State v. McKnight , 2022 Ohio 591 ( 2022 )

[Cite as State v. McKnight, 2022-Ohio-591.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 20AP-595
(C.P.C. No. 18CR-3566)
v. :
(REGULAR CALENDAR)
Demitrious D. McKnight, :
Defendant-Appellant. :
D E C I S I O N
Rendered on March 1, 2022
On brief: G. Gary Tyack, and Kimberly M. Bond, for appellee.
On brief: Wolfe Law Group, LLC, and Stephen T. Wolfe, for
appellant.
APPEAL from the Franklin County Court of Common Pleas
NELSON, J.
{¶ 1} The circumstances in this case demonstrate that an aggravated burglary (with
trespass in an occupied residence for the purpose of committing a criminal offense and with
a gun on one's person) that directly results in death and thereby serves as the predicate
offense for a felony murder conviction does not always merge with the murder count at
sentencing. The outcome we reach today is different than it would have been less than a
decade ago, for the analysis we apply as directed by the Supreme Court of Ohio has changed.
We now examine case- and conduct-specific issues that include whether each of the two
offenses caused separate, identifiable harm, rather than asking whether each of the offenses
as statutorily defined requires proof of a fact that the other does not. Compare State v.
Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, ¶ 25 (specifying current test for merger), with id.No. 20AP-595 2
at ¶ 34-36 (French, J., concurring in judgment only, urging continued use of test from
Blockburger v. United States, 284 U.S. 299 (1932)).
{¶ 2} A jury convicted defendant-appellant Demitrious D. McKnight of the first-
degree felony of aggravated burglary under R.C. 2911.11, with a gun specification, and of
felony murder under R.C. 2903.02, also with a gun specification. It acquitted him of
aggravated robbery, and counts for aggravated murder and murder charged in another
fashion were dropped at the prosecution's request without the jury having reached a
verdict. The trial court sentenced Mr. McKnight to 15 years to life in prison for the murder,
consecutive to 3 additional years on the gun specification to that count and consecutive,
also, to a 4-year prison term for the aggravated burglary and 3 additional years for the gun
specification attached to that count. His total sentence therefore was 25 years to life, with
7 of those years attributable to the aggravated burglary count and specification. Oct. 1, 2020
Judgment Entry.
{¶ 3} The verdicts came after the jury heard from witnesses including Ms. A.C. She
lived in a first-floor unit at the Berwick Arms apartment complex, and her "grandbaby was
staying there," too. Tr. at 191. She told the jury that a "close friend" of hers, a "nice
gentleman, respectable," by the name of "New York" (and with the given name, it
developed, of Melvin Harris), helped defray her bills in exchange for her permitting him on
occasion to deal drugs out of her apartment. Id. at 193, 196 ("I would let him sell a little
crack, if he paid my bills and stuff, and he did"). That is what he was doing, she said, on the
afternoon of May 24, 2018. Id. at 193, 198.
{¶ 4} Sales were winding down and Ms. A.C.'s granddaughter had returned to the
apartment and gone to her room for a nap when Ms. A.C., who herself had partaken of some
crack, heard a knock at the apartment door. Id. at 199-200. She "looked out the peak hole,"
but someone had covered it with his finger, she testified. Id. at 201. She demanded that
the person move away from the peephole, and did not recognize him, but Mr. Harris
instructed her to admit him: "New York said, Ms. [A.C.], open the door so I can sell this
stuff and * * * get out of here." Id. at 202. Things happened quickly, she recounted. "So
when I went to open the door, it was, like, boom; and he was, like, I want it all. I want it all.
* * * * I was just so scared because my granddaughter was in the back, and then they point
the gun at me, and I'm, like, I ain't got nothing." Id. at 202.
No. 20AP-595 3
{¶ 5} Two men had burst in, she said, and "I didn't even get the door all the way
open before they bust through, knocking me in behind the door." Id. at 205. "[W]hen they
came in, when they pushed the door in, I slammed in against the wall and the door came to
me." Id. at 207. The "dark-skinned guy," whom she subsequently identified as defendant
McKnight, "bust through with a gun." Id. at 205, 206-07 (identification of defendant, who
"had a nine" [millimeter firearm]). She screamed, and they told her: "We want the money.
Shut the fuck up --." Id. at 209. Both men approached Mr. Harris, who remained calm,
while Ms. A.C.'s thoughts turned to rescuing her granddaughter. Id. at 202. "So * * * they
went to New York and was, like, MF, give me the money, give me the shit. Give me the shit.
Give me the shit. Give me the money. Give me the shit. Just give me it all. Give me it all."
Id. at 203; see also id. at 209.
{¶ 6} Ms. A.C. testified that she then ran out of the apartment, intending to circle
around and get her granddaughter out through a window. Id. at 203, 210, 212. She turned
around and saw the second intruder ("light skinned with dreadlocks" and wearing a red
hoodie, id. at 204) coming past her out of the apartment; she put up her hands and started
screaming again. Id. at 212. At this point, she said, she had not heard any gunshots. Id. at
212. "[T]hen he just ran past * * *, he was just trying to get away. * * * * So then that's
when the shots said, Pop, pop, pop, pop, pop, pop. They just start. I said, Oh, Momma. My
granddaughter over in there." Id. at 213. But then her granddaughter appeared, running
away from the apartment. Id. at 214.
{¶ 7} After hugging her granddaughter, Ms. A.C. approached the building and saw
Mr. McKnight emerging from her window. Id. at 215 ("the defendant was hanging out my
window * * * *; and I heard him say, Help. Help."). A building security guard arrived, gun
drawn, and Ms. A.C. followed him back toward her apartment to check on the status of Mr.
Harris "and all of this stuff." Id. at 216. Ms. A.C. further testified that she later picked Mr.
McKnight out of a photo array and identified him as having "had a gun and entered the
apartment"; she did not see his compatriot in the red hoodie to have a gun, she said, and
her recollection of these events was "[n]ot at all" impaired by her having smoked crack that
day. Id. at 218-19.
{¶ 8} Called to the witness stand, security guard Eric Baker told the jury that he
had been flagged down by a woman "saying someone just shot up her apartment." Id. at
No. 20AP-595 4
270. Upon arriving at the scene, he "noticed a male trying to come out of a window." Id.
That man turned out to be Mr. McKnight, who had been shot in the face. "[O]nce we got
him out -- fully out of the window and onto the ground, we were informed that there was
someone else still inside." Id. at 271-72.
{¶ 9} Mr. Baker entered the building and discovered Mr. Harris lying in the entry
to the apartment, with his torso extending into the hallway. Id. at 276. "He had been shot,"
but was "still alive" and asking for help. Id. at 272. Mr. Baker "asked him did he know who
shot him, and he kind of just pointed like towards the window, or outside, but he wasn't
able to say who it was or the description or anything of that nature. He just kept pointing
as [if] to say they were outside." Id. at 273. Mr. Baker confirmed that the window at which
he thought Mr. Harris was pointing was the same window from which Mr. McKnight had
emerged. Id; see also id. at 277 (from his prone position, Mr. Harris was pointing back
through the apartment "towards the window").
{¶ 10} A police officer who responded to the scene testified to having observed Mr.
McKnight lying in front of the building with "an apparent gunshot wound to his face." Id.
at 68 (Officer Lucci). Inside the apartment, the officer found Mr. Harris in "[v]ery bad"
condition with gunshot wounds and "unable to speak." Id. at 74. The officer searched Mr.
Harris and found "a large sum of money" and "a large [amount of] suspected crack cocaine
in his pants' pockets." Id. at 75. He also found two guns in the apartment, one a "MAC-9"
[sic], the other a revolver. Id. at 77; see also Ex. B (Crime Scene Search Unit report with
two "Recovered Firearm" forms, one for the Cobray MAC-11 9 mm weapon, the other for a
Sturm Ruger .357 revolver), Ex. E (Firearms Report).
{¶ 11} The Coroner's evidence indicated that Mr. Harris died that day from two
gunshot wounds to the trunk of his body. Id. at 179, 181-82, and Ex. D. Both bullets passed
through the body without leaving fragments. Id. at 171. Each bullet had at least a slightly
downward trajectory, one piercing his liver and the other his colon. Id. at 178, 180.
{¶ 12} The state also adduced evidence that three spent casings from the scene had
come from the 9 mm Cobray semi-automatic pistol and that five spent cartridge casings
were in the .357 Magnum. Id. at 318, 321, and Ex. E. Other expert testimony revealed that
a bullet recovered at the scene with Mr. Harris's blood on it was capable of having been
fired from the Cobray 9 mm but not from the .357 Magnum. See Id. at 431 (blood DNA
No. 20AP-595 5
testimony); 320-22 (firearms expert). Mr. Harris was not a major contributor of DNA to
either gun; Mr. McKnight in all overwhelming probability was a major contributor of DNA
to both, including to DNA (from blood) on the trigger and handle of the Cobray MAC-11.
Id. at 418, 419, 425-27 (testimony of forensic DNA analysis Miranda Smith). And the DNA
analyst testified that Mr. McKnight's DNA was found on fingernail scrapings from Mr.
Harris's left hand, as well as on the apartment's doorjamb. Id. at 428-29.
{¶ 13} The state also presented the testimony of a jailhouse informant, S.A. He
testified to having been housed with Mr. McKnight for "a month or two" (a time period that
grew considerably shorter under cross-examination) while Mr. McKnight was awaiting trial
in this case. Id. at 331, 361-62. According to S.A., Mr. McKnight confessed that he and an
unnamed colleague had "forced their way into" an apartment after having gone there under
the "guise that they were * * * to sell or purchase a weapon." Id. at 333, 335. After having
"had to get up in there," the story ran, Mr. McKnight and the "victim * * * got to arguing
and, like, talking strongly back and forth to each other. He said that he pulled out his phone,
just looking around to see, like, what was inside the apartment, whatever, and a few minutes
later he heard a gunshot, and he responded to the gunshot, and next thing you know he was
shot, and he said he was stumbling back and fell * * * out the window." Id. at 336. S.A.'s
account continued that Mr. McKnight "said that the person pretty much got what [h]e
deserved, and he said it was funny how he got shot in the face and survived and that person
didn't, and he died; and so he had said everything that he got he deserved." Id. at 339-40
(with the transcript perhaps not entirely clear as to whether that last "he" connotes Mr.
Harris or Mr. McKnight). S.A. also testified that Mr. McKnight had said that he was tipped
off to the hold-up prospect by a female neighbor. Id. at 340; see also id. at 387.
{¶ 14} S.A. acknowledged that he received significant consideration for providing
his account. His potential sentence on a pending robbery charge was reduced from 22 to
12 years (not counting a potential year and a half for post-release control violation) when
the state agreed on his plea of guilty to dismiss a repeat violent offender specification that
had been based on an earlier robbery, and the state further agreed to recommend that he
receive a sentence of five years in prison. Id. at 344 (reciting cooperation agreement), 357.
The case detective acknowledged that various witness reports and other details involving
the events in question would have been in the state's discovery provided Mr. McKnight (and
No. 20AP-595 6
potentially available, the defense suggested, in his jail pod). Id. at 472-73 (Detective Mall),
364 (S.A. concedes that reading someone's discovery packet in a prison pod is a theoretical
possibility).
{¶ 15} The state also called the detective, Aaron Mall. Detective Mall was permitted
to testify, among other things, as to his understanding that Mr. Harris had been under
federal investigation for illegal weapons dealing at the time of his death. Id. at 469. He
testified, too, that Ms. A.C. had described Mr. McKnight as having had a gun in his hand,
and that her description of the gun matched the Cobray MAC-11 found inside the
apartment, id. at 493. He characterized Ms. A.C. as having "seemed lucid" and cogent
when he spoke with her on the evening of the shooting. Id. at 497.
{¶ 16} Detective Mall interviewed Mr. McKnight on July 16, 2018, some 54 days
after the event. Id. at 503. The jury heard a tape-recording of that discussion. Id. at 511-
31 (trial commentary by Detective Mall about the tape; the record contains no transcript of
the interview), Ex. J (CD recording). Mr. McKnight told the detective that he had gone to
the apartment to try to sell a gun "[i]n exchange for an eight ball of powder [cocaine]." Id.
at 518 (Detective's summary). "[T]hey got to arguing" over the price of the gun, and "[t]he
deceased tried to grab Mr. McKnight's gun," according to Mr. McKnight. Id. at 520 (adding
"that the deceased went for his gun and that the deceased then shot Mr. McKnight"). Mr.
McKnight said that he had procured the MAC from "a crackhead," id. at 523, and that he
did not know the identity of the person who had accompanied him into the apartment, id.
at 529.
{¶ 17} Against this backdrop, Mr. McKnight presents us with three assignments of
error on appeal: he claims first that the verdicts were not supported by sufficient evidence,
next that they were against the manifest weight of the evidence, and third that "[t]he trial
court erred when it found that the aggravated burglary and murder charges did not merge
for sentencing purposes." Appellant's Brief at i.
{¶ 18} "In reviewing a challenge to the sufficiency of the evidence, an appellate court
must determine 'whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.' " State v. Neil, 10th Dist. No. 14AP-981, 2016-Ohio-
4762, ¶ 94, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
No. 20AP-595 7
"Where the evidence [of guilt], 'if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt,' it is sufficient to sustain a conviction." Id.;
see also, e.g., State v. Williams, 10th Dist. No. 19AP-824, 2021-Ohio-3006, ¶ 38.
{¶ 19} In assessing Mr. McKnight's first assignment of error, we therefore examine
the record to see whether the state adduced sufficient evidence to support his convictions
for aggravated burglary and felony murder, both with gun specifications. It did.
{¶ 20} As relevant here, Ohio's aggravated burglary statute specifies that: "No
person, by force, stealth, or deception, shall trespass in an occupied structure * * * when
another person other than an accomplice of the offender is present, with purpose to commit
in the structure * * * any criminal offense, if any of the following apply: (1) The offender
inflicts, or attempts or threatens to inflict physical harm on another; [or] (2) The offender
has a deadly weapon or dangerous ordnance on or about the offender's person or under the
offender's control." R.C. 2911.11(A). The trial court charged the jury consistent with that
statute, and more specifically advised that before they could find Mr. McKnight guilty,
jurors had to find beyond a reasonable doubt that he had "trespassed by force or stealth"
with purpose to commit a criminal offense and either "recklessly inflicted * * * or attempted
to inflict * * * physical harm upon * * * Martin Harris and/or [Ms. A.C.], and/or [Mr.
McKnight] had * * * a firearm on or about his person or under his control." Tr. at 709
(further defining certain terms). With regard to the gun specification attached to that
count, the trial court instructed the jury that if it concluded that Mr. McKnight was guilty
of aggravated burglary, it further had to "decide whether the state has proved beyond a
reasonable doubt that [Mr. McKnight] had a firearm on or about his person or under his
control while committing the Aggravated Burglary and did display the firearm, brandished
the firearm, indicated that he possessed the firearm, or used it to facilitate the Aggravated
Burglary." Id. at 712-13.
{¶ 21} Mr. McKnight's brief to us does not contest the sufficiency of the evidence
that supported both the "deadly weapon or dangerous ordnance" element of the second,
alternative prong of the aggravated burglary statute and the attached gun specification.
Indeed, his brief contends that proof showed "Harris tried to grab McKnight's gun, a MAC-
11 Cobray." Appellant's Brief at 3. Nor does Mr. McKnight contest that the state offered
sufficient proof that the apartment was occupied at the time of the event, and that he was
No. 20AP-595 8
there to commit a criminal offense. Rather, he contends that he "was an invited guest and
thus, by definition, was not trespassing" in Ms. A.C.'s apartment. Id. at 8 (adding, "they
knocked and were let into the apartment").
{¶ 22} But one can trespass in a home even if one knocks and the door is opened
(after one removes one's finger from the peephole). As the trial court advised the jury, "[a]
person trespasses when, without privilege to do so, that person knowingly enters or
remains on the premises of another." Tr. at 710 (emphasis added); see also R.C.
2911.21(A)(1). "Privilege," as the trial court further instructed, "means an immunity,
license, or right conferred by law, or bestowed by express or implied grant, or arising out of
status, position, office, or relationship, or growing out of necessity." Tr. at 710; see also R.C.
2901.01(A)(12). Starting to open one's door is not an express or implied grant to those
entering to engage thereafter in any conduct without limit. See, e.g., State v. Steffen, 31
Ohio St.3d 111, 115 (1987) ("a privilege once granted may be revoked. * * * * Under the
circumstances of this case, even assuming lawful initial entry, the jury was justified in
inferring from the evidence that appellant's privilege to remain in [the] home terminated
the moment he commenced his assault"); State v. Cutts, 5th Dist. No. 2008CA00079,
2009-Ohio-3563, ¶ 181 ("Where a defendant commits an offense against a person in the
person's private dwelling, the defendant forfeits any privilege, becomes a trespasser, and
can be culpable for aggravated burglary."); State v. Tyson, 10th Dist. No. 10AP-830, 2011-
Ohio-4981, ¶ 26 ("Even if one or more of the men were initially invited inside the
apartment, that invitation was revoked when they began stealing items.").
{¶ 23} Ms. A.C.'s testimony, if believed, would itself provide more than sufficient
basis to find that Mr. McKnight trespassed in her residence. And the method of that
trespass—by "force," with "stealth" not relevant under the proof adduced and with the jury
not having been charged as to "deception"—is not directly contested by Mr. McKnight's
brief, which focuses solely on the means of entry: "they knocked and were let into the
apartment." See Appellant's Brief at 8-9. Ms. A.C. testified that immediately after she
opened the door, "it was, like, boom" and Mr. McKnight "bust through with a gun." Tr. at
202, 205. "I didn't even get the door all the way open before they bust through, knocking
me in behind the door." Id. at 205. She was "slammed in against the wall," and when she
screamed, she says, Mr. McKnight and his colleague told her: "We want the money. Shut
No. 20AP-595 9
the fuck up." Id. at 207, 209. When Mr. McKnight slammed in through the door with a
gun and triggered Ms. A.C.'s screams (on this account), he lost any privilege he had to enter
or remain in the dwelling. He cannot seriously be heard to argue that at that point, simply
because the door had been answered, he was "an invited guest." Compare Appellant's Brief
at 8. On these facts, he had forfeited any "guest" status even before he and his colleague
approached Mr. Harris and (on Ms. A.C.'s testimony) demanded: "MF, give me the money,
give me the shit. Give me the shit. [And so forth.]" Compare Tr. at 203, 209.
{¶ 24} We overrule Mr. McKnight's first assignment of error to the extent that it
challenges the sufficiency of the state's evidence with respect to his aggravated burglary
conviction and the related gun specification.
{¶ 25} The jury also convicted Mr. McKnight of felony murder with a gun
specification. R.C. 2903.02(B) provides in relevant part: "No person shall cause the death
of another as a proximate result of the offender's committing or attempting to commit an
offense of violence that is a felony of the first or second degree." Aggravated burglary is a
felony of the first degree, R.C. 2911.11(B), and it is an offense of violence, R.C.
2901.01(A)(9)(a). Mr. McKnight's only argument that his felony murder conviction with
the specification was not supported by sufficient evidence is that "because aggravated
burglary is an element of felony murder" in these circumstances, and because there was
insufficient evidence to support the aggravated burglary charge (under his "invited guest"
postulate), "the state did not make its prima facie case for [the felony murder] count either."
Appellant's Brief at 8. But because the state did present sufficient evidence to support its
aggravated burglary charge, Mr. McKnight's syllogism falls apart. We overrule his first
assignment of error in full.
{¶ 26} Mr. McKnight's second assignment of error posits that the jury's verdicts
were against the manifest weight of the evidence. "To evaluate a claim that a jury verdict is
against the manifest weight of the evidence, we review the entire record, weigh the evidence
and all reasonable inferences, consider the credibility of witnesses, and determine whether
in resolving conflicts in the evidence, the jury clearly lost its way and created such a
manifest miscarriage of justice that we must reverse the conviction and order a new trial."
State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 168, citing State v. Thompkins, 78
Ohio St.3d 380, 387 (1997). Reversal on manifest weight grounds is appropriate " 'only in
No. 20AP-595 10
the exceptional case in which the evidence weighs heavily against the conviction.' "
Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983).
{¶ 27} "Though appellate courts must sit as a 'thirteenth juror' when considering a
manifest weight argument, [they] must also give great deference to the trier of fact's
determination on the credibility of the witnesses." State v. Kurtz, 10th Dist. No. 17AP-382,
2018-Ohio-3942, ¶ 31 (citation omitted). So " ' "where a factual issue depends solely upon
a determination of which witnesses to believe, that is the credibility of witnesses, a
reviewing court will not, except upon extremely extraordinary circumstances, reverse a
factual finding either as being against the manifest weight of the evidence or contrary to
law." ' " In re Johnson, 10th Dist. No. 04AP-1136, 2005-Ohio-4389, ¶ 26, quoting cases
including State v. Fluellen, 10th Dist. No. 74AP-138, 1974 Ohio App. Lexis 3688 (July 30,
1974) at * 7. " '[W]e are guided by the presumption that the jury * * * "is best able to view
the witnesses and observe their demeanor, gestures, and voice inflections, and use these
observations in weighing the credibility of the proffered testimony." ' " Kurtz at ¶ 18
(further citations omitted). See also, e.g., State v. McGowan, 10th Dist. No. 18AP-467,
2019-Ohio-5319, ¶ 54 (quoting Wilks, Thompkins, Kurtz, and Johnson).
{¶ 28} Mr. McKnight limits his manifest weight argument to questioning the
credibility of Ms. A.C. and of jailhouse informant S.A. Ms. A.C., he notes, "had been
smoking crack," and so, he postulates, her "perception of what was happening around her
was clouded. Further [and here, Mr. McKnight credits Ms. A.C.'s account, at least to some
extent], she ran out of the apartment almost immediately after willingly letting McKnight
enter, so she had no idea what transpired after her exit." Appellant's Brief at 10. But outside
parties including two police officers and security guard Baker gleaned important
information from Ms. A.C. Interviewing her a few hours after the event, Detective Mall
found her "lucid." She presented naturally vivid but quite coherent and largely consistent
testimony to the jury, and her drug use was the subject of interrogation at trial and known
to the jurors. Physical evidence, including the gun that she described Mr. McKnight as
wielding, was consistent with her account (and Mr. McKnight's own brief references
"McKnight's gun," Appellant's Brief at 3). Moreover, she did testify to firsthand
observations after she left the apartment: it was not until after Mr. McKnight's colleague
had fled past her that she heard gunshots, and she thereafter saw Mr. McKnight "hanging
No. 20AP-595 11
out" of her apartment window (a physical fact confirmed, too, by security guard Baker).
The evidence is indisputable, moreover, that there was a shooting in Ms. A.C.'s apartment
at the time in question: Mr. McKnight was shot in the face, and Mr. Harris wound up dead.
Those extraordinary events were real, not some fantasy of crack-induced "paranoia."
Compare Appellant's Brief at 10.
{¶ 29} One need not accord any significant weight to the testimony of jailhouse
informant S.A. (beyond the fact of his generous "cooperation agreement") in order to
conclude that the jury was entirely within its right to reach the verdicts it did. By Ms. A.C.'s
account, Mr. McKnight was the only person (other than Ms. A.C.'s granddaughter) in the
apartment with Mr. Harris at the time of the shooting. And the evidence is overwhelming
that Mr. McKnight came tumbling out of the window almost immediately thereafter. Again,
Ms. A.C.'s account of the apartment invasion and Mr. McKnight's possession of the MAC-
11 pistol is consistent with the physical evidence, including Mr. McKnight's DNA on the gun
trigger and doorjamb, as well as with Mr. McKnight's admission to possession of the gun.
The jury also was entitled to consider facts such as Mr. McKnight's DNA having been found
on the swab of Mr. Harris's fingernails, and (for whatever it was worth) Mr. Harris's dying
gesture pointing in the direction of the window.
{¶ 30} Considering Mr. McKnight's arguments in the context of the full record of
this case, we cannot say that the jury clearly lost its way and created a manifest miscarriage
of justice. We overrule the second assignment of error.
{¶ 31} We turn, then, to Mr. McKnight's third assignment of error and the question
of whether the counts for aggravated burglary and murder merge together or stand as
separate convictions. "The General Assembly in codifying double-jeopardy protections
[contained in the United States and Ohio Constitutions] has expressed its intent as to when
multiple punishments can be imposed." Ruff, 2015-Ohio-995, at ¶ 12. R.C. 2941.25 directs:
(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
No. 20AP-595 12
or information may contain counts for all such offenses, and
the defendant may be convicted of all of them.
Thus, instructs the Supreme Court, "R.C. 2941.25(B) sets forth three categories in which
there can be multiple punishments: (1) offenses that are dissimilar in import, (2) offenses
similar in import but committed separately, and (3) offenses similar in import but
committed with separate animus." Ruff at ¶ 20. That assessment is a judicial determination.
See id. at ¶ 13.
{¶ 32} The current status of the law in Ohio as elucidated in Ruff is that "[r]ather
than compare the elements of two offenses to determine whether they are allied offenses of
similar import, the analysis must focus on the defendant's conduct to determine whether
one or more convictions may result, because an offense may be committed in a variety of
ways and the offenses committed may have different import. No bright-line rule can govern
every situation." Id. at ¶ 30. The Supreme Court has directed that:
A trial court and the reviewing court on appeal when
considering whether there are allied offenses that merge into a
single conviction under R.C. 2941.25(A) must first take into
account the conduct of the defendant. In other words, how
were the offenses committed? If any of the following is true,
the offenses cannot merge and the defendant may be convicted
and sentenced for multiple offenses: (1) the offenses are
dissimilar in import or significance—in other words, each
offense caused separate, identifiable harm, (2) the offenses
were committed separately, or (3) the offenses were committed
with separate animus or motivation.
Id. at ¶ 25 (emphasis added). See also id. at ¶ 22 ("the inquiry should not be limited to
whether there is separate animus or whether there is separate conduct. Courts must also
consider whether the offenses have similar import") (citation omitted). Also of significance
here, the high court added: "We do not hold that every aggravated burglary and rape
automatically lead to the same import. As we have explained, even if Ruff committed the
aggravated burglary and the corresponding rape of each victim with the same conduct, he
could still be convicted of both offenses if the offenses are of dissimilar significance and
have separate and identifiable harm." Id. at ¶ 28.
{¶ 33} Thus, we know from authority of the Supreme Court that there is now no
overarching rule to the effect that where one offense is predicated on the commission of
No. 20AP-595 13
another, with the second essentially being an element of the first, the two must
automatically merge at sentencing. Ruff and its rejection of the Blockburger test tells us as
much. See id. at ¶ 28 (remand to court of appeals to consider "the import of the offenses"),
id. at ¶ 29. And we understand State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, to
confirm the point. See id. at ¶ 15, 17 (motor vehicle operator sentencing provision does not
create an exception to general rule regarding allied offenses; nonetheless, where an OVI
offense is the predicate for an aggravated vehicular assault conviction, "R.C. 2941.25
permits separate convictions for both" because "causing serious physical harm while
driving under the influence * * * * has a different import and significance than merely
driving under the influence").
{¶ 34} "[A]n appellate court reviews the trial court's R.C. 2941.25 determination de
novo." State v. Flood, 10th Dist. No. 18AP-206, 2019-Ohio-2524, ¶ 25 (citations omitted).
Following the Supreme Court's decision in Ruff, we acknowledged in Flood that "[i]n
conducting an analysis of whether two offenses are allied offenses of similar import, the
Supreme Court of Ohio directs an appellate court to look beyond the statutory elements and
to consider the defendant's conduct." Flood at ¶ 29. "Ultimately, if the harm resulting from
each offense is separate and identifiable, the offenses are of dissimilar import and do not
merge." Id. at ¶ 28. We found there that "because there was separate conduct to constitute
the separate offenses of tampering with evidence and gross abuse of a corpse, the trial court
did not err in refusing to merge the two offenses." Id. at ¶ 34; see also id. at ¶ 33 ("the state
clearly demonstrated at trial that the tampering with evidence charge related to the distinct
acts that occurred prior to Flood's disposing of [a] body in the water. Stated another way,
the offense of tampering with evidence was already complete before Flood engaged in
separate conduct to constitute the offense of gross abuse of a corpse").
{¶ 35} The trial court here found that "there is clearly a separation between the
aggravated burglary and then [the shooting] which ultimately became a felony murder."
Tr. at 783 (sentencing hearing; also emphasizing the "time lapse" between Mr. McKnight's
having "entered the house initially with the firearm intending, I think, to threaten," and the
later shooting). The trial court then opined, however, that the two offenses "were of similar
import, which would be the first prong [of the Ruff-type analysis], [while] under the second
prong they were committed separately, and under the third there was a separate animus."
No. 20AP-595 14
Id. We find that conclusion precisely backwards, but because we determine that the "first
prong" of separate and identifiable harm is established, for much the reason the trial court
cited, we will affirm the trial court's judgment that the two counts do not merge. (In
fairness, we note that the trial court may have been led astray in its analysis by a concession
of defense counsel, who had argued: "I do agree that aggravated burglary does have a
separate animus than [sic] a felony murder charge, but the problem is that they fail on
prongs two and three of that analysis." Id. at 780 [although then adding that "the jury found
him guilty of a felony murder charge with the predicate of aggravated burglary, so that is
another reason why that consecutive sentences shouldn't be imposed in this case"]. We
note again that Ruff directed that if any one of the three prongs is met, the counts do not
merge. Ruff at ¶ 25.)
{¶ 36} An aggravated burglary and felony murder predicated on that aggravated
burglary by definition (of those offenses) do not have separate animus. Indeed, where the
aggravated burglary is the predicate offense for the murder, the requisite state of mind is
found in the aggravated burglary offense, not independently in the felony murder. The
felony murder statute under which Mr. McKnight was convicted " 'does not require the state
to prove any purpose or specific intent to cause death. The mens rea element for felony
murder under R.C. 2903.02(B) is satisfied when the state proves the intent required for the
underlying felony.' " State v. Jennings, 10th Dist. No. 09AP-70, 2009-Ohio-6840, ¶ 50,
quoting State v. Ford, 10th Dist. No. 07AP-803, 2008-Ohio-4373, ¶ 27 (further citations
omitted). Here, because felony murder is committed when a person causes the death of
another "as a proximate result of the offender's committing or attempting to commit an
offense of violence that is a felony of the first or second degree" (absent certain exceptions
not relevant here), R.C. 2903.02(B), the aggravated burglary supplied the mens rea for the
felony murder. The "animus or motivation" of the two crimes was not separate. By the
same token, because the aggravated burglary was the lone predicate for the felony murder,
the offenses were definitionally interlocked and not committed separately.
{¶ 37} But we conclude that the offenses were not of similar import or significance:
each caused separate, identifiable harm. On this record, the aggravated burglary conviction
did not hinge on the fact that Mr. Harris was shot and died. Given the trespass in the
occupied structure with people other than Mr. McKnight and his colleague there and with
No. 20AP-595 15
his purpose to commit a criminal offense, the elements of aggravated burglary were
satisfied here when it was established that Mr. McKnight had a gun on or about his person
or under his control. See R.C. 2911.11(A)(2). Ms. A.C. testified to Mr. McKnight's having
had a gun; he admitted to it; the gun was recovered at the scene; and—significantly—the
jury found Mr. McKnight guilty of the gun specification under the aggravated burglary
count. That finding, by which the jury confirmed beyond a reasonable doubt that Mr.
McKnight "had a firearm on or about his person or under his control while committing the
Aggravated Burglary and did display the firearm, brandished the firearm, indicated that he
possessed the firearm, or used it to facilitate the Aggravated Burglary," Tr. at 713 (jury
instructions), comprehends and extends beyond every aspect of the "on or about the
offender's person or under the offender's control" language of the underlying aggravated
burglary statute that permits conviction even absent infliction or threatened infliction of
physical harm.
{¶ 38} Bringing a gun to a burglary is, on this record, distinct from causing a death;
the aggravated burglary here would have been an aggravated burglary whether or not Mr.
Harris had died. We acknowledge that the issue is complicated somewhat by the trial
court's having instructed the jury that it could base an aggravated burglary finding either
on threatened, attempted, or actual infliction of physical harm to Mr. Harris and/or Ms.
A.C., or on Mr. McKnight's having had about him a deadly weapon, without requiring the
jury to separate those findings. See Tr. at 709 (jury charge). But there was no objection to
that part of the instructions; the instructions are not invoked as ground for appeal; and the
jury did separately conclude that Mr. McKnight had a gun during the aggravated robbery
when it found him guilty of the aggravated robbery gun specification. Compare State v.
Macias, 2d Dist. No. 1562, 2003-Ohio-1565, ¶ 35 ("The jury ultimately found Macias guilty
of the firearm specification accompanying count two. Therefore, it is evident that the jurors
concluded a deadly weapon was used in the theft of Mrs. Wiley's purse. The unanimous
verdict on the firearm specification establishes that the jury * * * necessarily found Macias
guilty of aggravated robbery under R.C. § 2911.01(A)(1) for using a deadly weapon * * * in
the commission of a theft offense").
{¶ 39} Moreover, since we are enjoined to review the record and assess harms
caused by Mr. McKnight's conduct, we observe that the evidence was overwhelming that
No. 20AP-595 16
Ms. A.C. and her granddaughter both were in the apartment at least at the outset of the
aggravated burglary and that Ms. A.C. would have been a victim of the aggravated burglary
even had Mr. Harris not been shot. Her testimony is that after being slammed into the wall
when Mr. McKnight stormed in (with a gun), and after being told, "We want the money.
Shut the fuck up," and as Mr. McKnight and his colleague were turning to Mr. Harris and
demanding that he give them the money and drugs, she fled the apartment. Mr. McKnight's
own brief confirms that "she ran out of the apartment almost immediately after * * * letting
McKnight enter, so she had no idea what transpired after her exit." Appellant's Brief at 10.
In this case, the aggravated burglary as committed with a grandmother and granddaughter
in the apartment along with Mr. Harris created distinct and identifiable harms in addition
to the harm done Mr. Harris.
{¶ 40} Our conclusion that under the circumstances and verdicts of this case, the
aggravated burglary and the felony murder were "dissimilar in import or significance," to
quote from the Ruff test, might be different if the aggravated burglary had been predicated
solely on the physical harm done Mr. Harris and without the jury finding that Mr. McKnight
had a gun during the aggravated burglary. That would make this case much closer to Ruff
II, where the court of appeals for the First District determined on remand that aggravated
burglary and rape counts did merge where it was "the physical harm element [of the rape]
that elevates the [burglary] offense to aggravated burglary." State v. Ruff, 1st Dist. No. C-
120533, 2015-Ohio-3367, ¶ 3. There, "the conduct constituting the rape was an element of
the aggravated burglary," id. at ¶ 17, and so the harm caused by the rape was not "separate
and identifiable" from the harm that was the sole aggravating basis for the aggravated
burglary, id. at ¶ 13. To the same effect is State v. Ramey, 2d Dist. No. 27636, 2018-Ohio-
3072, ¶ 21, where "[w]ithout the physical harm caused by the felonious assault, the burglary
would not have had the aggravating element of inflicting physical harm" that allowed it to
serve as predicate for the felony murder charge there. Not so here, where possession of the
gun as found by the jury in the specification sufficed as an aggravating factor that elevated
Count One in Mr. McKnight's case to aggravated burglary, with harms separate from the
death of Mr. Harris (the harm resulting from the felony murder).
{¶ 41} The later First District case of State v. Robinson, 1st Dist. No. C-170147, 2019-
Ohio-387, further illustrates the distinction. There, the court held that the harm from a
No. 20AP-595 17
felony murder as predicated on felonious assault was not separate from the harm done by
the felony murder: it was the same harm, accomplished by the same act, and consequently
those two counts were required to merge. Id. at ¶ 59. But another count accused the
defendant "of aggravated burglary for trespassing in the home to commit a criminal offense
while possessing a deadly weapon, in violation of R.C. 2903.11(A)(2). In the trial court, [the
defendant there] argued this offense related to the harm inflicted on [the deceased victim]
and merged accordingly with the other [sic] offenses predicated on that physical harm. We
disagree with this argument," said the court. Id. at ¶ 60. "The aggravated burglary charged
in [that count] was not predicated on the physical harm inflicted on [the deceased].
Instead, the aggravating factor was based on [defendant's] possession of a deadly weapon
while committing the burglary. The harm from bringing a weapon into a home is separate
and identifiable from the harm resulting when you use that weapon," and thus that
aggravated burglary offense "involved an import separate from the other offenses." Id. at
¶ 61.
{¶ 42} The court of appeals for the Second District adopted much the same analysis
in the recent case of State v. Albertson, 2d Dist. No. 28722, 2021-Ohio-2125. Where
aggravated robbery and felony murder offenses hinged on the same harm (the death of the
victim), those counts merged. Id. at ¶ 105 ("Without the serious physical harm caused by
the * * * felony murder, the aggravated robbery would not have had the aggravating element
of inflicting serious physical harm."). But the state won its appeal of the trial court's
decision to merge aggravated burglary offenses with the felony murder offenses. "Unlike
the aggravated robbery, the evidence presented at trial indicates that [the defendant's]
commission of the aggravated burglary was not dependent on [the fire that led to the
death]." Id. at ¶ 107. The "aggravated burglary was completed once [the defendant]
physically harmed/hit [the victim] while in the course of trespassing"; it resulted in a harm
different from the death caused by the fire. Id. at ¶ 109.
{¶ 43} Similarly, Mr. McKnight's conduct in invading Ms. A.C.'s apartment while in
possession or control of a gun and with the purpose to commit a felony caused harm
separate from the shooting death of Mr. Harris. And it also involved at least one separate
victim. Compare Ruff, 2015-Ohio-995, at ¶ 23 (noting precedents "that when the
No. 20AP-595 18
defendant's conduct put more than one individual at risk, that conduct could support
multiple convictions because the offenses were of dissimilar import").
{¶ 44} Because the aggravated burglary and the felony murder were offenses of
dissimilar import or significance under the controlling Ruff analysis, with each offense
generating its own separate and identifiable harm, we overrule Mr. McKnight's third
assignment of error.
{¶ 45} Having overruled each of Mr. McKnight's three assignments of error, we
affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
SADLER and JAMISON, JJ., concur.
NELSON, J., retired, of the Tenth Appellate District, assigned
to active duty under the authority of the Ohio Constitution,
Article IV, Section 6(C).
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