[Cite as State v. Pittman,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Patricia A. Delaney, J. -vs- : : REGINALD PITTMAN : Case No. 10CAA110087 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 09CRI100487A

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: August 16, 2011

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CAROL HAMILTON WILLIAM T. CRAMER BRIAN J. WALTER 470 Olde Worthington Road 140 North Sandusky Street Suite 200 Delaware OH 43015 Westerville, OH 43082 Delaware County, Case No. 10CAA110087 2

Farmer, J.

{¶1} On October 16, 2009, the Delaware County Grand Jury indicted

appellant, Reginald Pittman, on three counts of aggravated robbery in violation of R.C.

2911.01(A)(1) and two counts of kidnapping in violation of R.C. 2905.01(A)(2). Each

count carried a firearm specification in violation of R.C. 2941.145. Said charges arose

from the robbery of a Kentucky Fried Chicken store (hereinafter "KFC") and two of its

employees, James Schwartz and shift supervisor Teisha Bishop Horner.

{¶2} A jury trial commenced on September 14, 2010. The jury found appellant

guilty as charged. By judgment entry filed November 2, 2010, the trial court sentenced

appellant to an aggregate term of fifteen years in prison.

{¶3} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶4} "THE VERDICTS WERE CONTRARY TO THE WEIGHT OF THE

EVIDENCE."

II

{¶5} "THE TRIAL COURT VIOLATED APPELLANTS' STATE AND FEDERAL

DOUBLE JEOPARDY PROTECTIONS, STATE AND FEDERAL RIGHTS TO DUE

PROCESS, AND R.C. 2941.25 BY FAILING TO MERGE THE ALLIED OFFENSES OF

KIDNAPPING AND AGGRAVATED ROBBERY."

I

{¶6} Appellant claims his convictions were against the manifest weight of the

evidence. Specifically, appellant claims the victims were unable to identify him, and the Delaware County, Case No. 10CAA110087 3

descriptions given were not similar to his physical description. Appellant further claims

the "other witnesses," his co-defendants and co-conspirators, lacked credibility. We

disagree.

{¶7} On review for manifest weight, a reviewing court is to examine the entire

record, weigh the evidence and all reasonable inferences, consider the credibility of

witnesses and determine "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 reversed and a new trial ordered." State v. Martin (1983),

.

See also, State v. Thompkins,

,

. The granting of a new

trial "should be exercised only in the exceptional case in which the evidence weighs

heavily against the conviction." Martin at 175. We note the weight to be given to the

evidence and the credibility of the witnesses are issues for the trier of fact. State v.

Jamison (1990),

, certiorari denied (1990),

. The trier of

fact "has the best opportunity to view the demeanor, attitude, and credibility of each

witness, something that does not translate well on the written page." Davis v.

Flickinger,

,

.

{¶8} Appellant was convicted of three counts of aggravated robbery in violation

of R.C. 2911.01(A)(1) which states the following:

{¶9} "(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. 10CAA110087 4

{¶10} "(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."

{¶11} Appellant was also convicted of two counts of kidnapping in violation of

R.C. 2905.01(A)(2) which states the following:

{¶12} "(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:

{¶13} "(2) To facilitate the commission of any felony or flight thereafter."

{¶14} Each count carried a firearm specification pursuant to R.C. 2941.145.

{¶15} The gravamen of this assignment is not the factual issue of the robbery of

Ms. Horner, Mr. Schwartz, and the KFC store, but the identification of the robber as

appellant.

{¶16} Appellant argues the description given by the victims did not match his

physical description. Appellant further argues the later identification by Ms. Horner that

appellant "looked like" the assailant was suspect because of her previous identification

of another individual from a photo array.

{¶17} Appellant's co-defendants/co-conspirators, Toris Richardson, Rachel

Smith, and Nitesha Sargent, were present during the KFC robbery and testified at trial.

Each had a criminal record. T. at 208-209, 221, 238, 264-267. Mr. Richardson boasted

about being a "career criminal." T. at 267-268. Each received a plea deal in exchange

for their testimony against appellant. T. at 219, 221, 238, 270-273, 282-283. Delaware County, Case No. 10CAA110087 5

{¶18} Ms. Smith and Ms. Sargent both testified that appellant and Mr.

Richardson came to their residence and drove them to a bar in Polaris where Mr.

Richardson attempted to "get them into the bar" as they were underage. T. at 172-175,

238, 257. After that failed, Mr. Richardson stated "they were going to hit a quick lick."

T. at 175, 238. A "lick" "means to rob somebody." T. at 175. Appellant and Mr.

Richardson left the car and came back about three times over a ten to twenty minute

period. T. at 178, 239-240. The KFC in question was within walking distance of the car.

T. at 176. When they returned for the last time, appellant had a plastic bag. T. at 178,

241. Everyone returned to the residence and appellant and Mr. Richardson split

money. T. at 241. Appellant and Mr. Richardson "were mad because they didn't get no

money for a waste of time or something like that" and appellant opined it was probably

because "they made a deposit." T. at 179, 181, 241. Ms. Smith had previously told Mr.

Richardson about the routine of another KFC regarding cameras, panic buttons, and

safes. T. at 176-177.

{¶19} Mr. Richardson testified to "casing" the KFC with appellant, trying to figure

out how they could get inside. T. at 257. They observed a "little white car" parked

outside so appellant got inside the vehicle and waited.

Appellant had a gun with

him. T. at 259. Mr. Richardson observed two individuals exit the KFC and then

appellant taking the two back inside the KFC. T. at 257, 261. Because Mr. Richardson

thought it was taking too long, he entered the KFC. T. at 257-258, 261. The victims

were on the floor and "everybody was kind of already done" so he and appellant left and

drove off. T. at 258, 261-262. Mr. Richardson was the admitted "Fagin" à la Oliver Delaware County, Case No. 10CAA110087 6

Twist to a string of robberies. He would recruit young people and pay them some of the

proceeds. T. at 138-139, 158, 253.

{¶20} Within the backdrop of this testimony are the recollections of the victims.

Ms. Horner, assisted by a police sketch artist, produced a drawing of the robber. T. at

126-127; State's Exhibit 10. After comparing the sketch to appellant's photograph, the

investigating officer, Columbus Police Detective Gregory Franken, opined they were

"pretty close." T. at 168. Ms. Horner also testified she was "pretty sure" appellant was

the robber because she could remember his "cold dark eyes." T. at 75.

{¶21} The jury was well aware of the criminal histories of Ms. Smith, Ms.

Sargent, and Mr. Richardson, as well as their plea deals. The jury chose to accept

these three similar versions of the robbery as fact. We find this was clearly within their

province and it was supported by other testimony.

{¶22} Upon review, we find sufficient, credible evidence to support the

convictions, and no manifest miscarriage of justice.

{¶23} Assignment of Error I is denied.

II

{¶24} Appellant claims the trial court erred in failing to merge the allied offenses

of aggravated robbery and kidnapping pursuant to R.C. 2941.25. We disagree.

{¶25} R.C. 2941.25 governs multiple counts and states the following:

{¶26} "(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. Delaware County, Case No. 10CAA110087 7

{¶27} "(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."

{¶28} In State v. Johnson,

,

, syllabus, the

Supreme Court of Ohio held the following:

{¶29} "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),

,

, overruled.)"

{¶30} The Johnson court explained the following at ¶48-51:

{¶31} "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. Blankenship, 38 Ohio St.3d at 119,

(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. Delaware County, Case No. 10CAA110087 8

{¶32} "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.' Brown,

, 2008-

Ohio-4569,

(Lanzinger, J., dissenting).

{¶33} "If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

{¶34} "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."

{¶35} Counts 4 and 5 were the kidnapping offenses, and the trial court

sentenced appellant on each count and ordered them to be served concurrently with

each other, but consecutive to the sentences for the aggravated robberies:

{¶36} "As to the kidnapping, this Court agrees with the state of Ohio, that they

are separate offenses, kidnapping to the robbery, it was not necessary or even required

that the two victims be taken at gun point, back into the Kentucky Fried Chicken after

they had been robbed, had their personal belongings taken away, they were taken back

in and in this Court's opinion that make it a separate animus, makes it a separate crime.

{¶37} "As to the crime of kidnapping, in violation of 2909.01(A)(2) as to Ms.

Bishop [Horner], Count Four, it is the sentence of this Court that you shall serve two

years at CRC; pay the costs of the prosecution for which execution will be awarded; as

to that two year sentence, it will be served consecutive to the sentence I have imposed

as to Count One and Count Two. Delaware County, Case No. 10CAA110087 9

{¶38} "As to Count Five, kidnapping, as to Mr. Schwartz, it is the opinion of this

Court that this is a separate offense, has a separate animus, again the same things I

have said, the same facts set forth by Mr. Inscho, therefore it is the sentence of this

Court that you shall serve two years for that kidnapping, in violation of 2905.01(A)(2),

two years concurrent to the two years I imposed as to Ms. Bishop; it will be consecutive

as to the sentence imposed as to Count One and Two." October 22, 2010 T. at 16-17.

{¶39} We note the trial court's decision was issued before the Johnson decision.

As specifically noted in Johnson, it is appellant's "conduct" that must be examined in

determining separate animus. Therefore, the issue post-Johnson is whether the

offenses were committed by the same conduct i.e., " 'a single act, committed with a

single state of mind.' "

, citing State v. Brown,

,

, ¶50 (Lanzinger, J., dissenting).

{¶40} In order to resolve this issue, an analysis of the facts is necessary. We

note the indictment is limited to the statutory definition of kidnapping and a bill of

particulars was not filed. Therefore, because the issue involves the movement of the

victims, we must look to the state's theory of the case as set forth in closing argument:

{¶41} "Also there are two counts of kidnapping. No person by force, threat or

deception, by any means, shall remove another from the place where the other person

is found or restrain the liberty of another person to facilitate the commission of any

felony.

{¶42} "To facilitate. To be taken my (sic) force and threat back to the store.

They were told they couldn't leave until they counted to one hundred. All the while a

gun was in their face. All the while that defendant was committing a felony." T. at 329. Delaware County, Case No. 10CAA110087 10

{¶43} During the sentencing hearing, the state argued the following:

{¶44} "In essence, Your Honor, after the robbery had been concluded, after the

aggravated robbery of Ms. Horner and Mr. Schwartz concluded, he then kidnaps them

by moving them, by the asportation of them through the parking lot into the KFC, he

then completes the robbery of the third victim, the KFC. He could have left the scene

after robbing them; he should have left the scene after robbing them. And if the

defendant had merely kidnapped them, held them at gun point, held them against your

will and robbed them in Ms. Horner's car and then left, then the state would have

conceded today that the kidnapping necessarily would merge into the aggravated

robbery.

{¶45} "That is not the case. He committed separate crimes. He should not get

any free felonies. He should be sentenced consecutively as to Counts Four and Five."

October 22, 2010 T. at 7-8.

{¶46} The state's position is that the forcing of the victims to count to one

hundred following the robbery of the KFC was separate criminal conduct with a

separate animus from the aggravated robbery charges.

{¶47} The victims were accosted at gunpoint, forced into the "little white car,"

and robbed of their personal items. T. at 58. Appellant then ordered them out of the car

and back inside the KFC to get money from the safe. T. at 58-59. After appellant

obtained the money from the safe, he ordered the victims to the floor and on his way

out, placed a gun in Ms. Horner's face and told them to count to one hundred. T. at 59.

Appellant and Mr. Richardson left the store. T. at 59, 64. The victims counted to one

hundred and then called the police. T. at 64. Delaware County, Case No. 10CAA110087 11

{¶48} The question vis-à-vis the sentencing is whether the placing of the gun in

Ms. Horner's face and ordering the victims to count to one hundred was an offense

committed separately with a separate animus state of mind.

{¶49} Although it may be argued that an aggravated robbery when a kidnapping

is charged always constitutes the same conduct, we reject this broad generalization. As

Judge French stated in State v. Sidibeh,

,

, ¶59, the

question becomes, à la State v. Logan (1979),

, whether the

kidnapping was incidental to and stemmed from the same conduct. Admittedly, this is a

subjective analysis as opposed to a black and white formula.

{¶50} In this case, appellant's conduct of restraining the victims in the vehicle

and then ordering them back inside the KFC was conduct incidental to the aggravated

robberies. Once the aggravated robbery of the KFC was completed, the acts of

restraining the victims was no longer incidental to the aggravated robbery, but was to

facilitate their escape and lack of detection.

{¶51} Upon review, we find the trial court did not err in failing to merge the

aggravated robbery and kidnapping counts pursuant to R.C. 2941.25.

{¶52} Assignment of Error II is denied. Delaware County, Case No. 10CAA110087 12

{¶53} The judgment of the Court of Common Pleas of Delaware County, Ohio is

hereby affirmed.

By Farmer, J.

Delaney, J. concur and

Hoffman, P.J. concurs separately

s/ Sheila G. Farmer_________________

s/ Patricia A. Delaney_________________

___________________________________

JUDGES

SGF/sg Delaware County, Case No. 10CAA110087 13

Hoffman, P.J., concurring

{¶54} I concur in the majority’s analysis and disposition of Appellant’s first

assignment of error. I further concur in the majority’s disposition of Appellant’s second

assignment of error but do so for a reason different than the majority.

{¶55} Unlike the majority, I find the placing of the gun in Ms. Horner’s face and

ordering the victims to count to one hundred was incidental to commission of the

aggravated robbery involving KFC. I do no find the fact it was to facilitate their escape

and lack of detection alters my analysis. Contrary to the Appellee’s contention, I do not

find counting to one hundred involves a prolonged restraint nor renders the confinement

secretive. Furthermore, the movement of the victims was not so substantial as to

demonstrate a significant independence from the aggravated robbery of the KFC. See

State v. Logan (1979)

, and State v. Sidibeh,

, for

recognition and application of these factors.

{¶56} Nevertheless I concur in the result reached by the majority. While I find

ordering the victims back inside the KFC was conduct incidental to the aggravated

robbery of KFC, it was conduct independent of the already completed aggravated

robberies of the two individuals while in the car. Their continued restraint and

movement into KFC was not incidental to those crimes; therefore, I concur the

kidnapping offenses do not merge with the two aggravated robbery convictions

concerning Ms. Horner and Mr. Schwartz.

_s/ William B. Hoffman__

HON. WILLIAM B. HOFFMAN Delaware County, Case No. 10CAA110087 14

IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : REGINALD PITTMAN : : Defendant-Appellant : CASE NO. 10CAA110087

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Delaware County, Ohio is affirmed. Costs

to appellant.

s/ Sheila G. Farmer_________________

s/ Patricia A. Delaney_________________

_s/ William B. Hoffman________________

JUDGES