[Cite as State v. Napier, 2016-Ohio-2967.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. CT2015-0044
BRANDON NAPIER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court
of Common Pleas, Case No. CR2015-0164
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 12, 2016
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX WILLIAM T.CRAMER
Prosecuting Attorney 470 Olde Worthington Rd, Suite 200
Muskingum County, Ohio Westerville, Ohio 43082
By: GERALD V. ANDERSON II
Assistant Prosecuting Attorney
Muskingum County, Ohio
27 North Fifth St., PO Box 189
Zanesville, Ohio 43702-0189
Muskingum County, Case No. CT2015-0044 2
Hoffman, J.
{¶1} Defendant-appellant Brandon L. Napier appeals his conviction and
sentence entered by the Muskingum County Court of Common Pleas. Plaintiff-appellee
is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On February 9, 2015, Appellant Brandon L. Napier met LeShanta
Thompson at a bar. Thompson had been drinking during the evening. Appellant was
accompanied by Rodryk Johnson and Raven Johnson. As they left the bar, Raven
Johnson was driving a vehicle, and Rodryk Johnson was in the front passenger seat.
Appellant and Thompson were in the rear seats.
{¶3} During the ride, Appellant mentioned Thompson's ex-girlfriend, sparking an
argument. Appellant told Raven Johnson to pull the vehicle over, stating he was going to
beat up Thompson. He and Thompson exited the vehicle.
{¶4} A physical altercation ensued between Appellant and Thompson. Rodryk
Johnson also exited the vehicle, and punched Thompson in the temple, knocking
Thompson and Appellant to the ground. Appellant punched Thompson with his fist,
knocking his tooth out.
{¶5} Appellant was on top of Thompson while both were lying on the ground.
Appellant reached for a brick and hit Thompson on the head with it, putting Thompson
into a daze. Thompson testified he saw Appellant reach for the brick and hit him.
Thompson also heard Appellant tell Rodryk Johnson to clean out Thompson's pockets.
{¶6} Malachi Knott, a neighbor, observed two men hitting a third male with a
brick. He yelled at the two men, who then ran to their car. The witness testified the victim
Muskingum County, Case No. CT2015-0044 3
was very distraught and kept repeating he was robbed. The witnessed later identified the
assailant with the brick from video surveillance obtained from the bar “as the man with
the blue hat.” He described the assailant as approximately 5’8”, wearing a hoodie, white
t-shirt, dark pants, tennis shoes and blue hat. The video surveillance from the bar shows
Rodryk wearing a black cap, black t-shirt, and light gray pants. Appellant was wearing a
white cap, white t-shirt, dark jeans and tennis shoes.
{¶7} After Knott yelled, Rodryk Johnson and Appellant ran back to the car and
left the scene.
{¶8} Appellant was indicted on one count of aggravated robbery, in violation of
R.C. 2911.01(A)(1); one count of felonious assault, in violation of R.C. 2903.11(A)(1); one
count of theft, in violation of R.C. 2913.02(A)(1); and one count of possessing criminal
tools, in violation of R.C. 2923.24(A).
{¶9} The matter proceeded to a jury trial. During the course of trial, the State
dismissed the charge of theft. The jury found Appellant guilty on the charges of
aggravated robbery and felonious assault. The jury further found Appellant possessed
the brick, but did not intend to use it to commit the felony. As a result, Appellant was found
guilty of possessing criminal tools as a first degree misdemeanor.
{¶10} The trial court sentenced Appellant to ten years on the aggravated robbery
charge, seven years as to the felonious assault charge, and six months on the first degree
misdemeanor possessing criminal tools. The trial court ordered the terms to run
concurrently for an aggregate term of ten years.
{¶11} Appellant assigns as error:
Muskingum County, Case No. CT2015-0044 4
{¶12} “I. APPELLANT’S RIGHTS TO DUE PROCESS UNDER THE STATE AND
FEDERAL CONSTITUTIONS WERE VIOLATED BECAUSE HIS CONVICTION FOR
AGGRAVATED ROBBERY WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.
{¶13} “II. APPELLANT’S CONVICTION FOR AGGRAVATED ROBBERY WAS
NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.
{¶14} “III. THE TRIAL COURT VIOLATED PRINCIPLES OF DOUBLE
JEOPARDY AND R.C. 2941.25 BY IMPOSING SENTENCES ON AGGRAVATED
ROBBERY AND FELONIOUS ASSAULT BOTH OF WHICH AROSE FROM A SINGLE
ACT.”
I. and II.
{¶15} In the first and second assignments of error, Appellant maintains his
conviction for aggravated robbery, in violation of R.C. 2911.01(A)(1), is not supported by
the manifest weight and sufficiency of the evidence.
{¶16} The standard of review for a challenge to the sufficiency of the evidence is
set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two
of the syllabus, in which the Ohio Supreme Court held, “An appellate court's function
when reviewing the sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether such evidence, if believed,
would convince the average mind of the defendant's guilty beyond a reasonable doubt.
The relevant inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.”
Muskingum County, Case No. CT2015-0044 5
{¶17} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “reviewing the
entire record, weighs the evidence and all reasonable inferences, considers the credibility
of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be overturned and a new trial ordered.” State v. Thompkins, supra, at 387, 678 N.E.2d
541. Reversing a conviction as being against the manifest weight of the evidence and
ordering a new trial should be reserved for only the “exceptional case in which the
evidence weighs heavily against the conviction.” Id. The weight of the evidence and the
credibility to be given to the witnesses and their testimony is left to the trier of fact.
{¶18} Appellant was convicted of aggravated robbery in violation of R.C.
2911.01(A)(1), which reads,
(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:
(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;
{¶19} At trial herein, Thompson testified,
Q. What does that mean when you say that you're tusslin'?
A. It means that we trying to get a grip on each other. Means that I'm
trying to get-- I'm trying to get him off of me.
Muskingum County, Case No. CT2015-0044 6
So his friend [Rodryk Johnson] come along-- I ain't even seen him
comin' -- him me in the temple. Me and Mr. Napier [Appellant] fell together
on the ground. So we still tusslin' on the ground, because I'm trying to get
free, and I see him reachin' for the brick. So he had his finger out. I'm trying
to bite his finger to get free. He put his finger back in. He grabbed the brick,
he hit me, then hit me in the back. I wasn't knocked out but I was kinda
dazed a little bit.
So he told his friend to go in my pockets. I ain't have nothing but,
what, $108, or whatever. But I'm lookin' at it, if he was broke like that he
could have just asked to borrow some money, a few dollars, I would have
said yeah, here, here you go, don’t worry about it. But he took that,
whatever. Then the neighbors came out, said, hey, hey, hey, and they ran
to the car.
Tr. at 128-129.
{¶20} Thompson testified he was tipsy, not drunk. He testified he remembered all
of the details of the altercation. Tr. at 144.
{¶21} On direct examination at trial, Raven Johnson testified as to Thompson
yelling someone had hit him with a brick. Tr. at 170. She further testified she saw
Appellant hit Thompson with the brick. Tr. at 172. She stated the neighboring home owner
then came out, at which point Appellant and Rodryk Johnson ran back to the car. Tr. at
172.
Muskingum County, Case No. CT2015-0044 7
{¶22} Malachi Knott, the neighboring homeowner who observed the altercation,
testified at trial on the night in question he heard three individuals arguing outside his
home.
Q. What happened next?
A. They walked through the side yard and I didn’t' think nothing of it until I
heard something hit my house and got curious and went to my mother's room,
which is right here, and--
Q. When you said you heard something hit your house what was the nature
of the sound?
A. Just a very large thud.
Q. Okay.
A. And curiosity [sic], went to my mom's room and I seen two males on the
other one and proceeded to go outside. By that time they'd made it to the piece of
my porch where it cuts in. And when I got outside they had him on the ground and
were hitting him with a brick.
***
A. When I came out there was one male standing right here and one right
here, and he was back towards the corner of the house, and they were--
***
A. And when I came out they were standing over him [Thompson] with a
brick raised above his head and that was it until I yelled and--
Q. What'd you yell?
A. Get the hell out of my yard.
Muskingum County, Case No. CT2015-0044 8
Q. Okay.
A. And they took off to a car that was sitting in my alley.***
Tr. at 189-190.
{¶23} Knott identified the individual with the brick as wearing clothing similar to
clothing in a photograph obtained from surveillance video obtained from the bar earlier in
the evening. He stated the individual was wearing a blue hat, was about 5’8” tall, wore a
white t-shirt, jeans and tennis shoes.
{¶24} While Appellant was wearing a white baseball cap, he did match the height
description and was wearing a white t-shirt, jeans and tennis shoes. Knott testified the
victim was distraught and kept repeating he had been robbed. Tr. at 193.
{¶25} The evidence showed the victim and Appellant were engaged in a physical
altercation. Appellant punched Thompson in the mouth, causing him to lose a tooth.
While on the ground and on top of Thompson, Thompson testified Appellant reached for
a brick and struck him on the head with the brick. This testimony was corroborated by
Raven Johnson. Thompson was dazed, but not unconscious. He testified Appellant told
Rodryk Johnson to get into Thompson's pockets, and they took his money. Knott testified
Thompson kept repeating he had been robbed after the altercation. While the amount of
money was disputed at trial, we find there was sufficient evidence presented for the jury
to find beyond a reasonable doubt Appellant committed a theft offense after having struck
Thompson with the brick.
{¶26} Viewing the evidence in a light most favorable to the prosecution, a rational
trier of fact could have found the essential elements of the crime of aggravated robbery
Muskingum County, Case No. CT2015-0044 9
proven beyond a reasonable doubt, and reviewing the entire record, we find the jury did
not lose its way or create a manifest miscarriage of justice.
{¶27} The first and second assignments of error are overruled.
III,
{¶28} In the third assignment of error, Appellant maintains the trial court erred in
failing to merge the aggravated robbery and felonious assault counts in sentencing.
{¶29} Revised Code, Section 2941.25 reads,
(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.
(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.
{¶30} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, the Ohio Supreme Court held,
Under R.C. 2941.25, the court must determine prior to sentencing
whether the offenses were committed by the same conduct. Thus, 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.
Muskingum County, Case No. CT2015-0044 10
In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), the question is 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 committing the other. [State v.] Blankenship,
38 Ohio St.3d [116] at 119, 526 N.E.2d 816 [ (1988) ] (Whiteside, J.,
concurring) (“It is not necessary that both crimes are always committed by
the same conduct but, rather, it is sufficient if both offenses can be
committed by the same conduct. It is a matter of possibility, rather than
certainty, that the same conduct will constitute commission of both
offenses.” [Emphasis sic] ). If the offenses correspond to such a degree that
the conduct of the defendant constituting commission of one offense
constitutes commission of the other, then the offenses are of similar import.
If the multiple offenses can be committed by the same conduct, then
the court must determine whether the offenses were committed by the same
conduct, i.e., “a single act, committed with a single state of mind.” [State v.]
Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50
(Lanzinger, J., dissenting).
If the answer to both questions is yes, then the offenses are allied
offenses of similar import and will be merged.
Conversely, if the court determines that the commission of one
offense will never result in the commission of the other, or if the offenses
are committed separately, or if the defendant has separate animus for each
offense, then, according to R.C. 2941.25(B), the offenses will not merge.
Muskingum County, Case No. CT2015-0044 11
{¶31} Recently, the Ohio Supreme Court in State v. Ruff, 2015-Ohio-995, 143
Ohio St.3d 114, addressed the issue of allied offenses, determining the analysis set forth
in Johnson to be incomplete. The Court in Ruff, held,
When the defendant's conduct constitutes a single offense, the
defendant may be convicted and punished only for that offense. When the
conduct supports more than one offense, however, a court must conduct an
analysis of allied offenses of similar import to determine whether the
offenses merge or whether the defendant may be convicted of separate
offenses. R.C. 2941.25(B).
A trial court and the reviewing court on appeal when considering
whether there are allied offenses that merge into a single conviction under
R.C. 2941.25(A) must first take into account the conduct of the defendant.
In other words, how were the offenses committed? If any of the following is
true, the offenses cannot merge and 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, and (3) the offenses
were committed with separate animus or motivation.
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,
Muskingum County, Case No. CT2015-0044 12
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.
{¶32} We find Appellant caused separate identifiable harm in the commission of
both the felonious assault offense and the offense of aggravated robbery. First, Appellant
committed felonious assault when he struck Thompson in the mouth causing serious
physical harm by knocking out Thompson’s tooth. Thereafter, Appellant committed
aggravated robbery, by using a deadly weapon while taking Thompson’s money. We find
separate harm resulted from each offense. Accordingly, we find the trial court did not
error in convicting and sentencing Appellant on both the offense of felonious assault and
the offense of aggravated robbery.
{¶33} The third assignment of error is overruled.
Muskingum County, Case No. CT2015-0044 13
{¶34} Appellant's conviction and sentence in the Muskingum County Court of
Common Pleas are affirmed.
By: Hoffman, J.
Gwin, P.J. and
Baldwin, J. concur
State v. Napier
Combined Opinion