State v. McKinney

95 N.E.3d 816, 2017 Ohio 7075
CourtCourt of Appeals of Ohio, Eighth District, Cuyahoga County
DecidedAugust 3, 2017
DocketNo. 105136
StatusPublished
Cited by1 cases

This text of 95 N.E.3d 816 (State v. McKinney) is published on Counsel Stack Legal Research, covering Court of Appeals of Ohio, Eighth District, Cuyahoga County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. McKinney, 95 N.E.3d 816, 2017 Ohio 7075 (Ohio Super. Ct. 2017).

Opinion

SEAN C. GALLAGHER, J.:

{¶ 1} Joshua McKinney appeals his convictions for disrupting public services and criminal damaging that resulted in a sentence of 18 months in prison on the disrupting public services count, a fourth-degree felony offense. The sentence on the criminal damaging misdemeanor was limited to time served. The only issue preserved for appellate review is whether the two counts should have merged as allied offenses of similar import. They should have, and as a result, we reverse and vacate the sentence imposed on both counts and remand for further proceedings.

*818{¶ 2} The facts underlying the conviction are not disputed-McKinney cut off an electronic tracking bracelet he was required to wear while on home detention. The single act simultaneously constituted the commission of both the criminal damaging and the disrupting public services charges.

{¶ 3} Under R.C. 2941.25, courts must use a three-part inquiry to determine whether a defendant can be convicted of multiple offenses if those offenses arose from the same act or transaction:

(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. The conduct, the animus, and the import must all be considered.

State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31. The test is stated in the disjunctive form: the existence of any one prong suffices for the imposition of separate sentences. State v. Esner , 8th Dist. Cuyahoga No. 104594, 2017-Ohio-1365, 2017 WL 1365454, ¶ 6.

{¶ 4} McKinney failed to raise the issue of allied offenses during his sentencing hearing. This omission, however, does not preclude McKinney from raising the issue on appeal; it simply limits the scope of review. The failure to raise allied-offense issues at sentencing forfeits all but plain error. State v. Rogers , 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Reversible error exists when the error affects the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice. State v. Williams , 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 25. If the offender can demonstrate that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus, then we must reverse. Id. The trial court was statutorily precluded from imposing sentences on both counts. R.C. 2941.25.

{¶ 5} In this case, the facts are not disputed. McKinney cut off his ankle monitor, simultaneously damaging property and impeding police service communications with that single snip. In light of the undisputed fact that a single, discrete act simultaneously constituted both crimes and, therefore, there was no separate animus, we agree with McKinney that both offenses were subject to merger even under the plain error standard of review. See, e.g., State v. Marneros , 2015-Ohio-2156, 35 N.E.3d 925, ¶ 44 (8th Dist.) (the forgeries aggregated into the single theft of $7,685; offenses inherently occurred simultaneously and thus were allied offenses); State v. Smith , 8th Dist. Cuyahoga No. 103586, 2016-Ohio-8043, 2016 WL 7158601, ¶ 61 ("The kidnapping and rape were committed simultaneously and with the same animus."); State v. Tate , 8th Dist. Cuyahoga No. 97804, 2014-Ohio-5269, 2014 WL 6679060, ¶ 48 (convictions should have merged because both offenses were committed simultaneously, with the same course of conduct and animus).

{¶ 6} In response, the state claims the two offenses were of dissimilar import because one caused the disruption of public services and the other, the destruction of property. Although a true statement, the state's position overlooks the fact that both crimes were committed through the damaging of the same piece of property.

{¶ 7} "Two or more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B)" if the harm that results from each offense is separate and identifiable. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, at ¶ 23. When reviewing to determine whether offenses are of *819similar import in cases involving a single victim, we must review the statutory language and intent. See, e.g., State v. Earley , 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 15 (reviewing the separate intent behind criminalizing aggravated vehicular assault and felony operation of a vehicle while intoxicated).

{¶ 8} R.C.

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2018 Ohio 1194 (Ohio Court of Appeals, 2018)

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Bluebook (online)
95 N.E.3d 816, 2017 Ohio 7075, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mckinney-ohctapp8cuyahog-2017.