         [Cite as State v. Mackey, 2011-Ohio-2529.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :   APPEAL NOS. C-100311
                                                                  C-100312
        Plaintiff-Appellee,                       :               C-100313
                                                                  C-100314
  vs.                                             :   TRIAL NOS. 09TRD-31028A&B
                                                                 09CRB-18606A&B
COURTNEY MACKEY,                                  :
                                                      O P I N I O N.
    Defendant-Appellant.                          :




Criminal Appeals From: Hamilton County Municipal Court

Judgments Appealed from are: Affirmed in C-100311 and C-100312; Affirmed in
                              Part, Sentences Vacated, and Cause Remanded in
                              C-100313 and C-100314

Date of Judgment Entry on Appeal: May 27, 2011


Ernest F. McAdams, Jr., Cincinnati City Prosecutor, and Nicholas Klingensmith,
Assistant City Prosecutor, for Plaintiff-Appellee,

David A. Back, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS




C UNNINGHAM , Judge.

       {¶1}    In these consolidated appeals, defendant-appellant Courtney Mackey

(“Mackey”) appeals from the judgments of the Hamilton County Municipal Court

convicting her on one count of driving under a financial-responsibility-law

suspension, one count of improper backing, one count of obstructing official

business, and one count of falsification. Because the obstructing-official-business

and falsification offenses were allied offenses of similar import committed in a single

course of conduct and with a single animus, we vacate the separate sentences

imposed for those offenses, and we remand those cases to the trial court for

sentencing on only one of the two offenses. In all other respects, we affirm.

       {¶2}    On April 19, 2009, after Patricia Richardson had returned to her

vehicle that she had illegally parked near the intersection of Vine and Green Streets

in Cincinnati, another vehicle backed into it and damaged it.        Cincinnati Police

Officer Quiana Campbell arrived at the scene of the accident. Campbell concluded

that the driver of the vehicle that had struck Richardson’s vehicle had violated the

city’s ordinance on backing, and she asked that driver for identification. The driver,

who stated that she had not seen Richardson’s vehicle, identified herself as Ebony

Mackey, and she provided Ebony Mackey’s social-security number. Campbell issued

Ebony Mackey a citation for the traffic violation.

       {¶3}    In June 2009, Ebony Mackey appeared before the trial court, based

on the citation, and claimed that she was not involved in the accident. A prosecutor

appeared, as did Richardson and Campbell, who both agreed that Ebony Mackey was

not the woman who had been involved in the collision two months earlier.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶4}    After an investigation, Campbell charged Mackey, who is Ebony’s

sister and whose driver’s license was suspended on the day of the accident, with the

backing violation and with the offense of driving under a suspended license, in the

cases numbered 09TRD-31028A and 09TRD-31028B.               In addition, in the cases

numbered 09CRB-18606A and 09CRB-18606B, Campbell charged Mackey with

falsification and obstructing official business based on the false identification

information that Mackey had given her at the scene of the accident.

       {¶5}    The cases were heard together at a nonjury trial. Richardson testified

and identified Mackey as the driver of the vehicle that had backed into her vehicle.

Campbell also testified. She identified Mackey as the person whom she had cited for

improper backing and the person who had stated that she had not seen Richardson’s

parked vehicle. Further, the state offered into evidence a certified copy of Mackey’s

license suspension that had been in effect on April 19, 2009.          The trial court

convicted and sentenced Mackey for all four offenses.

       {¶6}    In Mackey’s second assignment of error, which we address first, she

challenges the judgment of conviction in the case numbered 09TRD-55767. But the

record does not contain a notice of appeal from that case, and therefore, the

assignment of error related to that case number is not properly before us.

Accordingly, we do not reach the merits of the second assignment of error.

                      Sufficiency-of-the-Evidence Claim

       {¶7}    In her third assignment of error, Mackey contends that her conviction

for improper backing was not supported by sufficient evidence.            Mackey was

convicted of violating Cincinnati Municipal Code 506-28, which provides that

“[b]efore backing, operators of vehicles shall give ample warning, and while backing

shall exercise vigilance not to injure persons or property on the street or highway.”



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶8}     Mackey does not quarrel with the sufficiency of the identification

evidence or the evidence establishing that Richardson’s vehicle was damaged. She

contends, however, that the state presented no evidence demonstrating that she had

failed to give ample warning before backing or that she had failed to use vigilance

while backing into Richardson’s illegally parked vehicle.

       {¶9}     Mackey ignores Richardson’s testimony that her vehicle was not just

stationary, but that it had been parked, as well as the testimony from Campbell that

Mackey had stated at the scene that she had not seen Richardson’s vehicle. This

testimony supported an inference that Mackey had failed to exercise vigilance while

backing her vehicle into Richardson’s vehicle, even though Richardson’s vehicle had

been illegally parked.

       {¶10}    After viewing the evidence and all the reasonable inferences, we hold

that any rational trier of fact could have found all the elements of the improper

backing beyond a reasonable doubt.1

                          Weight-of-the-Evidence Claim

       {¶11}    In her fourth assignment of error, Mackey argues that her convictions

were against the manifest weight of the evidence.

       {¶12}    When the court reviews the record on a weight-of-the-evidence

challenge, the court sits as a “thirteenth juror” and may disagree with the trier of

facts’ resolution of disputed facts.2 If after reviewing the record and weighing the

evidence and the testimony, the reviewing court determines that the trier of fact

clearly lost its way and created a manifest miscarriage of justice in finding the




1  State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus,
following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781.
2 State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



defendant guilty, then the conviction should be reversed and a new trial ordered.3

But the power to do so is discretionary and should only be exercised “ ‘in the

exceptional case in which the evidence weighs heavily against the conviction.’ ”4

       {¶13}     In attacking the trial court’s finding of guilty, Mackey describes

Richardson’s and Campbell’s identification testimony as “suspect” and “flawed.” But

both women unequivocally identified Mackey at trial, and we perceive no basis to

dismiss their testimony as unreliable.        We certainly cannot conclude that the trial

court lost its way and committed a manifest miscarriage of justice by crediting their

testimony. Accordingly, we overrule the fourth assignment of error.

                         Allied Offenses of Similar Import

       {¶14}     In her first assignment of error, Mackey contends that obstructing

official business and falsification were allied offenses of similar import committed

neither separately nor with a separate animus as to each and, therefore, that

sentencing her for both offenses violated R.C. 2941.25, Ohio’s multiple-count statute.

       {¶15}     Under R.C. 2941.25, a trial court, in a single proceeding, may convict

and sentence a defendant for two or more offenses “ ‘ having as their genesis the

same criminal conduct or transaction,’ ” if the offenses (1) were not allied offenses of

similar import, (2) were committed separately, or (3) were committed with a

separate animus as to each offense.5

       {¶16}     In State v. Johnson,6 the Ohio Supreme Court abandoned the abstract-

elements test of State v. Rance7 and held that “when determining whether two offenses



3 Id.
4 Id., quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.
5 State v. Bickerstaff (1984), 10 Ohio St.3d 62, 65-66, 461 N.E.2d 892, quoting State v. Moss
(1982), 69 Ohio St.2d 515, 519, 433 N.E.2d 181; see, also, State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1061, at ¶51; State v. Blankenship (1988), 38 Ohio St.3d 116, 117,
526 N.E.2d 816.
6 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.
7 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d 699.




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                        OHIO FIRST DISTRICT COURT OF APPEALS



are allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of

the accused must be considered.”8               All seven justices concurred in the syllabus

overruling Rance. Although the justices could not reach a majority opinion with regard

to the analysis that courts should use in determining whether two or more offenses are

allied offenses of similar import under R.C. 2941.25(A),9 they uniformly agreed that the

conduct of the accused must be considered.10 Therefore, when, as here, there has been

a trial, we look to the evidence adduced at trial, and if that evidence reveals that the state

relied upon the “same conduct” to prove the two offenses, and that the offenses were

committed neither separately nor with a separate animus to each, then the defendant is

afforded the protections of R.C. 2941.25, and the trial court errs by imposing separate

sentences for the offenses.11

        {¶17}     To consider Mackey’s conduct in its proper context, we must identify the

conduct proscribed by the statutory sections that the court found Mackey guilty of

violating. The obstructing-official-business statute, R.C. 2921.31(A), provides that “[n]o

person, without privilege to do so and with purpose to prevent, obstruct, or delay the

performance by a public official of any authorized act within the public official’s official

capacity, shall do any act that hampers or impedes a public official in the performance of

the public official’s lawful duties.” R.C. 2921.13(A)(3), the relevant subsection of the

falsification statute, states that “[n]o person shall knowingly make a false statement, or

knowingly swear or affirm the truth of a false statement previously made, when * * *

[t]he statement is made with purpose to mislead a public official in performing the

public official’s official function.”




8 State v. Johnson, supra, syllabus.
9 Id. at ¶47-52 (Brown, C.J.); id. at ¶59-71 (O’Connor, J.); id. at ¶72-83 (O’Donnell, J.)
10 Id. at syllabus.
11 R.C. 2941.25(A); see, also, R.C. 2941.25(B); Johnson, supra, at ¶56.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



       {¶18}    Mackey was found guilty of the obstructing statute upon evidence that

she falsely identified herself to Officer Campbell, who had been investigating an accident

Mackey had been involved in while driving under a suspended license.              The false

information Mackey gave impeded the officer from performing her official duties, where

the officer issued a citation to the wrong individual and appeared in court for a case

accusing the wrong person.      There was some evidence that Mackey also impeded a

judge and a prosecutor from doing their duties, but the consideration of these

consequences stray from the focus of our inquiry, which is Mackey’s conduct.

       {¶19}    Mackey was found guilty of the falsification statute upon evidence that

she had falsely identified herself to Officer Campbell, the investigating officer, after she

had been involved in an accident while driving under a suspended license, to prevent the

officer from citing her.

       {¶20}    In this case, the evidence reveals that the state relied upon the same

conduct—Mackey’s conduct of falsely identifying herself to Officer Campbell—to prove

both obstructing official business and falsification.     Thus, the offenses were allied

offenses of similar import.

       {¶21}    Having determined that the offenses were allied offense of similar

import, we must now consider, pursuant to R.C. 2941.25(B), whether the offenses were

committed as part of a single course of conduct or with a single state of mind. And we

hold that they were.

       {¶22}    The record shows that Mackey violated both statutes by one act—falsely

identifying herself to Officer Campbell at the scene of the accident.      And the record

reflects that her animus or “immediate motive” in committing each offense was to

prevent Officer Campbell from issuing citations to her, which was a part of Campbell’s




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                          OHIO FIRST DISTRICT COURT OF APPEALS



official duty as a police officer.12 Therefore, based on the evidence adduced at trial,

Mackey’s violation of both statutes involved a single course of conduct and a single

motive.

          {¶23}    Where the obstructing-official-business and falsification offenses were

allied offenses of similar import, committed in a single course of conduct with a single

animus, Mackey was entitled to the protection of the multiple-counts statute.

Accordingly, the trial court erred in sentencing her for both offenses. As a result, we

sustain her first assignment of error.

                                           Conclusion

          {¶24}    In conclusion, in the appeals numbered C-100311 and C-100312, we

affirm the judgments of the trial court convicting Mackey of driving under a

financial-responsibility-law suspension and improper backing.                In the appeals

numbered C-100313 and C-100314, we affirm the trial court’s finding that Mackey

had committed obstructing official business in violation of R.C. 2921.31(A) and

falsification in violation of R.C. 2921.13(A)(3). But because the record demonstrates

that those offenses were allied offenses of similar import committed neither

separately nor with a separate animus as to each, Mackey may be sentenced for only

one. Thus, we vacate the separate sentences for these offenses and remand the cases

to the trial court for the imposition of a single sentence for the two offenses.

                                                                       Judgment accordingly.

HILDEBRANDT, P.J., and SUNDERMANN, J., concur.
Please Note:

           The court has recorded its own entry on the date of the release of this decision.




12   State v. Logan (1979), 60 Ohio St.2d 126, 131, 397 N.E.2d 1345.


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