State v. Moore , 2019 Ohio 1330 ( 2019 )

[Cite as State v. Moore, 2019-Ohio-1330.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 28914
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
DEPRISE MOORE COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2017-02-0421
DECISION AND JOURNAL ENTRY
Dated: April 10, 2019
TEODOSIO, Presiding Judge.
{¶1} Appellant, Deprise Moore, appeals from his convictions in the Summit County
Court of Common Pleas. This Court affirms.
I.
{¶2} In January of 2017, Mr. Moore was driving his girlfriend’s vehicle when he sped
through a stop sign and crashed into another vehicle, driven by the 72-year-old victim. The
impact caused the victim’s car to spin around and collide with a nearby telephone pole. Mr.
Moore crawled out of his vehicle and fled from the scene. He initially convinced his girlfriend to
report her vehicle as stolen, but later obtained counsel and eventually turned himself into police.
{¶3} Among her numerous injuries suffered in the accident, the victim’s spine was
severed, and first responders needed the “jaws of life” to remove her from her vehicle. Due to
the severity of her injuries, she was unable to attend her daughter’s funeral one month later. She
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is now paralyzed from the waist down and will be confined to a wheelchair for the remainder of
her life.
{¶4} Mr. Moore was charged with, and pled guilty to, one count of vehicular assault, a
felony of the third degree, one count of stopping after accident/hit skip, a felony of the fifth
degree, and one count of driving under suspension, a misdemeanor of the first degree. The trial
court found him guilty and ordered a presentence investigation report (“PSI”) to be completed.
The court ultimately sentenced him to a mandatory five years in prison for vehicular assault and
six months in prison for stopping after accident/hit skip, to be served consecutively with each
other. The court also sentenced him to 180 days in jail for driving under suspension, to be served
concurrently.
{¶5} Mr. Moore now appeals from his convictions and raises one assignment of error
for this Court’s review.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED PLAIN ERROR TO THE PREJUDICE OF
[MR. MOORE] SENTENCING HIM TO A COMBINED TERM OF FIVE-
AND-A-HALF YEARS IMPRISONMENT FOR THE CHARGES OF
VEHICULAR ASSAULT AND [STOPPING AFTER ACCIDENT/HIT SKIP].
{¶6} In his sole assignment of error, Mr. Moore argues that the trial court committed
plain error in ordering consecutive sentences for allied offenses of similar import, i.e., vehicular
assault and stopping after accident/hit skip. We disagree.
{¶7} Because Mr. Moore did not raise this issue at the trial court level, he concedes
that he has forfeited all but plain error on appeal. See State v. Beech, 9th Dist. Summit No.
29036, 2019-Ohio-120, ¶ 17. “Plain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.” Crim.R. 52(B). “Under a plain
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error review, any mistake by the trial court regarding allied offenses ‘is not reversible error
unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest
miscarriage of justice.’” Beech at ¶ 17, quoting State v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-
2459, ¶ 3. Mr. Moore therefore bears the burden of demonstrating “‘a reasonable probability that
[his] convictions are for allied offenses of similar import committed with the same conduct and
without a separate animus[.]’” Id., quoting Rogers at ¶ 3. Notice of plain error “is to be taken
with the utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St. 2d 91 (1978), paragraph three of the syllabus.
{¶8} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution and [Article I, Section 10,] of the Ohio
Constitution, which prohibits multiple punishments for the same offense.” State v. Underwood,
124 Ohio St. 3d 365, 2010-Ohio-1, ¶ 23. R.C. 2941.25 provides:
(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.
{¶9} The Supreme Court of Ohio clarified the standard for an analysis of allied
offenses of similar import in State v. Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995. “In determining
whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts
must evaluate three separate factors—the conduct, the animus, and the import.” Id. at paragraph
one of the syllabus. “At its heart, the allied-offense analysis is dependent upon the facts of a case
because R.C. 2941.25 focuses on the defendant’s conduct.” Id. at ¶ 26. “Animus” has been
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defined as “purpose or, more properly, immediate motive.” State v. Logan, 60 Ohio St. 2d 126,
131 (1979). Multiple offenses are of dissimilar import “when the defendant’s conduct
constitutes offenses involving separate victims or if the harm that results from each offense is
separate and identifiable.” Ruff at ¶ 26. Therefore, “courts must ask three questions when [a]
defendant’s conduct supports multiple offenses: (1) Were the offenses dissimilar in import or
significance? (2) Were they committed separately? and (3) Were they committed with separate
animus or motivation?” Ruff at ¶ 31. “An affirmative answer to any of the above will permit
separate convictions.” Id. “It is the defendant’s burden to establish his or her entitlement to the
protections of Section 2941.25.” State v. Dembie, 9th Dist. Lorain No. 14CA010527, 2015-
Ohio-2888, ¶ 8. “‘To do so, the defendant must show that the State relied upon the same conduct
to support both offenses.’” State v. Fedrick, 9th Dist. Summit No. 28120, 2017-Ohio-2635, ¶ 18,
quoting State v. Choate, 9th Dist. Summit No. 27612, 2015-Ohio-4972, ¶ 19. See also Logan at
128.
{¶10} Mr. Moore argues that the offenses of vehicular assault and stopping after
accident/hit skip are allied offenses of similar import because they arose from the same conduct,
and stopping after accident/hit skip could not be committed without also committing vehicular
assault. We first note that Mr. Moore only analyzes his allied offenses issue under the test set
forth in State v. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, syllabus. Because Ruff
“‘supplements and clarifies the Johnson test,’” however, this Court will instead apply the test set
forth in Ruff. See State v. Powell, 9th Dist. Summit No. 27830, 2016-Ohio-2820, ¶ 11, fn. 1,
quoting State v. Kirkby, 9th Dist. Summit Nos. 27381 and 27399, 2015-Ohio-1520, ¶ 29, fn. 2.
{¶11} The record is clear that a PSI was ordered and completed in this case, and the trial
court and both parties acknowledged their receipt and review of the PSI during Mr. Moore’s
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sentencing hearing. Unfortunately, Mr. Moore has not included the PSI in the appellate record,
despite his burden to ensure that the record on appeal is complete. See State v. Snyder, 9th Dist.
Summit No. 28109, 2016-Ohio-7881, ¶ 11, citing State v. Yuncker, 9th Dist. Medina No.
14CA0068-M, 2015-Ohio-3933, ¶ 17, citing App.R. 9 (“It is the appellant’s responsibility to
ensure that the record on appeal contains all matters necessary to allow this Court to resolve the
issues on appeal.”). “‘[W]here the substance of the [PSI] is necessary to enable this Court to
review the propriety of the sentence, the appellant’s failure to ensure that the record includes the
report will require a presumption of regularity in the sentencing proceedings.’” Id., quoting State
v. Daniel, 9th Dist. Summit No. 27390, 2014-Ohio-5112, ¶ 5.
{¶12} This Court has occasionally, however, still addressed allied offense arguments on
the merits when the appellant failed to include the PSI in the appellate record. See, e.g., State v.
Peterson, 9th Dist. Summit No. 27890, 2016-Ohio-1334, ¶ 7-11. Our review of the limited
record before us—without the PSI—nonetheless leads us to the conclusion that Mr. Moore’s
offenses were not allied offenses of similar import. Mr. Moore committed the offense of
vehicular assault when his reckless operation of a motor vehicle caused serious physical harm to
the victim. See R.C. 2903.08(A)(2)(b). He then committed the offense of stopping after
accident/hit skip when, having knowledge of the motor vehicle accident or collision, he failed to
stop his vehicle, remain at the scene, and provide his information and the vehicle owner’s
information to the victim and the police. See R.C. 4549.02(A)(1). Thus, the offenses were
committed separately, one after the other, when Mr. Moore first caused the accident and then
fled from the scene of that accident on foot. Mr. Moore also committed the offense of stopping
after accident/hit skip with a separate animus, as his purpose or motivation was to avoid taking
responsibility for causing the accident and to avoid apprehension by the police.
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{¶13} Because the offenses were committed separately and with a separate animus, Mr.
Moore has failed to demonstrate a reasonable probability that vehicular assault and stopping after
accident/hit skip were allied offenses of similar import. We therefore conclude that he has failed
to establish any error, let alone plain error, committed by the trial court in this matter.
{¶14} Mr. Moore’s sole assignment of error is overruled.
III.
{¶15} Mr. Moore’s sole assignment of error is overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
THOMAS A. TEODOSIO
FOR THE COURT
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CALLAHAN, J.
CONCURS.
CARR, J.
CONCURRING IN JUDGMENT ONLY.
{¶16} I would also affirm but solely on the basis that vehicular assault and hit/skip are
not based on the same conduct.
APPEARANCES:
ALAN M. MEDVICK, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.