State v. Cooper

[Cite as State v. Cooper, 2012-Ohio-555.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NOS. C-110027
C-110028
Plaintiff-Appellee, : TRIAL NOS. B-1001973-B
B-1002258
vs. :
O P I N I O N.
ALEC COOPER, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Affirmed in Part, Sentences Vacated in Part, and
Causes Remanded

Date of Judgment Entry on Appeal: February 15, 2012

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman
Curran, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Bruce K. Hust, for Defendant-Appellant.

Please note: This case has been removed from the accelerated calendar.
 OHIO FIRST DISTRICT COURT OF APPEALS

J. H OWARD S UNDERMANN , Presiding Judge.

{¶1} Defendant-appellant Alec Cooper appeals his convictions and sentences

for two counts of aggravated robbery, one count of kidnapping, and two firearm

specifications. The convictions stemmed from Cooper’s involvement in two separate

armed robberies. In two assignments of error, he argues (1) that the trial court erred in

imposing separate sentences for the aggravated robbery and kidnapping offenses

involving Fifth Third Bank because they were allied offenses of similar import

committed by the same conduct and with the same animus, and (2) that the trial court

failed to properly notify him of his postrelease-control obligations.

{¶2} Finding merit in both assignments of error, we vacate the sentences for

the aggravated-robbery and kidnapping offenses involving Fifth Third Bank and remand

this case to the trial court for resentencing on only one of those offenses, and for the trial

court to orally inform Cooper of his postrelease-control obligations in accordance with

R.C. 2929.191. With respect to Cooper’s sentence for the aggravated robbery involving

the Cincinnati Credit Union, we remand this case to the trial court to orally inform

Cooper of his postrelease-control obligations in accordance with R.C. 2929.191. In all

other respects, we affirm the trial court’s judgment.

I. Cooper’s Guilty Pleas and Sentences

{¶3} The record reflects that Cooper was indicted under two separate case

numbers. In the case numbered B-1001973-B, Cooper was charged with aggravated

robbery, robbery, and ten counts of kidnapping in connection with a theft at Fifth Third

Bank. All the counts, except the robbery, were accompanied by firearm specifications.

In the case numbered B-1002258, Cooper was charged with one count of aggravated

robbery and five counts of robbery in connection with a theft at the Cincinnati Credit

2
 OHIO FIRST DISTRICT COURT OF APPEALS

Union. The aggravated-robbery count included a firearm specification. The trial court

considered the two cases together.

{¶4} The state filed a bill of particulars in the case numbered B-1001973-B

that provided as follows:

[O]n or about February 17, 2010, at approximately 0944 hours,

in the vicinity of Fifth Third Bank, at 2632 Erie Ave., Robert

Jackson and Rayshawn Anderson and Alec Cooper entered the

bank. While the co-Defendants removed US currency from the

registers, the Defendant was holding the victims; [sic] Artina

Williams, Lillie Smith, Christie Miller, David Recker, Frank

Winster, Amanda Henry, David Fender, Gina Hafner, Douglas

Barnaclo, and Justin Bendi at gunpoint. The Defendants fled

the bank to a stolen vehicle. The Defendant has a prior

Domestic Violence conviction in the Hamilton County, Ohio

Juvenile Court, which precludes defendant from possessing a

firearm. The indictment is hereby incorporated into this Bill of

Particulars.

{¶5} Following a plea hearing, Cooper withdrew his not-guilty pleas and

pleaded guilty in the case numbered B-1001973-B to aggravated robbery, an

accompanying firearm specification, and one count of kidnapping. Cooper also pleaded

guilty in the case numbered B-1002258 to aggravated robbery and an accompanying

firearm specification. In exchange for his guilty pleas, the state dismissed the remaining

charges and firearm specifications in each case.

{¶6} At Cooper’s plea hearing, the assistant prosecuting attorney read the

following facts into the record with respect to the case numbered B-1001973-B:

3
 OHIO FIRST DISTRICT COURT OF APPEALS

On or about February 17, 2010, 2236 [sic] Erie Avenue. It’s Fifth

Third Bank in Hyde Park Square. Three robbers entered the

bank. Again mask and gloves. One of them had a gun. The one

with the gun remained in the lobby. Two others jumped over

the counters. The customers and managers were terrorized.

All were brought in where they could be seen. The one with the

gun that was in the lobby was counting down the seconds, for

instance, 45, 44, going down to what they thought was a time

that they could stay in the bank and be safe. They wouldn’t let

the tellers touch any of the money. The people that jumped

over the counter, themselves, are the ones that took the money.

But it turned out to be a major mistake because the people, the

defendant and his friend, the ones that let the tellers touch the

money for them, they would put in some sort of dye pack. The

robber[s], [sic] themselves, are the ones that took out the dye

packs, themselves. When they fled the bank their car was again

– this is a very, very, well planned robbery just like the first one.

They got in their car. They got on Erie Avenue. The dye packs

exploded and at that point because of the mixture and the dye

pack and the tear gas located in that, it became impossible for

them to remain in the car and at that point they had to throw

away the money pack.

However, that didn’t really stop the effect of the tear gas.

They made it a couple streets in Hyde Park. The car had to be

abandoned. Their clothes had to be thrown out, the gun was

4
 OHIO FIRST DISTRICT COURT OF APPEALS

thrown out and the mask was thrown out. There was [sic] a lot

of people outside at that point. People walking their dogs. It

was around 9:45 in the morning. The police were called. The

three tried to make their get-away in a Cincinnati Country Club

golf course and all three were caught nearby. Once they were

caught and had all this stuff, Mr. Cooper’s DNA came back on

some of the items that came back from that robbery and then

they went back and checked the mask and so forth that was

recovered in the first robbery and that mask matched his DNA

as well. Again, all of these events occurred in the City of

Cincinnati, Hamilton County, Ohio.

{¶7} At Cooper’s sentencing hearing, the trial court stated that it had read the

victim-impact statements for each aggravated robbery, which had been included in the

presentence-investigation report. The court told Cooper that it was particularly troubled

by one victim-impact statement from Barb Shank, the manager at the Greater Cincinnati

Credit Union. The trial court then quoted passages from Shank’s victim-impact

statement where she described the aggravated robbery. While the trial court stated that

individuals in the two banks remembered Cooper because of his youth and his words, it

did not discuss any facts related to the aggravated robbery or the kidnapping at Fifth

Third Bank before imposing sentence.

{¶8} The trial court sentenced Cooper in the case numbered B-1001973-B to

four years for the aggravated robbery, four years for the kidnapping offense, and three

years for the firearm specification, and it ordered that the terms be served consecutively.

In the case numbered B-1002258, the trial court sentenced Cooper to four years for the

aggravated robbery to be served consecutively to a three-year term for the firearm

5
 OHIO FIRST DISTRICT COURT OF APPEALS

specification. The trial court ordered that the sentence in the case numbered B-

1001973-B be served consecutively to the sentence in the case numbered B-1002258, for

a total sentence of 18 years in prison.

II. Allied Offenses

{¶9} In his first assignment of error, Cooper argues that the trial court erred

in imposing separate sentences for the aggravated robbery and kidnapping in the case

numbered B-1001973-B because they were allied offenses of similar import under R.C.

2941.25.

{¶10} Because Cooper did not raise this argument in the trial court, he has

waived all but plain error. See State v. Evans, 1st Dist. No. C-100028, 2011-Ohio-2356,

¶ 5, citing State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 30;

see also State v. Drummond, 1st Dist. No. C-110011, 2011-Ohio-5915, ¶ 4.

{¶11} Under R.C. 2941.25, a trial court, in a single proceeding, may

sentence a defendant for two or more offenses “ ‘having as their genesis the same

criminal conduct or transaction,’ ” if the offenses (1) are not allied offenses of similar

import, (2) were committed separately or (3) were committed with a separate animus

as to each offense. See State v. Bickerstaff, 10 Ohio St.3d 62, 65-66, 461 N.E.2d 892

(1984), quoting State v. Moss, 69 Ohio St.2d 515, 519, 433 N.E.2d 181 (1982); see

also State v. Johnson, 128 Ohio St.3d 107, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 51.

{¶12} In the syllabus of State v. Johnson, the Ohio Supreme Court held that

“when determining whether two offenses are allied offenses of similar import subject to

merger under R.C. 2941.25, the conduct of the accused must be considered (State v.

Rance [1999], 85 Ohio St.3d 632, 710 N.E.2d 699, overruled).” All seven justices

concurred in the syllabus overruling Rance, and they uniformly agreed that the conduct

6
 OHIO FIRST DISTRICT COURT OF APPEALS

of the accused must be considered. See Johnson at ¶ 44, ¶ 68 (O’Connor, J.,

concurring), and ¶ 78 (O’Donnell, J., concurring).

{¶13} Consequently, if the evidence adduced at trial reveals that the state relied

upon the same conduct to support the two offenses, and that the offenses had been

committed neither separately nor with a separate animus as to each, then the defendant

is afforded the protection of R.C. 2941.25, and the trial court errs in imposing separate

sentences for the offenses. R.C. 2941.25(B); Johnson at ¶ 49 and 51.

{¶14} In this case, Cooper pleaded guilty to aggravated robbery under R.C.

2911.01(A)(1), which provides that “[n]o person, in attempting or committing a theft

offense * * * or in fleeing immediately after the attempt or offense, shall * * * 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.”

He further pleaded guilty to kidnapping under R.C. 2905.01(A)(2), which provides that

“[n]o person, by force, threat, or deception * * * shall remove another from the place

where the other person is found or restrain the liberty of the other person * * * to

facilitate the commission of any felony or flight thereafter.”

{¶15} The facts as set forth in the bill of particulars and at the plea hearing

demonstrate that Cooper was found guilty of both the aggravated robbery and the

kidnapping based upon his actions in brandishing a handgun to move Barnaclo to a

common area in the bank. Cooper then held Barnaclo at gunpoint so that his co-

defendants could take money from the bank. Cooper’s conduct in moving and

restraining Barnaclo with a handgun so that his co-defendants could take money

satisfies the elements of both the aggravated robbery and the kidnapping. Because the

state relied upon the same conduct to prove both offenses, the aggravated robbery and

the kidnapping were allied offenses of similar import. Johnson at ¶ 49 and 51.

7
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶16} Having determined that the aggravated robbery and the kidnapping

were allied offenses of similar import, we must now consider, pursuant to R.C.

2941.25(B), whether the offenses were committed with a single animus. The state

argues that the kidnapping of Barnaclo was committed with a separate animus from the

aggravated robbery because Cooper “terrorized” Barnaclo and the other bank

employees. But the state did not indict Cooper for kidnapping under R.C.

2905.01(A)(3), which provides that “[n]o person by force, threat, or deception * * * shall

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

the other person to terrorize, or to inflict serious physical harm on the other victim or

another.” (Emphasis added.) Nor did the state move at any time to amend the

indictment to charge Cooper with kidnapping under R.C. 2905.01(A)(3).

{¶17} And while we do not mean to minimize the devastating impact of the

aggravated robbery upon Barnaclo or the other Fifth Third Bank employees and

customers, we have found no Ohio case law, nor has the state cited us any authority, to

support its argument that the psychological impact of an offense upon a victim is

dispositive as to whether the perpetrator of that offense acted with a separate animus

under R.C. 2941.25(B).

{¶18} Rather, in State v. Logan, 60 Ohio St.2d 126, 397 N.E.2d 1345 (1979),

and in Johnson, the Ohio Supreme Court held that courts should focus upon the

offender’s conduct to determine his state of mind. See Johnson, 128 Ohio St.3d 107,

2010-Ohio-6314, 942 N.E.2d 1061, at ¶ 51; see also State v. Hicks, 8th Dist. No. 95169,

2011-Ohio-2780, ¶ 11. In Logan, the court established the following guidelines for

determining whether kidnapping and another offense are committed with a separate

animus:

8
 OHIO FIRST DISTRICT COURT OF APPEALS

(a) Where the restraint or movement of the victim is merely

incidental to a separate underlying crime, there exists no

separate animus sufficient to sustain separate convictions;

however, where 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;

(b) Where the asportation or restraint of the victim subjects the

victim to a substantial increase in harm separate and apart

from that involved in the underlying crime, there exists a

separate animus as to each offense sufficient to support

separate convictions. Logan at syllabus.

{¶19} Thus, the Logan court held that when determining whether kidnapping

and another offense were committed with a separate animus, courts should focus on the

nature and duration of the restraint used and whether it creates a risk of harm which is

separable from that involved in the underlying offense. In these situations, Logan

limits the phrase “separate animus” to actions that are secretive and temporally long,

and to movement that is substantial. See State v. Chaffer, 1st Dist. No. C-090602, 2010-

Ohio-4471, ¶ 11.

{¶20} In Logan, the Ohio Supreme Court held that an offender’s conduct in

forcing a victim into an alley, around a corner, and down a flight of stairs before raping

her at knifepoint was committed without a separate animus. The court found that the

movement of the victim had been slight, the detention brief, and that the victim had

been released immediately after the commission of the underlying crime, compelling the

9
 OHIO FIRST DISTRICT COURT OF APPEALS

court’s conclusion that the kidnapping had been merely incidental to the rape. Logan,

60 Ohio St.2d at 135-136, 397 N.E.2d 1345.

{¶21} Similarly, in this case, the aggravated robbery lasted from 60 to 90

seconds. During that time, Cooper and his co-defendants moved Barnaclo to the bank’s

lobby. Cooper then held Barnaclo at gunpoint while counting down the seconds until

the bank alarm would sound. While Cooper held Barnaclo at gunpoint, his co-

defendants jumped over the counter and began collecting money from the bank tellers’

drawers. Once his co-defendants had obtained the money, Cooper and his co-

defendants left the bank to avoid being apprehended by the police.

{¶22} Although Cooper was originally charged with ten counts of kidnapping,

he pleaded guilty to a single count of kidnapping Barnaclo in violation of R.C.

2905.01(A)(2). The record reflects that Cooper’s detention of Barnaclo was brief, his

movement of Barnaclo was slight, and that Barnaclo was released immediately following

the commission of the aggravated robbery.1 See State v. Winn, 121 Ohio St.3d 413,

2009-Ohio-1059, 905 N.E.2d 154, ¶ 22 (noting that Logan “has been considered

authority for the proposition that kidnapping and robbery are allied offenses of similar

import”); see also Hicks, supra, at ¶ 17-21; State v. Sidibeh, 192 Ohio App.3d 256, 2011-

Ohio-712, 948 N.E.2d 995 (10th Dist.) (holding kidnapping to be incidental to and

subject to merger with aggravated robbery, where the defendant moved the victims from

the bathroom of a home to a common area and threatened to harm them if they did not

cooperate); State v. Stall, 3rd Dist. No. 3-10-12, 2011-Ohio-5733, ¶ 18-23 (holding

kidnapping to be subject to merger with aggravated robbery, where defendant’s restraint

1 Barnaclo, when asked in his victim impact statement to describe the facts of the offense
mentions nothing about being moved from his office. Rather, he simply “recalls that on February
17, 2010 when the robbers entered the bank, he was in his office and at one point, one of the
suspects pointed the gun at him.”

10
 OHIO FIRST DISTRICT COURT OF APPEALS

and movement of the victim from the front porch to the kitchen was incidental to the

aggravated robbery).

{¶23} Furthermore, the record does not reveal any substantial increase in the

risk of harm to Barnaclo separate from that involved in the commission of the

aggravated robbery. Compare Logan, 60 Ohio St.2d at 135, 397 N.E.2d 1345 (stating

that prolonged restraint in a bank vault to facilitate the commission of a robbery could

constitute kidnapping, because the victim would be subject to an increased risk of

danger); Chaffer, supra, at ¶ 15 (holding that defendant’s movement of two bank

employees from the parking lot to the inside of the bank, ordering them to lie on the

floor, and then ordering them to stay in the bank vault significantly increased their risk

of harm such that he had committed the kidnapping with a separate animus from the

aggravated robbery); State v. Champion, 2nd Dist. No. 17176, 1999 Ohio App LEXIS

841 (Mar. 5, 1999)(holding that taping the victims’ limbs and mouth and leaving them in

a helpless condition exposed the victims to a substantially greater risk of harm than

necessary for the accomplishment of the aggravated robbery). Given that Barnaclo’s

kidnapping was incidental to the aggravated robbery and did not subject him to a

substantial increase in the risk of harm from that involved in the aggravated robbery, we

cannot agree that Cooper committed the kidnapping with a separate animus.

{¶24} Because the aggravated robbery and kidnapping were allied offenses of

similar import, committed in a single course of conduct with a single animus, Cooper

was entitled to the protection of R.C. 2941.25. Accordingly, the trial court committed

plain error in sentencing him for both offenses. We, therefore, sustain his first

assignment of error.

III. PostRelease Control

11
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶25} In his second assignment of error, Cooper argues that his sentences in

the cases numbered B-1001973-B and B-1002258 are contrary to law because the trial

court failed to orally inform him of his postrelease-control obligations at the sentencing

hearing. We agree.

{¶26} R.C. 2967.28(B) provides as follows:

Each sentence to a prison term for a felony of the first degree *

* * that is not a felony sex offense and in the commission of

which the offender caused or threatened to cause physical harm

to a person shall include a requirement that the offender be

subject to a period of post-release control imposed by the

parole board after the offender’s release from imprisonment.

{¶27} R.C. 2929.19(B)(3)(c) requires “that the sentencing court notify the

offender at the sentencing hearing that he will be supervised pursuant to R.C. 2967.28

and that the parole board may impose a prison term of up to one-half of the prison term

originally imposed on the offender if he violates supervision or a condition of his post-

release control.” See State v. Williams, 1st Dist. No. C-081148, 2010-Ohio-1879, ¶ 20.

{¶28} When a sentencing court fails to advise an offender about postrelease

control at the sentencing hearing, and the offender is sentenced after July 11, 2006, the

effective date of R.C. 2929.191, the trial court violates its statutory duty, and that part of

an offender’s sentence that is related to post release control is void. See State v. Brown,

1st Dist. Nos. C-100390 and C-100310, 2011-Ohio-1029, ¶ 8 and 9, quoting State v.

Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26. To remedy the

postrelease-control defect, the trial court must employ the procedures set forth in R.C.

2929.191. See Brown at ¶ 8.

12
 OHIO FIRST DISTRICT COURT OF APPEALS

{¶29} Our review of the record reveals that the trial court failed to advise

Cooper at his sentencing hearing that he would be subject to a mandatory period of

postrelease supervision following his release from prison, and that the parole board

could impose a prison term of up to one-half of the prison term originally imposed, if he

violated supervision or a condition of his postrelease control. See R.C. 2929.19(B)(3)(c)

and 2967.28(B). As a result, we sustain his second assignment of error.

{¶30} Having found merit in both assignments of error, we vacate the

sentences for the aggravated robbery and kidnapping offenses in the case numbered B-

1001973-B. We remand this case to the trial court for resentencing on only one of those

offenses and for the trial court to inform Cooper of his postrelease control obligations in

accordance with R.C. 2929.191. See State v. Whitfield, 124 Ohio St.3d, 2010-Ohio-2,

922 N.E.2d 182, paragraphs one and two of the syllabus; Williams, supra, at ¶ 23-24.

{¶31} With respect to the case numbered B-1002258, we remand this case

to the trial court to inform Cooper of his postrelease-control obligations in

accordance with R.C. 2929.191. See Williams, supra, at ¶ 23-24. We affirm the trial

court’s judgment in all other respects.
Judgment accordingly.
CUNNINGHAM, J., concurs.
FISCHER, J., concurs separately.

FISCHER, J., concurring separately.

{¶32} I concur with the foregoing opinion. Under the current state of Ohio

law and the facts of this case, the trial court erred in failing to notify Cooper of his

postrelease-control obligations and in convicting him of both aggravated robbery and

kidnapping. I write separately, however, to explain my adherence to the separate-

animus test of State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979), an

early attempt to interpret the opaque and, thus, troublesome R.C. 2941.25. See State

13
 OHIO FIRST DISTRICT COURT OF APPEALS

v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061 (plurality), ¶ 10-

40 (detailing the unpredictable, ever-changing interpretations of this unaltered

statute).

{¶33} In Logan, the Ohio Supreme Court recognized that “[l]ike all mental

states, animus is often difficult to prove directly, but must be inferred from the

surrounding circumstances.” Logan at 131. To facilitate this inquiry, the court

provided guidelines for determining whether a defendant has committed kidnapping

and another offense with a single animus. See id. at syllabus.

{¶34} At his trial, the evidence tended to show that Logan had approached a

woman on the street, held a knife to her throat, and forced her into an alley. Under

such duress, she accompanied him down the alley, around a corner, and down a

flight of stairs, where he raped her at knifepoint. The jury returned guilty verdicts for

both rape and kidnapping.

{¶35} In holding that these offenses should have merged into one conviction

under R.C. 2941.25, the Ohio Supreme Court determined that they were committed

with a single animus. Logan, 60 Ohio St.3d at 135-136, 397 N.E.2d 1345. The court

reasoned that this extensive asportation of the victim at knifepoint did not

demonstrate any substantial increase in the risk of harm separate from that involved

in the rape itself. Id. at 135.

{¶36} Although I may not have reached the same conclusion under the same

set of facts, the doctrine of stare decisis compels my adherence to the Logan court’s

separate-animus holding. See, e.g., State v. Armstrong, 1st Dist. No. C-100509,

2011-Ohio-6265, ¶ 32; State v. Stall, 3rd Dist. No. 3-10-12, 2011-Ohio-5733, ¶ 21

(compiling cases that have applied this test since Johnson). In light of the specific

holding and facts in Logan and the record before this court, I cannot say that

14
 OHIO FIRST DISTRICT COURT OF APPEALS

Cooper’s conduct with respect to his kidnapping conviction revealed an animus

separate from that involved in his aggravated robbery conviction. For this reason,

and those articulated in the foregoing opinion, I must concur.

Please Note:
The court has recorded its own entry this date.

15