for each person
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[Cite as State v. Byrd, 2021-Ohio-2961.]
COURT OF APPEALS COSHOCTON COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff-Appellee : Hon. W. Scott Gwin, J. : Hon. Earle E. Wise, Jr., J. -vs- : : ELIJAH S. BYRD : Case No. 2020 CA 0018 : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 20CR0088
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 26, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
PAULA M. SAWYERS LISA M. TOME 20 S. Second Street 511 South High Street Fourth Floor Columbus, OH 43215 Newark, OH 43055 Coshocton County, Case No. 2020 CA 0018 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant Elijah S. Byrd appeals the November 9, 2020
judgment entry of the Coshocton County Court of Common Pleas sentencing him to an
aggregate total of 13 years incarceration. Plaintiff-Appellee is the State of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 1, 2020, Appellant acting in concert with others, lured 17-year-old
C.H. to a location in Coshocton County where C.H. believed he would purchase marijuana
from Appellant and his co-defendants.
{¶ 3} Appellant and one co-defendant, armed with handguns, were dropped off
on State Route 16 where they hid while others went to pick up C.H. and bring him to their
location. Once C.H. arrived, Appellant and a co-defendant got in the car, pointed their
guns at C.H. and ordered him to empty his pockets. C.H. complied, surrendering the cash
he had in his pocket.
{¶ 4} Appellant and his accomplices then drove C.H. to a second location 5 to 10
miles away where they ordered C.H. out of the car at gunpoint and made him get down
on his knees. With a gun at C.H.'s head Appellant and his cohorts demanded C.H.'s
shoes, phone, sweatshirt, necklace, and pocket knife. C.H. was advised to keep his eyes
closed and that if he opened them or said anything, they would shoot him. C.H. was then
left to walk home barefoot.
{¶ 5} As a result of these events, on July 20, 2020, Appellant was charged with
one count of aggravated robbery, a felony of the first degree. This count contained a Coshocton County, Case No. 2020 CA 0018 3
firearm specification as well as a forfeiture specification. Appellant was further charged
with one count of kidnapping, also a felony of the first degree.
{¶ 6} On September 14, 2020, Appellant entered pleas of guilty to the charges
and a presentence investigation was ordered.
{¶ 7} Before sentencing, both Appellant and the state filed presentence
memoranda advancing allied offenses arguments. At the sentencing hearing the state
presented testimony of Detective Eric DeMattio of the Coshocton County Sheriff's
Department who investigated this matter. The state argued the offenses were not allied
offenses:
In this particular case, Your Honor, the aggravated robbery was
completed. They had already placed [sic] guns upon entry into the
Honda CRV at the victim who was at the time 17 years of age. They
already had his items that had value, at least from their perspective.
They went to a separate location. They got him out of the car,
finished going through his person, and then walked him to a ditch
and have him kneel in the ditch, and put a firearm to his head and
threaten him with death. Your Honor, we believe that this additional
placement of firearms to his head placed fear of death and warrants
a separate sentence.
{¶ 8} Transcript of sentencing (T) at 14. Appellant, on the other hand argued C.H.
was "kidnapped for the purpose of committing aggravated robbery" and "[t]he purpose of Coshocton County, Case No. 2020 CA 0018 4
the gun to his head was to commit a robbery." Appellant further argued "[t]hey didn't
kidnap him. The kidnapping was tenuous [sic] to the facts of the robbery." T. 17-18.
{¶ 9} The trial court rejected Appellant's argument and found:
There is no bright line rule but there are certain facts which can
create that separate and distinct animus. And one of those facts old
legal word called asportation. And it's about taking someone
somewhere. In this case it's about taking someone somewhere. And
the fact that defendant and the co-defendants took the 17-year-old
[C.H.] from a location near the initial buy. And, by the way, this was
a set-up buy that was actually an ambush. There was never going to
be a drug transaction. This was an ambush. And the ambush was
sprung, and [C.H.], a juvenile, was put in a motor vehicle and
transported to another location there is the separate animus and
separate act that distinguishes this from aggravated robbery.
{¶ 10} The trial court then sentenced Appellant to 10 years on each count to be
served concurrently with each other and consecutive to a three-year sentence for the
firearm specification.
{¶ 11} Appellant filed an appeal and the matter is now before this court for
consideration. He raises one assignment of error for our consideration as follows:
I
{¶ 12} "THE TRIAL COURT ERRED BY FAILING TO MERGE APPELLANT'S
AGGRAVATED ROBBERY AND KIDNAPPING OFFENSES, IN VIOLATION OF THE Coshocton County, Case No. 2020 CA 0018 5
DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED
STATES CONSTITUTION."
{¶ 13} In his sole assignment of error, Appellant argues the trial court erred in
finding kidnaping and aggravated robbery were not allied offenses of similar import. We
disagree.
{¶ 14} R.C. 2941.25(A) provides, "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." A "conviction" consists of a guilty verdict and the imposition of a sentence
or penalty. State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶
135.
{¶ 15} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
syllabus, the Supreme Court of Ohio held the following:
1. 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.
2. Two 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.
3. Under R.C. 2941.25(B), a defendant whose conduct supports
multiple offenses may be convicted of all the offenses if any one of Coshocton County, Case No. 2020 CA 0018 6
the following is 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 separate animus.
{¶ 16} The Ruff court explained at ¶ 26:
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.
The evidence at trial or during a plea or sentencing hearing will reveal
whether the offenses have similar import. When a defendant's
conduct victimizes more than one person, the harm for each person
is separate and distinct, and therefore, the defendant can be
convicted of multiple counts. Also, a defendant's conduct that
constitutes two or more offenses against a single victim can support
multiple convictions if the harm that results from each offense is
separate and identifiable from the harm of the other offense. We
therefore hold that two 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. Coshocton County, Case No. 2020 CA 0018 7
{¶ 17} We review a trial court's R.C. 2941.25 determination de novo. State v.
Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12.
{¶ 18} As mentioned above, Appellant here was charged with one count of
aggravated robbery and one count of kidnapping. Depending on the circumstances,
kidnapping and aggravated robbery can be allied offenses. State v. Winn, 121 Ohio St.3d
413, 2009-Ohio-1059, 905 N.E.2d 154. This is true because any aggravated robbery
requires a brief restraint of the victim. State v. Jackson, 1st Dist. Hamilton No. C-180341,
2019-Ohio-2027, ¶ 10. Here, however, Appellant's conduct went beyond that which was
required to complete the aggravated robbery.
{¶ 19} While Appellant focuses on the fact that C.H. was not bound or gagged, he
ignores the fact that the victim was transported 5 to 10 miles away from where he was
robbed of cash, to a second location where he was robbed of additional items and where
Appellant threatened to shoot C.H. if he opened his eyes or said anything.
{¶ 20} As eluded to by the trial court during the sentencing hearing, a separate
animus exists when the movement of the victim is substantial and restraint of the victim
is not merely incidental to the offense of aggravated robbery. "[W]here the restraint is
prolonged, the confinement is secretive, or the movement is substantial so as to
demonstrate a significance independent of the other offense, there exists a separate
animus as to each offense sufficient to support separate convictions." State v. Logan, 60
Ohio St.2d 126, 397 N.E.2d 1345 (1979), syllabus. "Although Logan predates Ruff, Ohio
courts continue to apply the guidelines set forth in Logan in determining whether
kidnapping and another offense were committed with a separate animus, in accordance Coshocton County, Case No. 2020 CA 0018 8
with the third prong of the Ruff test." State v. Asadi-Ousley, 8th Dist. Cuyahoga No.
104267, 2017-Ohio-7252, ¶47.
{¶ 21} The movement here was substantial. The asportation of C.H. to a second
location 5 to 10 miles away from the initial location was not necessary to complete
aggravated robbery. Rather, the substantial movement, taking of C.H.'s shoes and phone
appear instead to have facilitated the escape of Appellant and his co-defendants. See
State v. Randle, 3d Dist. Marion Nos. 9-17-08 & 9-17-09, 2018-Ohio-207, ¶ 16-17; State
v. Smith, 11th Dist. No. 2018-T-0061, 2019-Ohio-1952 ¶ 27.
{¶ 22} Kidnapping and aggravated robbery under the facts of this case are not
allied offenses. The trial court did not therefore err in failing to merge the charges.
{¶ 23} The judgment of the Coshocton County Court of Common Pleas is affirmed.
By Wise, Earle, J.
Baldwin, P.J. and
Gwin, J. concur.
EEW/rw