[Cite as State v. Johnson, 2011-Ohio-1919.]


          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 94813




                                     STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.


                                  ANTHONY JOHNSON

                                                    DEFENDANT-APPELLANT




                        JUDGMENT:
            CONVICTION AFFIRMED, REVERSED AND
               REMANDED FOR RESENTENCING


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-528422

        BEFORE: Jones, J., Blackmon, P.J., and Stewart, J.
       RELEASED AND JOURNALIZED:                       April 21, 2011

ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Pinkey S. Carr
Assistant Prosecuting Attorney
The Justice Center, 8 Floor
                     ht




1200 Ontario Street
Cleveland, Ohio 44113




LARRY A. JONES, J.:

       {¶ 1} Defendant-appellant, Anthony Johnson (“Johnson”), appeals his conviction and

sentence.   We affirm the conviction, but reverse the sentence and remand for resentencing.

       I.   Procedural History and Facts
       {¶ 2} In September 2009, Johnson was charged with aggravated murder, with a victim

under the age of 13 murder specification, notice of prior conviction, and repeat violent offender

specification.   He was also charged with two counts of child endangerment.                The case

proceeded to a jury trial, with the exception of the repeat violent offender specification, which

the court determined.

       {¶ 3} At the close of the state’s case, the defense made a Crim.R. 29 motion for

acquittal, which was denied.      The defense rested without presenting any evidence.           Its

renewed motion for an acquittal under Crim.R. 29 was denied.       The defense requested that the

jury be instructed on murder and involuntary manslaughter.      The court granted the request as

to the murder instruction, but denied it as to the involuntary manslaughter instruction.

       {¶ 4} The jury found Johnson guilty of murder and both counts of child endangerment.

 The court found him guilty of the repeat violent offender specification.      The court merged

the two counts of child endangerment and sentenced Johnson to 33 years-to-life in prison,

which included an eight-year sentence on Count 3, child endangerment.

       {¶ 5} The trial testimony revealed the following facts.         Johnson and Erika Bush

began dating when they were 33 years of age and 20 years of age, respectively.        Less than a

year into their relationship, Bush became pregnant with the victim, Anthony Johnson, Jr.

(“Anthony”).     Although Johnson seemed “fine” with the pregnancy at first, he later expressed

to Bush his displeasure with the pregnancy and indicated that he did not want her to have the
baby.        Johnson’s behavior toward Bush included him threatening her; Bush changed her

telephone number because of the threats.

         {¶ 6} Baby Anthony was born on February 22, 2008; Johnson was not present for his

birth.   After the baby’s birth, Bush initiated court proceedings in an attempt to collect child

support from Johnson.       Her attempt further angered Johnson.

         {¶ 7} In late October 2008, Johnson and Bush appeared in court for a child support

hearing.       After the hearing, Bush asked Johnson if he wanted to see their son.     Johnson did

not respond; he just had a “blank look on his face.”     A few hours after the hearing, Bush was

driving in her car with baby Anthony when she saw Johnson driving in his car.          She followed

him to his house so that he could see the baby.       Bush asked Johnson if Anthony could stay

with him for a couple of hours and Johnson agreed.          When Bush returned to get the baby,

Johnson yelled at her because the baby had a runny nose.           Johnson and Bush did not have

contact with each other again until March 2009.   1




         {¶ 8} At that time, Johnson contacted Bush about delivering clothes he had for the

baby and the two agreed to meet.       Bush went to Johnson’s house; she had baby Anthony with

her and Johnson put the clothes in her car and sat in the backseat, playing with the baby for a

few minutes.       The next contact Johnson and Bush had occurred in April 2009, when Johnson


         Johnson contacted Bush’s mother in November 2008 about getting some clothes for Anthony.
         1

 Bush invited Johnson to the baby’s first birthday party, which was in February 2009, but Johnson did
not attend.
called Bush and told her that his other son from another relationship wanted to meet Anthony.

Bush agreed and took Anthony to Johnson’s house the following day.         Johnson asked if the

baby could sleep at his house overnight, but Bush said no.       She left the baby at Johnson’s

house for about three hours.

       {¶ 9} Another child support hearing was held, upon Johnson’s motion, in May 2009.

Johnson appeared at the hearing, but Bush did not, which upset Johnson.       After calling Bush

and yelling at her, Johnson sent her a text message asking her to pray for him.

       {¶ 10} Between May 2009 and August 2009, Johnson saw Anthony about once every

other week.    The visitations took place at Johnson’s house.

       {¶ 11} The following events transpired in the days leading up to baby Anthony’s death.

 On August 9, 2009, Bush asked Johnson if the baby could come over while she went grocery

shopping and he agreed.      About an hour or two after she left Anthony, she called Johnson to

check on him.     Johnson told Bush “[w]e’re out and about, he’s fine.”    Bush asked to speak

with Anthony and Johnson put him on the phone. The phone dropped, and Johnson said that

Anthony was eating but he had a “busted lip.”            When Bush inquired about what had

happened, Johnson told her “[t]hat’s what boys do * * * he’s a boy and * * * he’s gonna

fall[,]” and told her not to shelter him.   Bush examined Anthony when she picked him up later

that day, but did not observe any injury.

       {¶ 12} The following day, August 10, Johnson called Bush to ask if Anthony could
come over to spend time with his other son, and Bush agreed.         When Bush called Johnson a

couple of hours later to arrange to pick Anthony up, Johnson said that the baby was just about

to lay down and asked if he could stay overnight; Bush said yes.

       {¶ 13} The following day, August 11, Johnson asked Bush if Anthony could stay with

him for the week.    Bush agreed that Anthony could spend some more time with Johnson that

day, but did not agree that he could stay for the week.     During the course of the day, Bush

called Johnson several times to check on Anthony and that upset Johnson.        He yelled at her

and brought up his displeasure about her filing for child support.    At one point, Bush asked to

speak with Anthony, but Johnson would not allow it.         During a subsequent call that day,

however, Anthony did speak to his mother.      Bush told Johnson that she wanted to come get

her son, but Johnson said they were not at his home.         Anthony slept overnight again at

Johnson’s house and spent the following day there.

       {¶ 14} The next day, August 12, in the evening, Johnson had company at his house —

his brother Adrian Johnson (“Adrian”), and friends Simion Wright (“Simion”) and Joseph

Wilson (“Joseph”).    By all accounts, the men, including Johnson, were drinking alcohol and

smoking marijuana.

       {¶ 15} Adrian testified that when he and the others arrived around 10:00 p.m., Anthony

was on the couch and appeared to be sleeping.        Adrian saw a scar on the baby’s nose and

forehead.   Approximately ten minutes after Adrian and the others arrived, Johnson took the
baby upstairs.

          {¶ 16} Meanwhile, Bush asked her friend Veronica if she could get Anthony from

Johnson’s house.      Bush sent a text message to Johnson to let him know that Veronica was

coming.      Johnson called Bush and told her that he was not releasing Anthony to Veronica

because it was after 10:00 p.m. and he just wanted him to go to sleep.     Veronica arrived at

Johnson’s house, but did not go inside — Johnson met her at the door and came outside to talk

to her.    Veronica smelled the odor of marijuana on Johnson.   Anthony again slept overnight

at Johnson’s house.

          {¶ 17} At approximately 9:00 a.m. on August 13, Bush called Johnson to check on

Anthony, but the call went straight to Johnson’s voicemail.     At about 5:00 p.m., Bush was

driving to Johnson’s house when she received a call from him.       Johnson told her that they

needed “to be strong.”     According to Johnson, his mother came to his house and saw that

Anthony was “breathing funny” and told Johnson that he needed to take the baby to the

hospital, which he did.    Bush drove to the hospital.   Anthony was pronounced dead a few

minutes after Bush arrived.

          {¶ 18} The trial evidence revealed that when Johnson brought Anthony to the hospital

he was not breathing and did not have a pulse.     The treating physician described Johnson as

“almost reluctant” to bring Anthony into the examining room.      Johnson told the doctor that

Anthony had fallen in the driveway the day before and later did not want to wake up from his
nap.

       {¶ 19} The treating physician believed that Anthony had been abused and died of

cardiopulmonary arrest secondary to trauma or abuse based on the following: (1) multiple

abrasions and contusions about the forehead and under the left eye; (2) hematotympanum of the

left ear; (3) ruptured blood vessels in the baby’s retinas, which is indicative of a shaken baby;
       2




(4) bruising not consistent with a fall; and (5) handprints on the baby’s left arm and thigh.

According to the doctor, the injuries were one to two days old.     The doctor also believed that

Anthony was dead upon arrival at the hospital, and that he had died six to 12 hours prior to

being brought to the hospital.

       {¶ 20} A forensic pathologist from the County Coroner’s Office believed many of

Anthony’s injuries occurred several hours to a day prior to his death and were caused by blunt

force impacts.    Further, the injuries were not consistent with a fall.   Based on her findings,

the pathologist determined the manner of death to be homicide, and the cause of death to be

“blunt impacts to the head, trunk, and extremities with cutaneous and vascular injuries.”

       {¶ 21} The coroner’s office also conducted DNA testing on several items from

Johnson’s home.     One of the items, a baseball bat, had traces of blood on it but there was not

a sufficient amount of DNA to return a reliable sample.

       {¶ 22} Police officers responded to the hospital, and after being advised of his rights,



       2
        Hematotympanum is a condition where blood collects around the eardrum and is frequently
Johnson agreed to talk.      Johnson told the police that the bruises on Anthony’s thigh resulted

from Johnson twice “backhanding” the baby because he was pulling his dog’s tail.          Johnson

further said that Anthony got the injuries to his forehead and face when he was outside playing

with a ball and fell while chasing it down the driveway.        The police described Johnson as

“non-emotional[,]” “indifferent[,]” “he had no emotion one way or the other, he wasn’t mad,

upset, [or] crying.”

        {¶ 23} Johnson has assigned the following errors for our review:

        {¶ 24} “I.     The trial court erred in denying appellant’s motion for acquittal as to the

charges when the state failed to present sufficient evidence to sustain a conviction.

        {¶ 25} “II.    Appellant’s convictions are against the manifest weight of the evidence.

        {¶ 26} “III.     The trial court abused its discretion and deprived appellant of his

constitutional right to a fair trial by denying appellant’s request for a jury instruction on

involuntary manslaughter.

        {¶ 27} “IV.     Appellant was denied a fair trial due to the trial court’s finding that

appellant would have to testify in order to warrant a jury instruction on involuntary

manslaughter in violation of his constitutional right to remain silent.

        {¶ 28} “V.     The trial court erred by admitting evidence of appellant’s prior convictions

where an admission was available and by allowing the state to present evidence beyond the


seen in situations involving trauma or skull fractures.
conviction it needed which resulted in unfair prejudice and denied appellant a fair trial.

       {¶ 29} “VI.    The trial court erred by ordering convictions and a consecutive sentence

for separate counts of murder and endangering children because the offenses are allied offenses

pursuant to R.C. 2941.25 and they are part of the same transaction under R.C. 2929.14.”

       II.   Law and Analysis

                                  Sufficiency and Weight of Evidence

       {¶ 30} In his first two assignments of error, Johnson contends that his murder

conviction was not supported by sufficient evidence and was against the manifest weight of the

evidence.    We disagree.

       {¶ 31} The legal concepts of sufficiency of the evidence and weight of the evidence are

both quantitatively and qualitatively different. State v. Thompkins (1997), 78 Ohio St.3d 380,

678 N.E.2d 541, paragraph two of the syllabus.      In State v. Jenks (1991), 61 Ohio St.3d 259,

574 N.E.2d 492, the Ohio Supreme Court delineated the role of an appellate court presented

with a sufficiency of the evidence argument as follows:

       {¶ 32} “An appellate court’s function when reviewing the sufficiency of the evidence to

support a criminal conviction is to examine the evidence admitted at trial to determine whether

such evidence, if believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt.    The relevant inquiry is 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. * * *”      Id. at paragraph two of the syllabus.

       {¶ 33} A manifest weight of the evidence claim requires a different review.             The

weight of the evidence concerns the inclination of the greater amount of credible evidence

offered to support one side of the issue rather than the other. State v. Brindley, Franklin App.

No. 01AP-926, 2002-Ohio-2425, ¶16.          When presented with a challenge to the manifest

weight of the evidence, an appellate court, after “‘reviewing the entire record, weighs the

evidence and all reasonable inferences, considers the credibility of witnesses and determines

whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its way and created

such a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.’”     State v. Thompkins (1997), 78 Ohio St.3d 380, 387, 678 N.E.2d 541, quoting State

v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.             An appellate court should

reserve reversal of a conviction as being against the manifest weight of the evidence for only

the most “‘exceptional case in which the evidence weighs heavily against the conviction.’”

Id.

       {¶ 34} Although sufficiency and manifest weight are different legal concepts, manifest

weight may subsume sufficiency in conducting the analysis; that is, a finding that a conviction

is supported by the manifest weight of the evidence necessarily includes a finding of

sufficiency.    State v. Braxton, Franklin App. No. 04AP-725, 2005-Ohio-2198, ¶15. “[T]hus,

a determination that a conviction is supported by the weight of the evidence will also be
dispositive of the issue of sufficiency.” Id.

       {¶ 35} R.C. 2903.02 governs the crime of murder and provides in relevant part that

“[n]o 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 and

that is not a violation of section 2903.03 or 2903.04 of the Revised Code.”     R.C. 2903.02(B).

       {¶ 36} The predicate offense for the felony murder charge in this case was child

endangering under R.C. 2919.22(B)(2), which provide as follows:

       {¶ 37} “(B) No person shall do any of the following to a child under eighteen years of

age * * *:

       {¶ 38} “(2) Torture or cruelly abuse the child[.]”

       {¶ 39} The weight of the evidence supports the murder conviction.

       {¶ 40} The evidence further demonstrated Johnson’s indifference toward baby Anthony;

he was not present for his birth or first birthday party, and his relationship with him started only

because of Bush’s persistence.

       {¶ 41} Johnson’s anger toward Bush continued throughout their relationship and was

evident in the days leading up to Anthony’s death.      For example, when Bush called Johnson

on August 11 to check on Anthony, Johnson yelled at her and reiterated his displeasure about

her filing for child support.    Johnson did not make baby Anthony available to Bush that day

when she told him she wanted to get him.
         {¶ 42} The following evening, August 12, Johnson had friends at his house, and one of

the friends saw injuries on Anthony’s nose and forehead as he appeared to be sleeping on the

couch.    Bush had arranged for her friend Veronica to get the baby from Johnson, but Johnson

would not allow it.

         {¶ 43} The evidence further demonstrated that when Johnson did bring baby Anthony to

the hospital on August 13, he was “almost reluctant” to bring the baby into the examining

room.     The treating physician believed that Anthony was dead upon arrival at the hospital, and

that he had died six to 12 hours prior to being brought to the hospital.    The doctor believed

that Anthony had been abused and died of cardiopulmonary arrest secondary to trauma or

abuse.

         {¶ 44} A forensic pathologist likewise opined that Anthony’s injuries were caused by

blunt force impacts and determined that the cause of death was homicide.               Both the

pathologist and treating physician testified that baby Anthony’s injuries were not caused by a

fall, as Johnson contended.    Further, they both testified that the injuries occurred during the

time period when Anthony was under Johnson’s care.

         {¶ 45} Moreover, the police described Johnson as “non-emotional[,]” “indifferent[,]”

and having “no emotion one way or the other, he wasn’t mad, upset, [or] crying.”

         {¶ 46} On this record, we find that the manifest weight of the evidence supported the

conviction.    Because we find that the conviction was supported by the weight of the evidence,
we necessarily find that it is also supported by sufficient evidence.     Thus, the first and second

assignments of error are overruled.

                    Denial of Request to Instruct Jury on Involuntary Manslaughter

       {¶ 47} For his third assigned error, Johnson contends that he was denied a fair trial

because of the trial court’s denial of his request for an involuntary manslaughter jury

instruction.
           3
               In his fourth assignment of error, Johnson contends that the trial court denied

him of a fair trial because it stated that he would have to testify in order to warrant an

involuntary manslaughter instruction.

       {¶ 48} Trial courts have broad discretion in determining whether the evidence adduced

at trial was sufficient to warrant a jury instruction. State v. Morris, Guernsey App. No.

03CA29, 2004-Ohio-6988, reversed on other grounds, 109 Ohio St.3d 313, 2006-Ohio-2109,

847 N.E.2d 1174; State v. Mitts (1998), 81 Ohio St.3d 223, 228, 690 N.E.2d 522. “When

reviewing a trial court’s jury instructions, the proper standard of review for an appellate court is

whether the trial court’s refusal to give a requested instruction constituted an abuse of

discretion under the facts and circumstances of the case.”       State v. Sims, Cuyahoga App. No.

85608, 2005-Ohio-5846, ¶12, citing State v. Wolons (1989), 44 Ohio St.3d 64, 68, 541 N.E.2d

443.   A trial court does not abuse its discretion by not giving a jury instruction if the evidence

is insufficient to warrant the requested instruction. State v. Lessin (1993), 67 Ohio St.3d 487,



       3
        The court granted the defense’s request for a murder instruction, but denied the request for an
494, 620 N.E.2d 72.       An “‘abuse of discretion’ connotes more than an error of law or

judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.”

Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

       {¶ 49} In State v. Kidder (1987), 32 Ohio St.3d 279, 513 N.E.2d 311, the Ohio Supreme

Court stated the following relative to instructing a jury on a lesser included offense:

       {¶ 50} “A criminal defendant is entitled to a lesser-included-offense instruction [ ] only

where the evidence warrants it.         Thus, the trial court’s task is two fold:    first, it must

determine what constitutes a lesser included offense of the charged crime; second, it must

examine the facts and ascertain whether the jury could reasonably conclude that the evidence

supports a conviction for the lesser offense and not the greater.”     (Citations omitted.)   Id. at

280.

       {¶ 51} Involuntary manslaughter is a lesser included offense of aggravated murder.

State v. Thomas (1988), 40 Ohio St.3d 213, 215, 533 N.E.2d 286.            Thus, we consider the

second step for determining whether an involuntary manslaughter instruction should have been

provided, that is, whether the evidence not only supported an acquittal on the initial crime, but

also supported a conviction on the lesser included offense.    An instruction on a lesser included

offense is not required simply because some evidence of a lesser included offense is advanced.

State v. Hill, Cuyahoga App. No. 87645, 2006-Ohio-6425, ¶32.


involuntary manslaughter instruction.
       {¶ 52} Involuntary manslaughter is governed by R.C. 2903.04, which provides in

pertinent part that “[n]o person shall cause the death of another * * * as a proximate result of

the offender’s committing or attempting to commit a felony.”        R.C. 2903.04(A).

       {¶ 53} Johnson sought an involuntary manslaughter instruction with the predicate felony

being child endangerment under R.C. 2919.22(A) (Count 2), which provides as follows: “(A)

No person, who is the parent, guardian, custodian, person having custody or control, or person

in loco parentis of a child under eighteen years of age * * * shall create a substantial risk to the

health or safety of the child, by violating a duty of care, protection, or support.”

       {¶ 54} The culpable mental state of involuntary manslaughter is supplied by the

underlying offense. State v. Wilson, 182 Ohio App.3d 171, 2009-Ohio-1681, 912 N.E.2d 133,

motion for delayed appeal granted 123 Ohio St.3d 1505, 2009-Ohio-6210, 917 N.E.2d 809,

cause dismissed 124 Ohio St.3d 1424, 2010-Ohio-20, 919 N.E.2d 748.           Reckless is the mental

state for child endangering.          Cleveland v. Kazmaier, Cuyahoga App. No. 84290,

2004-Ohio-6420.       “A person acts recklessly when, with heedless indifference to the

consequences, he perversely disregards a known risk that his conduct is likely to cause a certain

result or is likely to be of a certain nature.   A person is reckless with respect to circumstances

when, with heedless indifference to the consequences, he perversely disregards a known risk

that such circumstances are likely to exist.”    R.C. 2901.22(C).

       {¶ 55} In State v. Finley, Hamilton App. No. C-061052, 2010-Ohio-5203, the First
Appellate District reached the same result as here in a similar case.      There, the defendant was

charged with aggravated murder, murder, and felonious assault in connection with the death of

his girlfriend’s one-year-old son who was in the defendant’s care for a day.           At trial, the

defendant requested an involuntary manslaughter instruction, but the trial court denied his

request.   In affirming the trial court, the First District stated that the victim “had been beaten

from head to toe and had suffered a severe blunt-force injury to his head. Based on this

evidence, no jury could reasonably have concluded that [the defendant] had inflicted these

injuries recklessly * * *.   Because the evidence did not reasonably support an acquittal of

felony murder and a conviction on the lesser-included offense of involuntary manslaughter, [the

defendant] was not entitled to the requested instruction.”   Id. at ¶30.

       {¶ 56} Likewise, the evidence in this case did not support a finding that Johnson acted

recklessly.   The evidence presented was that Anthony died as a result of blunt impacts with

excessive force to his head, face, trunk, and extremities that occurred while the baby was in

Johnson’s care.   The injuries were not caused by a fall.    Some of the injuries were observed

by Johnson’s brother on the evening of August 12.       Johnson, however, did not take Anthony

to the hospital until the evening of August 13, and even then was “almost reluctant” to bring

him into the examining room.      Moreover, the treating physician believed that baby Anthony

was dead upon arrival at the hospital, and that he had died six to 12 hours prior to when

Johnson brought him in.
       {¶ 57} On this record, the court did not abuse its discretion by not instructing on

involuntary manslaughter.

       {¶ 58} We also find no merit to Johnson’s claim that the court based its denial of an

involuntary manslaughter instruction on the fact that Johnson did not testify.        The record

indicates that at the time the court entertained the defense’s request for an involuntary

manslaughter instruction, which was near the conclusion of the state’s case, the court believed

that the evidence did not support the instruction.     The court merely stated that if Johnson

should testify and present evidence that would support the instruction, it would give the

instruction.   Further, the court specifically acknowledged Johnson’s right to remain silent,

telling defense counsel, “I’m not suggesting to you that your client has to testify, the Court

recognizes that he does not, that the burden is entirely upon the State of Ohio.”

       {¶ 59} In light of the above, the third and fourth assignments of error are overruled.

                                     Evidence of Prior Convictions

       {¶ 60} In his fifth assignment of error, Johnson contends that the trial court erred by

admitting evidence of his prior child endangering conviction when an admission was available.

 He further contends that the trial court erred by allowing the state to present evidence beyond

the conviction, i.e., evidence of a prior felonious assault conviction.   The defense agreed to

stipulate to the prior child endangering conviction, but the state did not accept the stipulation.

Instead, the state presented the testimony of a representative from the county’s clerk of courts’
office; the representative read the entire journal entry of conviction, which, in addition to the

endangering children conviction, included a felonious assault conviction.

       {¶ 61} Count 1 of the indictment, aggravated murder, had a notice of prior conviction

for an April 1994 felonious assault, and a repeat violent offender specification, based on the

same felonious assault.    Count 3 of the indictment, endangering children, charged that Johnson

“previously was convicted of an offense under this section.”

       {¶ 62} In regard to the state not accepting Johnson’s proposed stipulation on the

previous endangering children conviction, it was not obligated to do so.     Neither the state nor

the trial court is required to accept a defendant’s stipulation to a prior conviction where the

prior conviction is an element of the offense. State v. Smith (1990), 68 Ohio App.3d 692,

695, 589 N.E.2d 454.      The prior endangering children conviction was an element of Count 3.

       {¶ 63} In regard to the testimony of the prior felonious assault conviction, which,

although it was not an element of any offense, was the prior conviction that was the subject of

the notice of prior conviction and repeat violent offender specification, we find it to be

harmless error under the circumstances of this case because the convictions here were

supported by other substantial evidence.     See State v. Johnson, Cuyahoga App. No. 91900,

2009-Ohio-4367, ¶26-27.

       {¶ 64} In light of the above, the fifth assignment of error is overruled.

                                             Allied Offenses
       {¶ 65} In his final assignment of error, Johnson contends that his murder and child

endangering convictions were allied offenses that should have merged at sentencing.

       {¶ 66} The “merger doctrine” is codified under “R.C. 2941.25, which provides:

       {¶ 67} “(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.

       {¶ 68} “(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.”

       {¶ 69} The Ohio Supreme Court recently addressed the issue of merger in State v.

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. In Johnson, the defendant

was convicted of felony murder under R.C. 2903.02(B) (based on the predicate offense of child

endangering) and child endangering.     Johnson contended that the felony-murder conviction

and the child endangering conviction should have merged as allied offenses under R.C.

2941.25; the Ohio Supreme Court agreed.

       {¶ 70} There, the defendant beat a 17-year-old boy after apparently becoming angered

while helping him read.   The boy died as a result of injuries sustained from blunt impact to his
head.   There was arguably evidence in that case that there were two separate incidents, but4




the Ohio Supreme Court “decline[d] the invitation of the state to parse [the defendant’s]

conduct into a blow-by-blow in order to sustain multiple convictions for the second beating.”

Johnson at ¶56.    Rather, the Court found that the second beating was a “discrete act that

resulted in the simultaneous commission of allied offenses, child abuse and felony murder.”

Id.

        {¶ 71} In finding the murder and child endangering allied offenses under the

circumstances presented in Johnson, the Court focused on the plain language and purposes of

R.C. 2941.25:

        {¶ 72} “We have consistently recognized that the purpose of R.C. 2941.25 is to prevent

shotgun convictions, that is, multiple findings of guilt and corresponding punishments heaped

on a defendant for closely related offenses arising from the same occurrence.     This is a broad

purpose and ought not to be watered down with artificial and academic equivocation regarding

the similarities of the crimes.    When ‘in substance and effect but one offense has been

committed,’ the defendant may be convicted of only one offense.

        {¶ 73} “Given the purpose and language of R.C. 2941.25, and based on the ongoing

problems created by [State v.] Rance [(1999), 85 Ohio St.3d 632, 710 N.E.2d 699], we hereby


        The boy’s mother was home at the time of the beating, but in a different room. She came to
        4

check on her son after hearing a “thump,” “stomping,” and the defendant yelling. After checking on
the boy, the mother left the room again and shortly thereafter heard another “thump” or “stomp.”
Johnson at ¶54.
overrule Rance to the extent that it calls for a comparison of statutory elements solely in the

abstract under R.C. 2941.25. When determining whether two offenses are allied offenses of

similar import subject to merger under R.C. 2941.25, the conduct of the accused must be

considered.”     Id. at ¶43-44, quoting State v. Botta (1971), 27 Ohio St.2d 196, 204, 271

N.E.2d 776.

       {¶ 74} Based on Johnson, Johnson’s convictions in this case for murder and child

endangering should have merged.         The evidence demonstrated that the facts surrounding

Johnson’s convictions arose from the same conduct.       5
                                                             Therefore,   Count 1 (murder) should

have merged with Count 3 (child endangering by torture or cruel abuse) at sentencing.      6




       {¶ 75} Accordingly, the sixth assignment of error is sustained, and the case is remanded

for resentencing.

       It is ordered that appellant and appellee split the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution. The defendant’s

       5
          This case is distinguishable from this court’s recent decision in State v. Porosky, Cuyahoga
App. No. 94705, 2011-Ohio-330. There, this court found that the defendant’s convictions for
felonious assault and child endangering did not merge because the acts were committed with a separate
animus. Id. at ¶11. Specifically, the defendant first injured his son, and then endangered him by
failing to seek medical attention for approximately 12 hours after the injury, even though he knew the
child was injured. Id.
       6
           The court merged the two counts of child endangering, Counts 2 and 3, and sentenced on
Count 3.
conviction having been affirmed, any bail pending appeal is terminated. Case

remanded to the trial court for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.




LARRY A. JONES, JUDGE

PATRICIA A. BLACKMON, P.J., and
MELODY J. STEWART, J., CONCUR
