[Cite as State v. Peters, 2018-Ohio-1684.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               VAN WERT COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 15-17-13

        v.

CHRISTOPHER M. PETERS,                                     OPINION

        DEFENDANT-APPELLANT.




                Appeal from Van Wert County Common Pleas Court
                          Trial Court No. CR-16-11-116

                                       Judgment Affirmed

                              Date of Decision: April 30, 2018




APPEARANCES:

        Michael J. Short for Appellant

        Kelly J. Rauch for Appellee
Case No. 15-17-13


SHAW, J.

       {¶1} Defendant-appellant, Christopher Peters (“Peters”), brings this appeal

from the October 23, 2017, judgment of the Van Wert County Common Pleas Court

sentencing him to serve life in prison without parole after Peters was convicted by

a jury of Aggravated Murder in violation of R.C. 2903.01(C), an unspecified felony,

Felonious Assault in violation of R.C. 2903.11(A)(1), a second degree felony, and

Endangering Children in violation of R.C. 2919.22(B)(1)/(E)(1)(d), a second degree

felony. On appeal, Peters argues that his convictions were against the manifest

weight of the evidence and that the trial court erred by failing to merge the

Aggravated Murder conviction with the Felonious Assault conviction for purposes

of sentencing.

                      Relevant Facts and Procedural History

       {¶2} On November 28, 2016, Peters was indicted for Aggravated Murder in

violation of R.C. 2903.01(C), an unspecified felony, Murder in violation of R.C.

2903.02(A), an unspecified felony, Felonious Assault in violation of R.C.

2903.11(A)(1), a felony of the second degree, and Endangering Children in

violation of R.C. 2919.22(B)(1), a felony of the second degree. The Aggravated

Murder charge carried a death penalty specification, but that specification was later




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dismissed.1 The charge of Murder in violation of R.C. 2903.02(A) was also later

dismissed. The charges essentially alleged that Peters beat 15-month old H.R. to

death. H.R. was the son of Peters’ girlfriend, Valarie Dean. Peters pled not guilty

to the charges.

         {¶3} Peters’ case proceeded to a jury trial, which was held September 18,

2017, to September 22, 2017. At trial, the State called 15 witnesses and introduced

over 65 exhibits then rested its case. Amongst the evidence introduced was a

coroner’s report indicating that H.R. died of blunt force injuries to the chest and

abdomen due to a beating. Evidence presented also indicated that Peters was taking

care of H.R. while Valarie was at work during the time of the likely cause of death.

Other circumstantial evidence was introduced, linking Peters to the crime, including

a statement Peters made to another inmate saying he should just go to court and ask

for the death penalty because he could not live with what he had done.

         {¶4} Peters called three witnesses on his own behalf and introduced a number

of exhibits into evidence. His defense focused largely on H.R. having a “toxic”

level of Benadryl in his system, which he contended caused H.R.’s death. He also

pointed to Valarie Dean’s failings as a mother, and her opportunity alone with H.R.

wherein she could have caused H.R.’s death. Nevertheless, Peters argued that even



1
  The defense filed in excess of 90 pretrial motions in this case, many of which dealt with matters related to
the death penalty. As there are no assignments of error dealing with pretrial matters, we will not address
them.

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if H.R. did die of a beating, there were no witnesses establishing that it was Peters

who had done the beating and there was no direct evidence of his involvement.

       {¶5} After the evidence was presented, the jury was given instructions,

which included requested instructions on the lesser-included offenses of Murder and

Involuntary Manslaughter for the Aggravated Murder charge. However, the jury

found Peters guilty of all three counts in the indictment: Aggravated Murder,

Felonious Assault, and Endangering Children.

       {¶6} On October 23, 2017, Peters’ case proceeded to sentencing. Peters was

ordered to serve life in prison without parole on the Aggravated Murder conviction,

8 years in prison on the Felonious Assault conviction, and 8 years in prison on the

Endangering Children conviction. The trial court found that none of the sentences

merged and then ordered all of the prison terms to be served consecutively. A

judgment entry memorializing Peters’ sentence was filed October 23, 2017. It is

from this judgment that Peters appeals, asserting the following assignments of error

for our review.

                          Assignment of Error No. 1
       The convictions are against the manifest weight of the evidence.

                           Assignment of Error No. 2
       The trial court erred in failing to merge the aggravated murder
       and felonious assault charges for sentencing.




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                             First Assignment of Error

       {¶7} In Peters’ first assignment of error he argues that his convictions were

against the manifest weight of the evidence. Specifically, he contends that there

was a period of time wherein Valarie Dean, H.R.’s mother, was alone with H.R. and

that she could have beaten H.R. or administered a lethal dose of Benadryl to him.

Peters argues that there were no witnesses testifying that he did anything to H.R.

and that all evidence presented was circumstantial. Peters contends that the State’s

case did not amount to proof beyond a reasonable doubt.

                                Standard of Review

       {¶8} In reviewing whether a defendant’s conviction was against

the manifest weight of the evidence, the appellate court sits as a “thirteenth juror”

and examines the conflicting testimony. State v. Thompkins, 78 Ohio St.3d 380,

387 (1997). In doing so, this Court must review the entire record, weigh the

evidence and all of the reasonable inferences, consider the credibility of witnesses,

and determine whether in resolving conflicts in the evidence, the factfinder “clearly

lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.” Thompkins at 387.

       {¶9} Courts have held that judgments should be reversed as against the

manifest weight of the evidence “ ‘only in the exceptional case in which the

evidence weighs heavily against the conviction.’ ” (Emphasis added.) Id. quoting

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State v. Martin, 20 Ohio App.3d 172, 175 (1983). Furthermore, “[t]o reverse a

judgment of a trial court on the weight of the evidence, when the judgment results

from a trial by jury, a unanimous concurrence of all three judges on the court of

appeals panel reviewing the case is required.” Thompkins at paragraph 4 of the

syllabus; Ohio Constitution, Article IV, Section (B)(3).

                                 Relevant Statutes

       {¶10} In this case Peters was convicted of Aggravated Murder in violation

of R.C. 2903.01(C), Felonious Assault in violation of R.C. 2903.11(A)(1) and

Endangering Children in violation of R.C. 2919.22(B)(1). Aggravated Murder, in

violation of R.C. 2903.01(C), reads, “No person shall purposely cause the death of

another who is under thirteen years of age at the time of the commission of the

offense.”

       {¶11} Felonious Assault, in violation of R.C. 2903.11(A)(1), reads, “No

person shall knowingly * * * [c]ause serious physical harm to another[.]”

       {¶12} Child Endangering in violation of R.C. 2919.22(B)(1) reads, “No

person shall do any of the following to a child under eighteen years of age * * * (1)

Abuse the child[.]”

                            Evidence Presented at Trial

       {¶13} Testimony at trial established that Peters, his girlfriend Valarie Dean,

and Valarie Dean’s 15-month old child H.R. lived in an apartment at the Old Lincoln


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Inn in the city of Delphos, Van Wert County, Ohio. The residence was formerly a

motel but had been converted to apartment units.

        {¶14} On November 14, 2016, Valarie left the residence at around 8:30 p.m.

to go to her job at Whirlpool in Findlay, Ohio. Peters remained at the residence with

the intention of caring for H.R., who had a cold. Peters was not otherwise employed

at that time.

        {¶15} Valarie clocked in at work at 9:54 p.m., and she intended to return

home after her shift. Peters had told Valarie that he had to help a friend, “George,”

move materials in the morning near the end of her shift, so he was going to have to

leave slightly before Valarie got home.2 Thus the plan was to leave H.R. alone at

the residence, but for a short time. Peters indicated he would try to be home before

noon on November 15, 2016 to be with Valarie and H.R.

        {¶16} During Valarie’s shift at Whirlpool on November 14, 2016, she

exchanged some text messages with Peters. She notified him when she arrived at

work and she asked about H.R. Peters responded saying that H.R. still seemed sick

and that if he did not get better maybe he should be taken to a doctor. Valarie and

Peters exchanged a number of other texts until just after midnight when Peters stated

that he was going to “lay down for an hr [sic] or two” and that he would text Valarie

when he woke up.


2
  Peters would later state in his interview that he did not have to help George and hung out with a friend
instead.

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         {¶17} Shortly after 6 a.m. Peters indicated that he had awakened and he

began texting with Valarie again. Near 7 a.m., Valarie notified Peters that she was

on her way home from work but she had to stop at Walmart to use the bathroom.

Surveillance video from Walmart did indicate that Valarie stopped there. Valarie

messaged Peters that she was home just before 8 a.m. on November 15, 2016. Peters

was not at the residence at that time and he did not indicate in the text messages

what time he had left.

         {¶18} After returning home, Valarie exchanged a number of messages with

Peters wherein Peters expressed his worry about H.R.’s sickness, indicating that

they should perhaps take him to the doctor. Valarie indicated that when she returned

home from work she looked briefly in on H.R., thought he was sleeping in his crib,

and that she then went to sleep herself.3

         {¶19} Valarie awakened shortly before noon on November 15, 2016,

surprised that H.R. had not made any noise. She then went to check on him and

found him cold and not breathing in his crib. She called 9-1-1 and that call was

played for the jury.

         {¶20} Authorities responded to the scene, found Valarie screaming

hysterically and determined that H.R. was dead.4 One of the individuals called to



3
  Valarie did not testify at trial. Her statements were relayed through various law enforcement personnel
who spoke with her at the scene.
4
  Valarie’s reaction to her son’s death was questioned at trial as to its authenticity.

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the scene, Doctor Scott Jarvis, the Van Wert County Coroner, briefly examined

H.R.’s body and filled out the death certificate. Doctor Jarvis listed the time of

death as 12:20 p.m. on November 15, 2016, which was the time of identification of

death, but he noted that the state of the body indicated that H.R. had been dead

probably longer than 6 or 7 hours but shorter than 24. Due to a number of factors

in his cursory exam of H.R., Dr. Jarvis ordered an autopsy.

       {¶21} Dr. Diane Scala-Barnett performed the autopsy of H.R. She noted a

number of bruises on H.R.’s abdomen, his sides, his back, and his ribs. She

indicated that there was bruising in a semi-circular pattern often seen from knuckles

and fists, with an accompanying abrasion that she felt was most likely from a ring.

In her opinion, Dr. Scala-Barnett testified that H.R. was struck twice with a fist in

that area.

       {¶22} Dr. Scala-Barnett noted a number of internal injuries on H.R., which

included multiple rib fractures on H.R.’s left side. Some fractures were “acute”

meaning contemporaneous with the time of death, and other fractures were healing

and showed existing callouses, illustrating repeated fracturing. Dr. Scala-Barnett

also noted that H.R. had collapsed lungs, a hematoma on the ascending aorta, and

contusion hemorrhages involving the right atrium, right ventricle, and the posterior

surface of the thymus gland. Dr. Scala-Barnett found that the “left hemidiaphragm

is lacerated posteriorly,” that the soft tissue around the kidney and adrenal gland


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was torn, and that there was a hematoma on the left lobe of the liver. (State’s Ex.

70).   Dr. Scala-Barnett testified that the kidney was pushed up through the

diaphragm. Further, Dr. Scala-Barnett testified that there was evidence of H.R.

breathing under pressure and that the combination of respiratory injuries caused

respiratory failure.

       {¶23} Dr. Scala-Barnett’s report was introduced into evidence containing her

findings. She ultimately concluded that H.R. died from “Blunt force injuries of the

chest and abdomen” due to a beating. (Id.) She testified that the injuries were

reminiscent of a high speed motor vehicle accident when a seatbelt would retract on

a child. The manner of H.R.’s death was considered a homicide. In her testimony

she estimated that H.R. had been dead 12-18 hours before being pronounced dead

at the scene.

       {¶24} During the autopsy, Dr. Scala-Barnett did extract a blood sample from

H.R.’s head. That blood sample was sent to a toxicologist and the sample showed

that H.R. had a “toxic” level of “diphenhydramine,” or Benadryl, in his blood. Dr.

Scala-Barnett testified that the diphenhydramine contributed to H.R.’s death, but the

actual cause of death were the wounds from the beating, which were lethal with or

without the diphenhydramine.

       {¶25} A toxicologist, Dr. Robert Forney, testified on behalf of the State that

a “toxic” level of diphenhydramine meant potentially harmful, whereas a “lethal”


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level would mean deadly. Dr. Forney testified that a “toxic” level of a substance

consisted of a range. For example, he indicated that inebriation is a “toxic” level of

alcohol but that was very different from a “lethal” level of alcohol. He testified that

while the amount of diphenhydramine in H.R.’s system was enough to be

considered “toxic,” it was not a “lethal” amount. According to a reference book

cited at trial, Dr. Forney indicated that the level of diphenhydramine in H.R.’s blood

was approximately 1/32nd the amount of a “lethal dose.”

       {¶26} An opened bottle of children’s Benadryl for ages 6-11 and small

medicine droppers were found at the residence and the bottle of Benadryl was nearly

full. Dr. Forney testified that the small amount missing from the nearly full bottle

would likely be consistent with the amount of diphenhydramine in H.R.’s blood.

Dr. Forney testified to a reasonable degree of scientific certainty that the amount of

diphenhydramine in H.R.’s blood was not at a “lethal” level.

       {¶27} Peters was notified of H.R.’s death shortly after the authorities arrived

at the residence on November 15, 2016. The landlord called Peters and informed

him. Peters did not come forward to speak with the authorities despite their desire

to talk to him. He was eventually located with the help of the US Marshals. The

record indicates that Peters and Valarie were in contact and that they were staying

at Peters’ mother’s residence until Peters was found.




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           {¶28} The State introduced an interview with Peters into evidence. During

the interview Peters indicated that although H.R. had fallen with a sweeper while he

was watching him on the November 14, 2016, Peters did not know how H.R. had

sustained such severe injuries.5 Peters indicated that he had grabbed H.R. at one

point and H.R. screamed like his arm had fallen off but Peters claimed he had not

even squeezed H.R. at that time. Peters stated that H.R. had not fractured any ribs

before as far as he knew. Peters further stated that he did not leave the residence

until approximately 20 minutes before Valarie got home from work, and that he had

not left during the night at all.

           {¶29} Peters indicated that although the police officers had been trying to

contact him since H.R.’s body was found, he did not come speak with them until he

was detained because he had an unrelated active warrant.

           {¶30} The State presented the testimony of Peters’ neighbors, which

contradicted some of the statements Peters made in his interview and provided

circumstantial evidence of his culpability. Andrew Cavanaugh testified that he lived

next door to Peters at the time of the alleged incident. He testified that in the late

evening hours of November 14, 2016, he was watching television when he heard

loud noises coming from Peters’ apartment. He testified that it sounded like

someone had dropped a couch or was moving. Cavanaugh testified that there was



5
    In her testimony, Dr. Scala-Barnett indicated that the injuries were not caused by a falling sweeper.

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more than one “thump,” more than ten in fact, and that the noises went on until 11

p.m. or midnight. He testified that he did not check to see what was happening and

he simply turned his television up louder.

       {¶31} Cavanaugh testified that he heard Peters’ truck starting up some time

after he heard the thumping noises. Cavanaugh testified that the only people with

loud trucks at the Old Lincoln Inn at the time were Cavanaugh (himself) and Peters.

Cavanaugh testified that he never heard Peters return.       On cross-examination

Cavanaugh admitted that he did not actually see Peters get into his truck, though he

was familiar with the sound of it.

       {¶32} Cavanaugh’s wife Aubury also testified that she heard Peters leave in

his truck around 12:30-1 a.m. Aubury testified that the sound of Peters’ truck woke

her up and that she checked her phone and looked for her husband because it

sounded like his truck but her husband was home, so she assumed it was Peters in

his truck, though she never saw Peters. Aubury testified that the next morning she

was awakened by Valarie’s screaming regarding her child. On cross-examination

Aubury testified that Valarie looked like she was potentially acting.

       {¶33} The State also presented the testimony of Allen Creed, who lived by

the Old Lincoln Inn. He testified that when he left for work at approximately 2:15

a.m. on November 15, 2016, Peters’ truck was not present at his apartment. Peters’




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landlord also testified that when she woke up around 6:30 a.m., his truck was not at

the apartment.

       {¶34} In addition to the testimony about the night/early morning hours of the

incident, the State presented the testimony of Eldon Howe-Anderson who had been

incarcerated with Peters. Howe-Anderson testified that although Peters did not talk

much about his case at first, he eventually said some things. Howe-Anderson

testified that Peters had told him three different, inconsistent times that he had left

the residence in the early morning hours of November 15, 2016: 1 a.m., 7 a.m., and

8 a.m. Howe-Anderson also testified that while watching crime dramas with Peters

there were occasions when Peters would ask questions about what forensic evidence

could show, such as finding old fractures. Howe-Anderson testified that at one point

Peters said to him that he was just going to go into court and ask for the death penalty

because he could not stand to live with what he had done.

       {¶35} In his case-in-chief, Peters called Deb Booth of the Putnam County

Job and Family Services, Children Services Unit. Booth testified to issues with

Valarie’s parenting and a case regarding her and H.R. Booth testified that at one

point Valarie had said she would rather have a dog than a child.

       {¶36} Booth testified that she had trouble getting into contact with Valarie

to check H.R.’s environment when she was working the case. Booth testified that

during one visit on August 24, 2016, she knocked repeatedly at the Old Lincoln Inn


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until a man appeared saying that Valarie and H.R. were not present, even though

Booth could hear a child “fussing.” Booth testified that Valarie later told her that

the man was Peters. Booth asked to see the child, but permission was not given.

Booth indicated that the male very quickly showed her the child and shut the door

on her. Booth testified that she called the police but was unable to do anything more

at the time.

        {¶37} As his final witness, Peters called Dr. Werner Spitz who testified that

while there was certainly significant physical abuse of the child, it was his belief

that H.R. died of a toxic level of Benadryl. Dr. Spitz testified that he thought that

the blood sample taken from H.R. might have been diluted, and that the level of

Benadryl in his system may have actually been much higher than it was found to be

by the toxicologist.6 Dr. Spitz admitted that he did not personally examine the child

and that he was being paid for his testimony.

                                      Argument and Analysis

        {¶38} On appeal, Peters argues that his convictions were against the manifest

weight of the evidence. He argues that Valarie Dean was more likely to have caused

H.R.’s death than Peters. In support, Peters argues that the evidence indicated that

Valarie was alone with H.R. prior to his death, that she had indicated H.R. was fine




6
  The coroner and the toxicologist adamantly disputed the claim that the sample was diluted. They indicated
that a diluted sample would be visibly diluted, and this sample was not visibly diluted.

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when she had returned home from work, and that Valarie had once said she would

rather have a dog than a child.

       {¶39} Notwithstanding this point, Peters also contends that no one actually

saw him leave the Old Lincoln Inn and no one witnessed him harming H.R. Further,

Peters argues that there was no blood found at the scene and no marks on the walls

indicating that something had been thrown against them. Peters maintains that, at

best, the evidence against him was circumstantial, and it did not amount to proof

beyond a reasonable doubt.

       {¶40} Contrary to Peters’ arguments, the jury was presented with a

significant amount of circumstantial evidence linking him to the crime.

Circumstantial evidence is just as probative or persuasive as direct evidence. State

v. Healey, 6th Dist. Lucas No. L-14-1213, 2015-Ohio-4630, ¶ 11.

       {¶41} It was established that Peters was left alone with H.R. while Valarie

went to work. Peters’ neighbor heard loud noises from his apartment prior to

midnight, loud enough that he thought a couch was being moved and dropped.

Then, both of Peters’ neighbors heard a person in a loud truck leave just after

midnight. They associated the loud truck with Peters. Peters’ truck was not present

at the apartment when another witness went to work at 2:15 a.m., and it was not

present when the landlord awakened at 6:30 a.m. Peters told another incarcerated

individual inconsistent times that he left his residence during the early morning


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hours of the incident: 1 a.m., 7 a.m., and 8 a.m. The vast majority of these times

all conflict with Peters’ statement in his interrogation wherein he indicated he left

approximately 20 minutes before Valarie returned home from work, and that he had

not left at all during the night/early morning hours.

       {¶42} When Valarie returned home she indicated that she looked in on H.R.

but that she did not pick him up or further check on him and that she went to bed.

After she awakened she found H.R. cold and not breathing so she called 9-1-1. The

autopsy revealed a number of brutal internal injuries to H.R., which were described

to the jury. The injuries included marks that looked specifically like two fists had

struck H.R. in the side. One such mark was an abrasion, possibly from a ring, and

Peters later inquiring during his interview about one of his rings that had been taken.

Further, the coroner determined that H.R. had likely died 12 to 18 hours before being

discovered, which was well within the timeframe Peters was alone with H.R., and

12 hours would be approximately the time that the neighbors were hearing noises

from Peters’ apartment.

       {¶43} Although Peters’ expert opined that H.R. had actually died of a

Benadryl overdose, he actually admitted that H.R. was a badly abused child. The

State’s experts affirmatively discounted the testimony of Peters’ expert regarding

the Benadryl being the cause of death, and the jury was certainly free to believe the

conclusions of the State’s witnesses that H.R. had been beaten to death and that


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while he had a toxic level of Benadryl in his system, it was not a “lethal” level. This

is particularly true given that a Benadryl bottle found at the scene was nearly full.

       {¶44} Moreover, while Peters did not give an actual confession, his

statement to the other inmate that he could not live with what he had done was

incriminating. In addition, although Peters did not testify, the jury was able to see

his interview and evaluate his reactions to the questions asked by the detective in

this matter. Finally, the jury could have found Peters’ actions in fleeing after-the-

fact as indicative of consciousness of guilt.

       {¶45} Although it is true that no one actually saw Peters strike and kill H.R.,

the circumstantial evidence places Peters alone with the child during the suspected

time of death. While Peters argues that Valarie was alone with H.R. once she

returned home from work, that time frame does not fit with the time of death as

testified to by the State’s witnesses.

       {¶46} “[A] defendant is not entitled to a reversal on manifest-weight grounds

merely because inconsistent evidence was offered at trial.” State v. Bailey, 10th

Dist. Franklin No. 12AP-699, 2013-Ohio-3596, citing In re C.S., 10th Dist. Franklin

No. 11AP-667, 2012-Ohio-2988, ¶ 27. The jury is free to believe or disbelieve any

or all of the testimony presented, and the trier of fact is in the best position to take

into account inconsistencies in the evidence as well as the demeanor and manner of

the witnesses to determine their credibility. Id. Although an appellate court must


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sit as a “thirteenth juror” when considering a manifest weight argument, it must also

give great deference to the jury. Id.

         {¶47} Based on the evidence and the testimony presented we cannot find that

Peters’ convictions for Aggravated Murder, Felonious Assault, and Endangering

Children were against the manifest weight of the evidence. Therefore, Peters’ first

assignment of error is overruled.

                                    Second Assignment of Error

         {¶48} In Peters’ second assignment of error, he argues that the trial court

erred by failing to merge his Aggravated Murder conviction and his Felonious

Assault conviction for purposes of sentencing.7

                                         Standard of Review

         {¶49} Revised Code 2941.25, Ohio’s multiple-count statute, governs allied

offenses, and states as follows.

         (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 or
         information may contain counts for all such offenses, and the
         defendant may be convicted of all of them.

7
 Peters does not renew his argument that he made to the trial court that his convictions for Felonious Assault
and Endangering Children should merge, or his argument that his convictions for Aggravated Murder and
Endangering Children should merge.

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       {¶50} In State v. Ruff, 143 Ohio St.3d 114, 2015–Ohio–995, the Supreme

Court of Ohio provided Ohio courts with the following guidelines as to how to

interpret R.C. 2941.25.

       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 the 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.

(Emphasis added.) Ruff at ¶ 31. The Supreme Court of Ohio further held

in Ruff that “two or more offenses of dissimilar import exist within the meaning

of R.C. 2941.25(B) 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 ¶ 26.

       {¶51} Whether offenses are allied offenses of similar import is a question of

law that is reviewed de novo. State v. Badertscher, 3d Dist. Putnam No. 1214–06,

2015–Ohio–927, ¶ 21, citing State v. Stall, 3d Dist. Crawford No. 3–10–12, 2011–

Ohio–5733, ¶ 15, citing State v. Brown, 3d Dist. Allen No. 1–10–31, 2011–Ohio–

1461, ¶ 36.




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                                       Analysis

       {¶52} Prior to sentencing in this case, the trial court requested that the parties

file memoranda regarding potential merger issues. The State filed a memorandum

citing the required Ruff analysis factors then summarily argued that the offenses in

this case each caused separate identifiable harm and should not merge. More

specifically, the State argued that, “[t]he violation of [C]hild [E]ndangering caused

the abuse of the child in the failure to seek medical care after the injuries defendant

inflicted, the prolongation of the suffering of the child, and the fractures of the

child’s ribs. The violation of [F]elonious [A]ssault caused the severe internal

injuries and extreme suffering the defendant inflicted on the child. The violation of

[A]ggravated [M]urder caused the death of the child victim.” (Doc. No. 295).

       {¶53} In response to the State’s memorandum, Peters argued that the harm

was actually the same from all of the allegations—the death of H.R. Peters argued

that although there were potentially several separate injuries to H.R., the injuries

were not tried as separate incidents of harm. Peters contended that, “The state may

not attempt to garner a conviction on all three charges based on the same course of

conduct, and then parse out individual injuries to support each charge merely for the

purpose of sentencing.” (Doc. No. 371).

       {¶54} In reviewing the matter at the sentencing hearing, the trial court found

that the Aggravated Murder was distinguishable from the other charges in this case


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because it was of dissimilar import or significance from the Felonious Assault and

Endangering Children convictions. The trial court also found that the Aggravated

Murder was committed with a separate animus or motivation. The trial court then

indicated that it did not need to consider the remaining Ruff question regarding

whether the offenses were committed separately since it determined that the other

two Ruff questions were answered in the affirmative.

       {¶55} In reviewing the trial court’s decision, we note that the trial court first

determined that the Felonious Assault and the Aggravated Murder were of

dissimilar import. The Supreme Court of Ohio stated in Ruff that offenses were of

dissimilar import if there were separate victims or there was a separate, identifiable

harm to each of the crimes. Here, H.R. was the only victim, thus the separate victim

segment does not apply. The trial court must then have determined that the harm

from the Aggravated Murder and the Felonious Assault was separate and

identifiable.

       {¶56} As to whether the harm in this case was separate and identifiable, the

child in this case was only 15 months old. In our de novo review, the evidence

showed a severe beating that consisted of at least multiple strikes and any single

strike to a child of this age could constitute a Felonious Assault, particularly given

the severity and multitude of internal injuries sustained here. There is also evidence




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in the record (i.e. medical testimony) revealing that H.R. could have survived from

the blows for up to an hour afterward.

       {¶57} Moreover, the trial court also determined here that Peters’ actions and

inactions established a separate animus. We agree. Given the tender age of the

child, an initial blow could cause serious physical harm, whereas multiple additional

blows to different parts of the body would suggest a separate intent to kill,

establishing a separate animus under Ruff. Based upon this, we cannot find that the

trial court erred in finding that the Felonious Assault conviction does not merge with

the Aggravated Murder conviction. Therefore, Peters’ second assignment of error

is overruled.

                                     Conclusion

       {¶58} For the foregoing reasons Peters’ assignments of error are overruled

and the judgment of the Van Wert County Common Pleas Court is affirmed.

                                                                 Judgment Affirmed

WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.

/jlr




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