State v. Maloney

2023 Ohio 2711

• Court: Ohio Court of Appeals
• Decided: August 7, 2023
• Docket: CA2022-07-069
• Status: Published

Opinion

[Cite as State v. Maloney, 2023-Ohio-2711.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, :

Appellee, : CASE NO. CA2022-07-069

- vs - : OPINION 8/7/2023 MICHAEL LEE MALONEY, :

Appellant. :

APPEAL FROM BUTLER COUNTY COURT OF COMMON PLEAS Case No. CR2022-01-0001

Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant Prosecuting Attorney, for appellee.

Christopher P. Frederick, for appellant.

BYRNE, J.

{¶ 1} The Butler County Court of Common Pleas convicted Michael Lee Maloney

of one count of aggravated burglary and two counts of felonious assault. Maloney appealed

his aggravated burglary conviction, but not his felonious assault convictions. We affirm the

aggravated burglary conviction. Maloney also appealed several aspects of his sentence.

We conclude that the trial court was required to merge the aggravated burglary conviction

with the two felonious assault convictions for purposes of sentencing. Accordingly, we

vacate Maloney's sentence and remand for resentencing. Butler CA2022-07-069

I. Factual and Procedural Background

{¶ 2} In January 2022, a Butler County grand jury indicted Maloney on one count

of aggravated burglary (Count One) and two counts of felonious assault (Count Two and

Count Three). All three counts included a specification that Maloney was a repeat violent

offender.1 The indictment stemmed from allegations that Maloney trespassed into the

victims' home with a container of vegetable oil. He then proceeded to heat the vegetable

oil in a pot on the kitchen stove. He then carried the pot of hot oil to a second-floor bedroom

where he threw the pot and oil onto the victims – a mother and her infant son – while they

lay sleeping in bed.

A. The Trial

{¶ 3} The matter proceeded to a multiple-day jury trial. We will summarize the

witness testimony and evidence that is relevant to analyzing this appeal.

1. Bonny Mata's Testimony

{¶ 4} Bonny Mata testified that he lived at 1721 Grand Boulevard, Hamilton, Ohio.

He lived there with his girlfriend, Jayla Witt, and their son, Tobias. Tobias was 17 months

old on the date of the incident. Bonny knew Maloney through Jayla. Bonny was aware that

Jayla and Maloney were related.

{¶ 5} According to Bonny, Jayla drove to Kentucky and picked up Maloney in

December 2021. Jayla told Bonny that Maloney would be staying with them for "a couple

of days." In fact, Maloney stayed at 1721 Grand Boulevard from approximately December

6 or 7 through December 18, 2021, or approximately 11 to 12 days.

1. Maloney was previously convicted of voluntary manslaughter. He beat the victim with a baseball bat over an argument related to a drug deal. The victim subsequently died. State v. Maloney, 12th Dist. Butler No. CA2001-01-014, 2002 WL 237344 (Feb. 19, 2002).

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{¶ 6} On December 21, 2021, Bonny stated that he left for work between 4:50 a.m.

and 5:30 a.m. When he left, Jayla and Tobias were the only people in the home. They

were in bed, in the second-floor bedroom. No one else was supposed to be at the home.

Bonny left through the home's back door and locked the door. Bonny testified that prior to

that day, the glass window in the home's back door had been broken and then removed.

Bonny was in the process of replacing the glass, but in the meantime, he had covered the

window with cardboard and used tape to secure the cardboard.

{¶ 7} After leaving the home, Bonny received a phone call from Jayla's mother,

Donrenee Maloney. Donrenee was living at the Cove Motel, which was approximately eight

to ten minutes away from Bonny's home on foot. Donrenee told Bonny that something had

happened to Jayla. He drove to the Cove Motel, picked up Donrenee, and then they

traveled together to the hospital.

2. Jayla Witt's Testimony

{¶ 8} Jayla testified that Maloney was her second cousin and her mother

Donrenee's first cousin. In early December, Maloney called Donrenee and said he was

having problems with homelessness. Donrenee asked Jayla to pick Maloney up and told

her that he was walking down the side of a highway in Kentucky. Jayla drove with a friend

and picked Maloney up in Kentucky. Jayla then dropped Maloney off at Donrenee's room

at the Cove Motel.

{¶ 9} Jayla testified that Maloney stayed at the Cove Motel for two days. She then

picked Maloney up and he began staying at her home, 1721 Grand Boulevard, sleeping on

the sofa. During this time, Maloney had no car and no job. He did not pay rent to stay at

1721 Grand Boulevard. Jayla gave him car rides when he needed to go places.

{¶ 10} Jayla testified that while Maloney was staying at her home, he sold her $200

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worth of food stamps. Jayla paid Maloney $100 for the food stamps, which she was not

happy about. Jayla explained that, when sold on the street, food stamps could normally be

purchased for half their face value. The fact that Maloney had sold her food stamps for the

normal street price bothered her. Given that she was providing Maloney with free food and

shelter, she did not feel that she should have had to pay the normal price for the food

stamps. She "vented" to Donrenee about this issue.

{¶ 11} After Jayla vented to Donrenee about the food stamps, Maloney stopped

staying at 1721 Grand Boulevard. The same day Maloney sold her the food stamps, Jayla

dropped Maloney off to stay with her aunt, where he lived for no more than 24 hours before

returning to live at the Cove Motel.

{¶ 12} On the morning of December 21, Jayla went to bed very early in the morning,

at around 3:00 a.m. or 3:30 a.m. Jayla stated that she was having difficulty getting Tobias

to go to sleep. She recalled Bonny leaving in the morning and putting Tobias into bed with

her.

{¶ 13} Jayla then woke up because she felt like she was "on fire." She fell out of

bed, rubbed her face, grabbed Tobias, and ran to the bathroom and sprayed water on

herself and Tobias. She did not see anyone in the home but heard someone going down

the stairs.

{¶ 14} Jayla called 9-1-1. She also called Maloney's phone, which was how she

communicated with her mother. She told Maloney, "Uncle Mike, I'm burning, I'm burning."

Afterwards, she remembered a police officer taking photographs.2 Jayla lost consciousness

after getting onto an ambulance gurney. The next thing she remembered was waking up in

2. An officer took photographs of Jayla and Tobias shortly after arriving on scene. The photographs depict the extent and severity of the injuries the two suffered in the hot oil attack.

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the Dayton Burn Unit, some 40 days later.

{¶ 15} Jayla agreed that it was beyond her "wildest imagination" that Maloney could

have done this to her. Jayla stated that it was even more shocking because she had fed

and sheltered Maloney. She could not believe that he could walk up 18 steps to her

bedroom carrying a pot of hot oil.

{¶ 16} The state introduced photographs documenting the extent of the injuries

suffered by Jayla and Tobias. Jayla testified about the numerous surgeries and the physical

and mental effects the attack had on her and Tobias. Jayla and Tobias suffered severe,

permanent injuries and significant disfigurement. Both will require ongoing significant

surgeries or medical care.

3. Detective Tony Nichting's Testimony, the Video Evidence, and the Interviews

{¶ 17} Detective Nichting was the lead investigator on the case. He testified that he

and other detectives canvassed the area around 1721 Grand Boulevard for security

cameras in an effort to identify the perpetrator of the attack. As a result of that canvas, the

detectives were able to recover video footage from a camera in the alleyway behind 1721

Grand Boulevard, from various businesses, and from the city of Hamilton's maintenance

lot. Based on the video evidence and a positive identification by Bonny, investigators were

able to identify Maloney as a suspect.

{¶ 18} During Detective Nichting's testimony, the state played an exhibit that

consisted of a sequence of select video footage produced from all of the video footage

recovered by detectives. The compilation began with security camera footage at the Cove

Motel at approximately 7:00 a.m. on December 21, 2021. In the video, Maloney emerges

from Room 114 wearing a dark hoodie with a large, white Nike logo. The Nike logo is so

prominent that it makes him easily identifiable in subsequent video footage, even where he

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is farther away from the camera, or the picture quality is poorer.

{¶ 19} A few minutes after emerging from Room 114, Maloney walks to and briefly

enters Room 135, which was Donrenee's room. Maloney then leaves Room 135 and

proceeds north on Route 4, on foot. He is then captured by a series of cameras walking

north on Route 4. He is eventually recorded entering a Kroger grocery store. Maloney then

appears on camera inside Kroger at the self-checkout area. He purchases a single item: a

plastic bottle of vegetable oil. He pays cash but uses his "Kroger Plus" member ID.3

{¶ 20} After leaving Kroger, security camera footage depicts Maloney in the alleyway

behind 1721 Grand Boulevard at approximately 7:30 a.m. He appears to change his

clothing. He then walks towards the home, out of camera sight. Twenty minutes later, he

is observed fleeing from the home through the same alley. Various cameras then capture

Maloney as he makes his way back to the Cove Motel. During this time, he deposits an

unknown item into a Rumpke dumpster. (By the time officers recovered the footage of

Maloney dumping the item, the Rumpke dumpster had been emptied.)

{¶ 21} Detective Nichting also testified about his examination of the bedroom where

the attack occurred. He found a pot that had been buried under some covers in Jayla's

bedroom. He photographed various pillows and sheets that had been burned by the hot

oil. Detective Nichting also shot a video in which he documented the path Maloney would

have had to take to travel from the kitchen to Jayla's bedroom carrying the pot of oil. That

video was played at trial and showed that in his effort to carry the hot oil, Maloney would

have been required to traverse a 17-step staircase.

3. The camera system did not have sufficient fidelity to visually identify the item Maloney purchased. However, a store manager was able to locate the receipt for the item purchased at the self-check-out, which confirmed that Maloney purchased vegetable oil.

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{¶ 22} Detective Nichting testified that on December 27, 2021, he returned to 1721

Grand Boulevard because Bonny had informed him that he found a vegetable oil bottle in

the home that he did not recognize. The bottle, which was in the kitchen, had some oil left

in it, but was mostly empty. Police processed the bottle for fingerprints but were

unsuccessful in developing any fingerprints.

{¶ 23} Detective Nichting received information that Maloney had left the Cove Motel

and traveled to Kentucky, where he was living in a homeless shelter. On December 27,

2021, police in Covington, Kentucky arrested Maloney. Detective Nichting then interviewed

Maloney in a recorded interview that was introduced into evidence at trial.

{¶ 24} In the interview, Maloney told Detective Nichting that at 8:00 a.m. on

December 21, he received a call from Jayla asking to speak with her mom. He left the Cove

Motel two hours later. He got a ride from a resident of Room 114. Maloney denied ever

being anywhere other than the Cove Motel that morning. However, upon subsequent

questioning, he stated that he had gone to a gas station at around 5 or 6 in the morning, to

get cigarettes. Maloney specifically denied going to Kroger that morning.

{¶ 25} Detective Nichting then informed Maloney that he had been observed on

various security camera systems leaving the Cove Motel and that he was recorded in Kroger

purchasing vegetable oil and had also been caught on camera in the alley behind Jayla's

home immediately before the incident.

{¶ 26} Maloney then admitted that he had, in fact, gone to see Jayla that morning.

He stated that he arrived at her home shortly after 7:00 a.m. But Maloney said that when

he entered the home, Jayla was already screaming. He said he was there when the "dude

did it." He could not provide a name for the "dude." Maloney admitted that he bought the

vegetable oil and said that he bought it for Jayla.

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{¶ 27} During this interview, Maloney had a bandage wrapped around one of his

fingers. Detective Nichting asked if he could see under the bandage. Maloney refused to

show him what was under the bandage. At the end of the interview, Maloney stated that he

would speak to Detective Nichting another time to discuss what happened.

{¶ 28} On December 29, 2021, Detective Nichting obtained a search warrant

authorizing him to examine Maloney's finger injury. Upon examining the injury, it was

revealed to be a severe burn wound.

{¶ 29} Also on December 29, 2021, Detective Nichting interviewed Maloney again,

at Maloney's request. For the first time, Maloney admitted that he poured hot oil on Jayla

and Tobias. However, he stated that what happened was an "accident." Maloney explained

that he went over to Jayla's home as a "surprise," and that he was going to cook breakfast

for her. He walked up the stairs with the pot of oil because he wanted to let her know that

he was there. But, upon entering the room, he "spooked" Jayla. Her reaction caused him

to jump, and then he dropped the pot of oil on her and Tobias. He said he did not know

Tobias was in the room with her. After he accidentally dropped the pot of hot oil, he

"panicked" and ran away from the home.

B. Crim.R. 29 Motion, the Verdict, and Sentencing

{¶ 30} After the state rested its case, Maloney moved for acquittal pursuant to

Crim.R. 29. The trial court denied the motion. Maloney rested without presenting evidence.

{¶ 31} The jury returned guilty verdicts on all three counts. At sentencing, Maloney's

counsel argued that the aggravated burglary count should merge with the two felonious

assault counts. Maloney's counsel stated that the aggravated burglary and felonious

assaults all stemmed from the same pattern of conduct and that the jury had been instructed

that to find Maloney guilty of aggravated burglary, it was also required to find Maloney guilty

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of felonious assault.

{¶ 32} The state responded by arguing that the aggravated burglary was committed

when Maloney decided to take the pot of hot oil up the steps to Jayla's bedroom. The state

explained that aggravated burglary only required an attempt to inflict physical harm, and so

the decision to carry the hot oil up the stairs completed an "attempt" of the offense. Thus,

the state argued that Maloney committed the felonious assault offenses separately from the

aggravated burglary when he poured or threw hot oil on Jayla and Tobias.

{¶ 33} The court agreed with the state and found that the offenses were committed

separately and were not allied. Therefore, the court found that the offenses did not merge

for sentencing purposes. The court then imposed an indefinite prison sentence of a

minimum of 11 years to a maximum of 16.5 years on Count One. The court imposed

sentences of eight years on both Counts Two and Three. The court additionally imposed a

ten-year consecutive term for the three repeat violent offender specifications. The court

indicated that it would run all the sentences consecutively.4 In total, the court imposed a

mandatory indefinite prison term of 37 years up to 42 and one-half years in prison.

{¶ 34} Maloney appealed, raising five assignments of error. We address those

assignments of error out of the order presented.

II. Law and Analysis

A. Sufficiency and Weight of the Evidence

{¶ 35} Maloney's Fourth Assignment of Error states:

4. At sentencing, the court indicated that it was ordering Maloney to serve all sentences consecutively. However, the sentencing entry indicates that the court only ran Counts Two and Three consecutively with Count One, and not consecutively with one another. That is, the sentencing entry does not reflect that the court ordered Count Three to be run consecutively to Count Two. The presumption therefore would be a concurrent sentence as between Counts Two and Three. However, because we are vacating Maloney's sentence on other grounds, this issue is moot and will presumably be clarified upon resentencing.

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{¶ 36} MR. MALONEY'S RIGHT TO DUE PROCESS OF LAW UNDER THE

FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WAS

VIOLATED AS THE TRIAL COURT IMPROPERLY DENIED HIS MOTION FOR

JUDGMENT OF ACQUITTAL UNDER CRIMINAL RULE 29 AFTER THE STATE

PRESENTED INSUFFICIENT EVIDENCE TO CONVICT HIM OF AGGRAVATED

BURGLARY.

{¶ 37} Maloney's Fifth Assignment of Error states:

{¶ 38} MR. MALONEY'S CONVICTION FOR AGGRAVATED BURGLARY WAS

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 39} In his fourth assignment of error, Maloney contends that the state submitted

insufficient evidence to demonstrate that he "trespassed"—an element of the aggravated

burglary charge—into 1721 Grand Boulevard. Specifically, he argues that the state failed

to submit evidence that he entered 1721 Grand Boulevard without a privilege to do so.

Maloney presents the same argument in support of his fifth assignment of error and

contends that the evidence weighed heavily in favor of acquittal on the aggravated burglary

conviction, and that the aggravated burglary conviction was therefore against the manifest

weight of the evidence.

1. Standards of Review

{¶ 40} Crim.R. 29(A) provides that "[t]he court on motion of a defendant or on its own

motion, after the evidence on either side is closed, shall order the entry of a judgment of

acquittal * * * if the evidence is insufficient to sustain a conviction of such offense or

offenses." An appellate court reviews the denial of a Crim.R. 29(A) motion under the same

standard as that used to review a sufficiency-of-the-evidence claim. State v. Mota, 12th

Dist. Warren No. CA2007-06-082, 2008-Ohio-4163, ¶ 5; State v. Huston, 12th Dist. Fayette

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Nos. CA2006-05-021 and CA2006-06-022, 2007-Ohio-4118, ¶ 5.

{¶ 41} When reviewing the sufficiency of the evidence underlying a conviction, an

appellate court examines the evidence to determine whether such evidence, if believed,

would convince the average mind of the defendant's guilt beyond a reasonable doubt. State

v. Paul, 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he

relevant inquiry is whether, after viewing the evidence in a light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the crime

proven beyond a reasonable doubt." State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph

two of the syllabus.

{¶ 42} A manifest weight of the evidence challenge examines the "inclination of the

greater amount of credible evidence, offered at a trial, to support one side of the issue rather

than the other." State v. Barnett, 12th Dist. Butler No. CA2011-09-177, 2012-Ohio-2372, ¶

14. To determine whether a conviction is against the manifest weight of the evidence, the

reviewing court must look at the entire record, weigh the evidence and all reasonable

inferences, consider the credibility of the witnesses, and determine whether in resolving the

conflicts in the evidence, the trier of fact clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed, and a new trial ordered. State

v. Graham, 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66.

{¶ 43} In reviewing the evidence, an appellate court must be mindful that the original

trier of fact was in the best position to judge the credibility of witnesses and determine the

weight to be given to the evidence. State v. Blankenburg, 197 Ohio App.3d 201, 2012-Ohio-

1289, ¶ 114 (12th Dist.). An appellate court will overturn a conviction due to the manifest

weight of the evidence only in the exceptional case in which the evidence weighs heavily

against the conviction. State v. Zitney, 12th Dist. Clinton No. CA2020-06-007, 2021-Ohio-

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466, ¶ 15. A determination that a conviction is supported by the manifest weight of the

evidence will also be dispositive of the issue of sufficiency. State v. Reeder, 12th Dist.

Clinton Nos. CA2020-09-012 and CA2020-09-013, 2021-Ohio-2988, ¶ 31.

2. Analysis of Aggravated Burglary Conviction

{¶ 44} The jury found Maloney guilty of aggravated burglary in violation of R.C.

2911.11(A)(1). That statute provides, in relevant part, that,

No person, by force, stealth, or deception, shall trespass in an occupied structure * * * when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if * * * The offender inflicts, or attempts or threatens to inflict physical harm on another * * *.

The definition of "aggravated burglary" requires that an offender "trespass" in an occupied

structure. Id. The offense of criminal "trespass," as pertinent here, is defined as "[n]o

person, without privilege to do so, shall * * * Knowingly enter or remain on the land or

premises of another * * *." R.C. 2911.21(A)(1). "Privilege is the distinguishing characteristic

between unlawful trespass and lawful presence on the land or premises of another." State

v. Roland, 12th Dist. Butler No. CA2012-05-104, 2013-Ohio-1382, ¶ 17. Privilege is defined

statutorily as "an immunity, license, or right conferred by law, bestowed by express or

implied grant, arising out of status, position, office, or relationship, or growing out of

necessity." R.C. 2901.01(A)(12). Where a defendant lacks a privilege to enter the premises

of another, entry constitutes trespass. Roland at id.

{¶ 45} Maloney argues that there was insufficient evidence to support his aggravated

burglary conviction because he could not have trespassed, as a legal matter, as he had a

privilege to enter and remain at 1721 Grand Boulevard. Maloney states that Jayla allowed

him to live at 1721 Grand Boulevard for 11 to 12 days before the incident, and that the

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evidence at trial was that neither Jayla nor Bonny directly told him that he could no longer

stay at the home. He points out that he had no other permanent residence, and he was

never formally evicted from 1721 Grand Boulevard. He argues that he was a legal resident

of 1721 Grand Boulevard with the right to be in the home. For the same reasons, he argues

that the evidence weighed heavily in favor of an acquittal on the aggravated burglary

charge.

{¶ 46} Upon our review of the record, we find that there was sufficient evidence to

allow a reasonable factfinder to conclude that Maloney lacked a privilege to enter 1721

Grand Boulevard on the morning of December 21, 2021. We also find that this conclusion

was not against the manifest weight of the evidence.

{¶ 47} The evidence at trial indicated that Maloney was homeless when Jayla picked

him up in Kentucky in early December. Following that pick-up, Maloney stayed with

Donrenee at her motel room. He was there for two days before he began residing with

Jayla and Bonny. According to Bonny, Maloney was only supposed to be with them for two

days but continued staying there for up to 12 days. Maloney then left 1721 Grand Boulevard

and lived with Jayla's aunt for a very short time. He then returned to living at the Cove

Motel, possibly with Donrenee, and possibly in another room in the motel. The evidence

therefore indicates that Maloney was living an itinerant lifestyle, never staying in one place

for any significant period of time. These facts do not support the argument that Maloney

established residency at 1721 Grand Boulevard. Instead, the facts indicated that Maloney

was staying at 1721 Grand Boulevard temporarily, and that this temporary stay ended two

or three days before he entered the home and poured hot oil on Jayla and Tobias.

{¶ 48} Further, there was direct evidence supporting the contention that Maloney did

not have permission to enter 1721 Grand Boulevard on the morning of December 21, 2021.

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Bonny testified that Maloney never possessed a key to 1721 Grand Boulevard. And while

Bonny never expressly told Maloney to leave or that he was not welcome, he also indicated

that he barely spoke to Maloney the entire time Maloney was staying at the home. Bonny

explained that he worked 65-hour weeks as a framer and a drywaller and was not home

often. When he was home, Maloney was usually sleeping. Bonny testified that he did not

want Maloney living at his home. Bonny also testified that when he left 1721 Grand

Boulevard on the morning of the incident, there was no one else in the home other than

Jayla and Tobias and no one else was supposed to be in the home. Bonny testified that

when he left the home that morning, he locked the back door, which was the usual way of

entering and exiting the home. The front door was always locked.

{¶ 49} Jayla testified that while Maloney stayed at the home, he slept on the sofa.

He did not have his own bedroom. He also was not paying rent. While Maloney provided

Jayla with some food stamps while he was staying there, he made her pay the full street

price for the stamps. Jayla did not directly tell Maloney to leave, but she thought he "felt

some type of way, I guess" and "left on his own." And, according to Jayla, when he left, he

took "all of [his] things and [his] belongings," which suggests Maloney knew he was not able

to return. Upon our review, the evidence suggests that Maloney likely left based on the

recognition that he was no longer welcome after Jayla became annoyed with him over the

food stamp issue.

{¶ 50} Jayla also testified that while Maloney was staying with them at 1721 Grand

Boulevard, he was never allowed to be in the home without her also being present. He was

welcome to knock on her door and ask to come in, but he did not have permission to come

and go as he wanted. Jayla also confirmed that Maloney did not have a key to the

residence. Only she and Bonny had keys to the home.

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{¶ 51} Finally, there was evidence that Maloney changed clothing to conceal his

identity upon entering the residence. Additionally, there was evidence that Maloney let

himself into the home by breaking the seal that was securing the cardboard to the back door

opening and by reaching in and unlocking the door. These facts suggest that Maloney

subjectively knew he lacked a privilege to enter 1721 Grand Boulevard.

{¶ 52} In sum, the evidence supported the conclusion that Maloney was only a

temporary guest at 1721 Grand Boulevard. He was living an itinerant lifestyle and was

"couch surfing" from place to place. Jayla was adamant that Maloney had no privilege to

enter the residence without her express permission and, consistent with this restriction, had

provided him with no key to the property. That he was able to get into the property by

accessing it through the broken window does not negate the fact that he lacked a privilege

to enter the property, and in fact underscores the fact that his only means of entering the

property were through illegitimate means.

{¶ 53} For these reasons, we find that sufficient evidence and the greater weight of

evidence established that Maloney was a trespasser when he entered the property on the

morning of December 21, 2021. Accordingly, Maloney's argument with regard to the

"trespass" element of the aggravated burglary offense is without merit and we overrule

Maloney's fourth and fifth assignments of error.

B. Allied Offenses and Merger

{¶ 54} Maloney's first assignment of error states:

{¶ 55} THE TRIAL COURT COMMITTED ERROR WHEN IT FAILED TO MERGE

MR. MALONEY'S CONVICTIONS OF AGGRAVATED BURGLARY AND FELONIOUS

ASSAULT AS REQUIRED BY R.C. 2941.25.

{¶ 56} Maloney contends that the court erred by failing to merge Count One,

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aggravated burglary, with Counts Two and Three, felonious assault. Maloney argues that

the felonious assault counts were essential elements of the aggravated burglary count and

the evidence presented at trial did not support the trial court's conclusion that he separately

committed the offenses. Maloney's merger argument arises within the context of the

constitutional prohibition against double jeopardy and the law on allied offenses.

1. Double Jeopardy and the Law on Allied Offenses

{¶ 57} Both the Ohio Constitution and the United States Constitution "prohibit the

government from subjecting a person to multiple punishments for the same offense." State

v. Herzner, 12th Dist. Clermont No. CA2021-02-005, 2021-Ohio-4244, ¶ 10, citing State v.

Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 10. The double jeopardy provision in Article I,

Section 10 of the Ohio Constitution states, "No person shall be twice put in jeopardy for the

same offense." The double jeopardy provision of the Fifth Amendment to the United States

Constitution states that no person shall "be subject for the same offence to be twice put in

jeopardy of life or limb * * *." The federal double jeopardy clause applies to Ohio citizens

through the Fourteenth Amendment to the United States Constitution. Benton v. Maryland,

395 U.S. 784, 794, 89 S.Ct. 2056 (1969). After citing both of these constitutional provisions,

the Ohio Supreme Court in Ruff explained that "[t]he Double Jeopardy Clause protects

against three abuses: (1) 'a second prosecution for the same offense after acquittal,' (2) 'a

second prosecution for the same offense after conviction,' and (3) 'multiple punishments for

the same offense.'" Ruff at ¶ 10, quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89

S.Ct. 2072 (1969).

{¶ 58} The state and federal constitutional protection against the third abuse—

multiple punishments for the same criminal offense—is codified in R.C. 2941.25, Ohio's

allied-offenses statute. State v. Conrad, 12th Dist. Butler No. CA2018-01-016, 2018-Ohio-

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5291, ¶ 43. The allied offense 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.

R.C. 2941.25. Stated more simply, R.C. 2941.25 provides that in determining whether

offenses are "allied" and therefore must be merged for sentencing, courts are instructed to

consider three separate factors: the conduct, the animus, and the import. State v. Singh,

12th Dist. Warren No. CA2020-09-056, 2021-Ohio-2158, ¶ 60, citing Ruff at syllabus. "[A]

defendant may be convicted of multiple offenses arising out of an episode of criminal

conduct if: 1) the offenses did not have the same import, i.e. the offenses created separate,

identifiable harms; 2) the offenses were committed separately; or 3) there was a separate

animus or motivation in committing the offenses." (Emphasis added.) State v. Clowers,

12th Dist. Clermont No. CA2019-01-009, ¶ 30, citing Ruff at ¶ 25. The critical inquiry for an

analysis under R.C. 2941.25 is the conduct of the defendant. Id., citing Ruff at ¶ 26. An

appellate court reviews de novo the trial court's R.C. 2941.25 merger determination. Id. at

¶ 32. We now turn to our de novo analysis.

2. Analysis

{¶ 59} The trial court declined to merge Maloney's aggravated burglary and felonious

assault convictions. The trial court provided the following rationale for its decision:

My ruling on that issue is going to be as follows. First of all, I will note that, in the Court's opinion, and I'm going to put this in layman's speech as much as I can, you can (indiscernible) commit one offense without doing the other. In other words, the

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aggravated burglary, which obviously contains a different mens rea. You have to have purpose in that one. You can commit the aggravated burglary; in other words, have the purpose to commit the offense without actually going through with the offense. Once you get inside the residence and you have that purpose, you knowingly make a separate decision to go ahead with that and commit the felonious assaults that we have here. So primarily on that basis, I am going to find that these are not allied offenses, and we will proceed to sentencing, or I will proceed to pronounce sentencing on all three counts.

{¶ 60} The trial court's analysis focused on the question of whether "you can * * *

commit one offense without doing the other." The court reviewed the elements of the two

offenses, focusing on the fact that the offense of aggravated burglary requires the mens rea

of "purposely," whereas the offense of felonious assault requires the mens rea of

"knowingly."5 The court then concluded that, "You can commit the aggravated burglary; in

other words, have the purpose to commit the offense without actually going through with

the offense." Stated otherwise, the court concluded that, based on the elements of the

offenses, it is theoretically possible to commit aggravated burglary and, immediately after,

to commit felonious assault.

{¶ 61} However, the trial court's comparison of the elements of the offenses was not

the proper approach to allied offenses analysis. The Ohio Supreme Court has explained

that,

Rather than compare the elements of two offenses to determine

5. R.C. 2911.11(A)(1) defines aggravated burglary as follows:

No person, by force, stealth, or deception, shall trespass in an occupied structure or in a separately secured or separately occupied portion of an occupied structure, when another person other than an accomplice of the offender is present, with purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, if any of the following apply: * * * The offender inflicts, or attempts or threatens to inflict physical harm on another * * *.

R.C. 2903.11(A)(1), the felonious assault statute, defines the offense as: "No person shall knowingly * * * Cause serious physical harm to another * * *."

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whether they are allied offenses of similar import, the 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. No bright-line rule can govern every situation.

Ruff, 2015-Ohio-995 at ¶ 30. Instead of analyzing the elements of offenses to decide if they

are allied offenses, the supreme court explained that a trial court must ask,

(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 the above will permit separate convictions.

Id. at ¶ 31.6

{¶ 62} On appeal, Maloney argues that the answer to all three questions is "no," so

the trial court should have merged the offenses. We will now examine each question in

turn, basing our analysis on Maloney's conduct in this case, as required by Ruff.

a. Were the offenses dissimilar in import or significance?

{¶ 63} Maloney argues that "the aggravated burglary and felonious assault[s] were

offenses of similar import." The state made no argument in its brief that the offenses were

of dissimilar import, and in fact the state explicitly conceded at oral argument that the

offenses did not have dissimilar import. Because the parties agree that the answer to the

first Ruff question—"Were the offenses dissimilar in import or significance?"—was "no," our

analysis could end there.

{¶ 64} But even if the parties did not agree, we have reviewed the record, and we

6. As part of its analysis, the trial court also stated, "Once you get inside the residence and you have that [aggravated burglary] purpose, you knowingly make a separate decision to go ahead with that and commit the felonious assaults that we have here." It is possible the court used "you" to refer specifically to Maloney, who was in the courtroom. Therefore, it is possible that in addition to analyzing the elements of the aggravated burglary and felonious assault offenses, the court also analyzed Maloney's behavior, as Ruff requires. However, even if this is the case, it does not impact or alter our de novo analysis with regard to Maloney's first assignment of error.

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conclude that the import of the relevant offenses was not dissimilar in this case. On remand

from Ruff, the First District Court of Appeals, faced with the question of whether aggravated

burglary and rape were allied offenses, held that,

where the conduct that constitutes one offense causes a harm that is not separate and identifiable from the harm caused by the aggravating element of another offense, then the offenses are of a similar import.

State v. Ruff, 1st Dist. Hamilton Nos. C-120533 and C-120534, 2015-Ohio-3367, ¶ 18

(DeWine, J.). The First District further explained that,

The element of physical harm for each aggravated burglary was established by Ruff's rape of the victim. The harm that resulted from the rape of each victim was [the] same harm that resulted when each burglary escalated to aggravated burglary. Thus, the harms were not "separate and identifiable."

Id. at ¶ 19.

{¶ 65} We agree with this analysis. Maloney committed the aggravating element of

aggravated burglary—"The offender inflicts, or attempts or threatens to inflict physical harm

on another * * *," R.C. 2911.11(A)(1)—when he committed the felonious assaults on Jayla

and Tobias by throwing hot oil on them. We conclude that Maloney's aggravated burglary

and felonious assault offenses were committed with the same import because the harm

caused by the aggravated burglary and the felonious assault were the same. As stated

above, Maloney and the state agree with our conclusion that the offenses were not

committed with dissimilar import.

b. Were the offenses committed separately?

{¶ 66} Maloney argues that the aggravated burglary and felonious assault offenses

were not separately committed. Maloney argues this is the case because "[t]he conduct

constituting the 'physical harm' of the felonious assault was 'an element of' the aggravated

burglary conviction." He also states that "The act of aggravated burglary was not complete

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until [Jayla], and her son were physically harmed. But for the conduct constituting the

physical harm, Mr. Maloney would not have committed both offenses."

{¶ 67} The state disagrees, arguing the offenses were committed separately, one

after the other. Specifically, the state argues that Maloney completed the offense of

aggravated burglary before throwing the pot of oil on Jayla and Tobias. The state's

argument relies on the fact that the aggravating element of aggravated burglary in this

case—that is, "the offender inflicts, or attempts or threatens to inflict physical harm on

another * * *," R.C. 2911.11(A)(1)—includes "attempts" to inflict physical harm on another.

The state contends that once Maloney left the kitchen with the pot of hot oil and started

going up the stairs, the only reason he did so was to assault Jayla and Tobias. Therefore,

the state argues, at that point in time Maloney was engaged in an "attempt" to inflict physical

harm. As such, the state argues that Maloney's "attempt," which completed his aggravated

burglary, was completed before he ultimately threw the hot oil on Jayla and Tobias, and

therefore the aggravated burglary and the felonious assaults were committed separately in

time.

{¶ 68} We have previously held that if an offender completes one offense before the

other begins, then "'the offenses are considered separately for sentencing purposes even

though the two offenses may have been committed in close proximity in time.'" Clowers,

2019-Ohio-4629 at ¶ 30, quoting State v. Fields, 12th Dist. Clermont No. CA2014-03-025,

2015-Ohio-1345, ¶ 18. But that is not what happened here. Here, the evidence established

that Maloney trespassed in 1721 Grand Boulevard with the purpose of committing felonious

assault (there is no other reasonable expectation for why he entered 1721 Grand Boulevard

with vegetable oil, heated that oil, and then took that hot oil upstairs to a bedroom) and then

in fact perpetrated felonious assaults upon Jayla and Tobias. The evidence established a

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singular act of trespassing into the home, preparing the oil to commit the assault, and the

actual commission of the assault. There was no evidence of an "attempt" to commit

felonious assault, followed in time by the commission of felonious assault.

{¶ 69} What the state is essentially asking us to do is to ignore what occurred after

Maloney heated the oil and began moving towards the bedroom. But this is not the analysis

called for by Ruff, which requires us to focus on Maloney's actual conduct in the case. 2015-

Ohio-995 at ¶ 30-31. Nor does the merger analysis permit us to hypothesize—as the state

requests we do—about whether Maloney could have been convicted of an attempt crime if

he, as in the example offered by the state, was caught red-handed by police on the way up

the stairs with the pot of hot oil. Instead, we conduct the merger analysis based on the

evidence at trial. And in this case, there was no evidence at trial of a mere attempted

felonious assault. The evidence proved that felonious assault was completed, not merely

attempted.

{¶ 70} An "attempt" occurs when an offender "engage[s] in conduct that, if

successful, would constitute or result in the offense." (Emphasis added.) R.C. 2923.02(A).

In other words, an "attempt" is not "successful" and complete. But here, Maloney's plan to

assault was "successful" and complete. Maloney entered the home with the purpose of

committing a violent crime and completed that crime when he threw hot oil on Jayla and

Tobias. The evidence did not show that Maloney attempted to commit felonious assault,

and later made a second attempt that was successful. As a result, we conclude that the

aggravated burglary and the felonious assault were not committed separately.

{¶ 71} Finally, the trial court relied on State v. Hazley, 2d Dist. Montgomery No.

27107, 2016-Ohio-7689, in reaching its conclusion that the offenses should not merge, so

we will briefly address that case. In Hazley the Second District Court of Appeals found that

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aggravated burglary and felonious assault offenses should not merge, based on the facts

of that case. Id. at ¶ 21. There, Hazley trespassed by refusing to leave the victim's

apartment when requested, with the purpose of stealing money. Id. at ¶ 3. When the victim

continued to ask Hazley to leave, Hazley initially hit the victim on the arms and head while

demanding money. Only after the victim continued to refuse to give Hazley money did she

grab the victim's "left forearm and twist[] it approximately three to four times, resulting in a

six to seven inch tear in the skin on [the victim's] arm." Id. The Second District reasoned

once Hazley was found to be trespassing in [the victim's] residence, her purpose was to commit a theft by inflicting physical harm upon [the victim] by striking him about his head and upper body. Essentially, the aggravated burglary was completed by an attempt to forcibly obtain money before Hazley committed the felonious assault offense against [the victim] by grabbing his left forearm and tearing his skin apart.

Id. at ¶ 21. The court of appeals found that the action that constituted the felonious assault

was not an element of the aggravated burglary, so the offenses did not merge.

{¶ 72} Hazley is distinguishable from the case before us. Hazley trespassed with

the intent of committing theft by the use of physical attack. However, Hazley's felonious

assault was not part of the initial aggravated burglary, and only took place when Hazley's

initial physical attack on the victim was unsuccessful. In our case, on the other hand,

felonious assault was the very reason for Maloney's aggravated burglary. For these

reasons, we conclude that Maloney did not separately commit the aggravated burglary and

the felonious assaults.

c. Were the offenses committed with separate animus or motivation?

{¶ 73} Maloney argues that there is no evidence that the aggravated burglary and

the felonious assaults were committed with separate animus. The state made no argument

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in its brief that the offenses were committed with separate animus, and in fact the state

explicitly conceded at oral argument that the offenses were not committed with separate

animus. Because the parties agree that the answer to the third Ruff question—were the

offenses "committed with separate animus or motivation?"—was "no," our analysis could

end there.

{¶ 74} But even if the parties had not agreed, we have reviewed the record and find

that the relevant offenses were committed with the same animus. "Animus" is defined for

purposes of R.C. 2941.25(B) as "purpose" or "more properly, immediate motive." State v.

Lung, 12th Dist. Brown No. CA2012-03-004, 2012-Ohio-5352, ¶ 12. "'If the defendant acted

with the same purpose, intent, or motive in both instances, the animus is identical for both

offenses.'" Id., quoting State v. Lewis, 12th Dist. Clinton No. CA2008-10-045, 2012-Ohio-

885, ¶ 13. There was no evidence submitted of a separate animus. Instead, the facts

indicate Maloney acted with a single criminal motive: to enter the victims' home for the

purpose of inflicting physical harm on the victims.

d. Conclusion Regarding Allied Offenses Analysis

{¶ 75} Based on the foregoing analysis, we do not find that the aggravated burglary

and felonious assault offenses were of dissimilar import, were committed separately, or that

there was a separate animus or motivation between the offenses. Thus, we conclude that

the trial court erred when it declined to merge the offense of aggravated burglary with the

two felonious assault counts for purposes of sentencing. See R.C. 2941.25.

{¶ 76} We sustain Maloney's first assignment of error, vacate Maloney's sentence,

and remand solely for resentencing. On remand, the state may elect the offense or offenses

it intends to pursue for sentencing purposes. State v. Powih, 12th Dist. Brown No. CA2016-

11-023, 2017-Ohio-7208, ¶ 43; State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 20,

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24. The trial court may also clarify the discrepancy between what it stated verbally at

sentencing and what it stated in its sentencing entry with regard to whether any possible

sentences are to be run consecutively or concurrently.

C. Other Sentencing Issues

{¶ 77} Maloney's second assignment of error states:

{¶ 78} THE TRIAL COURT'S SENTENCE WAS CONTRARY TO LAW WHEN IT

SENTENCED MR. MALONEY TO A MAXIMUM TERM OF 10 YEARS ON A REPEAT

VIOLENT OFFENDER SPECIFICATION.

{¶ 79} Maloney's third assignment of error states:

{¶ 80} THE TRIAL COURT ERRED WHEN IT SENTENCED MR. MALONEY TO

CONSECUTIVE TERMS TOTALING 37-42 YEARS IN THE OHIO DEPARTMENT OF

REHABILITATION AND CORRECTIONS RESULTING IN AN EXCESSIVE AND

DISPROPORTIONAL TERM OF INCARCERATION.

{¶ 81} In his second and third assignments of error, Maloney challenges his

sentence. Our resolution of Maloney's first assignment of error renders Maloney's second

and third assignments of error moot, as the trial court will resentence Maloney. Accordingly,

we decline to address these assignments of error. App.R. 12(A)(1)(c).

III. Conclusion

{¶ 82} Sufficient evidence and the manifest weight of the evidence supported

Maloney's conviction for aggravated burglary. However, the law required merger of

Maloney's conviction for aggravated burglary with his convictions for felonious assault. We

affirm the jury verdicts but vacate Maloney's sentence and remand solely for resentencing.

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{¶ 83} Judgment affirmed in part and reversed in part. Sentence vacated, and

remanded for resentencing.

S. POWELL, P.J., and PIPER, J., concur.

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