[Cite as State v. Jackson, 2019-Ohio-4702.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 27892
                                                    :
 v.                                                 :   Trial Court Case No. 17-CRB-751
                                                    :
 YVONNE S. JACKSON                                  :   (Criminal Appeal from
                                                    :    Municipal Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                          Rendered on the 15th day of November, 2019.

                                               ...........

ANDREW D. SEXTON, Atty. Reg. No. 0070892, City of Dayton Prosecutor’s Office, 335
West Third Street, Room 390, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

JOYCE M. DEITERING, Atty. Reg. No. 0005776, 8801 North Main Street, Suite 200,
Dayton, Ohio 45415
      Attorney for Defendant-Appellant

                                              .............

HALL, J.
                                                                                        -2-


       {¶ 1} Yvonne S. Jackson appeals from her conviction and sentence in Dayton

Municipal Court on charges of criminal damaging, criminal mischief, and telephone

harassment.

       {¶ 2} In her sole assignment of error, Jackson contends the trial court erred at

sentencing in failing to merge criminal damaging and criminal mischief as allied offenses

of similar import.

       {¶ 3} The record reflects that Jackson was charged with a number of

misdemeanors, including criminal damaging, criminal mischief, aggravated menacing,

menacing, and multiple counts of telephone harassment. The charges involved alleged

telephone calls and threats to the victim and damage to the victim’s car. Jackson

ultimately pled guilty to one count of telephone harassment, and the State dismissed all

other charges except for criminal damaging and criminal mischief. Those two charges

proceeded to a jury trial where Jackson represented herself and was found guilty. After

reviewing a presentence investigation report, the trial court imposed jail sentences of 180

days for telephone harassment, 90 days for criminal damaging, and 60 days for criminal

mischief. It ordered the jail terms to be served concurrently and suspended them. In

addition, the trial court imposed a term of probation and ordered Jackson to pay a fine,

court costs, and restitution. The trial court stayed execution of the sentence pending

appeal.

       {¶ 4} Jackson’s appointed appellate counsel subsequently 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 any non-frivolous issues for review. When conducting our own independent

examination of the record, we noted that it lacked transcripts of all on-the-record
                                                                                           -3-


proceedings. We consequently found ourselves unable to determine whether any non-

frivolous issues existed. We did observe, however, that “Jackson’s convictions for criminal

damaging and criminal mischief potentially could be allied offenses of similar import.”

(October 23, 2018 Decision and Entry at 3.) In a related footnote, we explained:

                As relevant here, the criminal damaging statute provides that no

        person knowingly by any means shall cause physical harm to any property

        of another without the other person’s consent. R.C. 2909.06(A)(1). The

        criminal mischief statute provides in relevant part that no person without

        privilege shall knowingly damage the property of another. R.C.

        2929.07(A)(1). Both of the foregoing charges involved Jackson damaging

        the victim’s car by puncturing a tire and “keying” the car. The record reflects

        that Jackson committed the two acts hours apart. At trial, however, the State

        appears to have relied on both types of damage to support both charges,

        giving rise to a potential allied-offense issue. (See Trial Tr. at 202-207, 212-

        214).

(Id. at 3-4, fn. 2.)

        {¶ 5} Based on our review, we set aside the Anders brief and directed Jackson’s

counsel to obtain and review all transcripts. We explained that counsel then could “file a

merit brief or another Anders brief, as counsel deems appropriate.” (Id. at 4.) On April 25,

2019, Jackson’s attorney responded with a merit brief raising the assignment of error set

forth above.1 (Appellant’s brief at 10-15.) After reviewing black-letter law governing allied-


1 Before arguing the allied-offense issue, Jackson’s brief quickly reviews other issues and
concludes that they lack potential merit. Because the present appeal has not been
brought under Anders, we need not address these other issues. Instead, we will focus on
                                                                                        -4-


offense issues, Jackson argues as follows:

             The testimony of the complaining witness Kelly Vaughn was that her

      tire was flattened by the Appellant during the early morning hours of

      February 5, 2017, which constituted the criminal damaging. She had the tire

      changed and the spare tire placed on the vehicle, drove the vehicle to have

      the tire repaired about 11:00 a.m., and parked the vehicle in the same place

      upon her return. (Tr. Vol. I, P. 95-96). Vaughn then testifies that Appellant

      returned to Vaughn’s apartment around noon or 1:00 p.m. the same day

      and scratched her car with a key or other instrument, which constituted the

      criminal mischief. (Tr. Vol. I, P. 99-100). This testimony is supported by the

      testimony of Officer Kevin Johnson who stated that he was dispatched to

      Vaughn’s apartment around 1:00 p.m. on February 5, 2017 on a call for

      service where he noticed a scratch consistent with “keying,” but no other

      damage (such as a flat tire). (Tr. Vol. II, P. 150-152).

             The allegations of criminal damaging and criminal mischief were

      clearly separate incidences, which would seem to permit separate

      convictions. However, as noted in the Decision and Entry of October 23,

      2018, the State relied on both types of damages to support both convictions,

      which lends itself to a possible allied-offense issue. This Court must conduct

      a de novo review of a trial court’s merger determination under R.C. 2941.25,

      no deference is given to the trial court’s legal conclusions, and the Appellate

      Court must independently determine whether the facts of record satisfy the


Jackson’s sole assignment of error concerning allied offenses.
                                                                                              -5-


       applicable legal standard. This requirement of a de novo review makes the

       issue of allied offenses a colorable issue which must be reviewed on its’

       [sic] merits.

(Appellant’s brief at 14-15.)

       {¶ 6} Upon review, we note that Jackson did not raise an allied-offense argument

below, and the trial court did not make any “merger determination.” “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, 38 N.E.3d 860, ¶ 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; 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.

       {¶ 7} “ ‘As a practical matter, when determining whether offenses are allied

offenses of similar import within the meaning of R.C. 2941.25, courts must ask three

questions when defendant’s conduct supports multiple offenses: (1) Were the offenses

dissimilar in import or significance? (2) Were they committed separately? and (3) Were

they committed with separate animus or motivation? An affirmative answer to any of the

above will permit separate convictions. The conduct, the animus, and the import must all

be considered.’ ” State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266,

¶ 12, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.
                                                                                           -6-


       {¶ 8} Jackson has failed to demonstrate a reasonable probability that merger is

required here. There is no question that she committed separate acts with a separate

animus and caused different harms when she punctured the victim’s car tire in the early

morning hours of February 5, 2017 and then returned approximately 12 hours later and

“keyed” the car. (Trial Tr. Vol. I at 86-104.) The potential problem is that during closing

arguments the prosecutor referenced both the tire puncturing and the keying in

connection with the criminal-damaging charge. (Trial Tr. Vol. II at 202-203.) When

discussing the criminal-mischief charge, the prosecutor only mentioned the keying

incident. (Id. at 207.) Then, in rebuttal, the prosecutor again cited the keying incident in

connection with criminal damaging. (Id. at 212-213.) Ultimately, the jury returned general

verdicts finding Jackson guilty of criminal damaging and criminal mischief. The record

contains nothing indicating which conduct (tire puncturing or keying) the jury applied to

which charge. 2 And, on this record, either tire puncturing or keying could support a

conviction for either criminal damaging or criminal mischief.

       {¶ 9} The State’s evidence regarding both criminal acts came primarily from the

victim. We see no reason why the jury would have ignored one act, or concluded that it

did not occur, and relied exclusively on the other act to find Jackson guilty of both charges.

Where, as here, the prosecutor presented evidence that supported imposing separate

sentences for two distinct criminal acts, we see no plain error in the failure to apply

merger. We find no reasonable probability that merger applied because the facts and the

law do not support such a conclusion. Although the prosecutor mixed the evidence as it


2  We note that the record lacks a bill of particulars and, despite the assertion in the
appellant’s brief, we see nothing linking the criminal damaging to the tire puncturing or
linking the criminal mischief to the keying incident.
                                                                                     -7-


related to each charge in her closing argument, that argument was not evidence. State v.

Wogenstahl, 150 Ohio St.3d 571, 2017-Ohio-6873, 84 N.E.3d 1008, ¶ 45.

      {¶ 10} Jackson’s assignment of error is overruled, and the judgment of the Dayton

Municipal Court is affirmed.

                                    .............



DONOVAN, J. and FROELICH, J., concur.


Copies mailed to:

Andrew D. Sexton
Joyce M. Deitering
Hon. Mia Wortham Spells
