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State v. Brown

Court of Appeals of Ohio, Twelfth District, Butler

January 16, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
DERRICK BROWN, Defendant-Appellant.

         CRIMINAL APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS No. CR2017-01-0027

          Michael T. Gmoser, Butler County Prosecuting Attorney, Lina N. Alkamhawi, for plaintiff-appellee

          Christopher P. Frederick, for defendant-appellant

          OPINION

          RINGLAND, J.

         {¶ 1} Defendant-appellant, Derrick Brown, appeals from his multiple convictions in the Butler County Court of Common Pleas. For the reasons detailed below, we affirm.

         {¶ 2} On February 1, 2017, the Butler County Grand Jury indicted Brown on 19 counts, including aggravated murder, aggravated robbery, aggravated burglary, aggravated arson, as well as numerous weapons counts, gross abuse of a corpse, and charges for participating in a criminal gang.

         {¶ 3} Brown pled guilty and was found guilty of: (1) attempted burglary in violation of R.C. 2923.02 and R.C. 2911.12(A)(2), a third-degree felony, (2) aggravated murder in violation of R.C. 2903.01(B), an unclassified felony, (3) aggravated robbery in violation of R.C. 2911.01(A)(3), a first-degree felony, (4) aggravated burglary in violation of R.C. 2911.11(A)(1), a first-degree felony, (5) having weapons while under disability in violation of R.C. 2923.13(A)(2), a third-degree felony, and (6) participating in a criminal gang in violation of R.C. 2923.42, a second-degree felony. In addition, the aggravated murder, aggravated robbery, and aggravated burglary offenses also included firearm specifications and a specification for being involved in a gang. The attempted burglary offense also included a firearm specification.

         {¶ 4} During sentencing, Brown's trial counsel argued that the sentences for aggravated murder, aggravated robbery, and aggravated burglary were allied offenses of similar import. The trial court found that the offenses were not allied and imposed a sentence of 51 years to life. Brown now appeals the decision of the trial court, raising a single assignment of error for review:

         {¶ 5} THE TRIAL COURT COMMITTED ERROR WHEN IT FAILED TO MERGE MR. BROWN'S CONVICTIONS OF AGGRAVATED MURDER, AGGRAVATED ROBBERY, AND AGGRAVATED BURGLARY AS REQUIRED BY R.C. 2941.25.

         {¶ 6} In his sole assignment of error, Brown argues that his convictions for aggravated murder, aggravated robbery, and aggravated burglary were allied offenses of similar import. Therefore, Brown contends that the trial court erred by failing to merge those convictions. We find no merit to Brown's argument.

         {¶ 7} Pursuant to R.C. 2941.25, Ohio's allied-offenses statute, the imposition of multiple punishments for the same criminal conduct is prohibited. State v. Rodriguez, 12th Dist. Butler No. CA2015-02-024, 2016-Ohio-452, ¶ 23. If any of the following occurs, the defendant may be convicted and sentenced for multiple offenses: "(1) the offenses are dissimilar in import or significance - in other words, each offense caused separate, identifiable harm, (2) the offenses were committed separately, or (3) the offenses were committed with separate animus or motivation." State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 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 ¶ 23.

         {¶ 8} "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. An appellate court applies a de novo standard of review in reviewing a trial court's R.C. 2941.25 merger determination. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 28. "The defendant bears the burden of establishing 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; State v. Davis, 12th Dist. Butler No. CA2012-09-194, 2013-Ohio-2637, ¶ 8.

         {¶ 9} Brown was convicted, in pertinent part, of aggravated murder, aggravated robbery, and aggravated burglary. As to Brown's aggravated murder conviction, pursuant to R.C. 2903.01:

(B) No person shall purposely cause the death of another or the unlawful termination of another's pregnancy while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit, kidnapping, rape, aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, trespass in ...

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