State v. WeathersState v. Weathers
Sarah G. LoPresti, Assistant State Public Defender, 250 East Broad Street, Suite 1400, Columbus, Ohio 43215, for defendant-appellant
O P I N I O N
POWELL, P.J.
{¶1} A defendant convicted of felonious assault, felony domestic violence, and violation of a protection order for punching his victim argues on appeal that those offenses should have been merged for sentencing. We agree and remand this case for a new sentencing hearing after the state selects which allied offense to pursue.
{¶2} David Weathers was charged with three offenses in connection with events that
{¶3} While the testimony at trial differed concerning who was pursuing whom inside the bar, there is no question an altercation took place later in the bar parking lot. The victim said Weathers grabbed her by the throat, pulled her out of the car, and punched her in the face. She said she “maced him” and he ran away.
{¶4} Weathers testified that he was trying to avoid the victim in the parking lot, but she confronted him about his girlfriend and maced him. He said he may have accidently scratched her while fending off the mace attack.
{¶5} A jury found Weathers guilty of felonious assault, felony domestic violence, and violation of the protection order (VPO), which was charged as a felony. The trial court sentenced Weathers to 18 months in prison for the domestic violence offense, five years for the felonious assault, and five years for violating a protection order, all sentences to run concurrently. Weathers filed this delayed appeal, raising a single assignment of error for our review.
{¶6} Assignment of Error:
{¶7} “THE TRIAL COURT ERRED WHEN IT IMPOSED SEPARATE SENTENCES FOR OFFENSES THAT AROSE FROM THE SAME CONDUCT, WERE COMMITTED WITH A SINGLE ANIMUS, AND SHOULD HAVE BEEN MERGED FOR SENTENCING PURPOSES UNDER
{¶8} Under this assignment of error, Weathers presents two separate issues for review, arguing in both that the offenses for which he was convicted are allied offenses of similar import.
{¶9} To support his argument, Weathers relies on the Ohio Supreme Court case of
{¶10}
{¶11} “(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.
{¶12} “(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.”
{¶13} When determining whether two offenses are allied offenses of a similar import subject to merger under
{¶14} Under Johnson, a court must first decide whether it is possible to commit one offense and commit the other with the same conduct. Id. at ¶48 (it‘s not necessary that both crimes are always committed by the same conduct but, rather, it is sufficient if both offenses can be committed by the same conduct [internal citations omitted]); State v. McCullough, Fayette App. Nos. CA2010-04-006, CA2010-04-008, 2011-Ohio-992, ¶14-15.
{¶16} Conversely, if the court determines the commission of one offense will never result in the commission of the other, or if the offenses are committed separately, or with a separate animus for each offense, then, the offenses will not merge. Johnson at ¶51-52 (this analysis may result in varying results for the same set of offenses in different cases, given that
{¶17} Within this context, we turn to the first issue presented under this assignment of error. Weathers argues the domestic violence and felonious assault offenses should have been merged because they were both based on the conduct of choking the victim or punching the victim in the eye.
{¶18} As charged in this case, it was alleged that Weathers committed felonious assault by knowingly causing serious physical harm to another. See
{¶19} The state conceded the two offenses of felonious assault and domestic violence were allied offenses committed with the same animus. After reviewing the record, we agree that both offenses can be committed by the same conduct and the state relied on the same conduct to support the conviction for both offenses.
{¶20} Weathers asserts in his second issue for review that the violation of a
{¶21} Weathers was charged with recklessly violating the terms of a protection order while committing a felony domestic violence offense by “approaching and assaulting” the victim. See
{¶22} The state argues that Weathers committed the VPO with a separate animus or separate state of mind because he violated the protection order over the course of the evening by following the victim around the bar and “[i]t was only when he pulled her from her car and struck her that he committed a felonious assault.”
{¶23} After reviewing the record, we reject the state‘s argument. The VPO offense in the case at bar was charged as a felony; the record indicates the supporting evidence for this offense, as well as the other two offenses, was the conduct outside in the parking lot when Weathers pulled the victim out of the car and punched her. See State v. Craycraft, 193 Ohio App.3d 594, 2011-Ohio-413, ¶19 (since this was a pre-Johnson case, charges were pursued collectively in contemplation of the now overruled Rance analysis, appellate court compelled to view the record as it stands in revisiting the issue); State v. Sutphin, Cuyahoga App. No. 96015, 2001-Ohio-5157.
{¶24} Consequently, under the record before us, the felonious assault, domestic violence and violation of a protection order offenses are allied offenses of similar import and must be merged for sentencing because the state relied on the felonious conduct for each offense. The trial court committed plain error by not merging the offenses. Weathers’ assignment of error is sustained.
{¶25} The judgment is reversed and this matter remanded to the trial court for resentencing. Upon remand, the state can elect which allied offense to pursue, which the trial court must accept and merge the crimes for sentencing. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶20, 24; State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, syllabus (when the cause is remanded to correct an allied-offense sentencing error, the trial court must hold a new sentencing hearing for the offense that remains after the state selects which allied offense to pursue).
{¶26} Reversed and remanded.
RINGLAND and HENDRICKSON, JJ., concur.