State v. Tapscott , 2012 Ohio 4213 ( 2012 )


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  • [Cite as State v. Tapscott, 
    2012-Ohio-4213
    .]
    STATE OF OHIO, MAHONING COUNTY
    IN THE COURT OF APPEALS
    SEVENTH DISTRICT
    STATE OF OHIO                                  )    CASE NO. 11 MA 26
    )
    PLAINTIFF-APPELLEE                     )
    )
    VS.                                            )    OPINION
    )
    ALLEN TAPSCOTT                                 )
    )
    DEFENDANT-APPELLANT                    )
    CHARACTER OF PROCEEDINGS:                           Criminal Appeal from the Court of
    Common Pleas, Mahoning County, Ohio
    Case No. 10 CR 1267
    JUDGMENT:                                           Convictions Affirmed.
    Remanded for Resentencing.
    APPEARANCES:
    For Plaintiff-Appellee:                             Atty. Paul Gains
    Prosecuting attorney
    Atty. Ralph Rivera
    Assistant Prosecuting Attorney
    21 West Boardman Street, 6th Floor
    Youngstown, Ohio 44503
    For Defendant-Appellant:                            Atty. Rhys B. Cartwright-Jones
    42 N. Phelps Street
    Youngstown, Ohio 44503-1130
    JUDGES:
    Hon. Joseph J. Vukovich
    Hon. Gene Donofrio
    Hon. Cheryl L. Waite
    Dated: September 14, 2012
    [Cite as State v. Tapscott, 
    2012-Ohio-4213
    .]
    VUKOVICH, J.
    {¶1}     Defendant-appellant Allen Tapscott appeals from the judgment of the
    Mahoning County Common Pleas Court which sentenced him after a jury found him
    guilty of aggravated burglary and two counts of aggravated robbery. He argues on
    appeal that he was prejudiced by the admission of testimony that the female victim
    was pregnant and that her pregnancy was high-risk. He also urges that the two
    counts of aggravated robbery, one for each victim, should have been merged. For
    the following reasons, these arguments are overruled, and his convictions are
    upheld.
    {¶2}     However, we find a plain error in the trial court’s decision to sentence
    appellant concurrently on offenses that the court merged as a merged offense
    receives no sentence. Consequently, we remand for resentencing where the state
    can elect the offenses that will receive sentences.
    STATEMENT OF THE CASE
    {¶3}     As a result of a reported home invasion at the Westlake Terrace
    Apartments, appellant was indicted on two counts of aggravated robbery with a
    deadly weapon, one count of aggravated burglary with a deadly weapon, three
    firearm specifications, and one count of having a firearm while under disability. The
    last count was severed for a bench trial to take place after a jury trial on the first three
    counts.
    {¶4}     At the jury trial, the male victim testified that he was at his girlfriend’s
    apartment at the Westlake projects on November 1, 2010 at 6:50 p.m. when he heard
    noises at the front door (which had been barricaded) and then heard someone say,
    -2-
    “get the money, I know he has money.” (Tr. 258). At that point, appellant entered by
    way of the back door. The victims knew appellant through the neighborhood and
    because the female victim had helped appellant set up a Facebook page a few days
    before. (Tr. 257, 309).
    {¶5}   The male victim stated that appellant pointed a gun at the female victim
    and said he “was going to shoot her, kill my kid, kill me.” (Tr. 255). According to the
    victim, appellant demanded pills and money. The male victim replied that he could
    have the pills on the counter (which were prenatal vitamins) and that he had money
    at the neighbor’s apartment. Appellant then allowed the female victim to leave to
    retrieve the money. The male victim testified that appellant ransacked the apartment
    while pointing the gun at him and threatened to hit him in the head with the gun if the
    female did not return. (Tr. 255, 260). It was reported that appellant took $40 cash
    and a $200 money order and then left when he heard sirens. (Tr. 260, 295).
    {¶6}   The female victim confirmed that appellant entered through the back
    door, pointed a gun at her, threatened to kill her and the male victim, and asked for
    pills and money. (Tr. 304, 306). She also heard someone instruct appellant to get
    the money. (Tr. 307-308). She related that when appellant allowed her to leave, she
    went to the neighbor’s apartment and called the police. (Tr. 308). This neighbor
    confirmed that the female victim, who was crying and upset, asked to use his
    telephone because her boyfriend was being robbed. (Tr. 351).
    {¶7}   A police officer testified that when they encountered the male victim he
    had been following appellant to see whether he entered another apartment. The
    victim appeared frantic and seemed relieved to see the police. (Tr. 368). The officer
    -3-
    confirmed that the apartment had been ransacked, noting that he saw a computer
    and electronic equipment on the floor. (Tr. 373). The officer stated that the victims
    immediately began making plans to move from the apartment that night. (Tr. 374).
    The officer also testified that the female victim seemed very scared when she
    returned to pack her belongings. (Tr. 377).
    {¶8}   Appellant then testified in his own defense. Appellant stated that the
    male victim had been looking for a gun for his brother. Appellant asked around and
    was able to procure one that he knew did not work. (Tr. 514-515). Appellant stated
    that on October 29, 2010, he arrived at the male victim’s apartment with the gun. He
    related that the victim called his brother, and when the brother arrived, appellant sold
    him the gun for $120. (Tr. 517-518). The female victim then helped appellant set up
    a Facebook page. (Tr. 519).
    {¶9}   Appellant said that the male victim called him on October 30 to say that
    his brother wanted his money back because the gun did not work.              (Tr. 520).
    Appellant testified that he originally agreed to refund the money when he was able to,
    but when the male victim kept calling him, he told him that he would not be refunding
    the money, which upset the male victim. (Tr. 520). Appellant then related that when
    he went to the apartment complex on October 31, the male victim wanted to fight
    him, and so, they nearly engaged in a knife fight in front of a group of people at the
    projects. (Tr. 521-522). He said he was back at the complex on November 1 (the
    day of the reported incident) and that he saw the female victim outside but did not
    speak to her and did not enter their apartment or rob them. (Tr. 525).
    -4-
    {¶10} The jury found appellant guilty on all three counts with firearm
    specifications. The court thereafter found him guilty of the weapons under disability
    charge. In a January 28, 2011 entry, the court sentenced appellant to ten years on
    the first three offenses, three years on each firearm specification, and five years on
    the weapons under disability charge. The court merged the firearm specifications
    into one specification. The court also held that the aggravated burglary would merge
    with aggravated robberies and ran those sentences concurrently. The court refused
    appellant’s request to merge the two aggravated robberies as well and ran these
    sentences consecutively to each other, to the sentence on the specification, and to
    the weapons sentence, for a total of twenty-eight years. The within appeal followed.
    ASSIGNMENT OF ERROR NUMBER ONE
    {¶11} Appellant’s first assignment of error provides:
    THE TRIAL COURT ERRED IN ALLOWING IN EVIDENCE OF THE
    ALLEGED         VICTIM’S      ‘HIGH      RISK’     PREGNANCY          IN
    CONTRAVENTION OF RULES 401, 402, AND 403 OF THE OHIO
    RULES OF EVIDENCE, WHICH PROSCRIBE ADMISSION OF
    IRRELEVANT AND PREJUDICIAL EVIDENCE.
    {¶12} Appellant complains here about various places in the testimony where
    the jury was informed that the victim was in the midst of a high-risk pregnancy at the
    time of the offense. The jury was not informed that within days of the offense, she
    gave birth and the baby died. It was this latter fact that the defense asked to be
    excluded in their written motion in limine where they asked the court to prohibit the
    -5-
    state from introducing evidence of the female victim’s medical condition after the
    robbery.
    {¶13} In discussing this motion before trial, the prosecutor asked for guidance
    on how to proceed and noted that the victim’s condition helped emphasize her
    credibility. (Tr. 8-9). The court agreed that the death of the baby was not pertinent
    but opined that the fact of pregnancy seemed unavoidable. (Tr. 10-12). The court
    suggested that the state stick to the elements of the offenses and pointed out that
    certain facts may become pertinent depending upon cross-examination. (Tr. 10-11).
    {¶14} The male victim testified first. When the prosecutor asked if he lived in
    the apartment with his girlfriend, he answered: “I was staying with her. She was
    going through a high-risk pregnancy and she needed me there with her at all times.”
    (Tr. 252-253). When asked who was home during the incident, the male victim
    added to his answer, “She was laying on the couch. Like I said, she was a high-risk
    pregnancy and she wasn’t allowed to do nothing.” (Tr. 254). As aforementioned, he
    also testified that appellant “said he was going to shoot her, kill my kid, kill me.” (Tr.
    255).
    {¶15} Thereafter, when the prosecutor asked the female victim who lived with
    her at the apartment, she answered, “It was myself, but I was going through a high-
    risk pregnancy so my boyfriend was there with me.” (Tr. 302). The prosecutor asked
    how far along she was at the time to which she responded that she had been five
    months pregnant. (Tr. 302-303). The prosecutor then inquired, “And as far as being
    a high-risk pregnancy, what orders did you have from the doctor?” She replied, “I
    -6-
    was supposed to be on bedrest * * * I had to take two medicines for my contractions
    * * *.” (Tr. 303).
    {¶16} The responding officer testified in pertinent part: “He was upset. He
    stated several times that he was very scared for his life as well as his girlfriend’s life.
    His girlfriend was pregnant at the time. He immediately began to make plans of
    moving out of the apartment.” (Tr. 374). When asked to describe the female victim’s
    demeanor, the officer responded in part, “she was scared for her life and her
    pregnancy. I guess she had mentioned it was high risk and, you know, it was a very
    stressful situation for her to be in.” (Tr. 377).
    {¶17} Appellant first claims that all of this testimony about a high-risk
    pregnancy was not relevant and thus was inadmissible under Evid.R. 401 and 402.
    Appellant alternatively argues that even if the evidence was relevant, it should have
    been excluded under Evid.R 403(A) or (B).
    {¶18} Initially, it must be pointed out that the defense’s written motion in limine
    did not ask for exclusion of evidence of a high-risk pregnancy. That is, the motion
    specifically asked to exclude evidence of the victim’s medical condition after the
    offense, not before or during the offense. Accordingly, the trial court agreed that the
    death of the baby should not be discussed, and it was not in fact discussed at trial.
    The court did not prohibit testimony on the pregnancy and in fact noted that such
    testimony appeared unavoidable. Thus, contrary to appellant’s suggestion, he did
    not file a motion in limine on the topic of pregnancy, and the court did not rule to
    exclude such evidence.
    -7-
    {¶19} In any event, a motion in limine does not preserve an issue. A motion
    in limine is a preliminary, precautionary, tentative, and anticipatory ruling on the
    potential treatment of an issue to be later resolved when it arises in the context of the
    trial where the trial court may change its mind based upon circumstances that are
    developed. State v. Grubb, 
    28 Ohio St.3d 199
    , 201-203, 
    503 N.E.2d 142
     (1986). A
    party's failure to reassert the matter at the proper point at trial constitutes a waiver of
    any challenge, regardless of the disposition made for a preliminary motion in limine.
    Id. at 203.
    {¶20} As the defense did not object to any of the mentions of pregnancy
    during the testimony, the issue was waived. See id.; State v. Hancock, 
    108 Ohio St.3d 57
    , 
    2006-Ohio-160
    , 
    840 N.E.2d 1032
    , ¶ 59 (objecting party must challenge
    evidence during trial when issue is presented in full context ). See also Evid.R.
    103(A)(1) (error may not be predicated upon a ruling which admits or excludes
    evidence unless a substantial right of the party is affected and a timely objection was
    made specifically stating the grounds of the objection).
    {¶21} Where no objection is entered at a time when the error can be
    corrected, the court may recognize plain error if substantial rights are affected. See
    Crim.R. 52(B). Plain error is a discretionary doctrine to be used with the utmost of
    care by the appellate court only in exceptional circumstances in order to avoid a
    manifest miscarriage of justice. State v. Noling, 
    98 Ohio St.3d 44
    , 
    2002-Ohio-7044
    , ¶
    62. The doctrine can be employed only where there was an obvious error affecting
    substantial rights in that the error was clearly outcome determinative. Id.; Hancock,
    
    108 Ohio St.3d 57
     at ¶ 60.
    -8-
    {¶22} However, there is no error here, plain or otherwise. The admission or
    exclusion of relevant evidence rests within the sound discretion of the trial court.
    State v. Sage, 
    31 Ohio St.3d 173
    , 180, 
    510 N.E.2d 343
     (1987). It is within the sound
    discretion of the trial court to apply its common experience and logic to determine the
    relevance of evidence. State v. Lyles, 
    42 Ohio St.3d 98
    , 99-100, 
    537 N.E.2d 221
    (1989).
    {¶23} Contrary to appellant’s position, the relevancy test does not require the
    evidence to directly prove an element of the offense. Relevant evidence is defined
    as “evidence having any tendency to make the existence of any fact that is of
    consequence to the determination of the action more probable or less probable than
    it would be without the evidence.” Evid.R. 401. Relevant evidence is admissible
    unless prohibited by another rule, statute, the constitution. Evid.R. 402. Evidence
    which is not relevant is not admissible. Evid.R. 402.
    {¶24} The fact that the victim was pregnant was admissible to explain
    appellant’s own declaration that he “was going to shoot her, kill my kid, kill me.” (Tr.
    255). Appellant’s brief seems to acknowledge this as it focuses on the testimony
    disclosing that the pregnancy was high-risk. However, this fact is also relevant for
    various reasons.
    {¶25} Whether the victim’s story about appellant entering her apartment with
    a firearm and robbing them is true is a “fact that is of consequence” to the action.
    See Evid.R. 401. The fact that she was in the midst of this high-risk pregnancy has
    “a tendency” to make it less likely that she would entangle herself in this police
    investigation and engage in the actions taken that evening. See 
    id.
     As the state
    -9-
    points out, a female subjected to bedrest for a high-risk pregnancy while taking two
    medications to stop early contractions would not typically leave her apartment when
    the baby’s father was present, walk to a neighbor’s residence five doors down, and
    call 911 to report a robbery unless that robbery was actually occurring. Her state of
    being on bedrest also makes it less likely that she would thereafter pack her
    belongings and leave the apartment if the robbery never occurred. The neighbor’s
    testimony confirmed that she came over to call the police, and the police officer’s
    testimony confirmed that she packed items in order to stay elsewhere that night and
    that the apartment had been ransacked.
    {¶26} The jury is entitled to all information that might bear on the accuracy
    and truth of a witness’s testimony. United States v. Abel, 
    469 U.S. 45
    , 52, 
    105 S.Ct. 465
    , 83 L.2d 450 (1984) (dealing with witness bias). The credibility of a witness is
    always a relevant issue. State v. Curry, 11th Dist. No. 92-A-1738 (June 30, 1993);
    State v. Lumpkin, 2d Dist. No. 90CA82 (Oct. 25, 1991). See also State v. Oddi, 5th
    Dist. No. 02CAA01005, 
    2002-Ohio-5926
    , ¶ 32. The evidence contested here makes
    it more probable that the victim is telling the truth. See State v. Jackson, 
    107 Ohio St.3d 53
    , 
    2005-Ohio-5981
    , 
    836 N.E.2d 1173
    , ¶ 70.
    {¶27} Furthermore, the fact of pregnancy and even that it was high-risk was
    admissible to explain the pill bottles in the apartment which contained the female
    victim’s prenatal vitamins and two medications prescribed to stop contractions. This
    is relevant background information regarding how appellant may have seen the
    prescription pill bottles in the apartment when he was there getting assistance with
    his Facebook page a few days before and regarding why he immediately asked for
    -10-
    the pills when he broke into the house.        For all of these reasons, the evidence
    regarding the victim’s high-risk pregnancy passed the test for relevancy pursuant to
    Evid.R. 401 and 402.
    {¶28} Pursuant to Evid.R. 403(A), there is a mandatory exclusion of relevant
    evidence whose probative value is substantially outweighed by the danger of unfair
    prejudice, of confusion of the issues, or of misleading the jury. Moreover, the trial
    court has discretion to exclude relevant evidence whose probative value is
    substantially outweighed by considerations of undue delay, or needless presentation
    of cumulative evidence. Evid.R. 403(B).
    {¶29} Initially, it should be reiterated that no one informed the jury that the
    victim went into labor shortly after the offense or that she lost the baby. Nor did
    anyone suggest that the victim gave birth prematurely as a result of the stressful
    situation and her inability to abide by strict bed rest that evening.
    {¶30} As aforementioned the high-risk pregnancy was relevant to the victims’
    credibility as to whether the offense occurred and as background for the pill bottles in
    the apartment. The victims’ credibility was key here. This is especially true since the
    defense revolved around a claim that the victims ransacked their own apartment and
    made up the story of the burglary and robbery in retaliation for appellant selling the
    male victim’s brother a broken gun for $120. Thus, contrary to appellant’s argument,
    the probative value of the testimony was not minimal.
    {¶31} Generally, all evidence presented by the prosecution is prejudicial to
    the criminal defendant, and as the rule speaks only to prejudice that is unfair, there is
    a preference for admissibility. See State v. Skatzes, 
    104 Ohio St.3d 195
    , 2004-Ohio-
    -11-
    6391, 
    819 N.E.2d 215
    , ¶ 107; State v. Frazier, 
    73 Ohio St.3d 323
    , 333, 
    652 N.E.2d 1000
     (1995). The issues were straightforward in this case; nothing confusing was
    presented.   The case dealt with victims claiming robbery and burglary versus a
    defendant claiming that he was falsely accused due to the male victim’s desire to
    avenge his brother’s loss of $120 due to the purchase of a broken gun. Therefore,
    had an objection been lodged at trial, the trial court would not have abused its
    discretion in determining that the probative value of the high-risk pregnancy was not
    substantially outweighed by the danger of unfair prejudice, confusion of the issues, or
    misleading the jury. See Evid.R. 403(A).
    {¶32} As for Evid.R. 403(B), the probative value of the testimony that her
    pregnancy was high-risk was not substantially outweighed by undue delay or the
    needless presentation of cumulative evidence.       The evidence on this topic was
    abbreviated, was not needlessly cumulative, and caused no delay. As such, this
    assignment of error is overruled.
    ASSIGNMENT OF ERROR NUMBER TWO
    {¶33} Appellant’s second assignment of error contends:
    THE TRIAL COURT ERRED IN NOT MERGING MR. TAPSCOTT’S
    SENTENCES        FOR AGGRAVATED ROBBERY AGAINST TWO
    ALLEGED VICTIMS.
    {¶34} Appellant argues that the two aggravated robberies should be merged.
    Appellant contends that the mere existence of two victims does not automatically
    result in sentences for two offenses. He states that a defendant must commit the
    offenses separately against each victim in order to be sentenced on both.
    -12-
    {¶35} Pursuant to R.C. 2941.25:
    (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.
    {¶36} Under the old analysis for evaluating whether offenses are allied
    offenses of similar import or offenses of dissimilar import, the court was to compare
    the elements of the offenses in the abstract (without considering the defendant’s
    conduct) to determine whether the elements corresponded to such a degree that the
    commission of one offense would result in the commission of the other offense.
    State v. Cabrales, 
    118 Ohio St.3d 54
    , 
    2008-Ohio-1625
    , 
    886 N.E.2d 181
    , ¶ 14; State
    v. Rance, 
    85 Ohio St.3d 632
    , 
    710 N.E.2d 699
     (1999). If they were of dissimilar
    import, sentencing could proceed on both; if they were allied offenses of similar
    import, the court proceeded to look at the defendant’s conduct to determine whether
    they were committed separately or with separate animus. Cabrales, 
    118 Ohio St.3d 54
     at ¶14, 31; State v. Jones, 
    78 Ohio St.3d 12
    , 14, 
    676 N.E.2d 80
     (1997).
    -13-
    {¶37} Now, however, courts are permitted to consider the defendant's
    conduct in determining whether the offenses are of similar import. State v. Johnson,
    
    128 Ohio St.3d 153
    , 2010–Ohio–6314, 
    942 N.E.2d 1061
    , syllabus. All six justices
    that sat on Johnson agreed with the following syllabus law:          “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.)” Johnson, 128 Ohio St.3d at
    syllabus.   Besides this statement, Johnson did not provide us any new legal
    precedent as there was no majority opinion. See State v. Gardner, 7th Dist. No.
    10MA52, 2011–Ohio–2644, ¶ 23.
    {¶38} We begin by noting that appellant relies on case law that is neither
    binding nor on point. For instance, appellant cites to a dog neglect case, which
    neither involved human victims nor actions as neglect is the absence of action. See
    State v. Bybee, 
    134 Ohio App.3d 395
    , 
    731 N.E.2d 232
     (1999). That court specified
    that the neglect was one course of conduct and there did not exist sufficient separate
    conduct to allow sentencing on each offense. Id. at 401.
    {¶39} In another case, a defendant robbed a store with three employees, and
    he was charged with one offense per employee. State v. Howard, 1st Dist. No. C-
    020389, 
    2003-Ohio-1365
    . The court stated that it was well-settled that when an
    offender robs different victims of different property in a short period of time, he can be
    convicted of each robbery because there is a separate animus for each offense, i.e.,
    a separate victim. Id. at ¶ 15. The court concluded that the defendant should only be
    sentenced on one robbery because his intent was to rob the store, there were not
    -14-
    separate acts separated by time or conduct, and he did not attempt to steal from the
    three employees. Id. at ¶ 14-15. Thus, this holding does not support appellant’s
    position here.
    {¶40} Appellant also cites a case explaining that aggravated robbery charges
    against multiple victims would not merge because the defendant took property from
    each victim by threat and thus with a separate animus. State v. Smith, 8th Dist. No.
    95243, 
    2011-Ohio-3051
    , ¶ 79.        Appellant apparently focuses on the following
    statement in the Smith case: “This is not similar to a fact pattern where an individual
    fires a gun into a crowd of people, which arguably could create allied offenses of
    similar import in the event the offender is charged with multiple counts of felonious
    assault for each victim.” 
    Id.,
     citing State v. Sutton, 8th Dist. No. 90172, 2011–Ohio–
    2249. However, the latter fact pattern is distinguishable from our case, and that court
    used the word “arguably.” Finally, regarding appellant’s attempts to use the dicta or
    reverse inference of these cases, the specific conduct occurring in a particular case
    is relevant at every step of the analysis and every case has different levels of conduct
    toward each victim.
    {¶41} The Ohio Supreme Court has stated that 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. Jones, 
    18 Ohio St.3d 116
    , 118, 
    480 N.E.2d 408
     (1985). Thus, a person can be sentenced on a count of aggravated
    vehicular homicide for each victim killed because the offense is defined in terms of
    recklessly causing the death “of another.” 
    Id.
     Similarly, a person who set one fire to
    -15-
    a structure could be sentenced for six counts of aggravated arson, one for each
    victim, because arson was defined in terms of creating a substantial risk of serious
    harm to another person. State v. Franklin, 
    97 Ohio St.3d 1
    , 
    2002-Ohio-5304
    , 
    776 N.E.2d 26
    , ¶ 48.
    {¶42} Appellant was charged with aggravated robbery for attempting,
    committing, or fleeing after committing a theft offense while having a deadly weapon
    on or about his person or under his control and either displaying, brandishing,
    indicating possession, or using that weapon. See R.C. 2911.01(A)(1). Appellant was
    not charged with the type of aggravated robbery involving the inflicting or attempting
    to inflict serious physical harm “on another.” See R.C. 2911.01(A)(3). Still, in order
    for the defendant to display, brandish, indicate possession of, or use a weapon, he
    would have done so to the person he is robbing; thus, the offense is essentially
    defined in terms of conduct toward another.       Moreover, theft is an element of
    aggravated robbery, and theft involves the taking of property from “another.” See
    R.C. 2911.01(A), citing R.C. 2913.01, citing R.C. 2913.02 (property of another). See
    also State v. Snuffer, 8th Dist. Nos. 96480, 96481, 96482, 96483, 
    2011-Ohio-6430
    , ¶
    4 (applying Jones to theft offenses). In accordance, under the Jones and Franklin
    analysis, the court was permitted to sentence appellant for one aggravated robbery
    per victim.
    {¶43} Additionally, Jones and Franklin involved one act by the defendant that
    happened to affect two victims. The case before us involves various acts purposely
    aimed at two victims. And, we are now permitted to view these acts in the first step
    of the analysis.
    -16-
    {¶44} Moreover, finding offenses to be of dissimilar import is merely one way
    to sentence on both offenses. See R.C. 2941.25(B). If the conduct results in two or
    more offenses of the same or similar kind committed separately or with separate
    animus to each, sentencing can also proceed on both. 
    Id.
    {¶45} In this case, circumstantial evidence showed that appellant knew he
    would be robbing both of these particular victims before he even entered the
    apartment. And, he engaged in various acts toward each victim. He first pointed his
    weapon at the female. He then threatened to kill both victims. When neither could
    produce money, he ordered the female to leave the apartment to retrieve money held
    by the neighbor while holding the male victim in the apartment. He pointed the gun
    at the male victim during this time and threatened to hit him in the head with the gun.
    He stole items from the apartment that belonged to both victims during this time: the
    money order for the rent on the female’s apartment and $40 belonging to the male
    victim. In fact, aggravated robbery only requires attempting to commit theft while
    having and displaying the deadly weapon; it does not require actual theft, and
    appellant attempted to deprive both victims of pills and more money.
    {¶46} In conclusion, appellant knew he would be approaching two victims,
    each victim was threatened, a gun was pointed at each at different times, the victims
    were collectively asked for money and pills, and each was subjected to a different
    consequence (the male held hostage while the female was instructed to leave the
    apartment to retrieve money).     Considering all of appellant’s conduct here, the
    offenses were not allied offenses of similar import as the different victim makes them
    -17-
    of dissimilar import and/or that they were committed separately or with separate
    animus to each. Consequently, appellant’s argument here is overruled.
    {¶47} There is another issue we shall address here that is not raised by
    appellant. The trial court merged the firearm specifications so that only one remained
    for sentencing and merged the aggravated burglary with the aggravated robberies so
    that only the robberies remained for sentencing.1 Although the trial court merged
    these offenses, the court still entered sentences on all offenses, apparently believing
    that merger is satisfied by running the sentences on the merged offenses
    concurrently.
    {¶48} However, when a court merges offenses, it cannot run the sentences
    for the merged offenses concurrently. Rather, the court must refrain from entering a
    sentence on one of the merged offenses.                “Sentencing concurrently on merged
    counts does not satisfy the merger doctrine as no sentence at all should be entered
    on one of the two merged counts.” State v. Gardner, 7th Dist. No. 10 MA 52, 2011-
    Ohio-2644, ¶ 24, citing State v. Whitfield, 
    124 Ohio St.3d 319
    , 
    2010-Ohio-2
    , 
    922 N.E.2d 182
    , at ¶ 17.
    {¶49} Failure to merge allied offenses of similar import constitutes plain error
    even where a defendant's sentences are run concurrently because “a defendant is
    prejudiced by having more convictions than are authorized by law.”                        State v.
    Underwood, 
    124 Ohio St.3d 365
    , 
    2010-Ohio-1
    , 
    922 N.E.2d 923
    , ¶ 31 (plain error
    1
    The propriety of these mergers was not contested by the state on appeal. See App.R. 5 (on
    seeking leave to appeal); RC. 2945.67(A) (appeal by state). In fact, the state clearly acknowledged
    the necessity of merging the firearm specifications. (Tr. 10). And, the state admitted that the trial
    court was permitted to merge the aggravated burglary with the aggravated robberies if it so wished.
    (Tr. 9-10).
    -18-
    even where it is a jointly recommended sentence), citing State v. Yarbrough, 
    104 Ohio St.3d 1
    , 
    2004-Ohio-6087
    , 
    817 N.E.2d 845
    , ¶ 96–102.
    {¶50} Cases such as this are remanded for a limited resentencing hearing so
    that the prosecution can select which of the merged offenses it wishes the court to
    enter a conviction and sentence the defendant on. State v. Whitfield, 
    124 Ohio St.3d 319
     at ¶ 21-22 (finding that appellate court impermissibly intruded on the state’s right
    to elect by ordering which offense to vacate); Maumee v. Geiger, 
    45 Ohio St.2d 238
    ,
    244, 
    74 O.O.2d 380
    , 
    344 N.E.2d 133
     (1976).
    {¶51} In accordance, we remand for the prosecution to select whether it
    wishes the defendant to be sentenced on the two aggravated robberies but not the
    aggravated burglary or on the aggravated burglary and one of the aggravated
    robbery counts. We note that the firearm specifications were all the same and just
    generally merged into one specification negating the need for an election regarding
    the specifications on remand. Still, the trial court is instructed to correct its sentence
    on the specifications so that a sentence is only pronounced on one firearm
    specification (as opposed to pronouncing sentence on all three and running them
    concurrently).
    {¶52} Convictions affirmed. Sentence reversed in part for resentencing.
    Donofrio, J., concurs.
    Waite, P.J., concurs.