State v. OvertonState v. Overton
Ron O‘Brien, Prosecuting Attorney, and Seth L. Gilbert, for appellee.
Yeura R. Venters, Public Defender, and Allen V. Adair, for appellant.
APPEAL from the Franklin County Court of Common Pleas.
DORRIAN, J.
{¶1} This case is before us pursuant to State v. Overton, 128 Ohio St.3d 353, 2011-Ohio-740, ¶2, in which the Supreme Court of Ohio vacated our prior judgment with respect to defendant-appellant, Robert R. Overton‘s (“appellant“), eighth assignment of error. The court remanded the matter with instructions to apply its decision in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314.
{¶2} Appellant was convicted of felonious assault, in violation of
{¶3} In the eighth assignment of error, appellant argued that felonious assault and child endangerment were allied offenses of similar import committed with a single animus and that the trial court erred by imposing consecutive sentences rather than merging the convictions and requiring the prosecutor to elect on which offense appellant would be sentenced.
{¶4} Ohio law provides that “[w]here 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.”
{¶5} Our prior decision relied on the doctrine set forth in State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, now overruled by Johnson. In Rance, the Supreme Court of Ohio declared that, in determining whether crimes are allied offenses of similar import, ” ‘courts should assess, by aligning the elements of each crime in the abstract, whether the statutory elements of the crimes “correspond to such a degree that the commission of
{¶6} As noted, in Johnson, the Supreme Court “overrule[d] Rance to the extent that it call[ed] for a comparison of statutory elements solely in the abstract under
{¶7} If the offenses can be committed by the same conduct, then we must ” ‘determine whether the offenses were committed by the same conduct, i.e., “a single act, committed with a single state of mind.” * * * If the answer to both questions is yes, then the offenses are allied offenses of similar import and will be merged.’ ” (Emphasis sic.) Id. at ¶63, quoting Johnson at ¶49-50. “Conversely, if the court determines that the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or if the defendant has separate animus for each offense, then, according to
{¶8} In applying Johnson, therefore, we begin by determining whether it is possible to commit both offenses of which appellant was convicted with the same conduct. Appellant was convicted of felonious assault, in violation of
{¶9} “When recklessness suffices to establish an element of an offense, then knowledge or purpose is also sufficient culpability for such element.”
{¶10} Next, we must determine ” ‘whether the offenses were committed by the same conduct, i.e., “a single act, committed with a single state of mind.” ’ ” (Emphasis sic.) White at ¶63, quoting Johnson at ¶49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, ¶50 (Lanzinger, J., dissenting). In State v. Logan (1979), 60 Ohio St.2d 126, 128, the Supreme Court of Ohio held that “[i]n addition to the requirement of similar import of the crimes committed, the defendant, in order to obtain the protection of
{¶11} At trial, Dumas testified that she placed Antwan in the shower to clean him up because he had wet the bed the night before. While Antwan was in the shower, both Dumas and appellant went in and out of the bathroom. Dumas testified that, while Antwan was in the shower, appellant struck Antwan in the head with his fist, causing Antwan to fall down. Appellant removed Antwan from the shower and threw him into Dumas‘s arms. Appellant then took Antwan out of Dumas‘s arms. Antwan got out of appellant‘s arms and tried to crawl away; appellant kicked him in the legs and buttocks as he crawled away. Appellant then picked Antwan up, threw him into Dumas‘s arms again, and then took him from Dumas and lifted him high in the air. Dumas testified that she saw Antwan‘s eyes roll back in his head and realized something was wrong, so she called 911. At some point after removing Antwan from the shower, appellant struck him in the chest “at least three times.” (Tr. 183.)
{¶12} The state presented evidence that Antwan had an external bruise on his forehead and subgaleal hemorrhage, or bleeding underneath the scalp, due to a blunt trauma. Antwan also had bruising on his chest and lung contusions indicating blunt trauma to the chest. The external bruising on his chest was consistent with knuckles, and the number and location of the bruises indicated multiple blows to the chest. The coroner concluded that Antwan died as a result of cardiac concussion due to blunt force trauma to the chest. Thus, at trial, the state presented evidence that appellant committed at least two acts of violence against Antwan that caused serious physical harm—striking him in the head while Antwan was in the shower, which resulted in the bruise on his head, and
{¶13} Appellant argues that, under Johnson, appellant‘s conduct should be considered the same act committed with a single state of mind. In Johnson, the convictions arose from the following conduct:
In the incident at issue, Johnson was in a room alone with Milton while the boy‘s mother was in a different room watching television. The mother heard Johnson yelling, heard a “thump” or “stomping,” and went to investigate. She found Johnson yelling at Milton for mispronouncing a word while reading, and she observed Johnson push Milton to the floor. The mother left the room. Shortly thereafter, she heard another loud “thump” or “stomp.” When she went to the room she saw Milton shaking on the floor.
Id. at ¶54. The plurality opinion in Johnson noted that “there were arguably two separate incidents of abuse, separated by time and a brief intervention by [the victim‘s] mother.” Id. at ¶56. The Supreme Court found that Johnson was convicted of child endangering, in violation of
{¶14} We find the present case to be more analogous to State v. Cooper, 104 Ohio St.3d 293, 2004-Ohio-6553. The defendant in Cooper was convicted of involuntary manslaughter with child endangering as the predicate felony offense and child endangering in violation of
{¶15} In this case, as in both Cooper and Johnson, there were two separate incidents of abuse, the strike to the head and the blows to the chest. The incidents were separated in time during the period when appellant removed Antwan from the shower and threw him into Dumas‘s arms. However, unlike Johnson, where the two convictions found
{¶16} Despite the fact that the two crimes of which appellant was convicted can be committed by the same conduct, in this case they were not committed by the same conduct. Because the ” ‘offenses [were] committed separately * * * the offenses will not merge.’ ” White at ¶63, quoting Johnson at ¶51.
{¶17} Accordingly, appellant‘s eighth assignment of error is overruled. The judgment of the Franklin County Court of Common Pleas is hereby affirmed.
Judgment affirmed.
BRYANT, P.J., and BROWN, J., concur.
_______________