[Cite as State v. Osman,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY

STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 13CA22 : vs. : : MAHAT OSMAN, AKA MAHAD : DECISION AND JUDGMENT OSMAN, AKA MOHAMUD : ENTRY JAMA, AKA TAZ, : : Defendant-Appellant. : Released: 01/22/14 _____________________________________________________________ APPEARANCES:

Sam B. Weiner, Samuel B. Weiner Co., L.P.A., Columbus, Ohio, and David J. Graeff, Westerville, Ohio, for Appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Assistant Prosecuting Attorney, Athens, Ohio, for Appellee. _____________________________________________________________

McFarland, J.

{¶1} Mahat Osman appeals the convictions and sentences imposed,

post remand, by the Athens County Court of Common Pleas after a jury

found him guilty of six felony offenses. On appeal, Appellant raises only

one assignment of error, contending that the trial court erred at the re-

sentencing hearing when it convicted and sentenced him again on both the

charge of felony murder, in violation of R.C. 2903.02(B), and aggravated

robbery, in violation of R.C. 2911.01, claiming that the offenses are allied Athens App. No. 13CA22 2

offenses of similar import under R.C. 2941.25. However, because we

conclude that these two crimes had separate victims, we find they were

committed separately and thus are of dissimilar import. As such,

Appellant’s sole assignment of error is overruled. Accordingly, the decision

of the trial court is affirmed.

FACTS

{¶2} This case is before us for a second time on appeal, following a

prior remand to the trial court for the purposes of re-sentencing. The facts

are as follows, primarily set forth in our prior decision related to this matter.

The exchange of gunfire during an aggravated robbery between three men

outside a trailer and three other men inside a trailer resulted in the death of

bystander Donnie Putnam (hereinafter “victim”) on February 14, 2009. The

victim's death occurred outside Billie Osbourne, Jr.'s trailer.

{¶3} Three men, Osman, Philip Boler, and Abdifatah Abdi, and one

woman, Hamda Jama went in two cars to Osbourne's trailer intent on

committing a robbery. A fifth individual, Eric Fussner, went with them

because someone ordered him at gunpoint to drive his car. Fussner drove

Osman and Abdi while Boler drove Jama to the trailer. When the group

arrived at the trailer, Osman and Abdi ordered Fussner to back out of the

driveway so that they could confer with Boler and establish a plan of action. Athens App. No. 13CA22 3

Before Fussner pulled into the driveway a second time, Osman and Abdi had

him turn off his lights.

{¶4} Osman, Abdi, and Boler exited the vehicles. Boler carried a .22

Marlin, and Fussner overheard Boler say to Osman that he (i.e., Boler)

would have “his” head in his sights the whole time. (The record is not clear

whose head Boler was referring to.) Osman and Abdi then walked up to

Osbourne's trailer. Inside Osbourne's trailer that evening, Shane Benson and

his friend John Perry Jr. were in the dining room smoking crack cocaine.

Someone (the record is not precisely clear on who) had noticed the two cars

approaching the trailer.

{¶5} Because of information he had received previously, Osbourne

was concerned that the individuals in the cars wanted to rob him. Earlier that

day, Osbourne had retrieved several guns and had placed them in readily

accessible locations in the trailer. He placed a 9mm semi-automatic pistol on

top of the television. He placed an SKS semi-automatic rifle next to the front

door. And finally, he leaned a shotgun up against a countertop.

{¶6} Osman and Abdi knocked on the front door. Osbourne partially

opened it and asked what they wanted. Osman and Abdi demanded to speak

with “Johnny.” Osbourne said that Johnny was not there and that there were

children in the trailer. Osbourne testified that Abdi then drew a .40 caliber Athens App. No. 13CA22 4

semi-automatic Smith and Wesson pistol and pressed it against Osbourne's

gut. Osbourne grabbed the pistol and pushed it aside. As the two men

struggled over the pistol, Abdi fired the gun twice. Eventually, Osbourne

manipulated the pistol so that it pointed towards Abdi's head. At this point,

Abdi turned and ran letting go of the pistol.

{¶7} The front door of Osbourne's trailer opened to the outside. After

Osbourne wrested the pistol away from Abdi, Osbourne stood slightly

outside his trailer. Osman then slammed against the front door knocking

Osbourne against the wall. Osbourne shoved the door back open and

knocked Osman backwards. Osman then ran from the porch. At this point, a

gunfight ensued. Inside or near the trailer, Osbourne fired the gun he wrested

from Abdi until it ran out of bullets. Osbourne then retrieved his SKS

semiautomatic rifle and fired several rounds until it jammed. Osbourne's two

visitors inside the trailer joined the gunfight. That is, Perry fired four rounds

from a 9mm pistol, and Benson fired at least one shell from a shotgun.

{¶8} Outside the trailer, Boler fired at least three rounds from the .22

Marlin rifle. And Fussner testified that both Osman and Abdi fired at the

trailer as they retreated from the porch. During the struggle on the porch,

the victim arrived on the scene with his girlfriend Misty Swartz. The victim

and Osbourne were friends. The victim got out of his car and started to move Athens App. No. 13CA22 5

towards the porch. A 9mm round struck the victim during the exchange of

gunfire. The bullet punctured the middle and lower lobes of the victim's

right lung. Mortally wounded, the victim fell to the ground and died shortly

thereafter.

{¶9} During the gunfight, Fussner backed his car out of the driveway

and drove off. As a result, Osman, Boler, Abdi, and Jama all piled into the

remaining car. Due to the speed of the escape, however, the car crashed and

overturned shortly after leaving Osbourne's trailer. Boler remained in the

area of the wreck, but his co-conspirators fled on foot. Paramedics were

called to the scene of the shooting. One of the dispatched squads instead

encountered the overturned car. The paramedics found Boler who appeared

dazed and confused after the accident. While one of the paramedics was

treating Boler, officers from the Athens County Sheriff's Office arrived and

arrested Boler. Officers of the Ohio State Highway Patrol eventually

apprehended Boler's coconspirators, including Osman.

{¶10} As we noted in our prior opinion, Osman had a different

version of the events. Following his arrest, Osman made several statements

to police. Initially, Osman gave a statement to Trooper Glendon Ward when

Trooper Ward was transporting Osman from the scene of Osman's arrest to

the Athens County Sherriff's Department. In this statement, Osman informed Athens App. No. 13CA22 6

Trooper Ward that he and his coconspirators were the victims of a car

accident. Osman stated that another vehicle hit their car from behind. At that

time, however, the police had not advised Osman of his Miranda rights.

Shortly after Trooper Ward brought Osman to the Sherriff's Department,

Trooper Ward advised Osman of his Miranda rights. Osman again claimed

that he and his co-conspirators were the victims of a hit-and-run accident.

Osman claimed that he was travelling to a friend's house when another

vehicle caused the car to crash.

{¶11} Lt. Bryan Cooper of the Athens County Sherriff's Department

interviewed Osman several hours later. Lt. Cooper re-advised Osman of his

Miranda rights. During the interview, Osman admitted that he and his co-

conspirators took weapons to Osbourne's trailer to commit a robbery. Osman

also admitted that he drew his firearm during the struggle with Osbourne on

the porch. (Osman initially stated to Lt. Cooper that Abdi first pulled the gun

on Osbourne. Osman, however, changed his story during the interview and

stated that he, and not Abdi, first pulled the gun on Osbourne).

{¶12} Ultimately, the jury returned a verdict finding Osman (1) guilty

of aggravated robbery and complicity to aggravated robbery, both with a

firearm specification, in violation of R.C. 2911.01(A)(1) & 2941.145; (2)

aggravated robbery and complicity to aggravated robbery, both with a Athens App. No. 13CA22 7

firearm specification, in violation of R.C. 2911.01(A)(3) & 2941.145; and

(3) murder and complicity to murder, both with a firearm specification, in

violation of R.C. 2903.02(B) & 2941.145.

{¶13} The trial court merged the counts of aggravated robbery and

complicity to aggravated robbery, and the court sentenced Osman to ten

years incarceration for those counts. The trial court also merged the murder

and complicity to murder convictions, and the court imposed a mandatory

fifteen years to life incarceration for the murder conviction plus three years

for the firearm specification. The trial court ordered all sentences to be

served consecutively, imposing a total sentence of twenty-eight years to life.

{¶14} Osman filed a direct appeal of his convictions and sentences.

This Court affirmed Appellant’s convictions and sentences in part, reversed

in part, and remanded the matter to the trial court. State v. Osman, 4th Dist.

Athens No. 09CA36,

. With one exception, this Court

upheld Osman’s convictions and sentences. Of importance to the present

appeal, we concluded that aggravated robbery and felony murder were allied

offenses of similar import and remanded the matter to the trial court for

further proceedings to determine if the two crimes were committed

separately or with a separate animus.

. Athens App. No. 13CA22 8

{¶15} As a result of this Court’s remand order, the trial court held a

re-sentencing hearing on April 9, 2013. The trial court determined that the

two crimes at issue were committed separately as they had separate victims.

In particular, the court noted that the victim of the aggravated robbery

charges was Billy Jo Osbourne while the victim of the murder charge was

Donnie Putnam. As a result, the trial court found the crimes were not allied

offenses of similar import and thus refused to merge them for purposes of

sentencing. As such, Appellant was once again sentenced for both of these

crimes separately. It is from the trial court’s April 24, 2013, judgment entry

re-sentencing him that Osman now brings his current appeal, assigning a

single error for our review.

ASSIGNMENT OF ERROR

“I. THE TRIAL COURT ERRED, AT THE RE-SENTENCING HEARING, WHEN IT CONVICTED AND SENTENCED THE DEFENDANT AGAIN ON BOTH THE CHARGE OF MURDER, IN VIOLATION OF R.C. 2903.02(B) WHICH PROSCRIBED CAUSING THE DEATH OF ANOTHER AS A PROXIMATE RESULT OF AGGRAVATED ROBBERY, IN VIOLATION OF R.C. 2911.01, SINCE THE OFFENSES ARE ALLIED OFFENSES OF SIMILAR IMPORT UNDER R.C. 2941.25 WHICH PRECLUDES MULTIPLE CONVICTIONS IN SENTENCING FOR THE SAME CONDUCT AND BECAUSE THE CONSTITUTIONAL PROVISIONS OF THE DOUBLE JEOPARDY CLAUSE PROHIBIT THE INFLICTION OF CUMULATIVE PUNISHMENT FOR BOTH GREATER AND LESSER INCLUDED OFFENSES.” Athens App. No. 13CA22 9

LEGAL ANALYSIS

{¶16} In his sole assignment of error, Appellant contends that the

trial court erred in convicting him of both felony murder and aggravated

robbery, crimes which he claims arose from the same conduct, were

committed with a single animus and, as a result, should have merged for

purposes of sentencing, as allied offenses of similar import. Appellate

courts apply a de novo standard of review in reviewing a trial court's

application of the merger statute, R.C. 2941.25. State v. Williams,

,

,

, ¶¶ 25-28 . “Appellate

courts apply the law to the facts of individual cases to make a legal

determination as to whether R.C. 2941.25 allows multiple convictions.”

{¶17} R.C. 2941.25 “codifies the protections of the Double Jeopardy

Clause of the Fifth Amendment to the United States Constitution and

Section 10, Article I of the Ohio Constitution, which prohibit[ ] multiple

punishments for the same offense.” State v. Underwood,

,

,

, ¶ 23. The statute states:

“(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. Athens App. No. 13CA22 10

(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.”

{¶18} In State v. Nguyen, 4th Dist. Athens No. 12CA14, 2013-Ohio-

3170, ¶ 103, we set forth the analysis that applies when determining if

offenses should merge under R.C. 2941.25:

“ ‘Through a series of opinions the Supreme Court of Ohio has

advised and re-advised lower courts on the difficult task of

applying Ohio's multiple-count statute to determine which

criminal convictions require merger.’ [State v. Delawder, 4th

Dist. Scioto App. No. 10CA3344,

]. In

the plurality decision of State v. Johnson,

,

,

, the Court expressly

overruled its then current test for merger. Under the new test,

the trial court must first determine ‘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 Athens App. No. 13CA22 11

committing the other.’ (Emphasis sic). Johnson at ¶ 48. If the

offenses are so alike that the same conduct can subject the

accused to potential culpability for both, they are ‘of similar

import’ and the court must proceed to the second step. The

court must then determine whether the offenses in fact were

committed by the same conduct, i.e., committed as a single act

with a single animus. Id. at ¶ 49. If so, merger is necessary.

However, if the offenses resulted from separate acts or were

performed with a separate animus, or if the commission of one

offense will never result in the commission of the other, the

offenses will not merge. Id. at ¶ 51.”

{¶19} This Court has already determined that, here, it was possible

for Osman to commit felony murder and aggravated robbery with the same

conduct. State v.

. However, as the trial court had not

considered whether Osman committed these crimes separately or with a

separate animus prior to imposing sentence, we remanded the matter for

further proceedings and re-sentencing. On remand, the trial court

determined that “[i]n the instant case, Billy Jo Osbourne was the victim of

the aggravated robbery charges. Donnie Putman was the murder victim

although he was an innocent bystander.” As such, the trial court further Athens App. No. 13CA22 12

determined that “each crime has a separate victim, and were thus of

dissimilar import[,]” and that Osman’s conduct “resulted in two or more

offenses committed separately or with a separate animus to each.” Based

upon our review of the record as well as recent case law, we agree with the

trial court’s determination.

{¶20} This Court recently addressed and rejected a similar argument

in State v. Clay, 4th Dist. Lawrence No. 11CA23,

. In Clay,

we reasoned as follows at ¶ 84:

“Ohio courts have routinely recognized that separate

convictions and sentences are permitted when the same course

of conduct affects multiple victims. State v. Franklin,

,

,

, ¶ 48 (finding the

court could impose multiple punishments for aggravated arson

as defendant ‘caused six offenses of dissimilar import because

six different people were placed at risk’ when defendant set one

structure on fire); State v. Jones,

,

(1985) (determining that defendant could be sentenced for

two convictions of aggravated vehicular homicide, even though

the convictions arose out of the same conduct, when the

conduct resulted in the death of two individuals); State v. Crisp, Athens App. No. 13CA22 13

4th Dist. Scioto No. 10CA3404,

(finding

that ‘[i]n situations where a defendant has knowledge that more

than one victim could be harmed, courts have concluded there

is a separate animus for each victim at risk’). Thus, ‘multiple

sentences for a single act committed against multiple victims is

permissible where the offense is defined in terms of conduct

toward “another as such offenses are of dissimilar import; the

import being each person affected.” ’ State v. Tapscott, 7th

Dist. Mahoning No. 11 MA26,

, quoting

Jones,

,

; accord State v.

Angus, 10th Dist. No. 05AP-1054,

,

, ¶ 34 (‘Where a defendant's conduct injures multiple

victims, the defendant may be convicted and sentenced for each

offense involving a separate victim.’).”

{¶21} Based upon the foregoing, we reject Osman’s argument that

the crimes of felony murder and aggravated robbery were committed with a

single animus. We further reject Osman’s argument that because the felony

murder statute fails to specify a mens rea element but instead relies upon the

mens rea specified in the predicate offense, the he committed felony murder

with the same animus as the predicate offense. See State v. Ragland, 5th Athens App. No. 13CA22 14

Dist. Stark No. 2010CA00023,

(concluding that

because the crimes of felony murder and aggravated robbery had two

separate victims, the conduct constituted “two offenses of dissimilar

import.”). Likewise, we reject Appellant’s further argument that the felony

murder offense was committed with no animus whatsoever. For us to

conclude that there was no animus in the commission of the felony murder

offense would seem to invalidate Appellant’s conviction for that offense.

Rather, we affirmed Appellant’s conviction for that offense and noted that

“[u]nder Ohio law, ‘it is irrelevant whether the killer is the defendant, an

accomplice or a third party.’ ” State v.

.

{¶22} In response to these arguments, we instead are persuaded by

the reasoning set forth above with respect to crimes stated in terms of

conduct towards “another” being of dissimilar import when multiple victims

are involved. State v. Clay at ¶ 84; citing State v. Tapscott at ¶ 41. Here, the

crimes of felony murder and aggravated robbery are both defined in terms of

conduct towards another. Specifically, R.C. 2903.02(B) provides that “[n]o

person shall cause the death of another * * *.” (Emphasis added). Further,

R.C. 2911.01(A)(1) and (3) provides that:

“[n]o person, in attempting or committing a theft offense * * *

or in fleeing immediately after the attempt or offense, shall do Athens App. No. 13CA22 15

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; * * * (3) Inflict, or attempt to inflict,

serious physical harm on another.” (Emphasis added).

{¶23} As recently noted by the First District Court of Appeals in a

case involving multiple victims as a result of the commission of the offenses

of aggravated vehicular homicide and aggravated vehicular assault:

“In 1985, the Ohio Supreme Court identified the General

Assembly's intention to provide for multiple punishments in

cases like this one where the offense is defined in terms of

conduct towards ‘another,’ and the offender has committed a

single act resulting in multiple victims. In State v. Jones,

,

(1985), the Ohio Supreme

Court held that multiple convictions for aggravated-vehicular

homicide, in violation of R.C. 2903.06, can arise from a single

instance of a person's reckless operation of his vehicle. The

Supreme Court first examined the text of the vehicular-

homicide statute that prohibited recklessly causing the death ‘of

another.’

. Holding that the statute, by being framed Athens App. No. 13CA22 16

in terms of an offender's conduct towards another, authorized a

conviction for each person killed by a reckless driver, the

Supreme Court concluded that the killing of the two passengers

in the defendant's vehicle as a result of the defendant's reckless

operation of the vehicle constituted two offenses of dissimilar

import. The conduct of recklessly causing the death of two

persons with the defendant's automobile represented ‘two

offenses of dissimilar import-the “import” under R.C. 2903.06

being each person killed.’ Id.” State v. Watkins, 1st Dist. No. C-

120567,

.

{¶24} Although Watkins involved offenses quite different from the

ones sub judice, it relied on cases more similar to the one presently before

this Court. For instance, the Watkins court cited State v. Ellison, supra, in

support of its reasoning, which involved the offenses of kidnapping and

abduction, with separate victims. Watkins also cited State v. Wright, supra,

which involved the offenses of murder and felonious assault, involving a

woman and her unborn child. Finally, we again look to the reasoning of

State v. Ragland, which was discussed supra. Relying on the reasoning set

forth in State v.

which involved aggravated vehicular

homicide, the Ragland court determined that the offenses of felony murder Athens App. No. 13CA22 17

and aggravated robbery committed against two separate victims were not

allied offenses of similar import. State v. Ragland at ¶ 71.

{¶25} Because Osman’s felony murder and aggravated robbery

convictions involved different victims, the imposition of multiple

punishments does not offend double jeopardy principles or R.C. 2941.25.

The offenses are of dissimilar import because each offense involved a

different victim. Consequently, the trial court did not err by failing to merge

the convictions.

{¶26} Accordingly, we overrule Osman’s sole assignment of error

and affirm the decision of the trial court.

JUDGMENT AFFIRMED. Athens App. No. 13CA22 18

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Athens County Common Pleas Court to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Abele, P.J. & Harsha, J.: Concur in Judgment and Opinion.

For the Court,

BY: ___________________________________ Matthew W. McFarland, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.