State v. Craig

2017 Ohio 4342

• Court: Ohio Court of Appeals
• Decided: June 12, 2017
• Docket: 15CA22
• Status: Published

Opinion

[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.