State v. Tibbs , 2011 Ohio 6716 ( 2011 )

[Cite as State v. Tibbs, 2011-Ohio-6716.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-100378
TRIAL NO. B-0709740
Plaintiff-Appellee, :
O P I N I O N.
vs. :
YVAN TIBBS, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: December 28, 2011
Joseph T. Deters, Hamilton County Prosecuting Attorney, and James Michael
Keeling, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Christine Y. Jones, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
CUNNINGHAM, Judge.
{¶1} Defendant-appellant Yvan Tibbs appeals from his convictions, following a
jury trial, for the aggravated robbery and the aggravated murder of John Newell. Tibbs
and Eddie Mitchell arranged to meet Newell in a parking lot to rob him of nearly 400
Ecstasy tablets. When Newell resisted, Tibbs used the .357-caliber revolver that Mitchell
had given him to fire at least four shots, three into Newell’s face and head, killing him.
{¶2} Tibbs argues in his seven assignments of error that (1) the trial court erred
by overruling his motion to suppress statements made to the police, (2) the prosecution
exercised its peremptory challenges in a discriminatory manner, (3) his convictions were
contrary to the manifest weight of the evidence and were based upon insufficient evidence,
(4) the trial court erred by imposing multiple punishments for one crime, and (5) the trial
court imposed an excessive sentence. We find none of the assignments to have merit and
affirm the trial court’s judgment.
I. The Killing of John Newell
{¶3} Throughout the day of October 6, 2007, Mitchell and Tibbs had been
communicating over their cellular telephones. That evening, Mitchell drove his Monte
Carlo automobile and picked up Tibbs. The two traveled to the Brookview Apartments, in
Lockland, Ohio, to visit Newell, a man that Mitchell knew well. Newell was known to sell
drugs and the two often provided each other with firearms. Mitchell declared that he
intended to rob Newell. He provided Tibbs with a .357-caliber revolver.
{¶4} Newell had parked his Cadillac sedan near a dumpster in the apartment-
complex parking lot. At approximately 10:30 p.m., Mitchell pulled into the parking lot
and parked near Newell’s vehicle. Witnesses observed two or three men talking near the
dumpsters. Upon a prearranged signal, transmitted by text message, Mitchell and Tibbs
transformed the meeting to purchase drugs into a robbery.
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{¶5} But the plan did not go as smoothly as Mitchell and Tibbs had hoped.
Newell was armed with a .40-caliber semiautomatic pistol. Tibbs told police
investigators that Newell, standing outside his car, had resisted and had shot first. A
bullet hole was found in the driver’s side door of Mitchell’s vehicle. Tibbs recounted
that he had then fired a single shot at Newell and “took off running.” At trial,
however, Tibbs denied firing at Newell and claimed to have remained in Mitchell’s
car throughout the shooting.
{¶6} Joseph Davidson, an apartment resident, testified that he had heard a
single shot and had then observed men fleeing from the dumpster. Lillian Peters and
Vivian Ford had just returned to the apartment complex from grocery shopping. Peters
saw several men talking near the dumpster. She heard shooting and saw two men run in
different directions. Ford saw flashes of light from the gun held by one of the perpetrators.
She reported hearing three gunshots and then seeing the two men running away. She
summoned the police.
{¶7} Investigating officers found Newell fatally shot, reclining in the front seat
of his Cadillac. The deputy coroner reported that Newell had been struck by at least four
bullets—three in the face or head and one in the arm and chest. Police found an
unloaded Smith & Wesson revolver in the woods near the parking lot. The weapon
was capable of firing .357- or .38-caliber rounds. The gun contained smears of
Newell’s blood. The police also discovered a bag of pills and currency covered in
Newell’s blood.
{¶8} Ford also described how one of the perpetrators—Mitchell—returned
to the scene and was apprehended by the police. Although he had returned just
minutes after Newell’s murder, Mitchell’s hands contained no gunshot residue.
{¶9} Tibbs was located at his grandmother’s home one month later. Police
had found Tibbs by tracing records of Mitchell’s telephone calls that evening. Tibbs
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OHIO FIRST DISTRICT COURT OF APPEALS
claimed to have recently purchased the traced cellular telephone from an individual
identified only as “Ton.” Police investigators took Tibbs into custody and questioned
him about the events in the Broadview parking lot. A tape recording made at the end
of that questioning was played for the jury at trial.
{¶10} At the conclusion of five days of testimony, the jury found Tibbs guilty
of aggravated felony murder in violation of R.C. 2903.01(B), aggravated robbery in
violation of R.C. 2911.01(A)(3), and accompanying firearm specifications. At
sentencing, the trial court imposed a 20-year-to-life prison sentence for aggravated
felony murder and made that term consecutive to a maximum, 10-year prison term
for aggravated robbery and to a single three-year term for a firearm specification
accompanying the murder offense. The aggregate prison sentence was 33 years to
life. This appeal ensued.
II. Pretrial Challenges
{¶11} For clarity, we will address Tibbs’ assignments of error in temporal
order.
{¶12} In his sixth assignment of error, Tibbs contends that the trial court
erred in denying his motion to suppress statements made by him to police officers.
Tibbs’ tape-recorded statement to police, in which he admitted robbing and shooting
Newell, was played for the jury during the trial. Tibbs argues that, despite his
signature on the waiver-of-rights form, he did not voluntarily and knowingly waive
his right to remain silent under Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct.
1602. He asserts that his young age and his limited intelligence prevented him from
properly waiving that right. He also notes that the tape recording does not include a
statement by police informing him of his Miranda rights.
{¶13} We review a trial court’s ruling on a motion to suppress in a two-step
process. See In re A.J.S., 120 Ohio St.3d 185, 2008-Ohio-5307; 897 N.E.2d 629, ¶49
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OHIO FIRST DISTRICT COURT OF APPEALS
et seq. First, we must accept the trial court’s findings of historical fact if they are
supported by competent, credible evidence. See State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶8. Then this court must make an independent
determination, as a matter of law, without deference to the trial court’s legal conclusions,
whether those facts meet the applicable constitutional standards. See id; see, also, State
v. Winfrey, 1st Dist. No. C-070490, 2008-Ohio-3160, ¶19.
{¶14} The state bears the burden of demonstrating by a preponderance of
the evidence that Tibbs’ statement was voluntary. See State v. Cedeno, 192 Ohio
App.3d 738, 2011-Ohio-674, 950 N.E.2d 582, ¶17. “In determining whether a
juvenile’s statements have been voluntarily made, a court must consider ‘the totality
of the circumstances, including the age, mentality and prior criminal experience of
the accused; the length, intensity, and frequency of interrogation; and the existence
of physical deprivation or inducement.’ ” State v. Winfrey at ¶25, quoting In re
Watson (1989), 47 Ohio St.3d 86, 548 N.E.2d 210, paragraph one of the syllabus;
see, also, State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229,
¶32. The same considerations apply to whether a defendant voluntarily, knowingly,
and intelligently waived his rights. State v. Leonard at ¶32. Evidence of police
coercion or overreaching is a necessary predicate for a finding of involuntariness.
See State v. Hill, 64 Ohio St.3d 313, 318, 1992-Ohio-43, 595 N.E.2d 884, citing
Colorado v. Connelly (1986), 479 U.S. 157, 164, 107 S.Ct. 515.
{¶15} At a hearing on Tibbs’ motion to suppress, the investigating officer,
Detective Steven Minnich of the Hamilton County Sheriff’s Department, testified
that he and Detective Todd Ober of the Lockland police department had interrogated
Tibbs from 1:15 p.m. until 4:00 p.m. on November 5, 2007. The less-than-three-
hours of questioning included the time to record the taped statement. Detective
Minnich stated that he had advised Tibbs of his rights against self incrimination,
verbally and in written form, prior to questioning. Tibbs had acknowledged that he
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OHIO FIRST DISTRICT COURT OF APPEALS
could read and write, and that he was not under the influence of alcohol or drugs
before signing the form. Detective Minnich indicated that he had offered Tibbs food
and drink and the opportunity to use a bathroom during the questioning.
{¶16} There was ample competent, credible evidence adduced at the hearing
to support the trial court’s legal decision that Tibbs had been properly advised of his
Miranda rights and that he understood those rights when he signed the waiver form.
{¶17} First, a signed waiver form is strong proof of the validity of the waiver.
See State v. Nields, 93 Ohio St.3d 6, 19, 2001-Ohio-1291, 752 N.E.2d 859. And there
was no evidence of police coercion or overreaching during the brief interrogation.
The trial court opted to believe Detective Minnich’s testimony. At a suppression
hearing, the evaluation of evidence and the credibility of witnesses are issues for the
trial court to determine. See State v. Hill, 73 Ohio St.3d 433, 446, 1995-Ohio-287,
653 N.E.2d 271.
{¶18} While Tibbs was only 15 years old at the time of the interrogation, his
young age, by itself, does not render his waiver involuntary. See In re Watson, 47
Ohio St.3d at 89, 548 N.E.2d 210 (holding a 14-year-old aggravated-murder suspect’s
statements to be voluntary); see, also, State v. Winfrey at ¶20 et seq. (holding a 16-
year-old aggravated-murder suspect’s statements to police to be voluntary). Under
the totality of the circumstances, we conclude that his age did not hamper his ability
to act knowingly and voluntarily. Tibbs had been subjected to police questioning
before. He had been adjudicated delinquent for drug possession, and he had been
questioned about a different murder only months before this interrogation. See
State v. Winfrey at ¶20. Tibbs’ speech on the recording was marked by street patois,
but he responded in a logical manner to the officers’ questions and even offered
factual corrections to the officers’ narrative of the events surrounding Newell’s
murder. See State v. Winfrey at ¶20 et seq.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} While this court has previously noted that it is the better practice to
include a recitation of rights on the recorded statement, we now hold it was not error
to fail to do so where Detective Minnich’s unrebutted testimony and the signed
waiver form indicate compliance with the constitutional guarantees. See State v.
Cedeno at ¶13.
{¶20} Based upon the evidence presented, we hold that the trial court was
justified in finding that Tibbs had been properly advised of his rights prior to making
his statements and that he had knowingly waived those rights. The sixth assignment
of error is overruled.
{¶21} In his seventh assignment of error, Tibbs asserts that the state
peremptorily challenged two African-American prospective jurors because of their
race, in violation of the rule of Batson v. Kentucky (1986), 476 U.S. 79, 106 S.Ct.
1712. Tibbs had objected to the challenges at trial.
{¶22} Batson created a three-part test for determining whether the state’s
use of a peremptory challenge was racially motivated. “First, the opponent of the
peremptory challenge must make a prima facie case of racial discrimination. Second,
if the trial court finds this requirement fulfilled, the proponent of the challenge must
provide a racially neutral explanation for the challenge. Finally, the trial court must
decide based on all the circumstances, whether the opponent has proved purposeful
racial discrimination.” State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890
N.E.2d 263, ¶61. A trial court’s determination that the challenge was not motivated
by a discriminatory intent will not be reversed on appeal unless it is clearly
erroneous. See State v. Hernandez (1992), 63 Ohio St.3d 577, 583, 589 N.E.2d 1310,
following Hernandez v. New York (1991), 500 U.S. 352, 111 S.Ct. 1859.
{¶23} We note that the initial explanation for these challenges offered by the
state at trial and again in this appeal—that Tibbs has not established a pattern of
discriminatory exclusion based on race and that other African-Americans remained
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OHIO FIRST DISTRICT COURT OF APPEALS
on the jury—is “not a facially valid race-neutral justification for a peremptory strike”
and has been rejected by this court and by the Ohio Supreme Court. State v. Walker
(2000), 139 Ohio App.3d 52, 56, 742 N.E.2d 1173; see, also State v. White, 85 Ohio
St.3d 433, 436, 1999-Ohio-281, 709 N.E.2d 140 (“reject[ing] [the] view” that where
there is no pattern of discrimination, there is no Batson violation). “The exercise of
even one peremptory challenge in a purposefully discriminatory manner is a
violation of equal protection.” State v. Taylor, 1st Dist. No. C-020475, 2004-Ohio-
1494, ¶20, citing State v. Gowdy, 88 Ohio St.3d 387, 2000-Ohio-355, 727 N.E.2d
579.
{¶24} But the state’s subsequent race-neutral explanations for striking both
prospective jurors demonstrated the absence of discriminatory intent in its use of
peremptory challenges. The record reveals that the state struck prospective juror
number 13 because he had been familiar with the neighborhood where Newell had
been murdered. Since he knew of the street toughs in that area, he might have
become subject to inappropriate pressure from them. The prospective juror also had
a previous conviction for improper handling of a firearm. See State v. Greene, 2nd
Dist. No. 24307, 2011-Ohio-4541, ¶11; see, also, United States v. Brown (C.A.7,
2002), 289 F.3d 989, 993.
{¶25} The state justified its challenge of prospective juror number 19
because he had been untruthful about his criminal record, which included charges of
aggravated burglary and tax evasion. A juror’s lack of candor or dishonesty in voir
dire is a valid race-neutral reason for challenging that juror. See State v. Jordan, 167
Ohio App.3d 157, 2006-Ohio-2759, 854 N.E.2d 520, ¶39. Consequently, we cannot
say that the trial court erred in overruling Tibbs’ objections to the state’s preemptory
challenges.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶26} Tibbs’ second contention, that the state’s use of a database to check
the criminal record of prospective jurors violated Tibbs’ constitutional rights, must
fail on the authority of State v. Jordan at ¶39 et seq.
{¶27} The seventh assignment of error is overruled.
III. Sufficiency- and Weight-of-the-Evidence Claims
{¶28} In three interrelated assignments of error, Tibbs challenges the
weight and the sufficiency of the evidence adduced at trial to support his convictions.
Tibbs was convicted of aggravated felony murder under R.C. 2903.01(B), which
proscribes “purposely caus[ing] the death of another * * * while committing or
attempting to commit, or while fleeing immediately after committing or attempting
to commit, * * * aggravated robbery.” A person acts purposely when he specifically
intends to cause a certain result. See R.C. 2901.22(A); State v. Trimble, 122 Ohio
St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶188. Intent to kill may be proved by
inference and “may be inferred in a[n] [aggravated] felony-murder when the offense
and the manner of its commission would be likely to produce death.” State v.
Garner, 74 Ohio St.3d 49, 60, 1995-Ohio-168, 656 N.E.2d 623; see, also, State v.
McCoy, 1st Dist. No. C-090599, 2010-Ohio-5810, ¶36.
{¶29} The aggravated-robbery charge against Tibbs was governed by R.C.
2911.01(A)(3). Under this statute, the state was required to prove that Tibbs or his
accomplice, in attempting or committing a theft offense, inflicted, or attempted to
inflict, serious physical harm on another.
{¶30} Our review of the entire record fails to persuade us that the jury, acting
as the trier of fact, clearly lost its way and created such a manifest miscarriage of justice
that the convictions must be reversed and a new trial ordered. See State v. Thompkins, 78
Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. We can find no basis in this record
to conclude that this is “an exceptional case” in which the jury lost its way. State v.
Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. The jury was entitled to reject
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OHIO FIRST DISTRICT COURT OF APPEALS
Tibbs’ explanation, made to the jury at trial, that he had innocently accompanied
Mitchell to the apartment complex without any knowledge of a plan to rob Newell,
that he had remained in Mitchell’s car, that he had heard shots when Mitchell and
Newell confronted each other, and that he had run away after hearing the shots.
Tibbs’ theory of defense rested largely on his trial testimony, his characterization that
there was little physical evidence linking him to the crimes, and his argument that
the credibility of the eyewitnesses was undermined due to conflicts among their
testimony such as the differing claims as to the number of shots fired.
{¶31} The state presented ample evidence to support the convictions,
including Tibbs’ own statement to Detective Minnich that he had shot Newell. The
state introduced substantial physical and testimonial evidence that Tibbs had
purposely killed Newell when he had resisted the theft of the Ecstasy tablets.
Telephone records reflected communications between Tibbs and Mitchell before and
during the confrontation with Newell. Tibbs admitted accompanying Mitchell to the
parking lot.
{¶32} In his taped statement to police, Tibbs acknowledged Mitchell’s plan
to rob Newell. He recounted that, after Newell fired, Tibbs had fired a single shot at
Newell before fleeing. Though Tibbs claimed, at trial, to have remained in Mitchell’s
car throughout the fatal encounter, Tibbs’ fingerprints were found on the outside of
the passenger’s window of Newell’s car.
{¶33} Witnesses saw the shooting and described two men fleeing in
different directions. Mitchell, whose car remained in the parking lot, had returned to
the parking lot and was apprehended by the police. Although he had returned just
minutes after the shooting, Mitchell’s hands contained no gunshot residue,
indicating that the other perpetrator—Tibbs—had fired the fatal shots at Newell.
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OHIO FIRST DISTRICT COURT OF APPEALS
Police located a .357-caliber revolver smeared with Newell’s blood in the bushes near
the parking lot.
{¶34} The postmortem examination revealed that Tibbs had shot Newell at
least four times at relatively close range—three shots striking Newell in the head or
face and one penetrating his arm and chest. The deputy coroner described the fatal
wound as a shot striking Newell’s head under his right eye. The bullet caused
extensive damage to Newell’s upper spinal cord and brainstem.
{¶35} While there may have been some inconsistencies in some of the
witnesses’ testimony, these inconsistencies did not significantly discredit their
testimony and were to be anticipated when ordinary citizens observed rapidly
occurring and shocking events like a drug-related robbery and killing in an
apartment-complex parking lot. As the weight to be given the evidence and the
credibility of the witnesses were for the jury, sitting as the trier of fact, to determine,
in resolving conflicts and limitations in the testimony, the jury could have found that
Tibbs had used a deadly weapon to rob Newell and had purposely caused his death
while committing that aggravated robbery. See R.C. 2903.01(B) and 2911.01(A)(3);
see, also, State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of
the syllabus.
{¶36} When reviewing the legal sufficiency of the evidence to support a
criminal conviction, we must examine the evidence admitted at trial in the light most
favorable to the prosecution and determine whether the evidence could have convinced
any rational trier of fact that the essential elements of the crime were proven beyond a
reasonable doubt. See State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d
996, ¶36; see, also, Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781. In deciding if
the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the
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OHIO FIRST DISTRICT COURT OF APPEALS
credibility of the witnesses, as both are functions reserved for the trier of fact. See State v.
Willard (2001), 144 Ohio App.3d 767, 777-778, 761 N.E.2d 688; see, also, State v.
Campbell, 1st Dist. No. C-100427, 2011-Ohio-3458.
{¶37} Here, the record reflects substantial, credible evidence from which the
triers of fact could have reasonably concluded that all elements of the charged crimes had
been proved beyond a reasonable doubt, including that Tibbs had killed Newell during an
aggravated robbery and, from the manner of the killing—multiple gunshots fired from
close range into the victim’s head and face—that Tibbs had specifically intended to cause
death. See State v. Baron, 1st Dist. No. C-100474, 2011-Ohio-3204, ¶8; see, also, State v.
Conway at ¶36.
{¶38} Moreover, the trial court also could have properly denied Tibbs’ motion
for judgment of acquittal, as reasonable minds could have reached different conclusions as
to whether each element of the crimes charged had been proved beyond a reasonable
doubt. See Crim.R. 29; see, also, State v. Bridgeman (1978), 55 Ohio St.2d 261, 381
N.E.2d 184. The first, second, and third assignments of error are overruled.
IV. A Separate Animus for Purposeful Killing
{¶39} In his fifth assignment of error, Tibbs argues that his convictions for
aggravated felony murder and aggravated robbery were allied offenses of similar import
subject to merger, committed neither separately nor with a separate animus as to
each. Therefore, he contends, the trial court violated the protections of R.C. 2941.25,
Ohio’s multiple-count statute, by sentencing him for both offenses. We disagree.
{¶40} We note that Tibbs did not object at the sentencing hearing to the
imposition of multiple sentences. He has therefore waived this issue absent a showing of
plain error. See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d
12OHIO FIRST DISTRICT COURT OF APPEALS
923, ¶31; see, also, Crim.R. 52(B); State v. Drummonds, 1st Dist. No. C-110011, 2011-
Ohio-5915, ¶4.
{¶41} While R.C. 2941.25 has never been amended, the Ohio Supreme Court
has abandoned its prior abstract-elements comparison test for determining when two
offenses are allied and subject to merger. See State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1061, syllabus. The focus of our inquiry is now on the
conduct of the accused as demonstrated by the evidence adduced at trial. See id. at
¶44; see, also, State v. Mackey, 1st Dist. Nos. C-100311, C-100312, C-100313, and C-
100314, 2011-Ohio-2529, ¶16.
{¶42} Under R.C. 2941.25, a trial court, in a single proceeding, may convict
and sentence a defendant for two or more offenses having as their genesis the same
criminal conduct or transaction, if the offenses (1) were not allied offenses of similar
import, (2) were committed separately, or (3) were committed with a separate
animus as to each offense. See State v. Bickerstaff (1984), 10 Ohio St.3d 62, 65-66,
461 N.E.2d 892 (internal quotation and citations omitted); see, also, State v.
Johnson at ¶51.
{¶43} Tibbs had been charged with aggravated felony murder, under R.C.
2903.01(B). That offense required that Tibbs have the specific intent or purpose to
kill. See State v. Baron at ¶30. It is clear that Tibbs’ immediate motive in going to
the parking lot was the theft, at gunpoint, of Newell’s drugs. But evidence of the
manner in which Tibbs had shot Newell in the face and head from relatively close
range demonstrated a specific intent to kill Newell, separate from the immediate
motive of robbing him. See State v. Garner, 74 Ohio St.3d at 60, 1995-Ohio-168, 656
N.E.2d 623; see, also, State v. Chaffer, 1st Dist. No. C-090602, 2010-Ohio-4471, ¶11.
{¶44} The jury had been instructed, in accordance with Ohio Jury
Instructions 417.01, and without objection, on what use to make of that evidence in
reaching a verdict on the aggravated-felony-murder offense. The trial court
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OHIO FIRST DISTRICT COURT OF APPEALS
informed the jury that “[p]urpose is an essential element of the offense of aggravated
murder. A person acts purposely when it is his specific intention to cause a certain
result. It must be established in this case that at the time in question there was
present in the mind of the defendant a specific intention to cause the death of John
Newell.
{¶45} “Purpose is a decision of the mind to do an act with a conscious
objective of producing a specific result or in engaging in specific conduct. To do an
act purposely is to do it intentionally and not accidentally. Purpose and intent mean
the same thing. The purpose with which a person does an act is known only to
himself unless he expresses it to others or indicates it by his conduct.
{¶46} “The purpose with which a person does an act or brings about a result
is determined from the manner in which it is done, the means used and all the other
facts and circumstances in evidence.
{¶47} “If a wound is inflicted upon a person with a deadly weapon in a
manner calculated to destroy life, purpose to cause the death may be, but is not
required to be, inferred from the use of the weapon. The inference, if made, is not
conclusive.”
{¶48} The jury returned a guilty verdict on that offense. The trial court
entered a judgment of conviction on that verdict. And we have ratified that
judgment by rejecting Tibbs’ weight- and sufficiency-of-the-evidence assignments of
error. Where, as here, the offender’s conduct demonstrated a purpose—a specific
intent—to kill while, or in the course of, committing an aggravated robbery, we hold
that the two offenses were committed with a separate animus and thus were
separately punishable under R.C. 2941.25(B).
{¶49} This holding is consistent with the long line of our cases and those of
the Ohio Supreme Court, resolved under the various pre-Johnson tests, holding that
the commission of aggravated felony murder is “never merely incidental” to the
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commission of the underlying charged felony and permitting multiple punishments.
State v. Moss (1982), 69 Ohio St.2d 515, 520, 433 N.E.2d 181; see, also, State v.
McCoy, at ¶62, fn. 25. It is also consistent with cases applying State v. Johnson. See
State v. Baron at ¶30; see, also, State v. Brenson, 5th Dist. No. 09-CA-18, 2011-Ohio-
1880.
{¶50} Because Tibbs committed these offenses with a separate animus for
each offense, the trial court properly convicted and sentenced him for aggravated
felony murder and aggravated robbery. Since the trial court did not err, much less
commit an obvious and outcome-determinative error, in entering multiple convictions,
the fifth assignment of error is overruled. See Crim.R. 52(B).
V. The Sentences Were Not Excessive
{¶51} Finally, Tibbs argues that the trial court erred in imposing an excessive
sentence. He contends that as Newell had shot first, thus provoking Tibbs to fire, and that
Tibbs was only 15 years old when he committed these offenses, the trial court should have
imposed a more lenient sentence. We conduct a two-part review of Tibbs’ sentences of
imprisonment. See State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124. First we must determine whether the sentences were contrary to law. See id. at ¶14.
Then, if the sentences were not contrary to law, we must review each to determine
whether the trial court abused its discretion in imposing them. See id. at ¶17.
{¶52} Here, the sentences imposed were not contrary to law. Tibbs concedes
that the sentences were within the ranges provided by statute for aggravated murder, a
special felony, for aggravated robbery, a first-degree felony, and for the three-year firearm
specification. See R.C. 2929.03(A) and 2929.14(A)(1); see, also, State v. Phelps, 1st Dist.
No. C-100096, 2011-Ohio-3144, ¶40. In light of the seriousness of the offense, the killing
of another human being during a drug-related robbery, we cannot say that the trial court
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abused its discretion in imposing sentence. See State v. Kalish at ¶17. The fourth
assignment of error is overruled.
{¶53} Therefore, the judgment of the trial court is affirmed.
Judgment affirmed.
DINKELACKER, P.J., and HILDEBRANDT, J., concur.
Please Note:
The court has recorded its own entry on the date of the release of this opinion.
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