[Cite as State v. Crisp, 2012-Ohio-1730.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                       SCIOTO COUNTY

State of Ohio,                              :                 Case No. 10CA3404

        Plaintiff-Appellee,                 :

        v.                                  :                 DECISION AND
                                                              JUDGMENT ENTRY
Mark Crisp,                                 :

     Defendant-Appellant.       :          RELEASED 04/03/12
______________________________________________________________________
                            APPEARANCES:

Timothy Young, Ohio State Public Defender, and Jeremy J. Masters, Ohio State
Assistant Public Defender, Columbus, Ohio, for appellant.

Mark Kuhn, Scioto County Prosecutor, Portsmouth, Ohio, for appellee.
______________________________________________________________________
Per Curiam

        {¶1}     Amber Howard, a 21-year-old pregnant mother, disappeared in 2007 and

months later her skeletal remains were discovered in a state park. After authorities

found Howard’s blood and DNA in Mark Crisp’s former rental home, he was convicted

of: (1) the murder by termination of Howard’s pregnancy and the felonious assault of her

unborn fetus; (2) the murder of Howard and the murder by termination of her pregnancy;

(3) tampering with evidence by concealing Howard’s body and gross abuse of a corpse

by burying her body in a shallow grave.

        {¶2}     Crisp contends that he committed these respective crimes with the same

conduct and thus, the trial court was required to merge them at sentencing under Ohio’s

multiple-count statute. The state candidly concedes that the murder by termination of

Howard’s pregnancy and the felonious assault to her unborn fetus required merger as
Scioto App. No. 10CA3404                                                                    2


the evidence indicated that Crisp terminated the pregnancy by causing significant

trauma to the unborn child in a single attack and with a single animus. We agree.

       {¶3}   But Howard’s murder and murder by the unlawful termination of her

pregnancy do not require merger even though the same conduct arguably led to the

completion of both crimes. Because Crisp knew that if he killed Howard he would also

terminate the pregnancy, we conclude the two crimes were each committed with a

separate animus.

       {¶4}   We also conclude that the trial court was required to merge Crisp’s

conviction for tampering with evidence and gross abuse of a corpse in light of the

State’s concession that it relied on the same acts in support of both charges and its

failure to identify a separate animus for each crime.

       {¶5}   Accordingly, we remand this case for resentencing on the murder by

termination of pregnancy and the felonious assault of Howard’s unborn fetus and on the

tampering with evidence and gross abuse of a corpse.

                               I. Summary of the Evidence

       {¶6}   Two days prior to her disappearance on August 10, 2007, Amber Howard

visited a clinic and tested positive for pregnancy. At the trial her mother, grandmother,

and a pregnancy clinic worker testified that she was “showing.” However, both also

indicated Howard was slight in build and only had what one of them described as a “pop

belly”, i.e., she was in the early stages of pregnancy.

       {¶7}   The night she disappeared Amber Howard, Mary Howard (her mother)

and Mark Crisp, “partied” and smoked crack together at Mary Howard’s residence in

Portsmouth, Ohio. Around midnight, Amber Howard left the residence in a vehicle
Scioto App. No. 10CA3404                                                                  3


driven by Mark Crisp to obtain more crack cocaine. No one saw or heard from her

again. Crisp later told Mary Howard and Amber Howard’s grandmother that he dropped

Amber off in Portsmouth that night, although he told both women inconsistent stories

about where that drop-off occurred.

       {¶8}   A week later, law enforcement authorities in Scioto County opened a

missing person investigation, which made little progress for many months. Then in the

spring of 2008, a mushroom hunter located a human skull in Shawnee State Park. Law

enforcement recovered the skull and other skeletal remains, which were scattered over

a large area, apparently due to animal activity. Investigators sent the remains to Ohio’s

Bureau of Criminal Investigation (BCI) for analysis, where employees matched DNA

found on the remains to Howard’s known DNA profile.

       {¶9}   Months later, Detective Triggs of the Scioto County Sheriff’s Department,

received a tip that a Jennifer Lindsey (a former girlfriend and acquaintance of Mark

Crisp) had information about Howard’s disappearance. When detectives interviewed

Lindsey, she told them of a possible crime scene in a rental home that Crisp occupied at

the time of Howard’s disappearance.

       {¶10} Detectives searched the vacant rental home and located a small

rectangular area in Crisp’s former bedroom corner where the carpeting and floorboards

had been removed, revealing the baseboards. Some of the carpet around this area had

apparent bleach stains. The drywall in the same corner was cracked and impacted, as

if a large object collided with it. A test conducted by a BCI agent detected blood in

carpet fibers, baseboards, and on the impacted drywall. The agent removed these

materials and sent them to BCI for further analysis. Forensic analysts at BCI matched
Scioto App. No. 10CA3404                                                                   4


blood found on the carpet fiber and baseboards to Amber Howard’s DNA profile. They

could not obtain a DNA profile from the drywall.

        {¶11} Detectives also obtained a search warrant for a Geo Tracker automobile

that Crisp allegedly drove at the time Howard went missing. The BCI agent located

blood in the rear cargo carpeted area of the car. BCI forensic analysts later positively

matched this blood with Howard’s DNA.

        {¶12} Detective Triggs then interviewed Crisp, who admitted “partying” and

smoking crack with Amber Howard on the night of August 10, 2007 at Mary Howard’s

residence. But he denied leaving with Amber Howard and also claimed that she had

never been in the home he rented in 2007. Crisp admitted driving a Geo Tracker in

2007. When asked why floorboards and carpeting were missing from the bedroom,

Crisp admitted removing these items as the result of a fallen candle, which caused a

fire.

        {¶13} Detective Triggs then told Crisp that law enforcement found Amber

Howard’s blood and DNA in his home. Crisp could not explain the presence of

Howard’s blood or DNA and repeatedly denied knowing anything about her

disappearance and murder.

        {¶14} The state indicted Crisp and charged him in Count One of murder with the

underlying crime being felonious assault, which was separately charged in Count Three

of the indictment. In Count Two, the state charged Crisp with murder by unlawful

termination of pregnancy. Count Four charged Crisp with another felonious assault

relating to Howard’s unborn fetus. The remaining counts relevant to this appeal are:
Scioto App. No. 10CA3404                                                                  5


Count Six, tampering with evidence, concerning Crisp’s attempt to “conceal” Howard’s

corpse; and Count 8, gross abuse of her corpse.

       {¶15} After the jury found Crisp guilty of these charges, the trial court merged

Count Three, the felonious assault of Howard, with Count One, her murder, but refused

to merge any of the remaining convictions. After the court sentenced him to a long

prison term, Crisp filed this appeal.

                                        II. Assignment of Error

       {¶16} Crisp assigns one error:

       {¶17} The trial court erred when it imposed separate sentences for offenses that

arose from the same conduct, were not committed separately or with a separate

animus, and should have been merged for sentencing purposes under R.C. 2941.25.

(October 18, 2010 Transcript, pp. 714-715; November 17, 2010 Judgment Entry, pp. 1-

7.)

                                          III. Merger

       {¶18} Crisp argues that the trial court erred by failing to merge the following

convictions at sentencing: (1) Count Two and Count Four, murder by termination of

pregnancy and felonious assault to Howard’s unborn; (2) Count One and Count Two,

murder of Howard and murder by termination of pregnancy; and (3) Count Six and

Count Eight, tampering with evidence and gross abuse of a corpse.

                             A. Evolution of the Merger Test

       {¶19} The Double Jeopardy Clause of the United States Constitution prohibits

multiple punishments for the same offense. United States v. Halper (1989), 490 U.S.

435, 440, 109 S.Ct. 1892, citing North Carolina v. Pearce (1969), 395 U.S. 711, 717, 89
Scioto App. No. 10CA3404                                                                      6


S.Ct. 2072. To this end, the Ohio General Assembly enacted Ohio’s multiple-count

statute in R.C. 2941.25, which subjects “allied offenses of similar import” to the judicial

concept of “merger” at sentencing. It provides:

       (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.



       {¶20} The Committee notes explain:

This section provides that when an accused’s conduct can be construed to amount to

two or more offenses of similar import, he may be charged with all such offenses but

may be convicted of only one. If his conduct constitutes two or more dissimilar

offenses, or two or more offenses of the same or similar kind but committed at different

times or with a separate “ill will” as to each, then he may be charged with and convicted

of all such offenses.

The basic thrust of the section is to prevent “shotgun” convictions. For example, a thief

theoretically is guilty not only of theft but of receiving stolen goods, insofar as he

receives, retains, or disposes of the property he steals. Under this section, he may be
Scioto App. No. 10CA3404                                                                      7


charged with both offenses but he may be convicted of only one, and the prosecution

sooner or later must elect as to which offense it wishes to pursue. On the other hand, a

thief who commits theft on three separate occasions or steals different property from

three separate victims in the space, say, of 5 minutes, can be charged with and

convicted of all three thefts. In the first instance the same offense is committed three

different times, and in the second instance the same offense is committed against three

different victims, i.e. with a different animus as to each offense. Similarly, an armed

robber who holds up a bank and purposely kills two of the victims can be charged with

and convicted of one count of aggravated robbery and of two counts of aggravated

murder. Robbery and murder are dissimilar offenses, and each murder is necessarily

committed with a separate animus, though committed at the same time. Legislative

Service Commission Summary of Am.Sub.H.B. 511 (1973).

       {¶21} Through a series of opinions the Supreme Court of Ohio has advised (and

re-advised) lower courts on the difficult task of applying Ohio’s multiple-count statute to

determine which criminal convictions require merger. Generally, the court prescribed a

two-part test, although the specifics of the test have changed over time. The first step

calls for a comparison of the elements of the crimes at issue and the second step

analyzes the defendant’s conduct to determine whether the state used the same

conduct to support both crimes. See State v. Blankenship (1988), 38 Ohio St.3d 116,

117, 526 N.E.2d 816. Recently, State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-

6314, 942 N.E.2d 1061, the court expressly overruled its then current test for merger,

which the Court issued more than a decade earlier in State v. Rance, 85 Ohio St.3d

632, 1999-Ohio-291, 710 N.E.2d 699.
Scioto App. No. 10CA3404                                                                   8

       {¶22} In Rance, the Court advised lower courts to apply R.C. 2941.25 by first

comparing the elements of the multiple counts at issue “in the abstract.” Id. at 638. If

the elements of the offenses corresponded to such a degree that the commission of one

crime resulted in the commission of the other, the crimes could be “allied offenses of

similar import.” Id. Over time, the “abstract comparison” test set forth in Rance proved

“inconsistent, unreliable, and, at times” produced “absurd results.” State v. Cabrales,

118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, at ¶20. Thus, the Johnson Court

overruled Rance “to the extent that it calls for a comparison of statutory elements solely

in the abstract” to determine whether offenses are subject to merger under R.C.

2941.25. Johnson at ¶ 44. Now, “[w]hen 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 syllabus.

       {¶23} Under the Johnson analysis the trial court must first determine prior to

sentencing whether the offenses can be committed by the same conduct. This inquiry

does not involve an abstract comparison of the elements of the offenses. It is sufficient

to determine whether it is possible to commit one offense and also commit the other

offense with the same conduct. Under Johnson the test becomes one of the possibility

of simultaneous occurrence rather than the impossibility of dual culpability. If the

offenses are so alike that the same conduct can subject the accused to potential

culpability for both, they are “of similar import”.

       {¶24} Having determined that it is possible to commit multiple offenses by the

same conduct, the court must then determine whether in fact they actually were

committed by the same conduct, i.e. committed as a single act with a single animus. If
Scioto App. No. 10CA3404                                                                 9


so, merger is necessary. However, if the offense resulted from separate acts or with a

separate animus, or the commission of one offense can never result in the commission

of the other, merger is not applicable. Id at ¶47-51.

       {¶25} With this new test in mind, we analyze Crisp’s arguments for merger under

a de novo standard of review. See, State v. Robinson (Apr. 1, 1997), Meigs App. No.

96CA16, 1997 WL 158272, at *2.

                            B. Murder and Felonious Assault

       {¶26} First Crisp argues that the court erred by failing to merge Count Two,

murder by unlawful termination of pregnancy, and Count Four, the felonious assault of

Amber Howard’s unborn fetus. Crisp argues that the evidence introduced at trial failed

to establish that he committed these crimes separately or with more than a single

animus. The state argued in its brief the evidence at trial demonstrated a significant

physical confrontation occurred between Crisp and Howard at his residence, which

allowed the inference that the Howard received multiple blows, some of which

separately caused the unlawful termination of her pregnancy and some of which caused

the felonious assault of the fetus. However, the State candidly conceded at oral

argument that the crimes are allied offenses subject to merger. We agree.

       {¶27} Applying the first prong of the Johnson analysis, we conclude that it is

possible to commit the offense of murder by unlawful termination of pregnancy and the

offense of felonious assault with the same conduct. Simply put, one could commit a

felonious assault under R.C. 2903.11(A)(1) which is defined as causing “serious

physical harm to another or to another’s unborn,” and murder by unlawfully terminating

a pregnancy (defined R.C. 2903.02(A) as “purposely” causing “the unlawful termination
Scioto App. No. 10CA3404                                                                 10


of another’s pregnancy”) with the same violent criminal act, e.g., by striking a pregnant

woman with sufficient force to harm the fetus and terminate the pregnancy. Thus, these

are crimes of similar import under R.C. 2941.25(A). Johnson at ¶48.

      {¶28} Next, we must consider whether Crisp committed these offenses with the

same conduct, i.e., a single act committed with a single state of mind. The evidence

presented at trial suggested an act of violence occurring in one corner of Crisp’s

bedroom. As we noted in the factual summary, police located blood on baseboards in

the section of the bedroom where Crisp removed the carpet and floorboards. Police

also identified blood on a section of wall that appeared to have been damaged by a

large impact, presumably Howard’s body.

      {¶29} We conclude that the evidence in this circumstantial case supports the

conclusion that Crisp attacked Howard in his bedroom and that she lost a considerable

amount of blood during the attack. The evidence indicated that Howard would have had

to lose a considerable amount of blood for it to seep through both carpet and

floorboards and come to rest in between the cracks of the baseboards. Thus, the

reasonable inference from this evidence is that Howard’s unborn child suffered serious

physical harm and her pregnancy terminated during or as a direct result of this one

attack in the bedroom.

      {¶30} There is no evidence, circumstantial or direct, to support an inference that

a separate assault, whether in terms of time or location, took place and independently

caused serious physical harm to the unborn or caused the pregnancy to terminate.

Thus, the only reasonable inference is that the termination of Howard’s pregnancy and

the felonious assault to the fetus occurred in the same attack, which ultimately also
Scioto App. No. 10CA3404                                                                 11


killed Howard. We cannot conclude that during the attack Crisp delivered multiple

blows, each of which constitute “separate” conduct to support each Count. In fact, the

Johnson court also rejected the invitation to “parse” the defendant’s conduct into a

“blow-by-blow” to sustain separate convictions for felony murder and child abuse. Id. at

¶56. In Johnson, the witness did not see but heard the defendant beating her seven-

year-old son and described it as a “thump” or “stomp.” Id. at ¶54. The court described

the beating occurring there as one “discrete act” that simultaneously resulted in the

commission of both offenses. Id. at ¶56. Here, there were no witnesses to the crime

other than Crisp and the evidence at best supports the inference of one discrete attack

that simultaneously, caused serious physical harm to Howard’s unborn child, and

caused her pregnancy to terminate.

      {¶31} We also conclude that the record lacks any evidence to establish more

than a single animus for the attack in Crisp’s bedroom. There is nothing in the record

from which we could infer that Crisp possessed more than one purpose in causing

serious physical harm to Howard’s unborn and unlawfully terminating her pregnancy.

      {¶32} Consequently, we conclude that Crisp committed the offenses of murder

by unlawful termination of pregnancy and felonious assault with the same conduct and

animus. Accordingly, the trial court erred by failing to merge these offenses.

             C. Murder and Murder by Unlawful Termination of Pregnancy

      {¶33} Next Crisp argues that the court erred by failing to merge his convictions

for Count one, the murder of Amber Howard, and Count Two, murder by unlawful

termination of her pregnancy. Crisp contends that the evidence shows that he

unlawfully terminated Howard’s pregnancy and murdered her with the same conduct.
Scioto App. No. 10CA3404                                                                12


The state argues that evidence showed that Howard was visibly pregnant, and the

reasonable conclusion is that Crisp was aware of this fact and separately intended to

terminate her pregnancy. Thus, a separate “animus” supports each crime.

      {¶34} Applying the first prong of the Johnson test, we conclude that it is possible

to commit murder and murder by unlawful termination of pregnancy with the same

conduct. Murder, as defined in R.C. 2903.02(B), prohibits causing the death of another

as a proximate result of the offender's committing or attempting to commit a violent

felony. R.C.2903.02(A) prohibits purposely causing “the death of another or the unlawful

termination of another’s pregnancy.” One who commits a violent felony that proximately

results in the death of a pregnant individual may also unlawfully terminate that

individual’s pregnancy with the same conduct. Thus, these are crimes of “similar

import.” See Johnson at ¶48.

      {¶35} Next, we consider whether the offenses at issue here actually were

committed by the same conduct under R.C. 2941.25(A), i.e., a single act committed with

a single state of mind. As noted in Section B., the evidence supports the conclusion

that Crisp murdered Howard in his bedroom, which contained evidence of a bloody

attack in one corner. However, there is no evidence from which one could infer that the

murder of Howard and the unlawful termination of her pregnancy occurred separately.

As the state admitted in its closing arguments, the only reasonable interpretation of the

evidence is that by committing the attack in his bedroom that led to the death of Amber

Howard, Crisp unlawfully terminated her pregnancy (Tr. P. 643-644).

      {¶36} However, we agree with the state’s contention that because Howard was

pregnant and “showing,” we can infer that Crisp possessed a separate animus for
Scioto App. No. 10CA3404                                                                                     13


terminating her pregnancy. That is, due to Howard’s obvious pregnancy, Crisp had to

know that if he killed Howard, the unborn fetus would surely perish too. In situations

where a defendant has knowledge that more than one victim could be harmed, courts

have concluded there is a separate animus for each victim at risk. See State v. Jones

(1985), 18 Ohio St.3d 116 and State v. Williams 1996), 115 Ohio App.3d 24. Thus, we

conclude merger does not apply.

                  D. Tampering with Evidence and Gross Abuse of a Corpse

        {¶37} Finally, Crisp argues that the court erred by failing to merge Count Six of

the indictment, tampering with evidence, and Count Eight of the indictment, gross abuse

of a corpse.1 Crisp argues that his conduct of disposing Howard’s body in Shawnee

State Park constituted both offenses. In its brief the state admits that “Appellant is

correct that the conduct of Appellant in removing the body of Amber Howard from his

residence and concealing [it] in the state forest are acts of the Appellant that the state

relied upon and argued in support of both charges.” In other words, the state concedes

it is possible to commit both crimes with the same conduct.

        {¶38} We agree that it is possible to commit the offense of gross abuse of a

corpse, a violation of R.C. 2927.01(B), and tampering with evidence, a violation of R.C.

2921.12(A)(1) with the same conduct. Gross abuse of a corpse required the state to

prove that Crisp treated a “human corpse in a way that would outrage reasonable

community sensibilities.” Tampering with evidence prohibits the concealment of any


1
  Crisp claims he was convicted only of “abuse of a corpse,” a misdemeanor, as opposed to “gross abuse
of a corpse,” which is a felony. Although the trial court referred to the jury finding Crisp guilty of “abuse of
a corpse” in the judgment entry, it is clear from the record that the state indicted Crisp for gross abuse of
a corpse, a violation of R.C. 2927.01(B), and the trial court instructed the jurors accordingly. Moreover,
the judgment entry, while mistakenly referring to “abuse of a corpse” also refers to R.C. 2927.01(B) as the
code section violated and finds Crisp guilty of a felony of the fifth degree.
Scioto App. No. 10CA3404                                                                      14


“thing” “with purpose to impair its value or availability as evidence in such proceeding or

investigation.” Applying Johnson, we conclude that one could commit both of these

crimes with the same conduct, e.g., by burying a human corpse in a manner that would

outrage community sensibilities with the purpose to conceal evidence. Thus, these are

crimes of similar import. Johnson at ¶48.

       {¶39} Next, we consider whether Crisp committed each crime separately or with

a separate animus. The state tries to distinguish the appellant’s conduct by

characterizing it as “incidental” in relationship to the tampering charge but “critical” to

the gross abuse offense. We are not aware of any such mechanism of distinction in

Johnson. In the absence of any evidence that the two crimes were committed

separately or with a separate animus, we conclude that merger is appropriate.

Therefore, we sustain this assignment of error.

                                       V. Conclusion

       {¶40} We find merit in Crisp’s argument that Count Two and Count Four of the

indictment, felonious assault of Amber Howard’s fetus and murder by unlawful

termination of pregnancy are subject to merger. Likewise, the court erred by failing to

merge Counts Six and Eight of the indictment. However, the trial court did not err by

failing to merge Counts One and Two of the indictment as separate societal interests

clearly indicate that the legislature intended multiple punishments for the same conduct

constituting both offenses. Accordingly, we remand this case for resentencing on

Counts Two and Four.

                                                          JUDGMENT AFFIRMED IN PART
                                                              AND REVERSED IN PART.
Scioto App. No. 10CA3404                                                                    15


Kline, J., concurring.

       {¶41} I concur in judgment and opinion. However, I write separately to address

the following issues raised by the partially concurring and dissenting opinion (hereinafter

the “Other Opinion”): (1) State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895

N.E.2d 149, and (2) the notion that I have relied on an inference upon an inference.

       {¶42} First, the Supreme Court of Ohio held that, “[w]hen 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.” State v. Johnson, 128 Ohio St.3d

153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus. And in my view, applying Brown’s

different-societal-interests rationale decides the merger question without regard for the

conduct of the accused. See State v. LaPrairie, 2d. Dist. No. 2010CA-0009, 2011-Ohio-

2184, ¶ 45 (declining to apply Brown’s “preemptive exception to the merger rule” in light

of Johnson). Therefore, I do not see how we can apply Brown without running afoul of

Johnson.

       {¶43} Furthermore, in finding that murder and murder by unlawful termination of

pregnancy should not merge, I dispute the notion that I am relying on an inference upon

an inference. Here, the jury found Crisp guilty of unlawful termination of pregnancy in

violation of R.C. 2903.02(A). Because the mens rea for R.C. 2903.02(A) is purposely,

the jury had to find that Crisp specifically intended to terminate Howard’s pregnancy.

See R.C. 2901.22(A). I believe that sufficient evidence supports Crisp’s conviction

under R.C. 2903.02(A). And in determining that Crisp had a separate animus for

unlawful termination of pregnancy, I am relying on the jury’s finding of specific intent.
Scioto App. No. 10CA3404                                                                  16


      {¶44} The Other Opinion, however, claims that an inference upon an inference is

necessary to find that Crisp specifically intended to terminate Howard’s pregnancy.

Therefore, the Other Opinion essentially concludes (1) that the jury made an

impermissible finding and (2) that insufficient evidence supports Crisp’s conviction

under R.C. 2903.02(A). See, e.g., State v. Bullard, 11th Dist. No. 2009-T-0096, 2010-

Ohio-3464, ¶ 36 (reversing a conviction because the jury relied on an inference upon an

inference). “[D]ue process guarantee[s] * * * that no person shall be made to suffer the

onus of a criminal conviction except upon sufficient proof[.]” Jackson v. Virginia, 443

U.S. 307, 316, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accordingly, in light of the Other

Opinion’s inference-upon-an-inference reasoning, I do not understand why the Other

Opinion would not reverse Crisp’s conviction for unlawful termination of pregnancy.

      {¶45} Thus, I concur in judgment and opinion.
Scioto App. No. 10CA3404                                                                 17


Harsha, J., concurring in part and dissenting in part:

       {¶46} I cannot join in the conclusion that Crisp had a separate animus for

murdering Howard and terminating the pregnancy. To draw this conclusion would

constitute an inference upon inference, i.e., Crisp was aware of Amber Howard’s

pregnancy, which would be a logical deduction; and he possessed the separate

intention to purposely terminate it based upon the deduction she was pregnant, which

would not be a logical deduction. Therefore, the jury could not indulge in such

reasoning. See State v. Cowans, 87 Ohio St. 3d 68, 78-80. However, I still conclude

merger does not apply.

       {¶47} I agree applying the test in Johnson would seem to require merger of

these offenses. However, in my view Crisp has committed two distinct and cognizable

wrongs, each of which the General Assembly intended to punish separately. As noted

in Section III.A., the overriding purpose of R.C. 2941.25 is to avoid “shotgun

convictions” and avoid implicating the Double Jeopardy Clause’s prohibition of “double

punishment” for the same offense. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2,

922 N.E.2d 182, at ¶8. To this end, the merger statute only protects a defendant from

multiple punishments not intended by the General Assembly. Id.

       {¶48} In State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569 the Supreme

Court discussed the importance of legislative intent in applying merger. There the court

observed that its various merger tests, including the formulation set forth in Rance, were

rules of statutory construction designed to determine legislative intent for the merger of

offenses at sentencing. Id. at ¶35. And the court observed that the “societal interests”

reflected by the prohibitions contained in the criminal offenses at issue could help
Scioto App. No. 10CA3404                                                                     18


demonstrate whether the General Assembly intended multiple punishments for similar

offenses. Id. at ¶36. Most important, the court held that it is not necessary to resort to

any test of statutory construction when the “legislature’s intent is clear from the statute.”

Id. at ¶37. Interestingly, Brown predated Johnson, but rather than overruling it, Johnson

acknowledged Brown and pointed to it as an example of a case that provided a solution

to the untenable merger test based in Rance.

       {¶49} Johnson is problematic in many regards, not the least of which is specific

references to Brown without any explicit indication that it survives or has gasped its last

breath. It is hard to believe Johnson would cite both Brown and Rance, expressly

overrule Rance in the syllabus and text, but leave Brown to die the ignamimous death of

being over-ruled sub silentio.

       {¶50} Johnson resolved the following certified question: “Are the elements of

child endangering [set forth in R.C. 2919.22(B)(1)] sufficiently similar to the elements of

felony murder with child endangering as the predicate offense that the commission of

the murder logically and necessarily also results in the commission of the child

endangering?” In giving rise to the conflict, the 1st District Court of Appeals applied

Brown to conclude the two statutes involved the protection of separate societal

interests, thereby allowing multiple punishments. This holding conflicted with the

holding in State v. Mills, Tuscarawas App. no. 2007 AP 0039, 2009-Ohio-1849, which

used the Rance/Cabrales analysis to conclude merger was necessary, i.e. they may not

be punished by multiple convictions and sentences. Mills concluded that Brown was an

expansion of the first step of the statutory allied offense analysis under Rance/Cabreles.

Mills at ¶212. However, Johnson has described Brown as a preemptive exception to
Scioto App. No. 10CA3404                                                                   19

the R.C. 2941.25 statutory analysis. Johnson at ¶33. As we now know, Johnson

jettisoned the comparison in the abstract of the elements analysis by expressly

overruling Rance. What it did not do, is expressly overrule Brown. Rather it cited

Brown at least twice without commenting on its viability. If the Johnson court intended

to abandon Brown, it would have done so in the same manner it dispatched Rance, i.e.,

expressly.

       {¶51} Thus, I conclude that Brown remains viable after Johnson because the

Supreme Court of Ohio had the opportunity to expressly overrule or limit Brown but did

not do so. Brown indicates that legislative intent, and not a prescribed “merger test,” is

the ultimate inquiry in analyzing a merger issue. Id at. ¶20, 35. The new focus on

conduct has not replaced legislative intent as the “lodestar” of this analysis. See

Johnson at ¶25. Moreover, the Supreme Court of Ohio’s creation of yet another “rule of

statutory construction” to aid in the merger analysis does not affect Brown’s holding that

“societal interests” may help identify legislative intent.

       {¶52} Johnson’s certified question does not address whether the Brown

separate societal interest test is better suited then R.C. 2941.25 in determining

legislative intent. It simply concludes that “when determining whether two offences

are…subject to merger under R.C. 2941.25, the conduct of the accused must be

considered. (State v. Rance (1999), 85 Ohio St. 3d 632, 710 Ne 2d 699, overruled.)”

(Emphasis supplied.) In other words, Johnson holds when you apply the statute, you

look at conduct not elements in the abstract. It does not say Brown’s preemptive

exception is no longer a viable test for determining legislative intent. Thus, where the
Scioto App. No. 10CA3404                                                                      20


substantive statutes involved indicate a clear legislative intent to protect two separate

societal interests, we need not resort to R.C. 2941.25.

       {¶53} Here, I conclude that we need not resort to the merger test in Johnson in

order to determine whether the legislature intended to permit multiple punishments for

the offenses at issue. Instead, I simply conclude it is clear from both statutes that the

General Assembly intended to protect different societal interests in each crime. First,

murder as defined in R.C. 2903.02(B) prohibits causing the death of another as the

result of committing a violent felony. The societal interest served by this statute is the

protection of human life against deadly attacks. Murder as defined in R.C. 2903.02(A)

prohibits “purposely causing * * * the unlawful termination of another’s pregnancy.”

Clearly, this statute is designed to protect a separate societal interest, i.e., to prevent

the termination of pregnancies, regardless of whether they are “viable”, by purposeful

criminal conduct. Therefore, I conclude the legislature intended to authorize multiple

punishments in this context.

       {¶54} Crisp also argues that merger was required because only one “statutory

victim” was present in this case. He contends that the Revised Code defines a “victim”

in 2901.01(B)(1) to include a “viable unborn.” Crisp further contends that no evidence in

the record revealed the viability of Howard’s fetus. In essence, because the murder of

Howard and the termination of her pregnancy resulted in one “statutory victim,” the trial

court should have merged the convictions. While this argument is novel, I fail to see the

relevance of the fetus’ viability, inasmuch as the murder statute, R.C. 2903.02(A) refers

only to the termination of a “pregnancy.” The statute has no requirement related to the

viability of the pregnancy. Moreover, the word “person” appears in R.C. 2903.02 to
Scioto App. No. 10CA3404                                                                    21


describe the individual charged with the crime (“No person shall purposely cause the

death…”). In fact, the word “person” is used throughout the Revised Code to describe

the offender. The term “another” is often used to describe the victim, which might

implicate the statutory definition of “person” by reference. However, R.C. 2903.02(A)

refers to “another’s” pregnancy.

       {¶55} Here, the same conduct arguably supports both convictions for murder.

However, the General Assembly indicated in R.C. 2903.02(A) and (B) that human lives

and human pregnancies are each entitled to statutory protection and that double

punishment is warranted for ending both a human life and simultaneous terminating a

pregnancy with the same conduct. Accordingly, I conclude that the trial court properly

convicted and sentenced Crisp on both Counts One and Two.

       {¶56} Likewise, in deciding whether to merge the counts for gross abuse of

corpse and tampering with evidence, I would apply Brown and conclude merger does

not apply. Tampering with evidence is designed to protect the state’s effort to conduct

criminal investigations. Just as clearly, the prohibition against gross abuse of a corpse

is designed to protect the sanctity of the deceased’s last remains. The two interests are

clearly separate, each deserving separate protection. In light of the legislature’s clear

intent to protect them, I also conclude the legislature intended separate punishment for

each even when they result from the same conduct. Thus, I dissent from the majority’s

decision to merge these two counts.
Scioto App. No. 10CA3404                                                                    22


                                    JUDGMENT ENTRY

       It is ordered that the JUDGMENT IS AFFIRMED IN PART AND REVERSED IN
PART and that the CAUSE IS REMANDED. Appellant and Appellee shall split the
costs.

       The Court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Scioto
County Common Pleas Court to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

Kline, J.: Concurs in Judgment and Opinion with Opinion.
McFarland, J.: Concurs in Judgment Only.
Harsha, J.: Concurs in part and Dissents in part with Opinion.

                                            For the Court

                                            BY: _________________________
                                                Roger L. Kline, Judge

                                            BY: _________________________
                                                Matthew W. McFarland, Judge

                                            BY: _________________________
                                                William H. Harsha, Judge


                               NOTICE TO COUNSEL
       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
