STATE OF OHIO v. SHAWN LEE SEYMORE aka SHAUN SEYMORE
CASE NO. CA2021-09-113
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO BUTLER COUNTY
6/27/2022
[Cite as State v. Seymore, 2022-Ohio-2180.]
Michael T. Gmoser, Butler County Prosecuting Attorney, and Michael Greer, Assistant Prosecuting Attorney, for appellee.
Repper-Pagan Law, Ltd., and Christopher J. Pagan, for appellant.
M. POWELL, P.J.
{¶1} Appellant, Shawn Lee Seymore, aka Shaun Seymore, appeals his sentence in the Butler County Court of Common Pleas for burglary and aggravated assault.
{¶2} Appellant was indicted in February 2020 on two counts of aggravated burglary, one count of aggravated assault, one count of aggravated menacing, and one
{¶3} At sentencing, the trial court indicated it considered the
consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public. Consecutive sentences are necessary to protect the public from future crime. The defendant‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the defendant.
{¶4} Appellant appeals his prison sentence, raising two assignments of error.
{¶5} Assignment of Error No. 1:
{¶6} SEYMORE‘S PRC SANCTION WAS UNLAWFUL.
{¶7} In his reply brief as well as during oral arguments, appellant withdrew his first assignment of error. Accordingly, we need not address it. See State v. Smith, 10th Dist. Franklin No. 03AP-1157, 2004-Ohio-4786.
{¶8} Assignment of Error No. 2:
{¶10} Appellant argues the trial court erred in imposing consecutive prison sentences, presenting two issues for review.
{¶11} In his first issue for review, appellant asserts that the burglary and aggravated assault offenses are allied offenses of similar import that should have been merged, and his trial counsel was ineffective for failing to raise merger. Appellant concedes he did not request or argue merger at sentencing, or otherwise object to the trial court‘s decision to impose sentence on each count of burglary and aggravated assault. Accordingly, appellant must demonstrate plain error.
{¶12} “An accused‘s failure to raise the issue of allied offenses of similar import in the trial court forfeits all but plain error, and a forfeited error is not reversible error unless it affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage of justice.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 3. “Accordingly, an accused has the burden to demonstrate a reasonable probability that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus; and, absent that showing, the accused cannot demonstrate that the trial court‘s failure to inquire whether the convictions merge for purposes of sentencing was plain error.” Id.
{¶13} Pursuant to
{¶14} With respect to the first factor, “[t]wo 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. at paragraph two of the syllabus. Animus is defined for purposes of
{¶15} “At its heart, the allied-offense analysis is dependent upon the facts of a case because
{¶16} Appellant argues that his burglary and aggravated assault convictions should have merged at sentencing because he lawfully entered the victim‘s home and did not become a trespasser until he began assaulting the victim. Appellant asserts that “the act that caused the trespass was the same act that completed the assault; the force used to trespass was the same force used to assault; and the motive for trespass and assault were the same: to retaliate for the victim‘s serious provocation.” Or stated differently, the trespass element of the burglary was based entirely upon his perpetrating the aggravated assault.
{¶17} Appellant was convicted of burglary in violation of
{¶18} Appellant was also convicted of aggravated assault in violation of
{¶19} Because appellant pled guilty, the record contains limited facts to be used when conducting the merger analysis. The amended bill of particulars and the statement of facts at the plea hearing both simply provide that appellant trespassed into the victim‘s home and inflicted physical harm (Count One) and that he assaulted the victim with a
{¶20} The parties do not dispute that appellant lawfully entered the victim‘s home. Appellant‘s version of the incident is that he and the victim started arguing in a bedroom about whether the victim had cheated on him the night before. Appellant asked for the victim‘s cellphone, went through it and found photographs of the man she was with, and he and the victim continued to argue. Appellant advised the presentence investigator that he hit the victim “a few times.”
{¶21} The victim‘s version of the incident confirms that she and appellant were arguing about her alleged infidelity. The victim told the police that appellant pushed her onto a bed, shoved a firearm in her mouth, and threatened to kill her. Appellant asked for her cellphone and, upon going through it, hit her in the head with a fist and an open hand before pushing her up against the bed. The victim estimated he hit her in the head three different times. Subsequently, appellant broke her television and seized her diamond earrings, safe, and cellphone. The victim further told the police that “when the officers arrived on the scene, appellant took her upstairs and stated that he was going to drown her in the bathtub. She also stated that he told her she deserved to die. The victim also stated that he kicked her in her back multiple times.”
{¶22} After reviewing the record, and considering the conduct, animus, and import
{¶23} As stated above, the parties were arguing about the victim‘s alleged infidelity. Although appellant was initially permitted to be inside the victim‘s home, his privilege to remain there was revoked and he became a trespasser the moment he shoved a firearm in the victim‘s mouth and threatened her. See State v. Powell, 10th Dist. Franklin No. 17AP-808, 2018-Ohio-3944; State v. Williams, 8th Dist. Cuyahoga No. 98210, 2013-Ohio-573. Thus, appellant committed burglary when he knowingly remained in the victim‘s home without privilege to do so and by force by shoving the firearm into the victim‘s mouth and threatening her. Appellant further committed aggravated assault when he knowingly caused or attempted to cause physical harm to the victim by means of a deadly weapon by shoving the firearm into the victim‘s mouth and threatening her. Thus, both offenses were based upon appellant‘s conduct inside the victim‘s home when he shoved a firearm into her mouth and threatened her.
{¶24} Appellant‘s burglary and aggravated assault offenses involved neither separate/multiple victims nor separate and identifiable harm. Rather, appellant‘s use of force resulted in trespassing into the victim‘s home and physical harm to the victim. The offenses were thus of similar import. Both offenses were committed at the same time and with the same conduct in that the conduct—appellant‘s use of force—that allowed him to remain in the victim‘s home without privilege to do so caused physical harm to the victim. Finally, the surrounding circumstances indicate appellant committed both offenses while acting with the same purpose, intent, or motive. See State v. Fisher, 4th Dist. Washington No. 13CA25, 2014-Ohio-4257.
{¶25} Accordingly, under the specific facts of this case, we find that the burglary and aggravated assault offenses are allied offenses of similar import and must be merged for
{¶26} In his first issue for review, appellant also argues that his trial counsel was ineffective for failing to raise merger. Given our determination that the trial court committed plain error by not merging his burglary and aggravated assault convictions, this argument is moot. State v. Seymore, 12th Dist. Butler Nos. CA2011-07-131 and CA2011-07-143, 2012-Ohio-3125, ¶ 30.
{¶27} In his second issue for review, appellant argues that the record does not support the trial court‘s statutory findings under
{¶28} Appellant‘s assignment of error is sustained.
{¶29} Judgment reversed and remanded to the trial court solely for resentencing. Upon remand, the state shall elect which allied offense to pursue, and the trial court must accept the state‘s choice and merge the crimes into a single conviction for sentencing. State v. Powih, 12th Dist. Brown No. CA2016-11-023, 2017-Ohio-7208, ¶ 43; State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶ 20, 24.
S. POWELL and PIPER, JJ., concur.
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