State v. S.S. , 2014 Ohio 5352 ( 2014 )

[Cite as State v. S.S., 2014-Ohio-5352.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 13AP-1060
v. : (C.P.C. No. 12CR-4241)
[S.S., Sr.], : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on December 4, 2014
Ron O'Brien, Prosecuting Attorney, Michael P. Walton, and
Valerie Swanson, for appellee.
Kura, Wilford & Schregardus Co., L.P.A., and Sarah M.
Schregardus, for appellant.
APPEAL from the Franklin County Court of Common Pleas
SADLER, P.J.
{¶ 1} Defendant-appellant, S.S., Sr., appeals from a judgment entry of conviction
entered by the Franklin County Court of Common Pleas in which he was convicted of one
count of felonious assault and two counts of felony child endangering. For the reasons
that follow, the judgment of the trial court is affirmed.
I. BACKGROUND
{¶ 2} The charges herein concern appellant's stepdaughter, M.K., and the
following factual summary has been taken from the evidence presented at appellant's jury
trial that commenced on September 23, 2013. M.K., born on May 5, 1982, was
determined to be cognitively disabled. According to an administrator from the high
No. 13AP-1060 2
school she attended, M.K. has a cognitive disability which, in essence, means that her
overall intellect is low. Additionally, M.K.'s school records demonstrated that as a junior
in high school, her grade-level equivalent was 2.6 or second grade sixth months. M.K.'s
biological father, with whom she lived until she graduated from high school, testified that
M.K. is unable to live on her own as she is unable to handle her own finances, does not
have a driver's license, and is not able to navigate public transportation.
{¶ 3} In June 2010, M.K. began living with her mother, C.S., and appellant.
According to M.K., "at first it was okay," but then she started "getting abused" by
appellant when he "lost his temper" and was "angry." (Tr. Vol. II, 25.) When asked how
often that was, M.K. responded, "[a]lmost every day." (Tr. Vol. II, 25.) M.K. also testified
that appellant would hit her with "objects he had next to him" and that he would hit her
"arm and [her] rear of [her] leg." (Tr. Vol. II, 25.) M.K. testified the abuse was worse
when she told her mother, and she did not tell anyone else due to appellant's threats that
he would kill her if she did. M.K. did not tell anyone until August 10, 2012 when she ran
to a neighbor's house. When asked why she left her house to go a neighbor, M.K.
responded, "I was feared for my life" because "I was getting abused constantly." (Tr. Vol.
II, 28.)
{¶ 4} M.K. testified that two days prior to running to her neighbor's house on
August 10, appellant burned her with a hot frying pan. Specifically, M.K. testified, "I was
standing in front of the stove cleaning off the stove. And he got mad at me and he took
the frying pan and burnt it with my arm and back of my neck." (Tr. Vol. II, 27.) M.K.
"screamed to get it off of [her]" and "[i]t hurt when he did it." (Tr. Vol. II, 27.) M.K.
testified that she neither went to the doctor nor told anyone what had happened, but she
heard appellant tell her mother that he "did it on accident." (Tr. Vol. II, 27.) Regarding
the events of August 10, M.K. testified, "I just put – just kept running down the street.
And when one of my neighbors saw me, she called the cops." (Tr. Vol. II, 28.)
{¶ 5} The state also presented pictures taken on August 10 that depicted the
kitchen where M.K. alleged the burning took place and the frying pan M.K. alleged was
used to burn her. The photographs also depicted the injuries on M.K.'s neck and arm as
well as bruising about her legs, thighs, and chest. When asked how the bruises to her left
and right legs were obtained, M.K. responded, "[h]e would hit me with a cane, a brass
No. 13AP-1060 3
cane." (Tr. Vol. II, 34.) Photographs taken at the hospital depicted bruising on M.K.'s
chest and with respect to the photographs the following exchange occurred:
Q. How did you get that bruise?
A. Toilet brush.
Q. What?
A. A toilet brush.
Q. A toilet brush. And how did the toilet brush come to cause
that bruise?
A. He hit me with it.
Q. And when you say he, who are you talking about?
A. [Appellant].
(Tr. Vol. II, 35.)
{¶ 6} On August 10, 2012, T.P. was visiting her friend, L.K., who lived near
appellant. While at L.K.'s, T.P. observed M.K., who was not previously known to T.P.,
"balled up on the floor crying and scared saying, please don't let [appellant] get me." (Tr.
Vol. II, 43.) Seeing marks on M.K., T.P. called the police. After the police arrived and
were talking with M.K., T.P. saw C.S. and appellant in a car proceeding up the street.
Appellant was driving, but he stopped at the corner and got into the passenger's seat while
C.S. got into the driver's seat. According to T.P., C.S. then drove "around the corner" and
when the car came back around, appellant was not in the car. (Tr. Vol. II, 47.) On cross-
examination, T.P. was asked if she had told police that she thought C.S. and appellant
were keeping M.K. locked in a dark place, to which T.P. stated, "[s]he said she was locked
in the basement and she escaped. That's how she related it when she had come to
[L.K.]'s." (Tr. Vol. II, 52.)
{¶ 7} Columbus Police Officer Gregory J. Casanova was the first officer to arrive,
and he was advised by L.K. that she had a "frantic female who she had stopped out in the
road and taken into her house" to calm her down. (Tr. Vol. II, 61.) Upon their first
interaction, Officer Casanova described M.K. as "upset crying. I wouldn't say almost
No. 13AP-1060 4
hysterical, but she was very, very emotional." (Tr. Vol. II, 61.) Though asking M.K. to
speak with him outside, M.K. told Officer Casanova that she feared being seen by
appellant and "she kind of got a little panicky and she actually kind of walked further back
into the house." (Tr. Vol. II, 63.) M.K. told Officer Casanova she had been assaulted by
appellant, and Officer Casanova observed injuries on M.K. Specifically, Officer Casanova
testified:
She had two very clear visible injuries. She had a large burn
on – I'm sorry – trying to think what arm – it was I want to
say her left arm. And then she had a large burn on the back of
her neck. That's the first thing she showed me. She moved
her hair and just very clear visible mark on the back of her
neck. And she had several bruises she was pointing out on her
arms, legs.
(Tr. Vol. II, 64.)
{¶ 8} Officer Casanova then proceeded to M.K.'s home about "two blocks down
the road" but he was unable to find appellant. (Tr. Vol. II, 65.) C.S. did not tell police
where appellant was, but described to police that appellant was wearing a blue shirt and
khaki shorts. Therefore, Officer Casanova began to look for him in the area, and appellant
was located wearing a white shirt and plaid-type shorts. Columbus Police Detective Aaron
Mall testified that he spoke with M.K. and that she was "scared, a little apprehensive to
speak with me." (Tr. Vol. II, 75.) While walking through the house with M.K., she
indicated the type of frying pan that she had been struck with. Detective Mall recalled
that while M.K. had said appellant had threatened her that day, the abuse had occurred
earlier.
{¶ 9} According to M.K.'s hospital records from August 10, 2012, M.K. presented
with multiple injuries in various stages of healing, including second-degree burns to her
neck and arm. The burn on M.K.'s neck had yellow crusting and slight scabbing and the
burn on M.K.'s arm was scabbed over. Because the appearance of the burn to her neck
was indicative of a possible infection, M.K. was given medication.
{¶ 10} Appellant presented testimony from C.S.'s sister, F.C. According to F.C.,
she had never witnessed any inappropriate conduct between appellant and M.K.
However, F.C. admitted that she had not seen M.K. at any time between 2011 and May
No. 13AP-1060 5
2013, which encompassed the time frame within which these incidents were alleged to
have happened.
{¶ 11} Appellant also presented the testimony of B.M., who lived next door to
appellant and C.S., and had known them for approximately five years. B.M. also knew
M.K. and had known her for approximately two years. B.M. described her relationship
with all three as "friendly," and she testified that M.K. had been in her home on prior
occasions without C.S. or appellant. (Tr. Vol. III, 13.) According to B.M., immediately
prior to August 10, 2012, C.S. called B.M. to come over and check M.K.'s blood sugar level
because C.S. was worried about M.K's health. B.M. testified that at that time, M.K. was
"in [appellant] and [C.S.]'s bed. She looked pale." (Tr. Vol. III, 19.) When asked if M.K.
had ever been dishonest with her, B.M. replied yes and that is was on more than one
occasion.
{¶ 12} C.S. testified that she has known appellant for ten years and that on August
10, 2012, she and appellant went to Circleville to purchase some birds. According to C.S.,
they left M.K. at home as they had previously done "[n]umerous times." (Tr. Vol. III, 30.)
C.S. testified that prior to them leaving, she had been with appellant and M.K. all morning
and had not noticed anything unusual between appellant and M.K. C.S. also testified that
on August 9, she found out about the burn on M.K's arm and had treated it on August 10
before she left for Circleville. However, C.S. testified that she was not aware of the burn
on M.K.'s neck. C.S. also testified that on August 10, she told police that although M.K.
lies a lot, C.S. did not "think that she would lie about something like this." (Tr. Vol. III,
36.)
{¶ 13} On direct-examination, C.S. also testified that she was not aware of any
bruising on M.K., but on cross-examination, C.S. testified that M.K. "gets bruises all the
time." (Tr. Vol. III, 41.) Additionally, C.S. testified she was concerned about M.K.'s
behavior on August 9, which prompted her to call M.K.'s doctor and have B.M. come over
to check M.K.'s blood sugar level. C.S. also admitted that she let appellant out of the car
when they saw police near their home on August 10, and when asked about the erroneous
description given of appellant's clothing, C.S. testified she could not remember what kind
of clothes he had on and that she takes "a lot of medication" that "blurs [her] judgment
sometimes." (Tr. Vol. III, 41.)
No. 13AP-1060 6
{¶ 14} On August 20, 2012, appellant was indicted as follows: felonious assault, a
second-degree felony, in violation of R.C. 2903.11, as set forth in Count 1; endangering
children, a second-degree felony, in violation of R.C. 2919.22, as set forth in Count 2; and
endangering children, a third-degree felony, in violation of R.C. 2919.22, as set forth in
Count 3. The jury returned verdicts of guilty on all counts. At the sentencing hearing, the
trial court imposed a sentence of 5 years incarceration on Count 1, 5 years incarceration
on Count 2, and 24 months incarceration on Count 3, all to be served consecutively for an
aggregate prison term of 12 years.
II. ASSIGNMENTS OF ERROR
{¶ 15} On appeal, appellant brings the following assignments of error for our
review:
I. The trial court violated Appellant's rights to due process
and a fair trial when, against the manifest weight of the
evidence, the trial court convicted Appellant.
II. The trial court erred in entering multiple convictions for
offenses that were allied offenses of similar import.
III. DISCUSSION
A. First Assignment of Error
{¶ 16} In his first assignment of error, appellant asserts his convictions are against
the manifest weight of the evidence. When presented with a manifest weight challenge,
an appellate court may not merely substitute its view for that of the trier of fact, but must
review the entire record, weigh the evidence and all reasonable inferences, consider the
credibility of witnesses and determine whether in resolving conflicts in the evidence, the
trier of fact clearly lost its way and created such a manifest miscarriage of justice that the
conviction must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d
380, 387 (1997), citing State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). An
appellate court should reserve reversal of a conviction as being against the manifest
weight of the evidence for only the most " 'exceptional case in which the evidence weighs
heavily against the conviction.' " Id., quoting Martin at 175.
{¶ 17} In conducting a manifest weight of the evidence review, we may consider
the credibility of the witnesses. State v. Cattledge, 10th Dist. No. 10AP-105, 2010-Ohio-
No. 13AP-1060 7
4953, ¶ 6. However, in conducting such review, "we are guided by the presumption that
the jury, or the trial court in a bench trial, 'is best able to view the witnesses and observe
their demeanor, gestures and voice inflections, and use these observations in weighing the
credibility of the proffered testimony.' " Id., quoting Seasons Coal Co. v. Cleveland, 10
Ohio St.3d 77, 80 (1984).
{¶ 18} As is relevant here, R.C. 2903.11(A)(1) provides that no person shall
knowingly "[c]ause serious physical harm to another." Additionally, R.C. 2919.22
provides in relevant part:
(A) No person, who is the parent, guardian, custodian, person
having custody or control, or person in loco parentis of a child
under eighteen years of age or a mentally or physically
handicapped child under twenty-one years of age, shall create
a substantial risk to the health or safety of the child, by
violating a duty of care, protection, or support.
(B) No person shall do any of the following to a child under
eighteen years of age or a mentally or physically handicapped
child under twenty-one years of age:
(1) Abuse the child.
{¶ 19} With respect to appellant's convictions for endangering children, R.C.
2919.22(E)(2) provides in relevant part:
If the offender violates division (A) or (B)(1) of this section,
endangering children is one of the following, and, in the
circumstances described in division (E)(2)(e) of this section,
that division applies:
***
(c) If the violation is a violation of division (A) of this section
and results in serious physical harm to the child involved, a
felony of the third degree;
(d) If the violation is a violation of division (B)(1) of this
section and results in serious physical harm to the child
involved, a felony of the second degree.
{¶ 20} Appellant does not challenge that M.K. is a mentally handicapped child
under the age of 21 nor that M.K. suffered serious physical harm. Rather, appellant
No. 13AP-1060 8
argues that there is no direct testimony that appellant knowingly caused serious physical
harm to M.K. so as to support the felonious assault conviction. It is well established that
"[c]ulpable mental states are frequently demonstrated through circumstantial evidence."
State v. Edwards, 10th Dist. No. 12AP-993, 2013-Ohio-3597, ¶ 12, citing State v. Ingram,
10th Dist. No. 11AP-1124, 2012-Ohio-4075, ¶ 22, citing State v. Ramey, 10th Dist. No.
11AP-485, 2012-Ohio-1015, ¶ 26, and State v. Collins, 89 Ohio St.3d 524, 530 (2000);
State v. Brown, 99 Ohio App.3d 604, 607 (10th Dist.1994) ("There is no question that,
without an admission of some sort by appellants, there can never be direct evidence on
the issue of whether appellants acted knowingly."). Thus, our review will focus on
whether reasonable inferences could have been drawn from the facts, which are
supported by the evidence, in order to conclude that the acts of appellant were committed
knowingly.
{¶ 21} R.C. 2901.22(B) provides that "[a] person acts knowingly, regardless of his
purpose, when he is aware that his conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances when he is
aware that such circumstances probably exist." When determining whether a defendant
acted knowingly, his state of mind must be determined from the totality of the
circumstances surrounding the alleged crime. Ingram at ¶ 22, citing State v. Hill, 10th
Dist. No. 09AP-398, 2010-Ohio-1687, ¶ 26, citing State v. Inman, 9th Dist. No.
03CA0099-M, 2004-Ohio-1420.
{¶ 22} Here, M.K. testified that appellant would hit her with objects when he "lost
his temper" and was "angry." (Tr. Vol. II, 25.) According to M.K., this occurred "[a]lmost
every day." (Tr. Vol. II, 25.) Additionally, M.K testified that the burns on her body were
caused by a "hot frying pan, it was placed on the stove and it was heated up. * * * I was
standing in front of the stove cleaning off the stove. And he got mad at me and he took
the frying pan and burnt it with my arm and back of my neck." (Tr. Vol. II, 27.) Though
M.K. testified that she heard appellant tell C.S. that he "did it on accident," the jury was
free to believe M.K.'s testimony that appellant would strike her when he lost his temper
and that he would strike her with "objects he had next to him." (Tr. Vol. II, 25, 27.) M.K.
also testified that the extensive bruising to both her right and left legs was the result of
appellant hitting her "with a cane, a brass cane." (Tr. Vol. II, 34.) Additionally,
No. 13AP-1060 9
photographs taken of M.K. on August 10 depicted second-degree burns on M.K.'s arm and
neck as well as substantial bruising to both of her legs and her chest. Given the evidence
presented, the jury could reasonably infer from the totality of the circumstances that
appellant knowingly caused serious physical harm to M.K.
{¶ 23} Appellant also challenges M.K.'s credibility and asserts that M.K.'s
testimony was "not specific and did not fit a logical pattern to allow the jury to conclude
that [appellant] was abusing her." (Appellant's Brief, 11.) According to appellant, M.K.
was not specific in her allegations and failed to "go into any detail about the allegations."
(Appellant's Brief, 11.) We disagree.
{¶ 24} The state presented evidence that on August 10, M.K. had burns on her arm
and neck, as well as bruising to her chest and legs. M.K. testified that appellant would hit
her when he was "angry" which was "[a]lmost every day." (Tr. Vol. II, 25.) M.K. testified
that the burns on her arm and neck were the result of appellant burning her with a hot
frying pan two days prior to August 10. Additionally, M.K. testified that the bruising to
her chest was the result of being hit with a toilet brush and the bruising to her legs was the
result of being hit with a cane. Thus, to the extent appellant suggests that his convictions
are against the manifest weight of the evidence because M.K.'s testimony is not credible, a
conviction is not against the manifest weight of the evidence simply because the jury
believed the prosecution's testimony. State v. Anderson, 10th Dist. No. 10AP-302, 2010-
Ohio-5561. " '[W]here a factual issue depends solely upon a determination of which
witnesses to believe, that is the credibility of witnesses, a reviewing court will not, except
upon extremely extraordinary circumstances, reverse a factual finding either as being
against the manifest weight of the evidence or contrary to law.' " In re L.J., 10th Dist. No.
11AP-495, 2012-Ohio-1414, ¶ 21, quoting In re Johnson, 10th Dist. No. 04AP-1136, 2005-
Ohio-4389, ¶ 26. The rationale is that the trier of fact is in the best position to take into
account inconsistencies, along with the witnesses' manner and demeanor, and determine
whether the witnesses' testimony is credible. State v. Williams, 10th Dist. No. 02AP-35,
2002-Ohio-4503, ¶ 58; State v. Clarke, 10th Dist. No. 01AP-194 (Sept. 25, 2001).
{¶ 25} Upon careful review of the record presented, we cannot conclude this record
presents a scenario where the jury clearly lost its way such that a reversal of appellant's
No. 13AP-1060 10
convictions is required. Consequently, we find appellant's convictions are not against the
manifest weight of the evidence, and we overrule appellant's first assignment of error.
B. Second Assignment of Error
{¶ 26} In his second assignment of error, appellant contends the trial court erred
in entering multiple convictions for offenses that, under State v. Johnson, 128 Ohio St.3d
153, 2010-Ohio-6314, are allied offenses of similar import. Specifically, appellant argues
the three charges herein all stem from the allegation that appellant burned M.K. with a
frying pan on August 8, 2012. In contrast, the state argues it relied on separate conduct to
support each conviction. According to the state, the child endangering charge alleged in
Count 2 of the indictment encompassed more than the incident with the frying pan as it
encompassed the abuse that resulted in the extensive bruising M.K. had about her body
and legs, which, according to M.K, was the result of being struck with a brass cane and
toilet brush. Also, the state argues that the child endangering charge alleged in Count 3 of
the indictment arose from appellant's failure to seek treatment for the burns on M.K.'s
arm and neck. The state also asserts that it was not required to show that all the offenses
occurred precisely on August 8, 2012, as the indictment clearly stated the alleged offenses
occurred "on or about" August 8, 2012.
{¶ 27} With respect to merger, appellant's counsel stated at the sentencing hearing,
"I would suggest that they do merge. If you take a look at the indictment, it indicates that
the offenses, the three counts allegedly all took place on August 8th of 2012. And I would
suggest that there's no separate animus on these counts." (Nov. 21, 2013 Tr. 7.) In
response, the state noted that the photographs taken of M.K. on August 10, 2012 depicted
burns to M.K.'s arm and neck as well as extensive bruising to her leg and upper thigh area.
Additionally, the state argued that these charges should not merge because they were "not
just limited to the frying pan incident but to the other incidents to which [M.K.] testified
regarding being struck with fists and other objects." (Nov. 21, 2013 Tr. 11.) At sentencing,
the trial court stated, "I do not find that the counts in this case merge for any reason.
There was testimony not just to the incident with the frying pan but there was also
testimony with respect to her being hit with the cane and other things by you." (Nov. 21,
2013 Tr. 13.)
No. 13AP-1060 11
{¶ 28} In reviewing a trial court's determination of whether a defendant's offenses
should merge pursuant to the multiple counts statute, the Supreme Court of Ohio has
determined a reviewing court should review the trial court's R.C. 2941.25 determination
de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1. "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. That facts are involved in the analysis does not
make the issue a question of fact deserving of deference to a trial court." Id. at ¶ 25.
{¶ 29} The defendant bears the burden of proving an entitlement to merger at
sentencing pursuant to R.C. 2941.25. State v. Mughni, 33 Ohio St.3d 65, 67 (1987). The
conditions required for merger are set forth in 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." (Emphasis added.) Thus, a defendant cannot establish an
entitlement to merger without demonstrating that the offenses result from the "same
conduct" and share a "similar import." See State v. Cooper, 104 Ohio St.3d 293, 2004-
Ohio-6553, ¶ 17, quoting State v. Logan, 60 Ohio St.2d 126, 128 (1979) (" 'In addition to
the requirement of similar import * * *, the defendant, in order to obtain the protection of
R.C. 2941.25(A), must show that the prosecution has relied upon the same conduct to
support both offenses charged.' "). (Emphasis added.) R.C. 2941.25(B) restates these
requirements in the negative by prohibiting merger where the offenses are of "dissimilar
import" or were "committed separately," but also identifies a third bar to merger where
the offenses were committed with a "separate animus as to each." State v. Cochran, 10th
Dist. No. 11AP-408, 2012-Ohio-5899, ¶ 60.
{¶ 30} In Johnson, 2010-Ohio-6314, the Supreme Court of Ohio overruled the
analysis previously established in State v. Rance, 85 Ohio St.3d 632 (1999), for
determining whether two offenses constitute allied offenses of similar import are subject
to merger under R.C. 2941.25. Although there was no majority opinion in Johnson, the
plurality opinion, as well as the concurring justices, stressed the importance of
considering the conduct of the accused in the analysis. See Johnson at syllabus, with
which all justices concurred ("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
No. 13AP-1060 12
be considered. (State v. Rance * * * overruled.)"). State v. Rivera, 10th Dist. No. 12AP-
691, 2014-Ohio-842, ¶ 17.
{¶ 31} The Johnson plurality opinion set forth a two-part test for determining
whether offenses are allied and required to be merged. Rivera at ¶ 18. The first question
is whether it is possible to commit one offense and commit the other offense with the
same conduct. Id., citing Johnson at ¶ 48. If so, then the offenses are of similar import.
If the offenses can be committed by the same conduct, the test requires the court to
" 'determine whether the offenses were committed by the same conduct, i.e., "a single act,
committed with a single state of mind." ' " Id., quoting Johnson at ¶ 49, quoting State v.
Brown, 119 Ohio St.3d 447, 2008-Ohio-4569 (Lanzinger, J., dissenting).
{¶ 32} " 'After Johnson, we look to the evidence and, "if that evidence reveals that
the state relied upon the 'same conduct' to prove the two offenses, and that the offenses
were committed neither separately nor with a separate animus to each, then the
defendant is afforded the protections of R.C. 2941.25, and the trial court errs by imposing
separate sentences for the offenses." ' " Id. at ¶ 19, quoting State v. Drummonds, 1st Dist.
No. C-110011, 2011-Ohio-5915, ¶ 6, quoting State v. Strong, 1st Dist. No. C-100484, 2011-
Ohio-4947, ¶ 67. More recently, in Williams, 2012-Ohio-5699, the Supreme Court sought
to further clarify Johnson. In discussing its decision in Johnson, the Willliams' court
stated: "[T]his court held that in making an allied-offenses determination, a court should
not employ an abstract analysis, but instead should consider the statutory elements of
each offense in the context of the defendant's conduct." Williams at ¶ 20. As will be
explained, we conclude appellant has failed to prove that the state relied on the same
conduct to support the offense of felonious assault and the offenses of child endangering.
{¶ 33} In State v. Overton, 10th Dist. No. 09AP-858, 2011-Ohio-4204, the
defendant was separately sentenced on counts of felonious assault and child endangering
based on events resulting in the death of a four-year-old child. Id. at ¶ 2. At trial, the state
presented evidence establishing that the defendant punched the child in the head while
the child was in the shower, causing the child to fall down. Id. at ¶ 11. The defendant then
removed the child from the shower and threw him into the arms of the defendant's
girlfriend. Id. When the child became able to crawl away, the defendant kicked him in
the legs and buttocks, picked him back up, and again threw him into the girlfriend's arms.
No. 13AP-1060 13
Id. The defendant punched the child "at least three times" after the child had been
removed from the shower. Id. The defendant's girlfriend called 911 when she saw the
child's eyes roll back in his head. Id.
{¶ 34} Relying on Cooper and Logan, this court found that merger was
inappropriate because the defendant had "not shown that both convictions were based on
a single act of abuse." Overton at ¶ 15. While it was clear that the state relied on the
blows to the child's chest as the basis for the felonious assault conviction, it was unclear
which blow the state relied on to support the child endangering conviction: the state's
argument for child endangering "was only based on the fact that appellant struck [the
victim], without indicating whether this was the blow to the head delivered in the shower
or the later blows to the chest." Id. Because "[t]here was sufficient evidence for the jury
to conclude that appellant committed child endangering through child abuse by striking
[the child] in the head while he was in the shower," we held the defendant failed to
establish that the offenses resulted from the same conduct. Id.
{¶ 35} Similarly in State v. Damron, 10th Dist. No. 12AP-209, 2012-Ohio-5977,
this court rejected the defendant's argument that his convictions were required to be
merged under R.C. 2941.25. According to the recitation of facts as presented by the state,
the defendant repeatedly struck the victim on June 21, 2008, resulting in a concussion,
nasal fracture, and cuts and contusions over her entire body. At the time of the incident,
the victim's three children were present and witnessed the defendant striking the victim.
Additionally, blades from the ceiling fan in the room where the incident occurred had
been removed and were found with blood on them. The state's facts also revealed that the
defendant repeatedly stopped his attack on the victim in order to respond to the children's
actions. As set forth in Damron, in one instance, a child jumped on the defendant's back
and told him to stop, causing the defendant to pick up the child and set the child down on
the bed in the same room whereupon the defendant resumed beating the victim. At
another time during the incident, a child took a knife from the kitchen in an attempt to
help the victim causing the defendant to throw a fan at the child. The defendant
stipulated to the facts for purposes of the plea.
{¶ 36} The state argued that even though there was a continuous set of abuse, there
were separate acts such that the offenses were not subject to merger. In contrast, the
No. 13AP-1060 14
defendant argued the offenses were based on one continuous act. After review, the trial
court concluded the offenses were committed with a separate animus and did not merge.
{¶ 37} On appeal, the defendant repeated his argument that the offenses were
committed at the same time and place against the same victim with the same conduct and
animus. Rejecting the defendant's contention that his actions against a single victim at
one location over one evening resolved the issue, this court stated that it "must examine
whether the defendant engaged in separate conduct, or acted with a separate state of
mind." Id. at ¶ 24, citing Johnson, 2010-Ohio-6314, at ¶ 54. In concluding that the
offenses did not merge, the Damron court stated:
As in Johnson and Overton, the record supports the state's
contention that defendant committed two separate instances
of abuse, with blows to the victim's face and blows to her
body. Johnson at ¶ 56; Overton at ¶ 15. Since intervals of
time separated defendant's blows to the victim, the trial court
properly could ascertain that a separate animus motived the
instances of violence. [State v. White, 10th Dist. No. 10AP-34,
2011-Ohio-2364,] ¶ 67, citing State v. Williams, 124 Ohio
St.3d 381, 2010-Ohio-147, ¶ 24; State v. Davic, 10th Dist. No.
11AP-555, 2012-Ohio-952, ¶ 16 (holding that multiple rape
offenses do not merge when a defendant commits them
between " 'intervening acts' "), quoting State v. Jones, 78 Ohio
St.3d 12, 14 (1997).
Id. at ¶ 25.
{¶ 38} To prove the indicted offenses in the case sub judice, the state presented
evidence of separate acts, one involving a frying pan and one involving a brass cane.
Though it is not clear which count was based on the incident with the frying pan and
which count was based on the incident with the brass cane, contrary to appellant's
assertion, the evidence does not show that the state relied only on the incident with the
frying pan to support both Counts 1 and 2. Cochran; Overton. Additionally, while there is
evidence the offenses were committed against the same victim, there is no evidence the
offenses were committed at the same time or at the same location. Moreover, Count 3
encompasses appellant's violation of his duty of care, protection or support by his failure
to seek medical attention for the second-degree burns that resulted from him striking
No. 13AP-1060 15
M.K. with a hot frying pan. Accordingly, we do not find that appellant has demonstrated
the alleged offenses were committed with the same conduct.
{¶ 39} Further, because the indictment alleges the three offenses occurred on or
about August 8, 2012, we disagree with appellant that the state was required to prove that
all three offenses occurred precisely on August 8, 2012. "In a criminal charge the exact
date and time are immaterial unless in the nature of the offense exactness of time is
essential. It is sufficient to prove the alleged offense at or about the time charged." Tesca
v. State, 108 Ohio St. 287 (1923), paragraph one of the syllabus. Where the precise date
and time of a violation of the statute are not essential elements of the crime, an
indictment need not allege a specific date of the offense. State v. Sellards, 17 Ohio St.3d
169, 171-72 (1985). "The General Assembly, in declaring what shall be sufficient in an
indictment, provided, among other things, that it shall be sufficient if it can be understood
that the offense was committed at some time prior to the time of the filing of the
indictment." Id. at 171, citing R.C. 2941.03(E). Proof of the offense on or about the
alleged date is sufficient to support a conviction even where evidence as to the exact date
of the offense is in conflict. Cochran at ¶ 82, citing State v. Dingus, 26 Ohio App.2d 131,
137 (4th Dist.1970). The exact date is not essential to the validity of the conviction and the
failure to prove that is of no consequence. Id., citing Dingus. The state's only
responsibility is to present proof that the offenses alleged in the indictment occurred
reasonably within the time frame alleged. Sellards at 171; Cochran at ¶ 82; State v.
Barnhart, 7th Dist. No. 09 JE 15, 2010-Ohio-3282, ¶ 50.
{¶ 40} At trial, M.K. testified that appellant hit her when he lost his temper and
was angry. According to M.K., this occurred "[a]lmost every day." (Tr. Vol. II, 25.)
Specifically with respect to the incident with the frying pan, M.K. testified that it occurred
two days prior to the day she ran to her neighbor's on August 10. Though M.K. did not
testify as to the exact date that the incident occurred wherein appellant allegedly hit her
with a brass cane, she did testify that the extensive bruising that appeared in photographs
taken on August 10, 2012 resulted from that incident. Further, M.K.'s medical records of
August 10, 2012 established the injuries on M.K.'s person were in various stages of
healing. Given the state of M.K.'s injuries on August 10, the trier of fact could infer that
the incident with the brass cane occurred reasonably within the time frame alleged in the
No. 13AP-1060 16
indictment, i.e., on or about August 8. State v. Schaaf, 5th Dist. No. 07 CA 55, 2008-
Ohio-2689, ¶ 31; Cochran; Barnhart.
{¶ 41} Upon review, we conclude appellant has failed to show the offenses herein
were committed with the same conduct such that they are subject to merger under R.C.
2941.25(A). Consequently, we conclude the offenses do not merge, and we overrule
appellant's second assignment of error.
IV. CONCLUSION
{¶ 42} Having overruled both of appellant's asserted assignments of error, we
hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and LUPER SCHUSTER, JJ., concur.
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