State v. Craig , 2017 Ohio 4342 ( 2017 )

[Cite as State v. Craig, 2017-Ohio-4342.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, :
: Case No. 15CA22
Plaintiff-Appellee, :
:
vs. : DECISION AND JUDGMENT
: ENTRY
FREDERICK JOSEPH CRAIG, JR., :
:
Defendant-Appellant. : Released: 06/12/17
APPEARANCES:
Timothy Young, Ohio State Public Defender, and Eric M. Hedrick, Assistant Ohio
State Public Defender, Columbus, Ohio, for Appellant.
Keller J. Blackburn, Athens County Prosecutor, Merry M. Saunders, Assistant
Athens County Prosecutor, Athens, Ohio, for Appellee.
McFarland, J.
{¶1} Frederick Joseph Craig, Jr., appeals the judgment entry of conviction
entered on June 22, 2015, in the Athens County Court of Common Pleas. Craig
entered a plea agreement and was subsequently convicted of attempted murder,
two counts of felonious assault, two counts of aggravated robbery, two counts of
aggravated burglary, tampering with evidence, and domestic violence. All charges
arose from a domestic incident which occurred on March 11, 2015 at the home of
Craig’s ex-spouse, Julie Nott, f.k.a. Julie Craig. At sentencing the trial court
merged several counts of the original indictment; however, on appeal, Craig asserts
Athens App. No. 15CA22 2
in his sole assignment of error that the trial court erred by failing to merge
additional offenses that had a similar import, arose from the same conduct, and
were not committed separately or with a separate animus. Upon review of the
record and consideration of Craig’s arguments, we find merit to two of the issues
raised in Appellant’s sole assignment of error. Accordingly, the judgment of the
trial court is reversed in part and this matter is remanded for a limited resentencing
where the State will elect which of the allied offenses to pursue for sentencing
purposes.
FACTS
{¶2} Much of the factual history related herein is taken from the testimony at
Appellant’s sentencing and set forth in the sentencing transcript. On March 11,
2015, 52-year-old Frederick J. Craig, Jr., (“Appellant”) was present at the home of
his ex-wife, Julie Nott (“Ms. Nott”). The two had previously been married for
nearly 25 years.1 Appellant had a history of alcohol and drug abuse. According to
Ms. Nott and her family, the two had always had a turbulent relationship.
{¶3} Appellant and Ms. Nott had been sitting on the same couch. At some
point, Ms. Nott began to feel uncomfortable and informed Appellant he needed to
leave. Appellant walked into the kitchen, retrieved a knife, and stabbed his ex-
1
Appellant’s and his ex-wife’s divorce was finalized in January 2011.
Athens App. No. 15CA22 3
wife three times in her stomach, chest, and side.2 He also nearly amputated her
thumb. A neighbor and friend, Kelly Sikorski, testified she arrived to discover Ms.
Nott on the floor, bleeding, while Appellant stood over her with, “a smirk on his
face.”
{¶4} Ms. Sikorski contacted 911 and Appellant was soon after arrested at the
scene. Appellant had a ring belonging to Ms. Nott on his person. The knife he
used to stab her was later found in a bag of dog food.3
{¶5} An Athens County Grand Jury issued the following indictment against
Appellant:
Count 1, attempted murder, R.C. 2923.02/2903.02(A), a felony of the
first degree;
Count 2, attempted murder, R.C. 2923.02/2903.02(B), a felony of the
first degree;
Count 3, felonious assault, R.C. 2903.11(A)(1), a felony of the second
degree;
Count 4, felonious assault, R.C.2903.11(A)(2), a felony of the second
degree;
Count 5, aggravated robbery, R.C. 2911.01(A)(1), a felony of the first
degree;
Count 6, aggravated robbery, R.C. 2911.01(A)(3), a felony of the first
degree;
2
The officer responding to the scene described finding a broken knife with a black handle. Photographs of the knife
were not transmitted in this appeal. We presume the knife was a butcher knife, as referenced in the sentencing
transcript.
3
Again, the testimony is not clear, but the transcript indicates the knife and the dog food were found in the kitchen.
Athens App. No. 15CA22 4
Count 7, aggravated burglary, R.C. 2911.11(A)(2), a felony of the first
degree;
Count 8, aggravated burglary, R.C. 2911.11(A)(1), a felony of the first
degree;
Count 9, tampering with evidence, R.C. 2921.12(A)(1), a felony of the
third degree; and,
Count 10, domestic violence, R.C. 2919.25(A), a misdemeanor of the
first degree.
{¶6} On June 4, 2015, Appellant entered into a plea agreement with the
State of Ohio in which he pled to all counts except count two, attempted murder.
The parties submitted sentencing memoranda for the court’s consideration with
regard to which counts could properly be merged for purposes of sentencing. On
June 22, 2015, Appellant was sentenced as follows:
1) Count 1 - an 8-year prison term;
2) Count 3 - a 4-year prison term;
3) Count 7 - a 6-year prison term;
4) Count 8 - a 6-year prison term; and,
5) Count 9 - a 2-year prison term.
{¶7} The trial court ran each sentence consecutively for an aggregate total of
26 years in the state penal system. This timely appeal followed. Where relevant
below, we again cite to the transcript of the sentencing hearing for additional facts
in evidence.
Athens App. No. 15CA22 5
ASSIGNMENT OF ERROR
“I. THE TRIAL COURT ERRED IN VIOLATION OF MR.
CRAIG’S RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE
OF THE FIFTH AMENDMENT TO THE U.S. CONSTITUTION,
ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION, AND
R.C. 2941.25, WHEN IT FAILED TO MERGE FOR SENTENCING
OFFENSES THAT HAD A SIMILAR IMPORT, AROSE FROM
THE SAME CONDUCT, AND WERE NOT COMMITTED
SEPARATELY OR WITH A SEPARATE ANIMUS.”
STANDARD OF REVIEW
{¶8} In State v. Brewer, 2014-Ohio-1903, 11 N.E.3d 317, we held that when
reviewing felony sentences, we apply the standard of review set forth in R.C.
2953.08(G)(2). State v. Pulliam, 4th Dist. Scioto No. 14CA3609, 2015-Ohio-759,
¶ 5; Brewer at ¶ 33. See State v. Graham, 4th Dist. Highland No. 13CA11, 2014-
Ohio-3149, ¶ 31. R.C. 2953.08(G)(2) specifies that an appellate court may
increase, reduce, modify, or vacate and remand a challenged felony sentence if the
court clearly and convincingly finds either that “the record does not support the
sentencing court's findings” under the specified statutory provisions or “the
sentence is otherwise contrary to law.”
{¶9} “An appellate court should apply a de novo standard of review in
reviewing a trial court's R.C. 2941.25 merger determination.” State v. Smith, 4th
Dist. Scioto No. 15CA3686, 2016-Ohio-5062, at ¶ 110, quoting State v. Williams,
134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. “ ‘[T]he appellate
court must * * * independently determine, without deference to the conclusion of
Athens App. No. 15CA22 6
the trial court, whether the facts satisfy the applicable legal standard.’ ” Id. at ¶ 26,
quoting State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8. The reviewing court owes no deference to the trial court's application of the
law to the particular facts of the case being reviewed. Id.LEGAL ANALYSIS
{¶10} We begin with the case law in the area of merger of allied offenses.
{¶11} R.C. 2941.25, Ohio's multiple counts statute, 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.
{¶12} The statute codifies the protections of the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution, and Section 10, Article I of
the Ohio Constitution, which prohibits the imposition of multiple punishments for
the same offense. Smith, supra, at ¶ 112, citing State v. Underwood, 124 Ohio
St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 23. In other words, upon finding one
or more counts to constitute two or more allied offenses of similar import, R.C.
2941.25(A) requires that the convictions be merged for the purposes of sentencing
Athens App. No. 15CA22 7
and that the defendant only be sentenced on one of the counts. State v. Whitfield,
124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, ¶ 5. A remand is required for
the State to elect which charge to pursue. Id. at ¶ 17.
{¶13} The Ohio Supreme Court has previously interpreted R.C. 2941.25 to
involve a two-step analysis for determining whether offenses are subject to merger.
Smith, supra, at ¶ 113, citing State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-
6314, 942 N.E.2d 1061. Under step one, it must be determined whether “it is
possible to commit one offense and commit the other with the same conduct, not
whether it is possible to commit one without committing the other.” Id. at ¶ 48.
Put another way, if the conduct of the defendant constituting commission of
offense one also constitutes commission of offense two, then the offenses are of
similar import and the court must proceed to the second step. Id. Under step two
of the analysis, it must be determined whether the offenses were committed as part
of a single act, with a single state of mind. Id. at ¶ 49. If both steps of the analysis
are met, then the offenses are allied offenses of similar import and will be merged.
Id. at ¶ 50. On the other hand, if commission of one offense will never result in the
commission of the other, or if the offenses are committed separately, or with a
separate animus for each offense, then under R.C. 2941.25(B), the offenses will not
merge. Id. at ¶ 51.
Athens App. No. 15CA22 8
{¶14} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
the Supreme Court of Ohio provided courts with further guidance with respect to
the R.C. 2941.25 merger determination. Although the Supreme Court did not
explicitly overrule Johnson, it stated that the “decision in Johnson was incomplete”
and that Johnson's syllabus language “does not offer the complete analysis
necessary to determine whether offenses are subject to merger rather than multiple
convictions and cumulative punishment.” Id. at ¶ 16; Smith, supra, at ¶ 114.
{¶15} The Ruff decision provides three questions for a reviewing court to
ask when a defendant's conduct supports multiple offenses in order to determine
whether those offenses are allied offenses of similar import within the meaning of
R.C. 2941.25:
1. Were the offenses dissimilar in import or significance?
2. Were they committed separately?
3. Were they committed with separate animus or motivation?
If one of the questions is answered affirmatively, then separate convictions are
permitted. The conduct, the animus, and the import must all be considered. Smith,
at ¶ 115.
{¶16} Under the sole assignment of error, Appellant raises three issues.
Appellant first submits that the trial court erred when it failed to merge the
offenses of attempted murder and felonious assault. Appellant also argues the trial
court erred when it failed to merge aggravated burglary under R.C. 2911.11(A)(1)
Athens App. No. 15CA22 9
with felonious assault and/or attempted murder. Finally, Appellant contends the
trial court erred when it failed to merge the offense of aggravated burglary under
R.C. 2911.11(A)(2) with the offense of aggravated burglary under R.C.
2911.11(A)(1).
Issue 1: Attempted murder and felonious assault
{¶17} Appellant argues in this case attempted murder and felonious assault
are allied offenses of similar import requiring merger. Appellant points out count
one of the indictment, attempted murder, R.C. 2923.02/2903.02(A) alleged:
“On or about the date of the offense set for above, in the County of
Athens, [Mr. Craig] unlawfully did attempt to purposely cause the
death of [Ms. Nott].”
Count three of the indictment, felonious assault, R.C. 2903.11(A)(1) alleges:
“On or about the date of the offense set forth above, in the County of
Athens, [Mr. Craig] unlawfully did knowingly cause serious physical
harm to [Ms. Nott.]”
{¶18} Appellant contends that the harm caused by his assault of Ms. Nott
with the knife is not separate and identifiable from the harm caused by attempted
murder: the harm is one and the same. See Ruff, supra, at 25-26. Appellant argues
that in his intoxicated state in which he snapped and attacked Ms. Nott with a
knife, the injuries from the knife were caused in a matter of seconds and therefore
were “one discrete act” that simultaneously resulted in the commission of both
felonious assault and attempted murder. Appellant concludes that R.C. 2941.25
Athens App. No. 15CA22 10
was enacted to prevent “multiple findings of guilt and corresponding punishments
heaped on a defendant for closely related offenses arising from the same
occurrence. Johnson, supra, at 43. Appellant requests this Court to hold that the
offenses of attempted murder and felonious assault are allied offenses that merge
under the statute.
{¶19} Generally speaking, the Supreme Court of Ohio has held that
attempted murder and felonious assault, R.C. 2903.11(A)(2), are allied offenses.
See State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, 922 N.E.2d 937, ¶ 25.
In order to commit the offense of attempted murder as defined in R.C. 2903.02(A),
one must engage in conduct that, if successful, would result in purposely causing
the death of another; to commit felonious assault as defined in R.C. 2903.11(A)(2),
one must cause or attempt to cause physical harm to another by means of a deadly
weapon.4
{¶20} We find the analysis in State v. Anthony, 37 N.E.3d 751, 8th Dist.
Cuyahoga No. 10184, 2015-Ohio-2267, to be particularly instructive. In Anthony,
the State presented facts at the sentencing hearing demonstrating that Anthony and
the victim were friends. They had been drinking and doing drugs on the night of
the incident. At some point, they started arguing. Anthony then stabbed the victim
four times.
4
In the case sub judice, count three of the indictment alleges felonious assault under R.C. 2903.11(A)(1), which
specifies only the attempt to cause physical harm but does not include that it must occur by “means of a deadly
weapon.”
Athens App. No. 15CA22 11
{¶21} In its analysis under the first prong of Ruff, the Eighth District
observed there was nothing in the record to establish that the offenses resulted in
separate and identifiable harm to establish that the offenses have a dissimilar
import. The appellate court noted:
“After arguing with the victim, Anthony stabbed the victim four
times, and the victim died. The state argues that Anthony's ‘conduct
in this case could be broken down between fatal and non-fatal stab
wounds, thus allowing the trial court to make appropriate findings.’
But there is nothing in the record, at the plea or sentencing hearing, to
establish there were fatal and non-fatal stab wounds.”
{¶22} Regarding the second and third prongs of the Ruff test, the Anthony
court next observed there was nothing in the record to establish that the offenses
were committed separately or with a separate animus. In determining whether a
separate animus exists for both felonious assault and attempted murder, courts
have examined case-specific factors such as whether the defendant at some point
broke “a temporal continuum started by his initial act”; whether facts appear in the
record that “distinguish the circumstances or draw a line of distinction that enables
a trier of fact to reasonably conclude separate and distinct crimes were
committed”; whether, at some point, the defendant created a “substantial
independent risk of harm”; and, whether a significant amount of time passed
between the beginning of the felonious assault and the end of the attack. State v.
Williams, 8th Dist. Cuyahoga No. 89726, 2008-Ohio-5286, ¶ 37; State v. Hines,
8th Dist. Cuyahoga No. 90125, 2008-Ohio-4236, ¶ 48; State v. Chaney, 5th Dist.
Athens App. No. 15CA22 12
Stark No. 2007CA00332, 2008-Ohio-5559, ¶ 33. Regarding animus, the Anthony
court found:
“The evidence presented was simply that Anthony and the victim
were doing drugs together, after which at some point they began
arguing, and Anthony stabbed the victim four times in the back, and
the victim died. There are no other details to establish that there was a
break in a “ ‘temporal continuum’ ” between the initial stabbing and
the final stabbing such that we could find that there were separate acts
or a separate animus. State v. Roberts, 180 Ohio App.3d 666, 2009-
Ohio-298, 906 N.E.2d 1177, ¶ 14 (3rd Dist.), quoting State v.
Williams, 8th Dist. Cuyahoga No. 89726, 2008-Ohio-5286, ¶ 37;
State v. Hines, 8th Dist. Cuyahoga No. 90125, 2008-Ohio-4236, ¶ 48.
Alternatively, there were no facts in the record to “ ‘distinguish the
circumstances or draw a line of distinction that enables a trier of fact
to reasonably conclude separate and distinct crimes were committed
* * *.’ ” Roberts, quoting Williams (noting facts also may support a
separate animus where the defendant's conduct “created a ‘substantial
independent risk of harm’ ”).”5
{¶23} The appellate court further found:
“Moreover, just because there were multiple stabbings does not make
it separate and distinct for purposes of our analysis. Indeed, in
Johnson, the Supreme Court declined to find that the defendant's
multiple “blows” to a child supported multiple convictions for felony
murder and the predicate offense of child endangering. Johnson, 128
Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, at ¶ 56. The
court determined that the beating “was a discrete act that resulted in
5
In Roberts, the defendant began attacking the victim with a steak knife and stabbed her until the blade broke from
the handle. Roberts then obtained a butcher knife from the kitchen, chased the victim down a hallway, and
continued to stab her. The victim sustained 19 or 20 stab wounds from the attack. The Eighth District Appellate
Court found that Roberts's initial stabbing of his victim with the steak knife constituted a separate animus for
felonious assault and that his resumption of the stabbing with a butcher knife constituted a separate animus for
attempted murder. The cessation in the attack during which Roberts obtained a second knife constituted a line of
distinction or break in the “temporal continuum,” from which the court concluded that separate and distinct crimes
were committed.
Athens App. No. 15CA22 13
the simultaneous commission of allied offenses, child abuse and
felony murder.” Id. We note that Johnson is still good law on this
point regarding what constitutes a separate act and a separate animus.”
Anthony, supra, at 51.
{¶24} Here, with respect to the first question, as explained in Ruff and
Anthony, we answer the question in the negative. The felonious assault and
attempted murder offenses did not involve separate victims. And importantly, the
harm resulting from each offense, the assault and the attempted murder, is not
separate and identifiable. The harm to Ms. Nott was not separate and identifiable
and as in Anthony, there is nothing in the record to establish a difference between
the fatal and non-fatal stab wounds. As such, we find the offenses are not of
dissimilar import.
{¶25} As to the second and third questions posed in Ruff - were the offenses
committed separately or with a separate animus - we also find they were not.
While Ms. Nott’s testimony at sentencing broke the incident into segments, we
find it more likely that the events transpired very quickly with no break in the
continuum. She testified as follows:
“A: I was sitting on the couch.
Q: And where was he?
A: He was sitting like right beside me.
Q. Okay.
A. And I told him. So I got up and moved in front of that chair
and then I just stood up and told him it was time for him to go.
Q: Okay. And then he left.
A: He left and went in the kitchen.
Q: Came back?
Athens App. No. 15CA22 14
A: With a knife.
***
Q: Okay. And what did you do when you saw him with the knife?
A: I went down in the corner.
Q: And then what happened next?
A: And then he stabbed me in the stomach.
Q: Okay and what happened after he stabbed you in the stomach?
A: I tried to kick him.
Q: Okay.
A: And yell for help.
Q: Okay. Where was he? Did he get up? Was he down with you?
A: He was up after he got done with the first stab.
Q: Okay and what did he try to do after that?
A: Stab me again.
Q: No what did you do after?
A: What did I do,-
Q: Yea.
A: I tried to crawl.
Q: Where did you crawl to?
A: Like right there.
Q: Where your red shirt is in the picture?
A: Yes.
Q: Okay. And what happened when you crawled there?
A: He stabbed me again.
Q: And where did he stab you a there, at that point?
A: In the chest.
Q: Okay. Did he also stab you in this (inaudible)?
A: He stabbed me here and here.
Q: Okay. So there were three stabs there?
A: There was three stabs.
Q: And did anything happen to your thumb?
A: He cut my thumb off.”
{¶26} As in Anthony, there is nothing in the record to establish that the
offenses were committed separately or with a separate animus. The evidence was
that Appellant and his wife were together in her home when she asked him to
Athens App. No. 15CA22 15
leave. He retrieved a knife from the kitchen and stabbed her 3 times, and injured
her stomach, chest, and thumb. Despite the trial court’s findings that:
“[The attempted murder count] is independent and does not merge
into any other counts. The court found that the first stabbing * * *
constituted the felonious assault. After the assault, the victim was
trying to escape, and Defendant pursued her and stabbed her again,
constituting attempted murder * * *.”
there are no details to establish that there was a break in the continuum of events
between the initial stabbing and the final stabbing. There were no facts in the
record to draw a line of distinction which would enable the trier of fact to
reasonably conclude separate and distinct crimes were committed.
{¶27} In addition to Ms. Nott’s testimony about the divorce, she testified she
had talked to Appellant over years about the potential of a divorce, and testified he
always threatened he would kill her if she divorced him.6 Appellant arrived at her
home without a weapon. Given the facts that the parties’ divorce had been final
only a short time, that Appellant may have drawn incorrect conclusions about the
diamond ring Ms. Nott was wearing, and the fact she asked him to leave, it may be
inferred that Appellant, realizing he had “lost” her forever, went into the kitchen to
get a knife and kill her. We find no evidence of a separate animus for the crimes of
attempted murder and felonious assault in this case.
6
At the sentencing, the victim’s advocate also read Ms. Nott’s father’s victim impact statement into the record
which contained this comment: “So you decided if you couldn’t have her no one would.”
Athens App. No. 15CA22 16
{¶28} Based on the foregoing application of the Ruff test to the facts herein,
we find the convictions for attempted murder and felonious assault are allied
offenses of similar import and should have been merged. A remand is required.
As such, we find merit to Appellant’s first argument under the sole assignment of
error and it is hereby sustained. The judgment of the trial court is reversed and the
matter is remanded for a limited resentencing where the State will elect which
conviction to pursue for sentencing purposes.
Issue 2: Aggravated burglary under R.C. 2911.11(A)(1)
and felonious assault and/or attempted murder
{¶29} We have determined above that the trial court should have merged
Appellant’s convictions for the attempted murder and felonious assault offenses.
Appellant also argues that in his case, the aggravated burglary offense under R.C.
2911.11(A)(1) should also have been merged with attempted murder and felonious
assault. The relevant statutory language for attempted murder and felonious
assault has been set forth above. Appellant’s indictment on count eight,
aggravated burglary, R.C. 2911.11(A)(1), alleged:
“On or about the date of the offense set forth above, in the County of
Athens, unlawfully did, by force, stealth, or deception, trespass, as
defined in section 2911.21(A)(1) of the Revised Code, in an occupied
structure or in a separately secured or separately occupied portion of
an occupied structure, when [Ms. Nott], a person other than the
accomplice, was present, with purpose to commit in the structure or in
the separately secured or separately occupied portion of the structure
any criminal offense, to wit: Theft, R.C. 2913.02, and the offender
Athens App. No. 15CA22 17
recklessly inflicted, or attempted or threatened to inflict physical harm
on [Ms. Nott.]”
{¶30} Appellant argues that the harm caused by the aggravated burglary
offense is not separate and identifiable from the harm caused by his assault of Ms.
Nott with the knife. Appellant cites State v. Nguyen, 4th Dist. Athens No.
14CA42, 2015-Ohio-4414, wherein this Court explained that the force or threat of
force used in committing rape or kidnapping was the same harm as the physical
harm inflicted, or attempted or threatened in committing aggravated burglary. Id. at
¶ 35. Appellant contends the physical harm that resulted from his attempted
murder and felonious assault was the same physical harm that resulted from the
aggravated burglary. Furthermore, he argues the aggravated burglary was not
committed separately or with a separate animus from the attempted
murder/felonious assault conduct. The conduct - physical harm to the victim with
the knife - was the same conduct that established the physical harm requirement of
the aggravated burglary. While Nguyen was decided differently, ultimately
because there was a separate victim, Appellant argues that Nguyen dictates that
aggravated burglary under R.C. 2911.11(A)(1) merges with attempted murder
and/or felonious assault.
{¶31} In response, the State argues the testimony at sentencing was that
when Ms. Nott requested Appellant to leave, he instead went into the kitchen,
grabbed a knife, and brandished it. The State argues at that point, the aggravated
Athens App. No. 15CA22 18
burglary was completed and additional criminal acts were completed. The State
directs us to the trial court’s finding as follows:
“The Court also finds that he committed aggravated menacing by
brandishing the weapon to her * * * aggravated menacing in that he
did knowingly cause another to believe that he would cause serious
physical harm to her and it’s also in violation of R.C. 2903.22 regular
menacing that he actually caused her to believe he would at least
cause her physical harm by brandishing the weapon and brandishing
it. He certainly committed disorderly conduct by brandishing the
weapon causing violent or turbulent behavior as well. At the very
minimum. Under 2917.11 by recklessly causing inconvenience,
annoyance or alarm to another by doing any of the following. The
Court finds that he actually did that in threatening to harm persons or
property by engaging in violent or turbulent behavior and persisted in
that behavior she had, she actually testified that she tried to kick him
away and uh, could not do so and as a result she was stabbed a second
time so the Court finds that he was at a minimum persistently
disorderly.”
{¶32} The State concludes the harm committed during the felonious assault
or attempted murder was not the same that was committed during the aggravated
burglary. When Appellant retrieved a knife and brandished it, Ms. Nott backed up
in a corner afraid for her life. This harm of threat, menacing, inconvenience, and
annoyance is not the same as the serious physical harm suffered in the felonious
assault or attempted murder.
{¶33} Ohio cases have consistently held that aggravated burglary and
felonious assault are not allied offenses of similar import. State v. Jacobs, 4th Dist.
Highland No. 11CA26, 2013-Ohio-1502, ¶ 48; State v. Barker, 183 Ohio App.3d
414, 2009-Ohio-3511, 917 N.E.2d 324, ¶ 18 (2nd Dist.); citing State v. Johnson,
Athens App. No. 15CA22 19
5th Dist. Delaware No. 06CAA070050, 2006-Ohio-4994; State v. Jackson, 21
Ohio App.3d 157, 487 N.E.2d 585 (8th Dist.1985); State v. Feathers, 11th Dist.
Portage No. 2005-P-0039, 2007-Ohio-3024; see also State v. Carter, 8th Dist.
Cuyahoga No. 61502, 1993 WL 7700 (January 14, 1993). However, these cases
and the reasoning applied therein pre-date the Supreme Court of Ohio's test and
decisions in Johnson and Ruff.
{¶34} In State v. Pickett, 4th Dist. Athens No. 15CA13, 2016-Ohio-4593,
Pickett was convicted of aggravated burglary and complicity to felonious assault.
On appeal Pickett argued that the trial court incorrectly determined he could be
subject to multiple punishments and did not merge his convictions for sentencing.
The trial court determined that Pickett committed the offenses separately,
completing his aggravated burglary before committing the complicity to felonious
assault offense. The court noted that Pickett trespassed into one victim’s residence
with purpose to commit a theft offense and that he inflicted physical harm upon a
second victim, and that he also possessed a deadly weapon. Apart from this
conduct, the court found that Pickett possessed a separate intent to aid or abet his
co-defendant in causing serious physical harm to the injured victim. We held,
“Given the trial court's factual considerations, we are unable to determine that it
inappropriately determined that appellant's conduct constituted two offenses of
Athens App. No. 15CA22 20
dissimilar import. See State v. Ortiz, 6th Dist. Lucas No. L-14-1251, 2016-Ohio-
974.”
{¶35} In Ortiz, the defendant argued that under the facts of his particular
case, the offenses of aggravated robbery, aggravated burglary, and felonious
assault were allied and should have been merged. However, the Sixth District
Court of Appeals disagreed. The appellate court found as to the aggravated
burglary charge, the evidence presented at trial demonstrated that the aggravated
burglary was committed when Ortiz hit his victim and forcibly pushed his way into
the victim’s apartment. The court further found the aggravated robbery occurred
when Ortiz punched the victim and demanded his wallet. Once the victim was
knocked to the ground, Ortiz committed a felonious assault by “stomping” on him.
Id. at 32. The appellate court found no merit to Ortiz’s argument.
{¶36} We also find State v. Gillman, 46 N.E.3d 130, 2015-Ohio-4421,
instructive as to the analysis of the issue of separate and identifiable harm.
Gillman was convicted of various burglary and theft offenses as a result of entering
cabins owned by the Kurnot family in Vinton County in June 2013. On appeal,
Gillman argued the trial court erred by failing to merge his convictions for burglary
in counts one and two with associated theft offenses under counts three and four.
In analyzing the merger argument pursuant to Ruff, this court utilized the statement
of one of the victims, Mrs. Kurnot, to examine and to aid in the determination as to
Athens App. No. 15CA22 21
whether the harm that resulted from the theft offenses was separate and identifiable
from the harm that resulted from the respective burglary offenses. We observed at
¶ 23:
“Mrs. Kurnot explained to the trial court that their sense of privacy
had been ‘invaded and compromised.’ This relates to the harm that
resulted from the burglary offenses. Next, Mrs. Kurnot described for
the trial court that they have suffered economic damage when she
said, ‘Our pocketbooks have suffered because we had to replace the
items that were stolen.’ The economic damage relates to the harm
that resulted from the theft offenses. * * * We find that Mrs. Kurnot
identified separate harm resulting from the burglary offenses than the
harm that resulted from the theft offenses. Therefore, the answer to
whether the harm from each offense is separate and identifiable is
‘yes.’ ”
{¶37} In the case sub judice, we find the aggravated burglary to be
dissimilar in import and significance. Answering the first question under Ruff in
the affirmative, we find that there was separate and identifiable emotional harm or
trauma, as opposed to the physical harm incurred by the stabbings. When Ms. Nott
asked, Appellant refused to leave, obtained a knife without permission, and
brandished it at her, forcing Ms. Nott to retreat to a corner of the room. Appellant
committed trespass, theft, and menacing. The harm was separate and identifiable
in that the fear and emotion Ms. Nott felt was separate and identifiable from the
actual physical injuries she suffered shortly thereafter.
{¶38} Although we need not address the second question presented by Ruff:
“Were [the offenses] committed separately,” it is also answered affirmatively.
Athens App. No. 15CA22 22
Appellant committed his aggravated burglary causing Ms. Nott fear and turbulence
prior to actually physically harming her. Because answering any one of the Ruff
questions affirmatively permits separate convictions, we need not consider the final
question regarding separate animus or motivation.
{¶39} Based on the foregoing, we find that the trial court was not required to
merge Appellant’s conviction for aggravated burglary into the attempted murder
and felonious assault as allied offenses of similar import. Accordingly, we find no
merit to Appellant’s argument herein and this portion of the trial court’s judgment
shall remain intact.
Issue 3: Aggravated burglary under R.C. 2911.11(A)(2)
and aggravated burglary under R.C. 2911.11(A)(1)
{¶40} Finally, Appellant argues his aggravated burglary offense under count
seven of the indictment should have merged with the count eight offense.
Appellant points to count seven, R.C. 2911.11(A)(2) which states:
“On or about the date of the offense set forth above, in the County of
Athens, unlawfully did, by force, stealth, or deception, trespass, as
defined in section 2911.21(A)(1) of the Revised Code, in an occupied
structure or in a separately secured or separately occupied portion of
an occupied structure, when [Ms. Nott], a person other than the
accomplice, was present, with purpose to commit in the structure or in
the separately secured or separately occupied portion of the structure
any criminal offense, to wit: Theft, R.C. 2913.02, and the offender
had a deadly weapon or dangerous ordnance, to wit: knife, on or about
his person or under his control.”
{¶41} Count eight, also aggravated burglary, R.C. 2911.11(A)(1), alleges:
Athens App. No. 15CA22 23
“On or about the date of the offense set forth above, in the County of
Athens, unlawfully did, by force, stealth, or deception, trespass, as
defined in section 2911.21(A)(1) of the Revised Code, in an occupied
structure or in a separately secured or separately occupied portion of
an occupied structure, when [Ms. Nott], a person other than the
accomplice, was present, with purpose to commit in the structure or in
the separately secured or separately occupied portion of the structure
any criminal offense, to wit: Theft, R.C. 2913.02, and the offender
recklessly inflicted, or attempted or threatened to inflict physical harm
on [Ms. Nott].”
{¶42} In State v. Craig, 8th Dist. Cuyahoga No. 94445, 2011-Ohio-206,
pre-Ruff, the appellate court noted the Ohio Supreme Court's trend towards finding
subsections of other similar offenses to be allied, and in analyzing the offenses in
that case pursuant to Johnson, found the offenses to be allied. Craig was convicted
of two counts of aggravated burglary against a victim, Perez, in violation of R.C.
2911.11(A)(1) and R.C. 2911.11(A)(2). The trial court did not merge these
convictions. However, the appellate court noted the victim named in each charge
was the same, the crimes occurred with the same animus, and the charges both
arose from the same conduct. See also State v. Cotton, 120 Ohio St.3d 321, 2008-
Ohio-6249, 898 N.E.2d 959 (holding that felonious assaults in violation of R.C.
2903.11(A)(1) and (2) are allied offenses of similar import under R.C.
2941.25(A)); State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d
149, (holding that aggravated assault[s] in violation of R.C. 2903.12(A)(1) and
(A)(2) are allied offenses of similar import).
{¶43} More recently, in State v. Burton, 7th Dist. Jefferson No. 13JE39,
Athens App. No. 15CA22 24
2015-Ohio-2247, the appellate court engaged in a full discussion of the merger of
aggravated burglary counts under R.C. 2911.11(A)(1) and (A)(2). Burton cited
State v. Marriott, 189 Ohio App.3d 98, 2010-Ohio-3115, 937 N.E.2d 614 (2nd
Dist.), wherein the appellate court held that aggravated burglary convictions under
R.C. 2911.11(A) were subject to merger where one structure was involved, even
though there were two separate occupants who were physically harmed during the
burglary. The Marriott court reasoned that aggravated burglary is not defined in
terms of harm to another, but rather essentially that the trespass is at the heart of
the offense:
“[T]he purpose of R.C. 2911.11(A) is to elevate burglary to an
aggravated offense when the defendant's conduct raises the risk of
harm to persons by having a deadly weapon or by threatening or
inflicting physical harm. The aggravated-burglary statute thus
criminalizes and enhances the seriousness of the trespass under those
circumstances. However, R.C. 2911.11(A) is not meant to criminalize
an offender's conduct toward the occupants of the structure; rather, the
prosecutor may charge the defendant with an assault offense to satisfy
that interest. Accordingly, when a defendant, such as Marriott, enters
a residence and threatens, attempts, or inflicts physical harm on more
than one occupant during the burglary, the aggravated-burglary
offenses merge. Marriott at ¶ 46.” Burton at ¶ 57.
{¶44} Burton also discussed the appellate court’s analysis in State v. Adkins,
8th Dist. Cuyahoga No. 95279, 2011-Ohio-5149. There, the appellate court noted:
“Although the seriousness of a burglary offense is related to the relative risk to
persons, the burglary offenses punish trespasses into structures. * * * [I]t is [the
defendant's] single entry into the dwelling with the requisite intent that constitutes
Athens App. No. 15CA22 25
the crime.” (internal citations omitted.) Id. at ¶ 39. Burton at ¶ 59. The Adkins
court continued:
“Should the state prevail in its argument that a defendant may be
convicted on more than one count of burglary based upon the number
of persons present in the residence when the defendant entered, it
would turn 500 years of burglary law on its head. It would transform
burglary from an offense against the sanctity of the dwelling house
into an offense against the person. Logically, one of the unintended
consequences of such a transformation may be that the act of burglary,
which is completed as soon as the dwelling is entered with the
requisite intent, will be viewed as an allied offense to the crimes the
defendant commits therein. See [State v.] Bridgeman, [2nd Dist. No.
2010 CA 16, 2011-Ohio-2680]. This court does not believe such was
the legislature's intent. [State v.] Gardner, [118 Ohio St.3d 420, 2008-
Ohio-2787, 889 N.E.2d 995]. Adkins at ¶ 41.” Burton at ¶ 60.
Here, the court concluded: “In this case, Adkins made a single entry into Barr's
house. Regardless of the number of people in the house, he committed that
particular act with a single animus; thus, he could not be convicted for more than
one count of aggravated burglary.” Adkins at ¶ 40 (citations omitted.) Burton at
¶ 61.
{¶45} Burton also cited State v. Lynott, 8th Dist. Cuyahoga No. 89079,
2007-Ohio-5849, wherein the Eighth District concluded that failing to merge
multiple counts of aggravated burglary involving one structure was plain error:
“Lynott entered only one residence for the purposes of committing a
criminal offense. * * * As this court has observed, the basic offense of
“burglary” primarily is defined in terms of the offender's conduct,
rather than his conduct toward another person. State v. Powers, supra,
¶ 12. At common law, the offense was intended to punish the
‘breaking of the close.’ * * * [R.C. 2911.11(A)] which defines
Athens App. No. 15CA22 26
aggravated burglary, raises the degree of the criminal conduct if
certain factors attend the offender's entry. However, it does not
contain an additional penalty for each person affected by the conduct.
See, e.g., State v. Johnson, supra; see also State v. Allen, 8th Dist.
Cuyahoga No. 82618, 2003-Ohio-6908, citing State v. Harrison (Dec.
9, 1999), Cuyahoga App. No. 75294. Lynott at ¶ 27-30.” Burton at
¶ 58.
{¶46} The Burton court observed that although Marriott, Lynott and Adkins
were decided under earlier variants of the allied offenses test, the same result was
dictated when the issue was viewed through the Ohio Supreme Court’s test set
forth in Ruff. Burton, ¶ 63. Burton held:
“While on first blush it might appear, in light of the separate victims,
that the aggravated burglary offenses herein are of dissimilar in import
or significance—in other words, that each offense caused separate,
identifiable harm—under the rationale of Marriott, Lynott and Adkins
those victims are what elevated the offense from a simple burglary to
the more severe “aggravated” form of the offense. At the heart of an
aggravated burglary is the trespass. And there was only one
identifiable trespass into the home here.”
{¶47} The Burton court further held under the rationale of Marriott, Lynott
and Adkins, count 4, Burton’s aggravated burglary conviction under R.C.
2911.11(A)(2), should also have merged with counts 1, 2 and 3.
“Count 4 of the Indictment contains the same language regarding the
trespass with intent to commit a criminal offense as counts 1 through
3; however, the aggravating factor in count 4 is that Burton had a
deadly weapon or dangerous ordnance on or about his person. Again,
there was only one identifiable trespass, so count 4 must also merge.”
Id. at ¶ 64.
{¶48} In this case, Appellant argues the record does not support
Athens App. No. 15CA22 27
the findings made by the trial court regarding count seven. The trial court found as
follows:
“As to Count Seven, the Court found that Defendant entered the home
a second time, after Kelly Sikorski had followed him out of the house;
that he re-entered the home with the knife, took the ring from the
victim, and also hid it in the dog food bag. There was a causal break
in the sequence of events when Kelly Sikorski followed him out of the
home.”
{¶49} At sentencing, Kelly Sikorski testified upon arriving at the scene,
Appellant had his hand behind his back and he opened the door with his left hand.
She did not see a knife in his hands. Once Sikorski determined what had
happened, she ordered Appellant out of the house. She actually followed him out
of the house. Then she called 911. Her testimony indicates she had to walk to the
mailbox to get Ms. Nott’s address for 911. At this point, Sikorski’s testimony is
that she walked “to the side” to keep an eye on Appellant. However, Sikorski does
not testify she saw Appellant go into the house a second time.
{¶50} Chief Nagucki of the Glouster police testified he was dispatched to
Julie Nott’s residence pursuant to the 911 call. As he was arriving, from a distance
he saw Appellant walking down the steps. His testimony does not include any
evidence that he saw Kelly Sikorski walking behind Appellant. Chief Nagucki
further testified that Appellant had Ms. Nott’s ring, and that Appellant first told
them the knife was in a trash can, but later advised it was in the bag of dog food.
Athens App. No. 15CA22 28
{¶51} Appellant testified that when he saw what he did, he “freaked out,”
picked up the ring, “and that’s when Ms. Sikorski come to the door.” We must
agree with Appellant that the record does not contain competent credible evidence
to support even an inference that Appellant entered the house a second time.
While the events which unfolded quickly before Ms. Sikorski’s eyes and upon
Chief Nagucki’s arrival may have indicated to the State that Appellant entered the
second time, we find that the actual testimony on this point, entered into the record,
is only speculative.
{¶52} Ms. Sikorski did not observe Appellant enter a second time. Chief
Nagucki testified only to Appellant’s exit. While the State proffered that Appellant
must have entered a second time in order to break and dispose of the knife, and that
may very well be true, the evidence to support this finding is not competent and
credible. A court will give deference to the factual determinations of a trial court if
it is supported by competent, credible evidence. Myers v. Garson, 66 Ohio St.3d
610, 614, 614 N.E.2d 742 (1993).
{¶53} For the foregoing reasons, we find the trial court’s finding that
Appellant entered Ms. Nott home a second time is not supported by competent
credible evidence. As stated above, at the “heart” of an aggravated burglary is an
identifiable trespass. In this case, there is evidence of only one trespass into Ms.
Athens App. No. 15CA22 29
Nott’s home. Since Appellant made only one identifiable trespass into the
residence, he may be convicted of only one aggravated burglary.
{¶54} Appellant’s third argument that his aggravated burglary convictions
should have merged for sentencing has merit. The aggravated burglary convictions
are allied offenses of similar import that the trial court should have merged. As
such, a remand is required. Accordingly, the judgment of the trial court is reversed
in part, and the matter is remanded for a limited resentencing where the State will
elect which aggravated burglary conviction to pursue for sentencing purposes.
JUDGMENT REVERSED IN PART
AND REMANDED FOR FURTHER
PROCEEDINGS CONSISTENT WITH
THIS OPINION.
Athens App. No. 15CA22 30
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE REVERSED IN PART AND
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS
OPINION. Appellant and Appellee shall split costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Athens County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Harsha, J. & Abele, J.: Concur in Judgment Only.
For the Court,
BY: ____________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.