State v. Pegues

• Court: Ohio Court of Appeals
• Decided: June 3, 2026
• Docket: 25 CAA 10 0088
• Status: Published

Opinion

[Cite as State v. Pegues, 2026-Ohio-2072.]

IN THE OHIO COURT OF APPEALS FIFTH APPELLATE DISTRICT DELAWARE COUNTY, OHIO

STATE OF OHIO, Case No. 25 CAA 10 0088

Plaintiff - Appellee Opinion And Judgment Entry

-vs- Appeal from the Delaware County Court of Common Pleas, Case No. 24 CRI 10 0611 ZAMERE PEGUES, Judgment: Reverse and Remand Defendant - Appellant Date of Judgment Entry: June 3, 2026

BEFORE: William B. Hoffman; Robert G. Montgomery; Kevin W. Popham, Judges

APPEARANCES: MELISSA A. SCHIFFEL and KATHERYN L. MUNGER, for Plaintiff- Appellee; CHRISTOPHER BAZELEY, for Defendant-Appellant.

Montgomery, J.

{¶1} Defendant-Appellant, Zamere Pegues (“Appellant”), appeals the sentencing

judgment of the Delaware County Court of Common Pleas after a jury returned a guilty

verdict against Appellant. For the reasons below, we REVERSE AND REMAND.

STATEMENT OF FACTS

{¶2} On September 21, 2024, in Delaware County, Ohio, Officer Lucas of the

Delaware Police Department, observed Appellant driving at a high rate of speed on S. Sandusky St. near the intersection of U.S. 23. Appellant ran a red light, was driving with

his blinker blinking even though he did not make any turn and ultimately crashed into

the victims' car that was stopped at a red light at the above intersection. When Appellant

hit the victim’s car, the victim’s car ran into the car directly in front of her. The victim

broke her arm and had to undergo surgery to place screws in the arm to correct the break.

The injury caused prolonged pain, scarring, and visible deformity and the victim missed

nearly one month of work.

{¶3} The officers who responded to the scene detected the odor of burnt

marijuana and alcohol coming from Appellant's car. As they approached Appellant, a

strong odor of alcohol emanated from his person. Trial Tr., pp. 210, 360. The officers

further noted that Appellant had blood shot, glassy, and sleepy eyes throughout their

interaction. Appellant had trouble focusing, he could not follow simple instructions, he

was not able to remember things, and he was unable to regulate his emotions.

STATEMENT OF THE CASE

{¶4} On October 17, 2024, the Delaware County Grand Jury returned a three-

count indictment against Appellant under Delaware County Case No. 24-CRI-10-0611.

The indicted charges included:

• Count 1, Aggravated Vehicular Assault in violation of R.C.

2903.08(A)(1)(a), R.C. 2903.08(B)(1), a felony of the third degree. The

indictment alleges Appellant, while operating a motor vehicle, did cause

serious physical harm to [victim] as the proximate result of committing a

violation of R.C. 4511.19(A). • Count 2, Operating a Vehicle Under the Influence of Alcohol, a Drug

of Abuse or a Combination of Them in violation of R.C. 4511.19(A)(1)(a),

R.C. 4511.19(G)(1)(a), a misdemeanor of the first degree.

• Count 3, Vehicular Assault in violation of R.C. 2903.08(A)(2)(b),

R.C. 2903.08(C)(2), a felony of the fourth degree. The indictment alleges

Appellant, while operating a motor vehicle did recklessly cause serious

physical harm to R.S.

{¶5} A jury trial took place on August 19-21, 2025. Appellant was represented by

counsel and counsel fully cross-examined all State witnesses. After deliberations, the jury

returned a guilty verdict on all three counts. On September 23, 2025, a sentencing

hearing took place. For sentencing purposes, the court merged Counts One and Two,

aggravated vehicular assault and operating a vehicle under the influence of alcohol/drug

of abuse. The State did not contest the merger and elected to proceed to sentencing on

Count One. The court found that the remaining charge of vehicular assault did not merge

with aggravated vehicular assault. The Court imposed 42 months mandatory prison time

for Aggravated Vehicular Assault based on OVI, and 12 months for Vehicular Assault. The

terms were ordered to run concurrently for an aggregate prison term of 42 months.

ASSIGNMENT OF ERROR

{¶6} “I. THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE PEGUES' CONVICTIONS FOR AGGRAVATED VEHICULAR ASSAULT (OVI) AND VEHICULAR ASSAULT (RECKLESS).”

STANDARD OF REVIEW

{¶7} An appellate court reviews “de novo whether certain offenses should be

merged as allied offenses under R.C. 2941.25.” State v. Bailey, 2022-Ohio-4407, citing

State v. Williams, 2012-Ohio-5699. In Ohio, “R.C. 2941.25 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 multiple punishments for

the same offense.” State v. Underwood, 2010-Ohio-1, ¶ 23. Essentially, when a

defendant's conduct constitutes two or more allied offenses of similar import, a defendant

may only be convicted of and punished for one. Specifically, R.C. 2941.25 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 to

each, the indictment or information may contain counts for all such

offenses, and the defendant may be convicted of all of them.

{¶8} In Ruff, the Ohio Supreme Court clarified the factors a court must examine

in determining whether offenses are of similar import, emphasizing that the defendant’s

conduct is significant in the analysis. State v. Ruff, 2015-Ohio-995, syllabus; State v.

Ryan, 2012-Ohio-1265, ¶ 48 (7th Dist.). The Court held the following:

1. In determining whether offenses are allied offenses of similar import

within the meaning of R.C. 2941.25, courts must evaluate three separate

factors - the conduct, the animus, and the import.

2. Two or more offenses of dissimilar import exist within the meaning

of R.C. 2941.25(B) when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is

separate and identifiable.

3. Under R.C. 2941.25(B), a defendant whose conduct supports

multiple offenses may be convicted of all the offenses if any one of the

following is true: (1) the conduct constitutes offenses of dissimilar import,

(2) the conduct shows that the offenses were committed separately, or (3)

the conduct shows that the offenses were committed with separate animus.

Ruff, syllabus.1

ANALYSIS

{¶9} As stated, Appellant was convicted of aggravated vehicular assault in

violation of R.C. 2903.08(A)(1)(a), which provides in pertinent part, “[n]o person, while

operating * * * a motor vehicle * * * shall cause serious physical harm to another person

* * * [a]s the proximate result of committing a violation of division (A) of section 4511.19

[OVI] of the Revised Code * * *.” In turn, the Ohio Supreme Court has held that R.C.

4511.19 is a strict liability statute and does not require proof of a culpable mental state.

City of Defiance v. Kretz, 60 Ohio St.3d 1, 3 (1991) (analyzing R.C. 4511.19(A)(3); see also

City of Akron v. Wanakie Peoples, 2011-Ohio-579, ¶ 10 (9th Dist.); State v. Harding,

2006-Ohio-481, ¶ 16 (2d Dist.), citing State v. Culver, 2005-Ohio-1359 (2d Dist.) (other

citation omitted); State v. Jones, 2010-Ohio-2777, ¶ 19 (8th Dist.); State v. Andera, 2010-

1 The Ruff Court stated: “R.C. 2941.25(B) sets forth three categories in which there can be multiple

punishments: (1) offenses that are dissimilar in import, (2) offenses similar in import but committed separately, and (3) offenses similar in import but committed with separate animus.” Ruff, ¶ 20. Ohio-3304 (8th Dist.) (R.C. 4511.19(A)(1)(a) is a strict liability statute); State v. Cohen,

2026-Ohio-410 (5th Dist.).

{¶10} Appellant was also convicted of vehicular assault which is defined as, “[n]o

person, while operating * * * a motor vehicle * * * shall cause serious physical harm to

another person * * * [r]ecklessly.” R.C. 2903.08(A)(2)(b). The offense expressly requires

proof of recklessness. A person is reckless when, with heedless indifference to the

consequences, the person perversely disregards a known risk that the conduct is likely to

cause a certain result or is likely to be of a certain nature. State v. Phelps, 2010-Ohio-

3257, ¶¶ 10-15 (12th Dist.).

{¶11} Appellant maintains that in denying merger of the aggravated vehicular

assault verdict and the vehicular assault verdict, the trial court improperly focused on the

“elements” of each offense, which is inappropriate under Ruff and its progeny. In support,

Appellant notes that the trial court stated at the sentencing hearing “there are elements

that are different” for aggravated vehicular assault and vehicular assault. Sent. Tr., p. 17.

On appeal, this court must analyze whether aggravated vehicular assault based upon

alcohol-impaired driving, and vehicular assault based upon recklessness, are allied

offenses of similar import such that Appellant cannot be sentenced for both.

{¶12} Several appellate courts that analyzed this specific question answered in the

negative before the Ohio Supreme Court’s Ruff decision. Those cases focused on the

elements of each offense and found that because vehicular assault required a defendant

to ack recklessly, and even speeding can be reckless, the offenses were of dissimilar

import. Phelps, ¶ 15 (holding that although some elements of aggravated vehicular assault

and vehicular assault are identical, vehicular assault requires the additional element that

the defendant acted recklessly where aggravated vehicular assault in violation of R.C. 2903.08(A)(1)(a) requires the defendant be under the influence of alcohol); State v.

Culver, ¶ 65 (finding in a case involving only one victim, the offenses are not allied

because an individual can be reckless without being under the influence of alcohol); State

v. Griesheimer, 2007-Ohio-837, ¶¶ 17-18 (10th Dist.) (following Culver in a case with one

victim, and holding that aggravated vehicular assault based upon alcohol impaired

driving and vehicular assault based upon recklessness were not allied offenses of similar

import; recklessness is an essential element of the crime and does not require the person

to be under the influence of alcohol).

{¶13} However, post-Ruff cases analyzed whether these two offenses are subject

to merger quite differently, focusing not on the elements but on the defendant’s conduct

and resulting harm. “An allied-offense analysis is dependent upon the facts of a case

because R.C. 2941.25 focuses on a defendant's conduct. The evidence at trial or during a

plea or sentencing hearing will reveal whether the offenses have similar import.” State v.

Tango, 2015-Ohio-5133, ¶ 13 (8th Dist.), citing Ruff, ¶ 25. Indeed, the Seventh District

stated in McKenzie that, “[i]n deciding whether the two offenses are based upon the same

conduct, the focus is upon whether both crimes were accomplished by a single act.” State

v. McKenzie, 2021-Ohio-3170, ¶¶ 12-14 (7th Dist.).

{¶14} In McKenzie, Appellant was driving a vehicle while under the influence of

marijuana and alcohol, crossed over the centerline, and collided head-on into the vehicle

that the victims occupied, causing both victims’ serious physical harm. Id., ¶ 2. For each

victim, Appellant was charged with and convicted of aggravated vehicular assault and

vehicular assault (four counts total). Because the trial court did not merge any of the four

offenses, defendant appealed. {¶15} Relying on Ruff and its progeny, the McKenzie court held the aggravated

vehicular assault verdict for the serious physical harm caused to one of the victims was

required to be merged with the vehicular assault verdict for the serious physical harm

caused to that same victim. McKenzie, ¶ 14. Because defendant’s actions “could constitute

violating both R.C. 2903.08(A)(1)(a) [OVI] and (A)(2), operating the vehicle recklessly”

merger was required. Id., ¶ 11. Further, both offenses were predicated upon the same

conduct, the harm resulting from each offense was not separate and identifiable, and the

offenses could not be said to have been committed either separately or with a separate

animus. Id., ¶ 12, citing Ruff, ¶ 31.

{¶16} Significantly, the court held that although the offenses merged for the driver

victim, the offenses did not merge with those related to the passenger victim. As Ruff

mandates, merger is not applicable when the offenses involve separate victims or where

separate, identifiable harm exists. Id., ¶ 14, citing Ruff, ¶¶ 23-26. In that instance, the

offenses are of dissimilar import.2 Id.; see also State v. Sow, 2019-Ohio-3641, ¶ 8, ¶ 17

2 The Court stated:

Thus, the aggravated vehicular assault verdict for the serious physical harm caused to Wilma was required to merge with the vehicular assault verdict for the serious physical harm caused to Wilma. Likewise, the aggravated vehicular assault verdict for the serious physical harm caused to Donald was required to merge with the vehicular assault verdict for the serious physical harm caused to Donald. * * *

However, as the state and Appellant pointed out, merger is not applicable when the offenses involve separate victims. Ruff, 2015-Ohio-995, ¶ 26. In that instance, the offenses are of dissimilar import. Id. Thus, in this situation, the offenses committed against Wilma were not required to merge with the offenses committed against Donald. Following the guilty plea, the state could have elected to pursue the aggravated vehicular assault to sentencing for each victim and the trial court would have been permitted to impose a sentence for both aggravated vehicular assault verdicts.

McKenzie, ¶¶ 13-14. (1st Dist.) (holding that OVI-based aggravated vehicular assault and recklessness-based

vehicular assault were allied offenses of similar import under R.C. 2941.25; they were

predicated upon the same conduct, harm was to a single victim, and the harm resulting

from each offense was not separate and identifiable); State v. Smith, 2017-Ohio-537, ¶ 19

(8th Dist.); see also State v. Campbell, 2012-Ohio-4231, ¶ 14 (1st Dist.) (holding, in a pre-

Ruff decision, that OVI-based aggravated vehicular homicide and recklessness-based

aggravated vehicular homicide were allied offenses of similar import); State v. Marchak,

2022-Ohio-2611, ¶ 32 (5th Dist.) (finding that where the defendant’s conduct resulted in

serious physical harm to two individuals; appellant's offenses were of dissimilar import

and the convictions did not merge).

{¶17} Here, the facts are simple. Appellant was intoxicated by alcohol and/or

marijuana, was driving at a high rate of speed and ran into the victim’s car causing her

serious physical harm. The three resulting indictments listed one victim, one defendant,

and one course of conduct. Thus, we conclude that under the specific facts of this case,

the aggravated vehicular assault and vehicular assault convictions were predicated upon

the same conduct, the harm was to a single victim, and the harm resulting from each

offense is not separate and identifiable. The State’s argument that one offense is strict

liability and the other requires recklessness defaults to an improper pre-Ruff analysis

regarding the elements of each offense. Thus, aggravated vehicular assault and vehicular

assault are allied offenses of similar import and must be merged. Sow, ¶ 8; Smith, ¶ 19.

{¶18} When a defendant has been found guilty of allied offenses of similar import,

a trial court cannot impose a separate sentence for each offense. Sow, supra, ¶ 9, citing

State v. Williams, 2016-Ohio-7658. Thus, “[e]ven when, as here, the sentences imposed

for allied offenses are ordered to be served concurrently, a defendant is prejudiced by having more convictions than are authorized by law.” Sow, ¶ 10, citing State v.

Underwood, 2010-Ohio-1. Accordingly, despite that the sentence may be the very same

as previously imposed, the matter is reversed and remanded to the trial court for further

proceedings consistent with this opinion.

CONCLUSION

{¶19} Appellant’s sole assignment of error is sustained, and the judgment of the

Delaware County Court of Common Pleas is reversed. The matter is remanded to the trial

court for resentencing consistent with this opinion.

{¶20} Costs to Appellee.

By: Montgomery, J. and

Hoffman, P.J. concur.

Popham, J., Dissents.

Popham, Dissents -Delaware 2025-CAA-10 0088

{¶21} The majority finds that – under the specific facts of this case - the offenses of

aggravated vehicular assault based upon alcohol-impaired driving, and vehicular assault based on

recklessness, are allied offense of similar import. I disagree.

{¶22} In determining whether multiple offenses are allied offenses of similar import, the

Supreme Court of Ohio provided guidance in State v. Ruff, 2015-Ohio-1265. The Ruff Court

instructed that, in addition to animus and import, our focus should be on a defendant’s conduct.

Specifically, “when the defendant’s conduct put more than one individual at risk, that conduct

could support multiple convictions because the offenses were of dissimilar import.” Id. at ¶ 23,

citing State v. Jones, (internal citations omitted) (although there was only one car accident, “we

view appellant’s conduct as representing two offenses of dissimilar import-the ‘import’ under R.C.

2903.06 being each person killed”). Id. Two or more offenses of dissimilar import exist when the defendant’s conduct constitutes offenses involving separate victims, or if the harm that results

from each offense is separate and identifiable. Id.

{¶23} Here, Appellant acted recklessly - supporting the conviction and separate sentence

under R.C. 2903.08(A)(2)(b) “Vehicular Assault” - by speeding and running a redlight traffic

signal while driving impaired prior to colliding with the victim R.S.3 Focusing on Appellant’s

conduct, had either reckless act not transpired, the accident may very well have been prevented.

{¶24} Appellant’s conviction and sentence for violation of R.C. 2903.08(A)(1)(a)

“Aggravated Vehicular Assault” was supported by a finding that Appellant violated R.C. 4511.19

“Operating Vehicle Under the Influence of Alcohol or Drugs.” Of course, operating a vehicle while

under the influence is different conduct than recklessly speeding and running a red light.

{¶25} The Supreme Court of Ohio has held that R.C. 4511.19 is a strict liability statute. As

such, Appellant’s conviction and sentence under this statutory scheme did not require a finding

of animus on the part of Appellant - rather the conviction was supported by the mere fact that

Appellant was operating a vehicle under the influence of alcohol or drugs at the time he caused

serious physical harm to R.S. Therefore, the lack of animus under the R.C. 2903.08(A)(1)(a)

highlights a fundamental difference, in this case, between the aggravated vehicular assault

conviction/ sentence and that for vehicular assault (recklessness).

{¶26} Because of the differing animus considerations and the fact that Appellant engaged

in differing conduct supporting each charge and conviction, the trial court properly did not merge

Counts 1 and 3 for sentencing purposes. For these reasons, I dissent and would affirm the trial

court.

3 The record establishes that the accident at issue involved three cars, including the one driven by R.S. To be sure, this supports a finding of, at a minimum, multiple victims/ harm to multiple persons arising from this single accident.