State v. Johnson, 2018 Ohio 3999

Defendant Robert D. Johnson broke into his ex-girlfriend B.B.'s Cleveland Heights duplex on multiple occasions in Feb. 2017, using an exercise pull-up bar to break windows and doors.
During the third entry he forcibly attempted to obtain sex, ripped B.B.’s dress off, choked her, pulled out her hair extensions, and was stopped after police arrived; B.B. and her child observed portions of the assault.
Johnson was tried by jury and convicted of attempted rape, aggravated burglary (merged with burglary at trial court’s discretion), burglary, abduction, assault, and criminal damaging.
The trial court sentenced Johnson to 8 years (attempted rape), 4 years (aggravated burglary), plus shorter concurrent terms, ordering the two major terms consecutive for a total of 12 years.
On appeal Johnson raised two issues: (1) that attempted rape and aggravated burglary should have merged under Ohio’s allied-offenses statute; and (2) that the 8-year maximum sentence for attempted rape was improper.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether attempted rape and aggravated burglary are allied offenses under R.C. 2941.25	State: Offenses are not allied because Johnson formed a separate animus to attempt rape after breaking in; aggravated burglary and attempted rape involved distinct conduct/harms.	Johnson: Attempted rape was the aggravating element that elevated burglary to aggravated burglary, so the offenses are allied and must merge.	Court: Not allied. The attempted rape harm overlapped with aggravated-burglary aggravator, but a separate assault harm (hair-pulling, choking, injuries) was separate and identifiable, permitting convictions on both counts.
Whether the trial court erred by imposing the maximum 8-year sentence for attempted rape	State: Sentence within statutory range and supported by sentencing consideration of R.C. 2929.11/2929.12 factors (victim impact, defendant's record, lack of remorse).	Johnson: Maximum sentence excessive/unsupported.	Court: No error. The record shows the court considered statutory purposes/factors; the sentence is within the statutory range and not contrary to law.

State v. Ruff, 34 N.E.3d 892 (Ohio 2015) (sets three-part allied-offenses analysis focusing on conduct, dissimilar import, separate acts, or separate animus)
State v. Marcum, 59 N.E.3d 1231 (Ohio 2016) (appellate standard for reviewing felony sentences and relation to R.C. 2953.08)
State v. Zeigler, 97 N.E.3d 994 (Ohio Ct. App.) (discusses temporal/separate-conduct analysis where distinct harms can prevent merger)