[Cite as State v. Thundercloud, 2019-Ohio-2471.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                     :   JUDGES:
                                                   :
                                                   :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                         :   Hon. Patricia A. Delaney, J.
                                                   :   Hon. Earle E. Wise, Jr., J.
 -vs-                                              :
                                                   :   Case No. CT2018-0048
                                                   :
 MICHAEL S. THUNDERCLOUD                           :
                                                   :
                                                   :
        Defendant-Appellant                        :   OPINION


CHARACTER OF PROCEEDING:                               Appeal from the Muskingum County
                                                       Court of Common Pleas, Case No.
                                                       CR2018-0052



JUDGMENT:                                              AFFIRMED




DATE OF JUDGMENT ENTRY:                                June 20, 2019




APPEARANCES:

 For Plaintiff-Appellee:                               For Defendant-Appellant:

 D. MICHAEL HADDOX                                     OFFICE OF THE PUBLIC DEFENDER
 MUSKINGUM CO. PROSECUTOR                              MARLEY C. NELSON
 TAYLOR P. BENNINGTON                                  250 East Broad St., Suite 1400
 27 North Fifth St., P.O. Box 189                      Columbus, OH 43215
 Zanesville, OH 43702-0189
Muskingum County, Case No. CT2018-0048                                                        2

Delaney, J.

         {¶1} Appellant Michael S. Thundercloud appeals from the June 12, 2018 Entry

of the Muskingum County Court of Common Pleas. Appellee is the state of Ohio.

                          FACTS AND PROCEDURAL HISTORY

         {¶2} This case arose in October 2017 when Jane Doe was beaten, hog-tied, and

terrorized by a group of people at her drug dealer’s residence on Grace Avenue in

Muskingum County. The following facts are adduced from the record of the trial of co-

defendants Thundercloud and Ross.1

                              Doe is beaten because she is a “snitch”

         {¶3} Jane Doe is an admitted chronic illegal drug user. She has had periods of

sobriety, but was heavily addicted in October 2017. She lost custody of both of her

children. Her husband, the father of the eldest child, died of a drug overdose. “Josh” is

the father of her youngest child and is also a long-term drug abuser. Doe has numerous

criminal convictions and has frequently violated probation due to “dirty” drug screens.

         {¶4} In October 2017, Doe’s drugs of choice were heroin and methamphetamine.

She would alternate the two, using meth to stay awake and sustain the high from the

heroin. Doe freely admits that during this period of her life, she spent all of her time getting

high, or finding money to get high, and drugs were her only priority.

         {¶5} Her dealer was Darnell Vann, known on the street and referred to at trial as

“Smoke.” Smoke had a house on Grace Avenue and Doe went there several times a day,

every day. The house was usually full of people using heroin, methamphetamine, crack,

and cocaine. Sometimes Josh accompanied Doe to Smoke’s house to get high. Doe



1   Ross’ appeal is 5th Dist. Muskingum No. CT2018-0047.
Muskingum County, Case No. CT2018-0048                                                     3


admittedly stole from family members to get money for drugs. Smoke would also give

her lists of items to “boost,” or steal from stores, which she would exchange for drugs.

       {¶6} The instant case relates back to an incident in 2014. In May 2014, Doe was

at a house in Crooksville when a drug bust occurred, resulting in the arrest of a dealer

named T.J. Murphy. Doe was a witness against Murphy at his ensuing trial. In the wake

of the trial, Doe and Josh occasionally heard rumors that Murphy had “put a hit out” on

Doe.

       {¶7} Life continued to spiral downward for Doe in the fall of 2017. She tested

positive for fentanyl abuse and was arrested for receiving stolen property. She violated

probation and lost custody of her children yet again. She was hospitalized for six weeks

due to a hole in her spleen from chronic drug abuse. Nevertheless, upon her release

from the hospital, she immediately sought out Smoke to get high. Doe bounced between

living at Smoke’s residence and with her parents in their one-bedroom apartment.

       {¶8} Once while Doe was at Smoke’s, a woman recognized her and told

everyone in the house Doe “was the boys,” meaning Doe was a police informant. Around

this time Doe learned Smoke knew T.J. Murphy and had communicated with him about

her whereabouts.

       {¶9} Doe still constantly went to Smoke’s residence despite Josh’s renewed

warnings that there was a “hit” out on her. At one point, she talked to Smoke about the

threats and he told her there was nothing to worry about. He suggested they could “stage”

something where it would appear Doe got “jumped.” Everyone would benefit because

Murphy would pay Smoke and Doe “would have the target off [her] back.” Doe thought
Muskingum County, Case No. CT2018-0048                                                 4


the staging sounded like a good idea, but no plan was formulated and Doe told Smoke

they would have to discuss it further to figure out the details.

       {¶10} On October 27 and 28, 2017, Doe went to Smoke’s residence to get high.

There were several other people present. Among these were Smoke; Thundercloud,

known as “Cherokee;” Ross, known as “Boone;” and Heather Chandler. Also present was

Byron Goodrich, who died of an overdose before trial of the instant case.

       {¶11} Doe intended to spend the night at Smoke’s because she and Josh had

fought. She used drugs and nodded off on the couch in the living room. She awoke to

someone punching her in the face. At first Doe thought she was dreaming but became

terrified as she realized she was being beaten. She was repeatedly punched and kicked,

and was pulled off the couch onto the floor. At first one person was beating her, then it

was several people. She felt a foot in her face. She tried to cover herself and urinated

on herself as the assault continued. Finally the beating stopped and someone told her to

stop screaming.

       {¶12} A gun was placed to the back of her head as she lay on the floor, and she

was told to crawl into the kitchen on her hands and knees. Doe complied because she

had no choice and thought she was going to die. She was crying and in pain from the

beating, and heard people talking around her. Some threatened to kill her; someone

threatened to take her into the basement to sodomize her. In the kitchen, she was

instructed to lay flat with her arms and legs outstretched, and she was hog-tied with a

spool of phone cord.
Muskingum County, Case No. CT2018-0048                                                     5


       {¶13} Appellee’s Exhibit 1 is a cell phone video of the attack as described by Doe.2

Heather Chandler approaches Doe as she is asleep on the couch, and starts pummeling

her. She drags Doe onto the floor and the men join in, kicking Doe. Boone places a gun

to the back of Doe’s head. Byron Goodrich films the beating and can be heard repeatedly

stating, “What a beautiful day. Isn’t it a beautiful day?” as Doe screams and the others

make threats.    Smoke directs the action and instructs Doe to crawl to the kitchen.

Cherokee hog-ties her with phone cord. Doe visibly urinates upon herself during the

course of the ordeal. The video stops after Doe is hog-tied.

       {¶14} Doe didn’t know the assault was filmed until afterward. Smoke untied her,

gave her clean clothes, and told her to clean herself up. He also gave her some “dope.”

Doe followed his instructions and didn’t leave the house because she was afraid and

because she wanted to get high.

       {¶15} After the assault, Doe was terrified and in pain. Her face and sides were

throbbing, her lips were split, and she could barely speak. Her glasses were broken. She

had blood on her clothing. She didn’t call the police or seek medical attention because,

as she testified, she learned her lesson about talking. Doe unequivocally testified that

she did not agree to be assaulted or terrorized during this incident, nor did she plan to be.

She was hurt and terrified throughout the assault and was not acting. She still suffers

from ongoing nightmares and constant fear.

       {¶16} Despite Doe’s failure to report the incident, eventually police sought her out.

Police executed a search warrant on Byron Goodrich’s cell phone in an unrelated case




2The video was shown during the testimony of several witnesses at trial who narrated the
action on the video and identified the individuals involved.
Muskingum County, Case No. CT2018-0048                                                 6


and found the video of the assault. Officers recognized the interior of Smoke’s residence

and some of the people on the video. Police tracked down Doe to find out what happened.

During the course of the investigation, Doe was threatened repeatedly and police “put her

somewhere safe,” but she willingly left the safe place to get high.

                         Accomplice testimony of Smoke and Chandler

       {¶17} Smoke and Chandler testified for appellee as part of plea bargains in their

own cases. Their versions of the attack largely matched Doe’s and filled in additional

details.

       {¶18} Smoke learned Doe “snitched” against Murphy and spoke to Murphy about

Doe’s whereabouts. Murphy told him to beat Doe. Smoke intended to comply with

Murphy’s request to get paid. He planned to make a fake video because he didn’t want

Doe to get seriously hurt. He thus intended to have a female “jump” Doe and to film the

assault to show to Murphy. Smoke acknowledged he mentioned this plan to Doe a few

weeks prior to the assault; Doe said she was interested but they would need to discuss it

in greater detail.

       {¶19} On October 27, Heather Chandler came to his residence to do Smoke’s hair

and to get high. Present in the basement with Smoke and Chandler were Goodrich,

“Boone,” and “Cherokee;” all were present when Smoke suggested to Chandler that she

should beat Doe. According to Smoke, everyone else was “supposed to sit back.”

Chandler testified, though, that when Smoke held out a bag of “dope” as payment for the

attack, everyone ran for the stairs, eager to get in on the beating to score drugs from

Smoke.
Muskingum County, Case No. CT2018-0048                                                  7


       {¶20} Chandler observed Doe asleep on the couch and started beating her. At

first Smoke was filming, then Goodrich. Chandler dragged Doe off the couch and kicked

her, and Goodrich and Cherokee joined in. Boone put a gun to the back of Doe’s head.

The group forced Doe to crawl into the kitchen, and Cherokee hog-tied her with a spool

of phone cord. Boone kept a gun to her head the entire time. Smoke also had a gun in

his hand at one point.

       {¶21} Smoke testified that using guns had not been planned ahead of time and

the assault spiraled out of control when the entire group got involved. He testified Doe’s

face was “beat up;” it was swollen and her lips were “busted.” She was scared, crying,

and begging them to stop. Smoke acknowledged someone suggested they should stab

her in the head, and someone else said they should sodomize her.

       {¶22} Smoke further testified that once the camera was turned off, Boone and

Goodrich wanted to take Doe into the basement and kill her because she was a snitch.

Smoke thought killing her was a bad idea because there were too many people in the

house who knew about the assault. Smoke untied Doe and told her to clean herself up.

He gave her clean clothes and some heroin.

       {¶23} Smoke called Murphy and told him the assault was accomplished, but

complained Murphy never paid him.

       {¶24} Smoke testified Doe did not agree to the assault, was not aware it was going

to happen, and did not consent to anything that occurred. He said that at first, he was

“staging” the assault to look good on camera, but events were out of his control when

everyone else got involved.
Muskingum County, Case No. CT2018-0048                                                       8


         {¶25} Chandler testified that while she was beating Doe, she “blacked out” and

didn’t recall everything she did to Doe until she saw the video. Chandler acknowledged

that she beat Doe with full force and was not “hitting her easy.” Chandler also confirmed

Boone wanted to kill Doe and Smoke tried to calm him down.

         {¶26} After the beating of Doe, Smoke and Goodrich also beat up Josh while Doe

sat by, crying. Goodrich pulled a gun on Josh and Smoke told him to beat Josh but not

to kill him. Smoke acknowledged Josh was present weeks before when he discussed

staging an assault with Doe, but Josh didn’t think it was a good idea and didn’t want any

part of it.

         {¶27} Despite the beatings at Smoke’s residence, Doe and Josh continued to

return regularly to get high.

                             Indictment, trial, conviction, and sentence

         {¶28} Thundercloud (“Cherokee”) and Ross (“Boone”) were indicted as follows:

Count I, kidnapping pursuant to R.C. 2905.01(A)(3), a felony of the first degree; Count II,

aggravated robbery with a firearm specification pursuant to R.C. 2911.01(A)(1), a felony

of the first degree; Count III, felonious assault with a firearm specification pursuant to R.C.

2903.11(A)(1), a felony of the second degree; Count IV, retaliation with a firearm

specification pursuant to R.C. 2921.05(A), a felony of the third degree; and Count V,

kidnapping with a firearm specification pursuant to R.C. 2905.01(A)(2), a felony of the first

degree.3 The firearm specifications are pursuant to R.C. 2941.145.

         {¶29} Prior to trial by jury, appellee sought and was granted leave to nolle Counts

II and V, including the firearm specifications. The trial court then re-numbered the counts



3   Darnell R. Vann, Byron G. Goodrich, and Heather M. Chandler are also co-defendants.
Muskingum County, Case No. CT2018-0048                                                   9


for purposes of sentencing. Count I remained Count I, but Count II became felonious

assault with a firearm specification pursuant to R.C. 2903.11(A)(1), a felony of the second

degree (formerly Count III); Count III became retaliation with a firearm specification

pursuant to R.C. 2921.05(A), a felony of the third degree (formerly Count IV).

       {¶30} The matter proceeded to trial by jury. Both Thundercloud and Ross moved

for judgment of acquittal pursuant to Crim.R. 29(A) upon the count of felonious assault,

asserting appellee presented insufficient evidence of serious physical harm. The motions

were overruled.

       {¶31} Thundercloud was thereupon found guilty as charged.           The trial court

sentenced Thundercloud to an aggregate prison term of 20 years.

       {¶32} Thundercloud now appeals from the trial court’s judgment entry of

conviction dated June 12, 2018.

       {¶33} Thundercloud raises two assignments of error:

                              ASSIGNMENTS OF ERROR

       {¶34} “I.      THE    TRIAL     COURT      ERRED      IN    DENYING       MICHAEL

THUNDERCLOUD’S CRIM.R. 29 MOTION FOR ACQUITTAL AND VIOLATED HIS

RIGHTS TO DUE PROCESS AND A FAIR TRIAL WHEN, IN THE ABSENCE OF

SUFFICIENT EVIDENCE, IT CONVICTED HIM OF FELONIOUS ASSAULT.”

       {¶35} “II. THE TRIAL COURT FAILED TO MERGE ALLIED OFFENSES OF

SIMILAR IMPORT AND THUS IMPOSED MORE PRISON TERMS THAN AUTHORIZED

BY LAW.”
Muskingum County, Case No. CT2018-0048                                                    10


                                          ANALYSIS

                                                I.

       {¶36} In his first assignment of error, Thundercloud argues his conviction upon

one count of felonious assault is not supported by sufficient evidence of serious physical

harm. We disagree.

       {¶37} The standard of review for a challenge to the sufficiency of the evidence is

set forth in State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) at paragraph two

of the syllabus, in which the Ohio Supreme Court held, “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.”

       {¶38} Thundercloud challenges his conviction upon one count of felonious assault

pursuant to R.C. 2903.11(A)(1), which states in pertinent part, “No person shall knowingly

cause serious physical harm to another* * *.” Thundercloud argues appellee presented

insufficient evidence of serious physical harm, which is defined by R.C. 2901.01(A)(5) as

any of the following:

                        (a) Any mental illness or condition of such gravity as would

              normally require hospitalization or prolonged psychiatric treatment;

                        (b) Any physical harm that carries a substantial risk of death;
Muskingum County, Case No. CT2018-0048                                                   11


                    (c) Any physical harm that involves some permanent

             incapacity, whether partial or total, or that involves some temporary,

             substantial incapacity;

                    (d) Any physical harm that involves some permanent

             disfigurement    or    that   involves      some    temporary,    serious

             disfigurement;

                    (e) Any physical harm that involves acute pain of such

             duration as to result in substantial suffering or that involves any

             degree of prolonged or intractable pain.

       {¶39} “The degree of harm that rises to the level of ‘serious' physical harm is not

an exact science, particularly when the definition includes such terms as ‘substantial,’

‘temporary,’ ‘acute,’ and ‘prolonged.’” State v. Irwin, 7th Dist. Mahoning No. 06MA20,

2007-Ohio-4996. We find the testimony of Doe and Smoke established that Doe

sustained temporary, serious disfigurement in that her face was beaten and swollen, and

her lips were split. Under certain circumstances, a bruise can constitute serious physical

harm     because      a    bruise      may     satisfy     the     statutory    requirement

for temporary serious disfigurement. State v. Worrell, 10th Dist. Franklin No. 04AP-410,

2005-Ohio-521, at ¶ 47–51, reversed on other grounds by In re Criminal Sentencing

Statutes Cases, 109 Ohio St.3d 313, 847 N.E.2d 1174, 2006-Ohio-2109; see also, State

v. Payne, 8th Dist. Cuyahoga 76539 (July 20, 2000) [bloody cut, swollen eye are

temporary, serious disfigurement]; State v. Plemmons–Greene, 8th Dist. Cuyahoga No.

92267, 2010-Ohio-655, [black eye, bruising, swelling to right side of face, scratches on

neck, and bruising on thighs and buttocks].
Muskingum County, Case No. CT2018-0048                                                 12


         {¶40} We have reviewed the record of the trial, including the videotape which is

appellee’s Exhibit 1. Through the video, photographic stills from the video, and the

testimony of Doe, Smoke, and Chandler, it is evident that Doe endured a prolonged

assault. She was punched and kicked repeatedly. She was threatened with stabbing,

murder, and rape. She testified that she was terrified and wanted to die because she

thought her life was about to end. As a result, she sustained broken glasses, a swollen

face, and “busted” lips. She was terrified and in pain; she described her face and sides

as “throbbing,” and said she could barely speak. She did not seek medical attention, not

because she didn’t need it but because she was afraid to tell anyone about the assault.

Doe testified she has suffers psychological problems from the attack because she

constantly has to look over her shoulder, continues to have nightmares every night, and

is still terrified.

         {¶41} A reasonable person could find acute pain of such duration as to result in

substantial suffering or involving any prolonged or intractable pain under R.C.

2901.01(A)(5)(e). Doe was in extreme pain during the beating as evidenced by the video,

and Smoke and Chandler opined that she was in acute pain after the beating. The jury

could reasonably find that she remained in a state of acute pain causing substantial

suffering for the hours and even days after the beating. See, State v. Delgallo, 7th Dist.

Jefferson No. 06 JE 1, 2007-Ohio-1569, ¶ 24.

         {¶42} Thundercloud responds that in Village of Gnadenhutten v. Yocke., 5th Dist.

Tuscarawas No. 1449, 1980 WL 354039, we found that a split lip did not constitute serious

physical harm.        That case arose in the context of a teacher charged with child

endangering against a student, and we emphasized that the assault involved a single
Muskingum County, Case No. CT2018-0048                                                    13

punch “from a distance of eight inches” which resulted in a split lip. Id., at *1. We decline

to equate the circumstances in Yocke with the vicious, prolonged, violent attack we

observe in appellee’s Exhibit 1.

       {¶43} Thundercloud also points out that in State v. Eley, “seemingly awful

circumstances” did not equate to serious physical harm. 56 Ohio St.2d 169, 172, 383

N.E.2d 132 (1978) [assailant grabbed victim's shirt collar and ripped off buttons; victim

tackled on cement sidewalk and injured both head and hip; attacker weighed more than

victim and turned victim onto his back during struggle]. Thundercloud also points to cases

in which physical injuries more serious than Doe’s were found to constitute simple assault.

We find those cases to be in a different category than the instant case because of the

compelling evidence of the video of the attack. The palpable brutality of the sustained

attack is difficult to watch, and renders the argument that this attack was “staged” absurd.

We therefore decline to dismiss Doe’s injuries, physical and psychological, because she

did not seek medical attention.

       {¶44} In Thompkins, supra, 78 Ohio St.3d at 390, the Ohio Supreme Court

reiterated our standard of review for determining whether the evidence sufficiently

supports a criminal conviction: “A challenge to the sufficiency of evidence supporting a

conviction requires a court to determine whether the state has met its burden of

production at trial. On review for sufficiency, courts are to assess not whether the state's

evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.” It is axiomatic our inquiry into sufficiency does not

encompass the credibility of the witnesses, which is primarily for the trier of fact to

determine. State v. Yarbrough, 95 Ohio St.3d 227, 231, 2002–Ohio2126, 767 N.E.2d 216,
Muskingum County, Case No. CT2018-0048                                                    14


¶ 79. Instead, the Court emphasized that “[i]n essence, sufficiency is a test of adequacy.”

Thompkins, supra, at 386.

       {¶45} The issue in a sufficiency review concerns whether the evidence, if

believed, would support the conviction. Having reviewed appellee's evidence in its

entirety, we find the evidence presented, including the testimony of the victim and two of

the perpetrators, if believed by the trier of fact, would support the guilty verdict upon the

count of felonious assault.

       {¶46} Thundercloud’s first assignment of error is overruled.

                                                 II.

       {¶47} In his second assignment of error, Thundercloud argues that the offenses

of retaliation and felonious assault were allied offenses of similar import which should

have merged for purposes of sentencing. We disagree.

       {¶48} A defendant may be indicted upon and tried for allied offenses of similar

import, but may be sentenced on only one of the allied offenses. State v. Carr, 2016-Ohio-

9, 57 N.E.3d 262, ¶ 42 (5th Dist.), citing State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-

4569, 895 N.E.2d 149, ¶ 42. R.C. 2941.25 states as follows:

                     (A) Where the same conduct by defendant can be construed

              to constitute two or more allied offenses of similar import, the

              indictment or information may contain counts for all such offenses,

              but the defendant may be convicted of only one.

                     (B) Where the defendant's conduct constitutes two or more

              offenses of dissimilar import, or where his conduct results in two or

              more offenses of the same or similar kind committed separately or
Muskingum County, Case No. CT2018-0048                                                    15


              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.

       {¶49} The question of whether offenses merge for sentencing depends upon the

subjective facts of the case in addition to the elements of the offenses charged. State v.

Hughes, 5th Dist. Coshocton No. 15CA0008, 2016-Ohio-880, 60 N.E.3d 765, ¶ 21. In a

plurality opinion, the Ohio Supreme Court modified the test for determining whether

offenses are allied offenses of similar import. State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314, 942 N.E.2d 1061. The Court directed us to look at the elements of the

offenses in question and determine whether or not it is possible to commit one offense

and commit the other with the same conduct. Id. at ¶ 48. If the answer to such question

is in the affirmative, the court must then determine whether or not the offenses were

committed by the same conduct. Id. at ¶ 49. If the answer to the above two questions is

yes, then the offenses are allied offenses of similar import and will be merged. Id. at ¶ 50.

If, however, the court determines that commission of one offense will never result in the

commission of the other, or if there is a separate animus for each offense, then the

offenses will not merge. Id. at ¶ 51.

       {¶50} Johnson's rationale has been described by the Court as “incomplete.” State

v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 11. The Court has

further instructed us to ask three questions when a defendant's conduct supports multiple

offenses: (1) were the offenses dissimilar in import or significance? (2) were they

committed separately? and (3) were they committed with separate animus or motivation?

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31. An affirmative
Muskingum County, Case No. CT2018-0048                                                      16

answer to any of the above will permit separate convictions. Id. The conduct, the animus,

and the import must all be considered. Id.

       {¶51} Appellate review of an allied-offense question is de novo. State v. Miku,

2018-Ohio-1584, 111 N.E.3d 558, ¶ 70 (5th Dist.), citing State v. Williams, 134 Ohio St.3d

482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 12.                In the instant case, however,

Thundercloud did not seek merger at trial. By failing to seek the merger of convictions as

allied offenses of similar import in the trial court, a defendant forfeits his or her allied

offenses claim for appellate review, except for plain error. See State v. Rogers, 143 Ohio

St.3d 385, 2015–Ohio–2459, 38 N.E.3d 860, ¶ 21. In Rogers, the Court reaffirmed that

even if an accused shows the trial court committed plain error affecting the outcome of

the proceeding, the appellate court is not required to correct it. Id. at ¶ 23. Notice of plain

error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional

circumstances and only to prevent a manifest miscarriage of justice. State v. Long, 53

Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph 3 of the syllabus.

       {¶52} We find felonious assault and retaliation cannot be construed to be allied

offenses of similar import. The word “import” in the context of allied offenses refers to

“offenses of similar importance, consequence and signification.” State v. Baer, 67 Ohio

St.2d 220, 226, 423 N.E.2d 432 (1981). As noted supra, felonious assault pursuant to

R.C. 2903.11(A)(1) requires proof that the defendant knowingly caused serious physical

harm to another. Retaliation, R.C. 2921.05(A), states “[n]o person, purposely and by

force or by unlawful threat of harm to any person or property, shall retaliate against a * *

* witness who was involved in a * * * criminal action or proceeding because the * * *

witness discharged the duties of the * * * witness.”
Muskingum County, Case No. CT2018-0048                                                  17


       {¶53} Fundamentally, these offenses do not pass even the first level of the

Johnson test, supra. 2010-Ohio-6314 at ¶ 48. In State v. Phillips, 8th Dist. Cuyahoga

No. 79192, 2001 WL 1612103, at *6, the Eighth District considered whether these are

allied offenses of similar import:

                     Regardless of whether we make our determination based

              upon an abstract comparison of the implicated statutes, or a specific

              review and comparison of the facts of this case as they apply to the

              statutes, we conclude retaliation and felonious assault are not allied

              offenses. As the State plainly argued in its appellate brief, one may

              commit a felonious assault without the animus to retaliate against the

              victim; and one may retaliate without causing or attempting to cause

              serious physical harm as required by felonious assault.

       {¶54} See also, State v. Calhoun, 8th Dist. Cuyahoga No. 91328, 2009-Ohio-

2361, ¶ 27.   Even if we were to find that the offenses can be allied offenses of similar

import under certain circumstances, they are not allied offenses in the instant case.

Thundercloud committed retaliation hoping to get paid in dope; he participated in and was

complicit to the ensuing felonious assault.

       {¶55} The trial court did not commit plain error in failing to merge the offenses of

retaliation and felonious assault.     Thundercloud’s second assignment of error is

overruled.
Muskingum County, Case No. CT2018-0048                                             18


                                   CONCLUSION

       {¶56} Thundercloud’s two assignments of error are overruled and the judgment of

the Muskingum County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P.J. and

Wise, Earle, J., concur.
