State v. Goshade , 2013 Ohio 4457 ( 2013 )

[Cite as State v. Goshade, 2013-Ohio-4457.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-120586
TRIAL NO. B-1107510
Plaintiff-Appellee, :
O P I N I O N.
vs. :
THOMAS GOSHADE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: October 9, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond L. Katz, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D INKELACKER , Judge.
{¶1} Defendant-appellant Thomas Goshade was convicted of one count of
domestic violence under R.C. 2919.25(A) and one count of felonious assault under
R.C. 2903.11(A)(2). He was sentenced to 18 months’ imprisonment on the domestic-
violence count and four years’ imprisonment on the felonious-assault count, to be
served concurrently. Goshade now appeals those convictions. We find no merit in
his four assignments of error, and we affirm the trial court’s judgment.
I. Facts and Procedure
{¶2} The record shows that at approximately 5:11 a.m. on November 11,
2011, Officer Martin Strong of the Forest Park Police Department responded to a 911
call placed by Ticora Edmonson. He met Emondson at the door of her home, crying
and upset. She had a red, swollen right check and a red mark around her neck. The
officer observed “a cord to an electrical device lying in the hallway” and a broken,
splintered bedroom door frame.
{¶3} Edmonson told Officer Strong that she had been arguing with
Goshade, who was the father of her child, and that she had locked herself and her
child in a bedroom. Goshade had kicked in the door and had started hitting her. He
then picked up an electrical cord, wrapped it around her neck and tried to choke her
with it. He subsequently took the cell phone on which she had made the 911 call and
the keys to her car, and left the area in her vehicle.
{¶4} When Goshade took the cell phone from Edmondson, he did not end
the call. Therefore, the 911 recording contained statements made by Goshade in
separate conversation on his own cell phone. He stated that he had “made her feel it”
and that he “took her to the brink.”
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{¶5} The police were able to track Goshade using Edmonton’s cell phone,
and he was subsequently arrested in a store parking lot some distance away. He
admitted to Officer Strong that he had gotten into an argument with Edmonson, that
he had broken down a door, that he had hit her and that he had choked her. When
Officer Strong asked Goshade if he had choked Edmonson with a cord, he said, “I
tried.”
{¶6} At trial, Edmonson testified that she and Goshade had been living
together and that she had called 911 because she and Goshade had been fighting.
Then, she asserted her Fifth Amendment privilege against self-incrimination. The
recording of the 911 call was admitted into evidence. It contained Edmonson’s cries
for help and Goshade’s conversation on his own cell phone.
II. Confrontation Clause
{¶7} In his first assignment of error, Goshade contends that the trial court
erred in considering inadmissible testimonial hearsay. He argues that admission
into evidence of Edmonson’s statements to Officer Strong violated his right to
confront the witnesses against him. This assignment of error is not well taken.
{¶8} Edmonson’s statements were admitted under the excited-utterance
exception to the hearsay rule. Evid.R. 803(2) defines an excited utterance as “[a]
statement relating to a startling event or condition made while the declarant was
under the stress of excitement caused by the event or condition.” Excited
utterances are reliable because they do not entail an opportunity for the declarant
to reflect, thus reducing the chance to fabricate or distort the truth. State v.
Wallace, 37 Ohio St.3d 87, 88, 524 N.E.2d 466 (1988); State v. Lukacs, 188 Ohio
App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, ¶ 20-21 (1st Dist.). In analyzing
whether a statement is an excited utterance, “[t]he controlling factor is whether
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OHIO FIRST DISTRICT COURT OF APPEALS
the declaration was made under such circumstances as would reasonably show
that it resulted from impulse rather than reason and reflection.” Lukacs at ¶ 21,
quoting State v. Tebelman, 3d Dist. Putnam No. 12-09-01, 2010-Ohio-481, ¶ 29.
{¶9} Officer Strong testified that when he arrived at Edmonson’s door,
she was “crying, sobbing, upset,” and that she had visible injuries. He stated that
in his opinion she was still acting under the stress of the event that had just
occurred. Thus, Edmondson was under the stress of startling events—Goshade
hitting and choking her. Her statements related to those startling events, and
therefore, they fell under the excited-utterance exception to the hearsay rule.
{¶10} Even though Edmondson’s statements were admissible under the rules
of evidence, their admission into evidence might still have violated Goshade’s Sixth
Amendment rights. The Sixth Amendment to the United States Constitution states,
“In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted
with the witnesses against him.” In Crawford v. Washington, 541 U.S. 36, 124 S.Ct.
1354, 158 L.Ed.2d 177 (2004), the United States Supreme Court held that the
Confrontation Clause bars “testimonial statements of a witness who did not appear
at trial unless he was unavailable to testify, and the defendant had a prior
opportunity for cross-examination.” Id. at 53-54.
{¶11} Because Edmonson invoked her Fifth Amendment privilege against
self-incrimination, she was unavailable to testify. State v. Osman, 4th Dist. Athens
No. 09CA36, 2011-Ohio-4626, ¶ 86; State v. Carter, 8th Dist. Cuyahoga No. 84036,
2004-Ohio-6861, ¶ 37; State v. Cutlip, 9th Dist. Medina No. 03CA0118-M, 2004-
Ohio-2120, ¶ 16. The mere fact that she was called to the stand and answered a few
questions does not serve to safeguard Goshade’s right to confrontation. Osman at ¶
86. Because Edmonson was unavailable and Goshade did not have a prior
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OHIO FIRST DISTRICT COURT OF APPEALS
opportunity for cross-examination, the admission of her statements to Officer Strong
violated his right to confrontation, unless the statements were not testimonial.
{¶12} In Crawford, The Supreme Court distinguished between
testimonial and nontestimonial hearsay and held that only testimonial
statements implicate the Confrontation Clause. Crawford, 541 U.S. at 68, 124
S.Ct. 1354, 158 L.Ed.2d 177; State v. Washington, 1st Dist. Hamilton No. C-
090561, 2010-Ohio-3175, ¶ 32. The court did not comprehensively define
“testimonial,” but stated that the core class of testimonial statements “includes
statements that were made under circumstances which would lead an objective
witness reasonably to believe that the statement would be available for later use
at trial.” State v. Arnold, 126 Ohio St.3d 290, 2010-Ohio-2742, 933 N.E.2d 775, ¶
13, quoting Crawford, 541 U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177;
Washington at ¶ 32.
{¶13} In the context of excited utterances made to police officers, the United
States Supreme Court has held that the key to determining whether statements are
testimonial is whether the questioning by police or a police counterpart was seeking
information needed to respond to a present emergency or whether it was seeking
information about past events as part of the investigation of a crime. Davis v.
Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006);
Washington at ¶ 35.
{¶14} It stated:
Statements are nontestimonial when made in the course of police
interrogation under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to
meet an ongoing emergency. They are testimonial when the
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OHIO FIRST DISTRICT COURT OF APPEALS
circumstances objectively indicate that there is no such ongoing
emergency, and that the primary purpose of the interrogation is to
establish or prove past events potentially relevant to later criminal
prosecution.
Davis at 822.
{¶15} In assessing whether a statement is testimonial, the court must
“objectively evaluate the circumstances in which the encounter occur[red] and
the statements and actions of the parties.” State v. Jones, 135 Ohio St.3d 10,
2012-Ohio-5677, 984 N.E.2d 948, ¶ 150, quoting Michigan v. Bryant, ___ U.S.
___, 131 S.Ct. 1143, 1156, 179 L.Ed.2d 93 (2011). The focus is not on the subjective or
actual purpose or intent of the interrogator or the declarant, but on “the purpose that
reasonable participants would have had” under the same circumstances. Id. The
focus must be on the parties at the time of the interrogation and not based on
hindsight. Bryant at 1157, fn. 8; Jones at ¶ 150. Whether an emergency existed is “a
highly context-dependent inquiry.” Bryant at 1158; Jones at ¶ 151.
{¶16} In this case, Officer Strong responded to a 911 call with the sounds of a
struggle heard in the background. When Officer Strong arrived at Edmonson’s
home, she met him at the door, crying and upset. She was so upset that it took some
time for Strong to determine what had happened. She had red marks on her face and
neck and the door was splintered, supporting her claim that a violent encounter had
occurred.
{¶17} Goshade’s whereabouts were unknown, unlike in cases where courts
have found the victim’s statements to be testimonial because the alleged perpetrator
had been apprehended or secured. See Davis, 547 U.S. at 829-830, 126 S.Ct. 2266,
165 L.E.2d 224; State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239,
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OHIO FIRST DISTRICT COURT OF APPEALS
¶ 103-104. The encounter was informal, and Officer Strong was responding to an
ongoing and fluid situation. See Bryant at 1160; Jones at ¶ 154; State v. Diggle, 3d
Dist. Auglaize No. 2-11-19, 2012-Ohio-1583, ¶ 31. He was not seeking to develop
testimony about past events for a criminal proceeding. See Fry at ¶ 103-104.
Edmonson’s primary purpose was to receive assistance from the officer because
Goshade was at large and had taken her cell phone. See State v. King, 2d Dist.
Montgomery No. 25151, 2013-Ohio-1694, ¶ 15; State v. McDaniel, 2d Dist.
Montgomery No. 24423, 2011-Ohio-6326, ¶ 25-27.
{¶18} Considering the totality of the circumstances, we hold that
Edmondson’s statements were not testimonial. Therefore, the trial court did not err
in admitting them into evidence under the excited-utterance exception to the hearsay
rule. Further, even if the admission of her statements into evidence had been error,
any error was harmless given that Goshade admitted to Officer Strong that he had hit
and choked Edmondson. See State v. Ricks, ___ Ohio St.3d ___, 2013-Ohio-3712,
___ N.E.2d ___, ¶ 46; State v. Cowins, 1st Dist. Hamilton No. C-120191, 2013-Ohio-
277, ¶ 9. Consequently, we overrule Goshade’s first assignment of error.
III. Manifest Weight of the Evidence
{¶19} In his second assignment of error, Goshade contends that his
convictions were against the manifest weight of the evidence. After reviewing the
record, we cannot say that the trier of fact lost its way and created such a manifest
miscarriage of justice that we must reverse Goshade’s convictions and order a new
trial. Therefore, the convictions were not against the manifest weight of the
evidence, and we overrule Goshade’s second assignment of error. See State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997); State v. Erkins, 1st Dist.
Hamilton No. C-110675, 2012-Ohio-5372, ¶ 72.
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OHIO FIRST DISTRICT COURT OF APPEALS
IV. Allied Offenses of Similar Import
{¶20} In his third assignment of error, Goshade contends that the trial court
erred by imposing multiple sentences for crimes that were allied offenses of similar
import under R.C. 2941.25. He argues that both offenses of which he was convicted
involved the same conduct with the same animus. Therefore, they should have been
merged for sentencing. This assignment of error is not well taken.
{¶21} We first note that Goshade failed to raise the issue in the trial court.
Consequently, he has waived all but plain error by failing to raise any objection to the
imposition of multiple punishments at the sentencing. State v. Underwood, 124
Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31; State v. Anderson, 1st Dist.
Hamilton No. C-110029, 2012-Ohio-3347, ¶ 14. Nevertheless, the Ohio Supreme
Court has held that imposition of multiple sentences for allied offenses of similar
import is plain error. Underwood at ¶ 31.
{¶22} Under R.C. 2941.25, a trial court may, in a single proceeding, sentence
a defendant for two or more offenses having as their genesis the same criminal
conduct 0r 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. Anderson at ¶ 15, citing State v. Bickerstaff, 10 Ohio St.3d 62, 65-66,
461 N.E.2d 892 (1984). Unless committed separately or with a separate animus,
allied offenses must be merged for purposes of sentencing following the state’s
election of which offense should survive. State v. Whitfield, 124 Ohio St.3d 319,
2010-Ohio-2, 922 N.E.2d 182, paragraphs one and two of the syllabus; Anderson at ¶
15. A criminal defendant bears the burden to show that he or she is entitled to
merger of offenses under the allied-offenses statute. State v. Whipple, 1st Dist.
Hamilton No. C-110184, 2012-Ohio-2938, ¶ 36.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶23} The imposition of concurrent sentences is not the equivalent of
merging allied offenses. State v. Damron, 129 Ohio St.3d 86, 2011-Ohio-2268, 950
N.E.2d 512, ¶ 17. Even when the sentences are to be served concurrently, a
defendant is prejudiced by having more convictions than are authorized by law.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at ¶ 31.
{¶24} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d
1061, the Ohio Supreme Court changed the analysis that courts are to apply in allied-
offenses cases. State v. Lanier, 192 Ohio App.3d 762, 2011-Ohio-898, 950 N.E.2d
600, ¶ 9 (1st Dist.). It stated that “[w]hen 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.” Johnson at syllabus.
{¶25} In applying R.C. 2941.25, we consider the statutory elements of each
offense in the context of the defendant’s conduct. State v. Williams, 134 Ohio St.3d
482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 20; State v. Hodges, 1st Dist. Hamilton
No. C-110630, 2013-Ohio-1195, ¶ 7. Goshade was convicted of felonious assault
under R.C. 2903.11(A)(2). It provides that “[n]o person shall knowingly * * * [c]ause
or attempt to cause physical harm to another * * * by means 0f a deadly weapon.” He
was also convicted of domestic violence under R.C. 2919.25(A), which provides that
“[n]o person shall knowingly cause or attempt to cause physical harm to a family or
household member.” Because Goshade was charged with domestic violence and
felonious assault under R.C. 2903.11(A)(2), which requires of the use of a deadly
weapon, this case presents a different situation than cases where the offender is
charged with domestic violence and felonious assault under R.C. 2911.(A)(1), which
requires serious physical harm. See State v. Carner, 8th Dist. Cuyahoga No. 96766,
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2012-Ohio-1190, ¶ 43-44; State v. Weathers, 12th Dist. Butler No. CA2011-01-013,
2011-Ohio-6793, ¶ 18-19.
{¶26} Although felonious assault under R.C. 2903.11(A)(2) and domestic
violence can be committed by the same conduct, in this case they were not. The
domestic-violence conviction was the result of Goshade beating the victim after
breaking down the bedroom door. If his conduct had ended after he had beaten the
victim, he could not have been convicted of felonious assault under subsection (A)(2)
because he did not use a deadly weapon. The felonious-assault conviction was based
upon him choking the victim with the electrical cord, which became a deadly weapon
when he used it as a weapon by wrapping it around her neck. See R.C. 2923.11(A); In
re Kristopher F., 5th Dist. Stark No. 2006CA00312, 2007-Ohio-3259, ¶ 68.
{¶27} Because the two offenses were not based on the same conduct, they
were not allied offenses of similar import subject to merger. See State v. Harmon,
9th Dist. Summit No. 26502, 2013-Ohio-1769, ¶ 26-29; State v. Patterson, 8th Dist.
No. 98127, 2012-Ohio-5511, ¶ 35. Therefore, the trial court did not err in convicting
Goshade of both offenses, and we overrule his third assignment of error.
V. Ineffective Assistance of Counsel
{¶28} In his fourth assignment of error, Goshade contends that he was
denied the effective assistance of counsel. He argues that counsel was ineffective for
failing to object when he was convicted of both felonious assault and domestic
violence because they were allied offenses of similar import. But because we have
held that the two offenses were not allied offenses subject to merger, Goshade’s
counsel was not ineffective for failing to raise the issue.
{¶29} Goshade has not demonstrated that his counsel’s representation fell
below an objective standard of reasonableness or that, but for counsel’s
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OHIO FIRST DISTRICT COURT OF APPEALS
unprofessional errors, the result of the proceeding would have been otherwise.
Therefore, he has failed to meet his burden to show ineffective assistance of counsel.
See Strickland v. Washington, 466 U.S. 668, 687-689, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); State v. McCrary, 1st Dist. Hamilton No. C-080860, 2009-Ohio-4390, ¶
12-17. Consequently, we overrule Goshade’s fourth assignment of error and affirm
his convictions.
Judgment affirmed.
H ENDON , P.J., concurs.
D E W INE , J., concurs in part and dissents in part.
DEWINE, J., concurring in part and dissenting in part.
{¶30} I concur in the majority’s opinion in regard to the Confrontation Clause
and weight of the evidence issues. I must respectfully dissent as to the allied-offenses
and ineffective-assistance-of-counsel issues.
{¶31} Since the Ohio Supreme Court’s decision in State v. Johnson, 128 Ohio
St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the test that we consistently have
applied to determine if offenses are allied is this: “if the evidence adduced at trial
reveals that the state relied upon the same conduct to support the two offenses, and
that the offenses had been committed neither separately nor with a separate animus
as to each, then the defendant is afforded the protection of R.C. 2941.25, and the trial
court errs in imposing separate sentences for the offenses.” State v. Ruff, 1st Dist.
Hamilton Nos. C-120533 and C-120534, 2013-Ohio-3234, ¶ 31; see State v. Hodges,
1st Dist. Hamilton No. C-110630, 2013-Ohio-1195, ¶ 6; State v. Anderson, 2012-
Ohio-3347, 974 N.E.2d 1236, ¶ 20 (1st Dist.).
{¶32} In this case, I agree with the majority that the allied-offenses issue
turns on whether the charges for domestic violence and felonious assault were based
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OHIO FIRST DISTRICT COURT OF APPEALS
upon the same conduct. See majority opinion at ¶ 27; see also R.C. 2941.25; Johnson
at syllabus. I also agree with the majority that domestic violence and felonious
assault under R.C. 2903.12(A) can be committed with the same conduct. What I
disagree with is the majority’s conclusion that Mr. Goshade’s convictions were not
based on the same conduct. I just cannot reach that result from the record before us.
{¶33} Let’s look at that record. Here is the totality of what the state says in
the bill of particulars about the acts that constituted all counts charged in the
indictment:
On or about November 11, 2011, * * * the defendant
forced his way into a locked bedroom. Once the
Defendant gained access of the room the Defendant
using the Defendant’s hands and a computer cord
choked Ticora Edmondson, the Defendant’s child’s
mother, living as the Defendant’s spouse. The
Defendant threatened to kill Edmonson. The Defendant
fled the scene with Edmondson’s cell phone and vehicle.
The only evidence at trial about the details of the altercation was the testimony of
Officer Strong. This is what Officer Strong testified the victim told him:
I was told that she had been arguing with her
child’s father and she had locked herself in the bedroom
with her child. This person came be [sic] known to me
as Mr. Goshade, the child’s father, had then knocked in
the door, kicked in the door, got into the bedroom.
They had got into a struggle where he slapped,
struck and choked her, and she told me that he had
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OHIO FIRST DISTRICT COURT OF APPEALS
taken an electrical cord from an electrical device and
wrapped it around her neck and attempted to choke her
with that.
And this is what Officer Strong testified the defendant told him:
Q. What did he tell you happened?
A. I started the line of questioning, asked him if
they had been in an argument. He indicated affirmative,
that, yes, they were. I asked him if he had broken down
a door. He indicated yes. I asked him if they’d gotten
into a fight. Yes. I asked him had he slapped her. He
said yes. Had he hit her? Yes. Had he choked her? Yes.
And the final question I had asked him, I asked if
he had choked her with a cord, and he said I tried.
Q. I tried to choke her with a cord?
A. That was his only exception to any of the
questions that I had asked him.
That is all the evidence we have to go on from the record about the details of what
occurred.
{¶34} The state’s arguments at trial don’t suggest anything that could be
construed as separate conduct either. In closing argument, the prosecutor summed
up the evidence supporting the domestic-violence charge this way: “[T]hrough
excited utterances we know that the defendant broke that door down, obviously in a
rage, choked her and left the scene before the police officers could get there.” As to
the felonious-assault count, the prosecutor cited the same conduct, stressing that the
cord used in the assault constituted a deadly weapon:
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OHIO FIRST DISTRICT COURT OF APPEALS
The second count is a felonious assault, and the
felonious assault is not a count where we have to show
there is serious physical harm. All we have to show is
what was used in this situation was a deadly weapon. A
cord in and of itself is not a deadly weapon, but when it’s
used in a manner to wrap around an individual’s neck, it
is obvious it can be used for purposes of serious physical
harm, or death. * * * We don’t have to show anything
other than the fact that he attempted to cause harm by
means of a deadly weapon * * *.
Based on this record it seems crystal clear to me, at least, that the state relied upon
the same conduct to prove both offenses. The only fair reading of the record is that
Mr. Goshade administered one beating to the victim in which he strangled her with
his hands and a cord.
{¶35} One way to understand the majority’s contrary opinion is that it is
premised upon the idea that there was some type of temporal space between a
beating administered by Mr. Goshade’s hands and the use of the cord. See majority
opinion at ¶ 26 (“If his conduct had ended after he had beaten the victim, he could
not have been convicted of felonious assault”). And if the record supported this
inference that there was a beating followed by a temporal interruption and
subsequent attempt to choke the victim with a cord, there would be a good argument
that two separate offenses occurred. See, e.g., State v. Harmon, 9th Dist. Summit
No. 26502, 2013-Ohio-1769, ¶ 29. But here the record is to the contrary.
{¶36} Another way to understand the majority’s opinion might be to bespeak
significance to the fact that Mr. Goshade used both a cord and his hands to hurt his
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OHIO FIRST DISTRICT COURT OF APPEALS
victim. See majority opinion at ¶ 25. But such a construction of the allied-offenses
statute leads to untenable—even absurd—results. Imagine the typical fight scene
from a Hollywood movie (think Indiana Jones or maybe Clint Eastwood), where in
the course of the conflict the assailant uses his fists, his feet, a beer bottle, a chair and
who knows what else to go after his victim. Under the majority’s reading of the
statute, the number of charges the assailant might face would be limited only by the
number of objects used in the struggle. That can’t be the law.
{¶37} The majority’s attempt to parse the assault of Ms. Edmondson into
separate acts seems at odds with the Supreme Court’s decision in Johnson. This is
what the court said in Johnson:
We decline the invitation of the state to parse Johnson’s
conduct into a blow-by-blow in order to sustain multiple
convictions for the second beating. This beating was a
discrete act that resulted in the simultaneous
commission of allied offenses, child abuse and felony
murder.
Johnson at ¶ 56. Adherence with Johnson requires that we decline the State’s
invitation in this case as well.
{¶38} So does adherence with our precedent. In Anderson, 2012-Ohio-3347,
974 N.E.2d 1236, we found that the state had relied upon the same conduct to prove
aggravated robbery and kidnapping in a bank robbery case where a co-defendant
brandished a weapon to move bank employees and customers out of the way while
the defendant leapt over the bank counter to steal the bank’s money. In finding that
the offenses were not committed separately, we noted that that the “record does not
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OHIO FIRST DISTRICT COURT OF APPEALS
reflect a temporal or spatial separateness in the offenses.” Id. at ¶ 24; see State v.
Lavender, 1st Dist. Hamilton No. C-120508, 2013-Ohio-2508, ¶ 10.
{¶39} The Second District summed up the law in this area as follows: “When
a course of conduct involves two or more acts or omissions undifferentiated by time,
place, or circumstance, merger of multiple criminal offenses arising from that course
of conduct is required because the offenses involve the ‘same conduct.’ ” State v.
Johnson, 2d Dist. Montgomery No. 24031, 2011-Ohio-2825, ¶ 25, quoting R.C.
2941.25(A). That seems a fairly good definition, and it is precisely the situation here.
{¶40} This leaves the ineffective-assistance claim. The way I see it, the
allied-offenses issue is so clear cut that counsel was ineffective for failing to raise the
issue at sentencing. The ineffective-assistance issue is largely beside the point,
however, because the failure to merge the allied offenses constitutes plain error and
we are required to remand whether it was raised or not.
{¶41} Of course, in a practical sense, the whole allied-offenses issue could be
said to be somewhat academic in this case. Because the trial court ran Mr. Goshade’s
sentences concurrently, merging the convictions would not affect the overall length
of his sentence. But we have been told that because Mr. Goshade is prejudiced by
being convicted of more offenses than are authorized by law, this kind of error is not
harmless. See State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d
923, ¶ 31; see also Anderson, 2012-Ohio-3347, 974 N.E.2d 1236, at ¶ 41. So as I see
it, we are obligated to remand to the trial court for merger of the allied offenses.
{¶42} The bottom line is that Mr. Goshade committed one assault upon one
victim. Because the victim was a family member, that felonious assault also
constituted the offense of domestic violence. But because the same conduct was the
basis for both crimes, and the crimes were committed neither separately or with a
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OHIO FIRST DISTRICT COURT OF APPEALS
separate animus, the sentencing court was required to merge the convictions. My
colleagues see it differently, so I respectfully dissent.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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