State v. Murray , 2022 Ohio 3660 ( 2022 )

[Cite as State v. Murray, 2022-Ohio-3660.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29200
:
v. : Trial Court Case No. 2021-CR-1634
:
PAUL MURRAY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 14th day of October, 2022.
...........
MATHIAS H. HECK, JR. by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
SARA M. BARRY, Atty. Reg. No. 0090909, 130 West Second Street, Suite 1700-116,
Dayton, Ohio 45402
Attorney for Defendant-Appellant
.............
EPLEY, J.
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{¶ 1} Defendant-Appellant Paul Murray appeals from his conviction in the
Montgomery County Court of Common Pleas after he pled guilty to domestic violence
and violation of a protection order while committing a felony. For the reasons that follow,
the judgment of the trial court will be affirmed.
I. Facts and Procedural History
{¶ 2} On May 17, 2021, Cynthia Hollen went to visit her mother’s residence near
the Montgomery County Job Center in Dayton. While Hollen was there, Murray showed
up at the residence despite an active order of protection prohibiting him from having any
contact with Hollen. When Hollen answered the door, Murray began arguing with her.
Hollen closed the front door and tried to exit the residence through the back door without
Murray’s noticing.
{¶ 3} Murray saw Hollen exiting the back of the house and began to chase her
toward The Job Center building. When Murray caught up with Hollen, he shoved her,
causing her head to hit the wall of the building. The impact caused her to fall to the ground.
While Hollen was down, Murray proceeded to kick and punch her in the head. A bystander
called the police.
{¶ 4} Hollen was able to get up off the ground and temporarily escape. Murray,
however, continued to pursue. Once he caught up with her again, Murray pushed her
down several more times. When officers arrived, they observed Murray still acting very
aggressively towards Hollen. The officers observed that Hollen had a “busted” lip and
scrapes on her legs.
{¶ 5} On May 27, 2021, Murray was indicted on one count of domestic violence, a
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felony of the fourth degree, and one count of violating a protection order while committing
a felony, a felony of the third degree. On June 30, 2021, Murray pled guilty to both
charges. The Court sentenced Murray to 18 months for domestic violence and 24 months
for the protection order violation. The Court ordered that the sentences be served
concurrently for a total sentence of 24 months.
{¶ 6} Murray’s initial appellate counsel filed a brief pursuant to Anders v. California,
386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of non-
frivolous issues to raise on appeal. On April 6, 2022, this court, having conducted an
independent review, found a non-frivolous issue for appeal – whether the offenses of
domestic violence and violation of a protection order while committing a felony should
have merged. Accordingly, this court set aside the Anders brief and appointed new
counsel to assist Murray. He now raises one assignment of error.
II. Merger
{¶ 7} Murray argues that his convictions for domestic violence and violation of a
protection order should have merged. We disagree.
{¶ 8} R.C. 2941.25 governs allied offenses and provides that: “[w]here the same
conduct by [a] 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.” R.C. 2941.25(A). The statute also provides
that “[w]here 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
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may contain counts for all such offenses, and the defendant may be convicted of all of
them.” R.C. 2941.25(B).
{¶ 9} Determining whether multiple offenses are allied offenses of similar import
involves three inquiries: “(1) Were the offenses dissimilar in import or significance? (2)
Were they committed separately? And (3) Were they committed with separate animus or
motivation?” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31. An
affirmative answer to any of these questions allows separate convictions. Id. at ¶ 31. The
allied-offense analysis is dependent upon the facts of a case because the focus is on the
defendant’s conduct. Id. at ¶ 26. The defendant bears the burden of proof in showing the
offenses are allied. State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999
N.E.2d 661, ¶ 18. An appellate court applies a de novo standard of review. State v.
Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
{¶ 10} When the defendant’s conduct constitutes a single offense, he or she may
be convicted and sentenced only for that offense. Ruff at ¶ 24. When the conduct supports
more than one offense, a court must conduct an analysis of allied offenses of similar
import to determine whether the offenses merge or whether the defendant may be
convicted of separate offenses. Id.{¶ 11} The first step in the analysis is to determine whether Murray’s conduct
constituted a single offense or multiple offenses. Id. If one offense was complete before
the other offense occurred, the two offenses do not merge. State v. Pattson, 2d Dist.
Montgomery No. 2022-Ohio-150, ¶ 35. Thus, when one offense is completed prior to the
completion of another offense during the defendant’s course of conduct, those offenses
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are separate acts. State v. Mooty, 2014-Ohio-733, 9 N.E.3d 443, ¶ 49 (2d Dist.).
{¶ 12} In cases of assault, courts do not parse conduct into a “blow-by-blow” to
sustain multiple convictions. State v. Johnson, 128 Ohio St.3d 153, 164, 2010-Ohio-6314,
942 N.E.2d 1061, ¶ 56. Rather, if an attack is uninterrupted, it constitutes a single offense.
See id. (holding that because the beating was uninterrupted, the offenses of child abuse
and murder should merge); State v. Johnson, 2d. Dist. Montgomery No. 24031, 2011-
Ohio-2825, ¶ 25 (holding that merger is required when a course of conduct involves two
or more acts undifferentiated by time, place, or circumstance).
{¶ 13} Notably, Ohio appellate courts have liberally construed what constitutes
an interruption. See State v. Dembie, 9th Dist. Lorain, C.A. No. 14CA010527, 2015-Ohio-
2888, ¶ 11 (refusing to merge assault offenses where the victim fell out of the window
after being stabbed and the defendant thereafter resumed attacking the defendant); State
v. Boyd, 8th Dist. Cuyahoga No. 109052, 2020-Ohio-5181, ¶ 44-45 (holding that, although
the assault and abduction arose close in time and proximity to one another and were
against the same victim, each of the defendant’s attempts at killing his wife were in a
different manner and thus constituted separate offenses).
{¶ 14} The outcome of this case depends on whether there were two separate
domestic violence incidents. After reviewing the limited record before us, we conclude
that Murray’s conduct cannot be categorized as only one incident because there were
two distinct attacks. The crime of violation of a protection order while committing a felony
(in this case, domestic violence) was complete upon Murray’s punching and kicking the
victim in the head near the Jobs Center. After the victim got up and ran away, Murray
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commenced a new offense in which he pursued, caught, and once more attacked Hollen,
thus, completing the second offense, domestic violence. The two attacks did not occur
suddenly and together but were instead separated by the escape attempt of the victim.
Merger was not warranted because the facts in the record established a temporal break
in the action.
{¶ 15} Additionally, as noted above, Murray bore the burden of proof in
demonstrating that the offenses were allied; he failed to carry that burden. The factual
record in this case is minimal and because of that, we cannot conclude that the trial court
erred when it did not merge Murray’s convictions for violation of a protection order and
domestic violence. The assignment of error is overruled.
III. Conclusion
{¶ 16} The judgment of the trial court will be affirmed.
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TUCKER, P.J. and DONOVAN, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Sara M. Barry
Hon. Mary Katherine Huffman