STATE OF OHIO v. JAMES QUINN
Appellate Case No. 2014-CA-44
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
January 15, 2016
2016-Ohio-139
Triаl Court Case No. 13-CR-869 (Criminal Appeal from Common Pleas Court)
Rendered on the 15th day of January, 2016.
RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Clark County Prosecutor‘s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, 120 West Second Street, Suite 400, Dayton, Ohio 45402 Attorney for Defendant-Appellant
FAIN, J.
{1} Defendant-appellant James Quinn appeals from his conviction and
{2} We conclude that the trial court properly admitted evidence of prior convictions, and that Quinn was given advance notice of the intent to present that evidence, because the prior convictions were identified in the indictment as an element of the offense. We conclude that the record does support that a proper limiting instruction was given for the other-acts evidence, and that Quinn was not denied the opportunity to cross-examine the witness on this subject. We conclude that the trial court had no obligation to provide advance notice of its findings regarding the victim‘s credibility, and that Quinn failed to establish a record of any potential discovery violation. We conclude that the record fails to portray that Quinn received ineffective assistance of counsel. We conclude that the findings the trial court made for the imposition of consecutive sentences are not clearly and convincingly unsupported by the record, and
I. The Assault on Quinn‘s Mother
{3} The victim, Beverly Quinn, is a 79-year-old woman, the mother of two daughters and two sons, including the defendant, James Quinn. In December 2013, Quinn‘s girlfriend, Samantha Ferrell, was living with Quinn‘s mother, Beverly, in her two-bedroom house. At that time, Quinn was under indictment for a domestic violence incident involving his mother; as a condition of bond he was subject to a no-contact order with his mother. Late in the evening, Beverly was awakened by noise, and found Quinn and Ferrell in her home, drinking vodka and watching television. Beverly told Quinn he was not allowed to be there and asked Quinn to leave, to turn off the television, and for Samantha to go to her room. Quinn became very angry with his mother, pushed her into a chair, and hit her. When Quinn suggested to Samantha that they takе his mother to “mental health,” Samantha suggested that they take Beverly out into the country and dump her. Beverly then ran to her own bedroom, locked the door, and left the house by crawling out of the bedroom window. Beverly went to a neighbor‘s house and called the police. During the 911 call, Quinn identifies her son, James Quinn, as the person who has abused her, and states that Quinn left her house driving a white station wagon. Quinn and Samantha left Beverly‘s house before the police arrived. The police took photos of Beverly‘s bruises, and allowed her to return to her own home after they verified
{4} According to Beverly‘s testimony at trial, several hours later Quinn returned to his mother‘s home, without Samantha, forced entrance into his mother‘s bedroom, and forced his mother to leave the house with him, threatening to take her to the country and make her jump off a bridge. Beverly described her son as very angry and intoxicated on alcohol and drugs. Beverly left with her son because she felt she had no choice. He drove out into the country, stopped at a bridge and said, “if you don‘t jump, I‘ll push you.” According to Beverly, Quinn decided he could not do it, and told her that he wouldn‘t do anything to her as long as she did not testify against him. Beverly testified at trial that Quinn then drove to Walmart, hitting her in the head numerous times as he was driving. After he left the car, Beverly got out of the car and approached a Walmart employee for help. She told the employee that her son had hurt her and was trying to kill her. The Walmart employee verified this course of events and testified that Beverly was scared, but she knew who she was, where she was, and was not disoriented or confused. The Walmart employee testified that as Beverly was talking to him, a man came up to both of them, grabbed Beverly‘s arm and complained that she was trying to hurt him. The employee insisted that he let go and leave her alone. A surveillance video of the Walmart parking lot corroborates this testimony, but is taken from too far a distance to identify the man‘s facial features. The surveillance video shows that Beverly approached the employee, a man approached them, and then the unidentified man left in a white station wagon. The employee could not identify Quinn as the person he saw and talked with in
{5} The detective who interviewed Beverly at Walmart testified that Beverly identified her son, James Quinn, as the person who attacked her in her home, who forced her into a car, threatened to harm her, and hit her face, causing visible injuries. The detective also testified that during his interview on the scene, Beverly was very emotional, but lucid and articulate about the events of the evening. Based on this interview, the detective obtained a search warrant. A search of Beverly‘s home revealed evidence that her bedroom door had been damaged as the result of being forced open.
{6} Beverly was transported to the hospital by ambulance and treated in the Emergency Room at Springfield Regional Medical Center. The paramedic who transported Beverly testified that she was alert and oriented. The ER Nurse testified that Beverly was oriented, and did not appear to suffer from dementia or any other mental defect. The ER Nurse testified that Beverly identified her son as the person who had hit and injured her.
{7} At trial, evidence of Quinn‘s two prior convictions for Domestic Violence was admitted through court records. Beverly acknowledged that she was the victim of one of the prior Domestic Violence convictions.
II. The Course of Proceedings
{8} In November 2013, Quinn was indicted on one count of Domestic Violence, a felony of the third degree, in violation of
{9} At the sentencing hearing, the trial court merged the two Kidnapping charges and the Abduction charge for purposes of sentencing. The State elected to proceed on count three, a charge of Kidnapping. The court denied the defense request to merge Kidnapping with the Intimidation conviction, or the Domestic Violence conviction with the Intimidation conviction upon the ground that all of these offenses wеre committed as one continuous course of conduct. The trial court rejected the argument that the offenses were committed by the same conduct. Quinn made a statement to express his remorse, and the victim‘s granddaughter made a statement to explain the impact on the family. The State described Quinn‘s criminal history, although neither a pre-sentence investigation report, nor any other documentation, was presented to support the statements. The State urged the court to order consecutive sentences because the offenses were committed while Quinn was under indictment and out on bond for an earlier charge of Domestic Violence against the same victim, and because consecutive
{10} Quinn was sentenced to serve a tоtal of twenty years in prison; three years for each of the two Domestic Violence convictions, three years for the Intimidation conviction, and eleven years for the Kidnapping conviction (into which the Abduction conviction had been merged). The trial court ordered the sentences to run consecutively, after finding that consecutive sentences are necessary to protect the public from future crime and to punish the defendant, are not disproportionate to the seriousness of the defendant‘s conduct and to the danger the defendant poses to the public, are necessary to protect the public from future crime by the defendant given the defendant‘s history of criminal conduct, that at least two of the multiple offenses were committed as a course of conduct and the harm caused by the оffenses so committed is so great or unusual that no single prison term adequately reflects the seriousness of the defendant‘s conduct, and that the defendant committed one or more offenses while he was under indictment awaiting trial.
III. The Trial Court Did Not Err by Admitting Evidence of Prior Convictions and Quinn Was Given Prior Notice of the State‘s Intent to Use That Evidence
{11} Quinn‘s First Assignment of Error asserts as follows:
THE INTRODUCTION OF 404(B) EVIDENCE WAS ERROR AND THE STATE OF OHIO FAILED TO ADHERE TO EVID. R. 404(B) BY FAILING TO PROVIDE NOTICE OF INTENT TO USE EVIDENCE
{12} The admission of other-bad-acts evidence under
{13} The Supreme Court of Ohio has held that where a prior conviction elevates the degree of a subsequent offense, the prior conviction is an essential element that the State must prove beyond a reasonable doubt. State v. Henderson, 58 Ohio St.2d 171, 173, 389 N.E.2d 494 (1979). This rule has been applied to admit evidence of a defendant‘s two prior convictions for Domestic Violence to elevate a third offense to a third-degree felony. State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, ¶ 90. In the case before us, the State called a witness from the Clerk of Courts, who testified to establish a foundation for the admission of two court documents reflecting that Quinn had pled guilty to, and was convicted of, two prior offenses of Domestic Violence. The trial court did not abuse its discretion in allowing the evidence of Quinn‘s two prior convictions for Domestic Violence.
{14} We also conclude that the State provided adequate notice of its intent to use the prior convictions as evidence based on the language of the indictment. Both Count I and Count 5 of the indictment charge Quinn with the offense of Domestic Violence, stating that “that offender having been previously convicted of Domestic Violence in the Clark County Municipal Court Cаse Numbers 00CRB305 and 12 CRB3737, in violation of Section 2919.25(A) of the Revised Code.” “The purposes of an indictment are to give an accused adequate notice of the charge, and enable an accused to protect himself or herself from any future prosecutions for the same incident.” State v. Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 926 N.E.2d 611, ¶ 20, quoting
{15} Quinn‘s First Assignment of Error is overruled.
IV. The Trial Court Gave an Appropriate Limiting Instruction
{16} Quinn‘s Second Assignment of Error states as follows:
THE TRIAL COURT ERRED IN NOT PROVIDING LIMITING INSTRUCTIONS AT THE TIME THE OTHER ACTS WERE TENDERED OR TO GIVE CORRECT LIMITING INSTRUCTIONS AT THE CONCLUSION OF THE TRIAL THAT WERE CONSISTENT WITH THE SAME OR SIMILAR ACT STATUTE, R.C. 2945.59
{17} We acknowledge that when evidence of prior convictions is admitted into evidence for a jury‘s consideration, the trial court must give the jury a limiting instruction to avoid misleading the jury as to the purpose of the evidence. OJI-CR 401.25 ¶ 4 of the Ohio Jury Instructions suggests this limiting instruction for evidence of prior convictions of the defendant:
4. USE OF PRIOR CONVICTION ENHANCING THE DEGREE OF OFFENSE. Evidenсe was received that the defendant was convicted of (describe prior conviction). That evidence was received because a prior conviction is an element of the offense charged. It was not received, and you may not consider it, to prove the character of the defendant in order to
show that he acted in (conformity) (accordance) with that character.
{18} The record reveals that the trial court did give a limiting instruction, after the close of evidence, prior to deliberations, but not at the time the evidence was presented through the testimony of the clerk‘s office supervisor. In its final jury instructions, the trial court stated:
Evidence of prior convictions. This evidence was admitted but only for a very limited purpose. If you find that the defendant does not have prior convictions for domestic violеnce, you are to disregard that evidence. If you find that he does have prior convictions for domestic violence, that finding serves to enhance the degree of the domestic violence offense. Two points about that: Number one, you are required to make a finding one way. If you find the defendant guilty of a domestic violence, you are required to further deliberate and make a finding as to whether or not the defendant does have a prior conviction or prior convictions for domestic violence. While you are required to make that finding, I want to inform you that you are not to consider the subject of punishment. As I indicated to you earlier, your duty is confined to the determination of whether the defendant is guilty or not guilty.
A second comment about the evidence of prior convictions: There is a forbidden inference. Specifically, you may not consider that evidence to show that character of the defendant in order to find that he acted in conformity with that character in this case. In other words, you are to make a finding; if you find the defendant guilty of domestic violence, you are to
make a finding as to whether or not the defendant does or does not have prior convictions, that‘s the extent. It should be the extent of your deliberations on that matter. The prior convictions should be considered for no other purpose.
{19} We conclude that the court‘s limiting instructions were sufficient to advise the jury of the proper purpose of the evidence of the prior convictions and to warn that they should not be considered for any other purpose. We note that defense counsel did not object, during trial, to the witness‘s testimony or the admission of the documеnts proving the prior convictions, and made no request for a limiting instruction at the time the evidence was admitted. Therefore, whether the court erred in failing to give a limiting instruction during the trial may only be reviewed for plain error. Errors not preserved on the record below are forfeited, and are not subject to review on appeal, unless they constitute plain error. State v. Fuller, 2d Dist. Montgomery No. 24598, 2012-Ohio-1979, ¶ 56, citing State v. Long, 53 Ohio St. 2d 91, 95-96, 372 N.E. 2d 804 (1978). As we explained in State v. Byrd, 2d Dist. Montgomery No. 25842, 2014-Ohio-2553, ¶ 27:
Plain error may be noticed if a manifest injustice is demonstrated. Crim.R. 52(B); State v. Lewis, 2d Dist. Montgomery No. 23850, 2011–Ohio-1411, ¶ 54. In order to find a manifest miscarriage of justice, it must appear from the record as a whole that but for the error, the outcome of the trial clearly would have been otherwise. Id., citing State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978).
{20} Quinn‘s reliance on State v. Lewis, 66 Ohio App. 3d 37, 583 N.E. 2d 404 (2d Dist. 1990), is misplaced. In Lewis, the trial court gave no limiting instruction during
{21} Quinn‘s Second Assignment of Error is Overruled.
V. Trial Court Did Not Deny Quinn an Opportunity to Cross-Examine the Victim About Other Acts
{22} For his Third Assignment of Error, Quinn asserts:
THE DEFENDANT WAS DENIED HIS RIGHT TO CONFRONTATION AND CROSS EXAMINATION WHEN THE TRIAL COURT DID NOT ALLOW THE DEFENDANT TO CROSS EXAMINE THE VICTIM ABOUT OTHER ACTS EVIDENCE THE STATE ELICITED.
{23} Quinn argues that he should have been allowed to ask the victim, on cross-examination, questions about his prior Domestic Violence convictions. The record reveals that during the State‘s questioning of Beverly, she admitted that she knew Quinn had a prior conviction for Domestic Violence, because she was the victim of that offense. On re-cross, defense counsel asked Beverly if her other son had influenced her to file the previous charges for Domestic Violence, to which the victim responded, “Jim threatened
{24} “The strategic decision not to cross-examine witnesses is firmly committed to trial counsel‘s judgment.” State v. Abernathy, 5th Dist. Stark No. 2014CA00120, 2015-Ohio-1363, ¶ 19, citing State v. Brown, 38 Ohio St.3d 305, 319, 528 N.E.2d 523 (1988). Quinn does not show how his counsel‘s decision not to cross-examine on his prior convictions was unreasonable, especially in light of the danger of prejudice that could result by prolоnging the witness‘s discussion of Quinn‘s guilty pleas to prior acts of Domestic Violence.
{25} We conclude that Quinn has not shown a substantial likelihood that the outcome of the trial would have been different if the objection to the victim‘s non-responsive answer on cross-examination (which was prejudicial to him), had been overruled. Quinn‘s Third Assignment of Error is overruled.
VI. The Trial Court Is Not Responsible for Providing Discovery
{26} For his Fourth Assignment of Error, Quinn asserts:
THE TRIAL COURT ABUSED ITS DISCRETION IN NOT INFORMING THE DEFENSE IN RELATION TO THE VICTIM‘S CREDIBILITY.
{28} It is well established that the State “has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant‘s guilt.” State v. Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, ¶ 8, citing California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), and United States v. Agurs, 427 U.S. 97, 112, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).
{29}
{30} Quinn‘s Fourth Assignment of Error is Overruled.
VII. The Record Does Not Support Prosecutorial Misconduct
{31} For his Fifth Assignment of Error, Quinn alleges:
THE PROSECUTOR VIOLATED THE RULES OF DISCOVERY BY ALLOWING FALSE AND MISLEADING TESTIMONY TO GO UNCORRECTED.
{32} Quinn alleges prosecutorial misconduct on four grounds. First, Quinn alleges that the State had impounded the car that Quinn was driving at the time of the offense, but it was neithеr used as evidence nor disclosed to the defense. Second, Quinn alleges that the State did not disclose the medical records from Beverly‘s ER visit, and a police report that disclosed that Beverly was not wearing her glasses or hearing aid at the time of the offenses, which would have provided grounds to challenge her credibility at trial. Third, Quinn argues that the State had an obligation to recognize that the victim testimony‘s at the bond revocation hearing conflicted with her testimony at trial regarding whether she had contact with Quinn between the time the no-contact order was issued
{33} “[T]he touchstone of due-process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed. 2d 78 (1982). Additionally, the Supreme Court of Ohio has held that prosecutorial misconduct is not reversible error unless it deprives the defendant of a fair trial. State v. Maurer, 15 Ohio St. 3d 239, 266, 473 N.E. 2d 768 (1984).
{34} Initially, we note that Quinn did not raise claims of prosecutorial misconduct in the trial court. However, at the time the photos were introduced by the State, the defense did ask for a sidebar conference, and argued that some of the photos were mоre prejudicial than probative of the victim‘s actual injuries. The objection was overruled and the witness did authenticate the photos as accurate depictions of her injuries a few days after Quinn hit her. We find no abuse of discretion in admission of the photos, which accurately depicted the extent of the victim‘s injuries. The other three claims of prosecutorial misconduct may only be reviewed for plain error. Upon this record, we find no clear miscarriage of justice to the extent that if the alleged errors had not occurred, the result of the trial would have been otherwise.
VIII. Quinn Was Not Denied Effective Assistance of Counsel
{36} For his Sixth Assignment of Error, Quinn alleges:
QUINN WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY UNDER THE FIFTH AND SIXTH AND FOURTEEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION.
{37} Ineffective assistance of counsel allegations are reviewed de novo to determine if the counsel‘s deficient performance prejudiced the outcome. To reverse a decision based on ineffective assistanсe, the record must support a finding that defense counsel‘s performance was deficient, and that a reasonable probability exists that, but for counsel‘s omissions, the outcome of the trial would have been different. State v. Jones, 1st Dist. Hamilton No.C-130359, 2014-Ohio-3110, ¶ 27, citing Strickland v. Washington, 466 U.S. 668, 687, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus
{38} Quinn alleges that he was not provided with effective assistance of counsel for several reasons. First, he argues that his counsel failed to object to hearsay testimony elicited from numerous witnesses to bolster the credibility of the victim, in violation of
{39} Initially, wе note that Quinn has failed to support his arguments with facts established in the record. The record does not contain any factual support for the impoundment of any car, or the destruction of a car prior to trial. The record does not establish what discovery was sought by the defense, or what discovery was supplied by the State. The record does not establish whether defense counsel conducted a pre-trial interview of the Walmart employee. Without a record to establish these facts, the alleged errors are not preserved for appellate review.
{40} With regard to the alleged errors committed during the trial, our review of the record confirms that defense counsel did not object to the hearsay testimony of the officers, the medical professionals, and the Walmart employee who spoke with the viсtim on the evening of the offenses. However, we agree that the testimony of each of these witnesses, which confirmed who the victim identified as her attacker, and that the victim
{41} We also conclude that defense counsel was not ineffective when he chose not to file pre-trial motions to exclude the testimony of the victim or to exclude the photos of her injuries. As discussed above, the photos were admissible, and a pre-trial motion to exclude them would not have changed their admissibility. A pre-trial motion to exclude the testimony of the victim based on a lack of credibility would have also been futile. Questions of credibility go to the weight, and not the admissibility of relevant testimony. The victim‘s testimony was relevant, and any challenge to her credibility was available to the defense in the opportunity to cross-examine her.
{42} Our review of the record does not support Quinn‘s claim that his counsel conducted an insufficient cross-examination of the victim to draw out her lack of
{43} Quinn‘s Sixth Assignment of Error is overruled.
IX. The Findings the Trial Court Made for the Imposition of Consecutive Sentences Are Not Clearly and Convincingly Unsupported by the Record
{44} For his Seventh Assignment of Error, Quinn asserts:
THE TRIAL COURT ERRED IN SENTENCING QUINN TO CONSECUTIVE SENTENCES BY FAILING TO MAKE REQUIRED FINDINGS.
{45}
{46} Our review of a consecutive-sentence issue is governed by
{47} Initially, we note that without a PSI, the record does not contain a full history of Quinn‘s past criminal conduct, other than the two previous convictions for domestic violence which were proven at trial. At the sentencing hearing, the trial court identified all of the factors required by
{48} Quinn‘s Seventh Assignment of Error is overruled.
X. The Convictions Are Supported by Sufficient Evidence and Are Not Against the Manifest Weight of the Evidence
{49} Quinn‘s Eighth Assignment of Error asserts as follows:
MR. QUINN‘S CONVICTIONS WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE AND WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{50} “A sufficiency of the evidence argument disputes whether the State has presented adequate evidence on each element of the offense to allow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, at ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing whether the State has presented sufficient evidence to support a conviction, “the relevant inquiry is whether any rational finder of
{51} “[A] weight of the evidence argument challenges the believability of the evidence and asks which of the competing inferences suggested by the evidence is more believable or persuasive.” State v. Lane, 2d Dist. Greene No. 2008 CA 98, 2010-Ohio-287, ¶ 17, quoting Wilson, supra, at ¶ 12. “When evaluating whether a conviction is contrary to the manifest weight of the evidence, the appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and determine whether, in resolving 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.’ ” Id., quoting Thompkins, 78 Ohio St.3d at 387, 678 N.E.2d 541 (1997).
{52} To find Quinn guilty of Domestic Violence the trier of fact would have to find beyond a reasonable doubt that he knowingly caused оr attempted to cause physical harm to a family or household member.
{53} To find Quinn guilty of Kidnapping in violation of
{54} To find Quinn guilty of Abduction, in violation of
{55} To find Quinn guilty of Intimidation, in violation of
{56} Examining the evidence presented for each of the offenses to determine if any are against the manifest weight of the evidence does not result in any different conclusions. We agree that the credibility of the victim was at issue, but based on the totality of the evidence properly admitted, reasonable inferences could be drawn to conclude that her story was credible. The record does not support that the jury lost its way or that a manifest miscarriage of justice occurred.
{57} Quinn‘s Eighth Assignment of Error is overruled.
XI. The Trial Court Did Not Err by Refusing to Merge the Offenses of Intimidation and Domestic Violence
{58} For his Ninth Assignment of Error, Quinn asserts as follows:
THE TRIAL COURT ERRED IN NOT FINDING THE CHARGES OF DOMESTIC VIOLENCE AND INTIMIDATION TO BE ALLIED CHARGES OF SIMILAR IMPORT SUBJECT TO MERGER.
{59} At the sentencing hearing, the trial court denied the defense request to merge the Kidnapping and the Intimidation convictions, or the Domestic Violence and Intimidation convictions because all of these offenses were committed as one course of conduct. The trial court rejected the argument that both were committed by the same conduct. A de novo standard of review is applied when reviewing an alleged error regarding a merger determination, State v. Williams, 134 Ohio St. 3d 482, 2012-Ohio-5699, 983 N.E. 2d 1245.
(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.
{61} “When determining whether two offenses are allied offenses of similar import subject to merger under
* * * [T]he question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. * * * If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.
If the multiple offenses can be committed by the same conduct, then the court 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.
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
R.C. 2941.25(B) , the offenses will not merge. (Citations and quotations omitted.)
Johnson at ¶ 48-51.
{62} As we recently stated in State v. McGail, 2d Dist. Miami No. 2014-CA-27, 2015-Ohio-5384, at ¶¶ 50 and 51:
More recently, the Ohio Supreme Court held that two or more offenses are of dissimilar import “when the defendant‘s conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 23. Therefore, offenses do not merge and a defendant may be convicted and sentenced for multiple offenses if any of the following are true: “(1) the offenses are dissimilar in import or significance * * *, (2) the offenses were committed separately, [or] (3) the offenses were committed with separate animus or motivation.” Id. at ¶ 25. This analysis “may result in varying results for the same set of offenses in different cases. But different results are permissible, given that the statute instructs courts to examine a defendant‘s conduct—an inherently subjective
determination.” Id. at ¶ 32, citing Johnson at ¶ 52. Most recently, the Ohio Supreme Court addressed the allied-offense issue again in State v. Earley, Slip Opinion No. 2015-Ohio-4615. There the majority characterized the analysis in its earlier Johnson lead opinion as “largely obsolete.” Id. at ¶ 11. The Earley court instead embraced Ruff, which, as noted above, considers a defendant‘s conduct, his animus, and the import or significance of his offenses. Applying Ruff, the Earley court concluded that misdemeanor OVI and felony aggravated vehicular assault “are offenses of dissimilar import and significance that are to be punished cumulatively.” Earley at ¶ 20. For purposes of our analysis here, we note that a defendant bears the burden of establishing entitlement to merger, and we review a trial court‘s ruling on the issue de novo. State v. LeGrant, 2d Dist. Miami No. 2013-CA-44, 2014-Ohio-5803, ¶ 15.
{63} “The Supreme Court of Ohio has interpreted the term ‘animus’ to mean ‘purpose or, more properly, immediate motive.’ ” State v. Thomas, 2d Dist. Darke No. 2013-CA-11, 2014-Ohio-2666, ¶ 15, quoting State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979).
{64} Quinn argues that the Intimidation conviction should have merged with the Domestic Violence conviction because both offenses were committed with the same conduct and the same animus. The convictions for Domestic Violence were based on two separate acts of violence that occurred hоurs apart, one in the victim‘s home and one in the car, so they were not done at the same time or as part of a continuous course of conduct. The facts underlying the Intimidation conviction relate to the statement Quinn
{65} Upon our review of the record, we conclude that the trial court did not err when it failed to merge the offenses or failed to find that the offenses were committed with the same conduct or with the same animus. Therefore, Quinn‘s Ninth Assignment of Error is overruled.
XII. Conclusion
{66} All of Quinn‘s assignments of error having been overruled, the judgment of the trial court is Affirmed.
DONOVAN and WELBAUM, JJ., concur.
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Ryan A. Saunders
Lucas W. Wilder
Hon. Douglas M. Rastatter