State v. Birchell

2025 Ohio 26

• Court: Ohio Court of Appeals
• Decided: January 6, 2025
• Docket: 24-COA-021
• Status: Published

Opinion

[Cite as State v. Birchell, 2025-Ohio-26.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee Hon. Craig R. Baldwin, J. Hon. Andrew J. King, J. -vs- Case No. 24-COA-021 JUSTIN BIRCHELL

Defendant-Appellant OPINION

CHARACTER OF PROCEEDINGS: Appeal from the Ashland County Court of Common Pleas, Case No. 22-CRI-212

JUDGMENT: Judgment Affirmed in part, Reversed in part, and Remanded for resentencing

DATE OF JUDGMENT ENTRY: January 6, 2025

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

CHRISTOPHER R. TUNNELL CHRISTOPHER BAZELEY, ESQ. Ashland County Prosecutor 9200 Montgomery Road, Suite 8A Cincinnati, Ohio 45242 ANDRES R. PEREZ Assistant Prosecuting Attorney Appellate Division 110 Cottage Street, Third Floor Ashland, Ohio 44804 Ashland County, Case No. 24-COA-021 2

Hoffman, P.J. {¶1} Defendant-appellant Justin Birchell appeals the judgment entered by the

Ashland County Common Pleas Court convicting him following his pleas of guilty to

aggravated burglary (R.C. 2911.11), violation of a protection order (R.C. 2919.27), and

assault (R.C. 2903.13), and sentencing him to consecutive terms of incarceration of four

to six years for aggravated burglary and 30 months incarceration for violation of a

protection order. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On October 12, 2022, Appellant broke into his former girlfriend’s home and

assaulted her. At the time, a civil protection order protected the victim from Appellant.

He was indicted by the Ashland County Grand Jury on November 18, 2022, with

aggravated burglary, violation of a protection order, and assault.

{¶3} The State moved to amend the charge of violation of a protection order to

correct the type of protection order as set forth in the indictment. Appellant consented to

the amendment, and the trial court granted the motion.

{¶4} Appellant entered pleas of guilty to all counts of the indictment, and was

convicted upon his pleas. The case proceeded to sentencing. The State represented the

convictions of aggravated burglary and assault would merge, and elected to have

Appellant sentenced for aggravated burglary. Appellant made no argument concerning

merger. The trial court sentenced Appellant to four to six years incarceration for

aggravated burglary and 30 months incarceration for violation of a protection order, to be

served consecutively.

{¶5} It is from the April 30, 2024 judgment of the trial court Appellant prosecutes

his appeal, assigning as error: Ashland County, Case No. 24-COA-021 3

THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE

BIRCHELL’S VIOLATING A PROTECTION ORDER CONVICTION WITH

HIS OTHER CONVICTIONS FOR SENTENCING.

{¶6} Appellant argues because the conviction for violation of a protection order

is supported by the same conduct as the convictions for aggravated burglary and assault,

the conviction of violation of a protection order is an allied offense of similar import which

should have merged with the other convictions. R.C. 2941.25 governs allied offenses:

(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.

{¶7} This test requires a court to ask three questions in conducting a merger

analysis: “(1) Were the offenses dissimilar in import or significance? (2) Were they

committed separately? and (3) Were they committed with separate animus or motivation?

An affirmative answer to any of [these questions] will permit separate convictions. The Ashland County, Case No. 24-COA-021 4

conduct, the animus, and the import must all be considered.” State v. Ruff, 143 Ohio St.3d

114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31. An allied-offenses analysis must be driven by

the facts of each case. “[T]he analysis must focus on the defendant's conduct to

determine whether one or more convictions may result, because an offense may be

committed in a variety of ways and the offenses committed may have different import.”

Id.

{¶8} There are two circumstances in which offenses will be deemed dissimilar in

import, making sentences for multiple counts permissible. The first circumstance is

“[w]hen a defendant's conduct victimizes more than one person [because] the harm for

each person is separate and distinct.” Id. at ¶ 26. The second circumstance is when a

defendant's conduct against a single victim constitutes two or more offenses and “the

harm that results from each offense is separate and identifiable from the harm of the other

offense.” Id. Therefore, the Ohio Supreme Court has held “two or more offenses of

dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant's

conduct constitutes offenses involving separate victims or if the harm that results from

each offense is separate and identifiable.” Ruff at ¶ 26. Whether the offenses have similar

import will be revealed by “[t]he evidence at trial or during a plea or sentencing hearing.”

{¶9} Appellant failed to object to the trial court’s failure to merge the violation of

a protection order conviction with the other convictions, and thus he must demonstrate

plain error on appeal. To establish plain error, Appellant must show an error occurred,

the error was obvious, and there is a reasonable probability the error resulted in prejudice, Ashland County, Case No. 24-COA-021 5

meaning the error affected the outcome of the trial. State v. McAlpin, 2022-Ohio-1567,

¶66, citing State v. Rogers, 2015-Ohio-2459, ¶ 22.

{¶10} Appellant was convicted of violation of a protection order in violation of R.C.

2919.27:

(A) No person shall recklessly violate the terms of any of the

following:

(1) A protection order issued or consent agreement approved

pursuant to section 2919.26 or 3113.31 of the Revised Code;

(2) A protection order issued pursuant to section 2151.34, 2903.213,

or 2903.214 of the Revised Code;

(3) A protection order issued by a court of another state.

{¶11} Appellant cites this Court to two cases in which a conviction of violation of

a protection order was found to be an allied offense of a crime committed with the same

conduct. In State v. Seymour, 2012-Ohio-3125 (12th Dist.), the court held domestic

violence, aggravated burglary, and violation of a protection order were allied offenses of

similar import because they were committed with the same conduct. Similarly, in State v.

O’Brien, 2013-Ohio-13 (11th Dist.), the court found violation of a protection order merged

with felonious assault when supported by the same conduct.

{¶12} As noted by the State, both Seymour and O’Brien predate the Ohio

Supreme Court’s decision in Ruff, supra, and therefore neither court considered whether

the convictions were of dissimilar import. The State does not argue Appellant’s conduct Ashland County, Case No. 24-COA-021 6

in violating the protection order was different from his conduct in committing aggravated

burglary and assault. Rather, the State argues the offense of violating a protection order

is not of similar import because it presents a separate and identifiable harm from assault

and aggravated burglary. The State argues the harm caused by Appellant’s violation of

the protection order is disregard for the authority of the court, and not harm caused to his

former girlfriend, who was the victim of the assault and aggravated burglary.

{¶13} This Court previously held discharging a firearm near prohibited premises

and felonious assault were not allied offenses of similar import when supported by the

same conduct:

The offense of discharging a firearm over a public road or highway is

a strict liability offense, and the public is the victim of the offense. State v.

James, 8th Dist. No. 102604, 2015-Ohio-4987, 53 N.E.3d 770, ¶ 34, cause

dismissed, 146 Ohio St.3d 1403, 2016-Ohio-3146, 50 N.E.3d 569, ¶ 34.

Accordingly, the offense does not merge with felonious assault. See, e.g.,

State v. Wright, 7th Dist. Mahoning No. 15 MA 0092, 2017-Ohio-1211, ¶ 24;

State v. Wood, 10th Dist. Franklin No. 19AP-649, 2020-Ohio-4895, 160

N.E.3d 439, ¶ 50; State v. Johnson, 8th Dist. Cuyahoga No. 105424, 2018-

Ohio-1387, 110 N.E.3d 863, ¶ 34

In State v. Williams, 8th Dist. No. 107221, 2019-Ohio-794, 132

N.E.3d 1233, the defendant argued his offenses for murder and discharging

a weapon over a public highway should merge. The court held the victim of

the murder offense was a specific victim, while the victim of the discharging Ashland County, Case No. 24-COA-021 7

a firearm upon or over a public road or highway was the public at large,

including the witnesses in the vicinity; the latter offense posed a great risk

of harm to the public which was separate and differed in its significance from

harm to a specific victim. Id. at ¶ 49.

Likewise, in the instant case, the act of discharging the gun over a

public road posed a risk of harm to the public, which is separate and differed

in significance from the harm posed to the specific occupants of the vehicle.

The evidence demonstrated the gun was fired in a residential neighborhood,

during the afternoon hours when children were outside playing. Tr. 292. The

gunshot was witnessed by at least one neighbor, Almedia Carter. By

Appellant's own testimony, he shot directly toward a community park,

intending for the trees in the park to “catch” the bullet. Tr. 647. We find the

trial court did not err in failing to merge the offenses of discharging a weapon

over a public road and felonious assault, as the victims of each offense were

different and the harm caused was separate and identifiable.

{¶14} State v. Anderson, 2021-Ohio-2316, ¶ 39-41 (5th Dist.).

{¶15} In the instant case, we disagree with the State’s contention the victim of the

crime of violation of a protection order is the court, not the person protected by the order.

In Anderson, supra, the statute prohibiting discharging a firearm over a public road was

clearly enacted to protect the public, not necessarily a specific victim. The risk of harm

caused by discharging a weapon over a public road is separate from the risk of harm

caused by discharging a weapon at a defendant’s intended victim. However, in the instant Ashland County, Case No. 24-COA-021 8

case, the State points to no “harm” caused to the court system other than Appellant’s

display of disrespect for a prior order of the court. The protection order itself is designed

for the protection of a specific victim, not for the protection of the court system. We find

it necessarily follows the purpose of criminalizing the violation of the order is to protect

the person covered by the order, not to protect the court system. We find the offense of

violation of the protection order in the instant case, where the crime was committed by

the same conduct as the crimes of aggravated burglary and assault, is an allied offense

of similar import.

{¶16} We further find in the instant case, the error is plain error. The indictment

alleges Appellant violated the protection order on or about October 12, 2022, the same

date set forth in the indictment for aggravated burglary and assault, and further alleges

he violated the protection order while committing a felony offense. We find the error was

obvious, and Appellant has demonstrated a reasonable probability the error affected his

sentence.

{¶17} The assignment of error is sustained. Ashland County, Case No. 24-COA-021 9

{¶18} The judgments of conviction are affirmed. The judgment of sentence is

reversed as to the sentence for the conviction of violation of a protection order, and this

case is remanded to the Ashland County Common Pleas Court for resentencing,

according to law and consistent with this opinion.

By: Hoffman, P.J. Baldwin, J. and King, J. concur