[Cite as State v. Smith, 2020-Ohio-3516.]




                           IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                              :     APPEAL NO. C-190235
                                                  TRIAL NO. B-1803618
        Plaintiff-Appellee,                 :

  vs.                                       :
                                                    O P I N I O N.
ANTHONY SMITH JR.,                          :

     Defendant-Appellant.                   :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 30, 2020


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Roger W. Kirk, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS


BERGERON, Judge.

       {¶1}   After defendant-appellant Anthony Smith, Jr., pleaded guilty to

felonious assault and attempted rape, he challenged his sentences in this appeal,

criticizing the trial court’s failure to merge the offenses and the length of the

sentences. Based on the record at hand, however, we see no error in the sentences

imposed by the trial court and accordingly affirm its judgment.

                                          I.

       {¶2}   In June 2018, Mr. Smith pounced on Hannah Thees, attacking her as

she walked her dog. He knocked her to the ground, punched her repeatedly in the

face, and attempted to remove her clothes in order to rape her.         Fortunately,

bystanders intervened, thwarting the attack. Ms. Thees, who was approximately 36-

weeks pregnant at the time, was subsequently taken to the hospital for medical care.

       {¶3}   As a result of the attack, Mr. Smith was indicted on charges of

felonious assault and attempted rape. Mr. Smith ultimately pleaded guilty to both,

but at sentencing maintained that the two offenses should merge as allied offenses.

The trial court concluded otherwise, instead imposing an eight-year sentence for the

felonious assault and a seven-year sentence for the attempted rape, to run

consecutively to each other.

       {¶4}   Mr. Smith now appeals and raises two assignments of error. Initially,

he challenges that the trial court erred in failing to merge the attempted rape and

felonious assault charges for purposes of sentencing. Mr. Smith also challenges the

imposition of his sentences, asserting that the trial court failed to consider the

purposes and principles of sentencing pursuant to R.C. 2929.11 and relevant

sentencing factors under R.C. 2929.12.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


                                          II.

       {¶5}   In his first assignment of error, Mr. Smith maintains that the

attempted rape and felonious assault should have merged as allied offenses pursuant

to R.C. 2945.21. We review issues regarding merger of convictions for purposes of

sentencing de novo. See State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699,

983 N.E.2d 1245, ¶ 1; State v. Chandler, 1st Dist. Hamilton Nos. C-190174 and C-

190175, 2020-Ohio-1371, ¶ 4 (de novo review where defendant raised issue of merger

before the trial court and merger determination was made).

       {¶6}   Mr. Smith was convicted of felonious assault, which prohibits

“knowingly” causing “serious physical harm to another[.]” R.C. 2903.11(A)(1). The

attempt statute forbids “purposefully or knowingly, and when purpose or knowledge

is sufficient culpability for the commission of an offense * * * [engaging] in conduct

that, if successful, would constitute or result in the offense.” R.C. 2923.02(A). And

the relevant rape statute proscribes engaging “in sexual conduct with another when

the offender purposefully compels the other person to submit by force or threat of

force.” R.C. 2907.02(A)(2).       Mr. Smith contends that the underlying harm

supporting both the felonious assault and the attempted rape is the same, and that

his actions constitute one course of conduct with a single animus, necessitating (in

his view) merger of the offenses for sentencing.

       {¶7}   Under R.C. 2941.25, while a defendant may be charged with multiple

counts that constitute “two or more allied offenses of similar import,” the defendant

may only be “convicted” of one offense. R.C. 2941.25(A); Chandler at ¶ 5. But, where

“the defendant’s conduct constitutes two or more offenses of dissimilar import, or

where [the defendant’s] conduct results in two or more offenses of the same or

similar kind committed separately or with a separate animus as to each,” a defendant



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                     OHIO FIRST DISTRICT COURT OF APPEALS


may be convicted of all such offenses. R.C. 2941.25(B); State v. McRae, 1st Dist.

Hamilton No. C-180669, 2020-Ohio-773, ¶ 21. In determining whether offenses

should merge for purposes of sentencing, the Ohio Supreme Court explained that

offenses cannot merge if “(1) the offenses are dissimilar in import or significance–in

other words, each offense caused separate, identifiable harm, (2) the offenses were

committed separately, or (3) the offenses were committed with separate animus or

motivation.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25.

Because these factors need not be addressed in any particular order, the record at

hand suggests that we first consider the animus inquiry. See State v. Bailey 1st Dist.

Hamilton No. C-140129, 2015-Ohio-2997, ¶ 83.

       {¶8}   Animus for purposes of merger refers to one’s “ ‘purpose, or more

properly, immediate motive,’ and ‘requires us to examine the defendant’s mental

state in determining whether two or more offenses may be chiseled from the same

criminal conduct.’ ” Bailey at ¶ 86, quoting State v. Logan, 60 Ohio St.2d 126, 131,

397 N.E.2d 1345 (1979).      A court must accordingly “review the entire record,

including arguments and information presented at the sentencing hearing, to

determine whether the offenses were committed separately or with a separate

animus.” State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d

661, ¶ 24; State v. Daniels, 1st Dist. Hamilton No. C-160203, 2017 WL 657574, ¶ 22

(same); R.C. 2929.19(B).

       {¶9}   Initially, we note that other courts have recognized that attempted

rape and felonious assault do not necessarily merge for purposes of sentencing,

depending on the circumstances. See State v. Haynes, 5th Dist. Richland No. 2009

CA 0031, 2010-Ohio-944, ¶ 29 (noting that felonious assault requires infliction of

serious bodily harm); State v. Smith, 7th Dist. Mahoning No. 12 MA 168, 2014-Ohio-



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                      OHIO FIRST DISTRICT COURT OF APPEALS


1398, ¶ 16-17 (crimes of rape, attempted rape, and felonious assault did not merge

where court determined that crimes were committed with separate animus).

Moreover, this court has determined, with respect to merger of felonious assault,

that where the physical force employed is “greater than was necessary” to effectuate

the other offense at issue for merger, that demonstrates a specific intent to harm,

which constitutes a separate animus. In re K.P., 1st Dist. Hamilton Nos. C-180037,

C-180038 and C-180039, 2018-Ohio-4972, ¶ 9 (Felonious assault and robbery did

not merge where the force used was “greater than was necessary to effectuate an

aggravated robbery” and demonstrated “the defendant acted with a specific intent to

harm, separate from any animus to rob the victim.”); Bailey at ¶ 87 (Separate animus

existed where defendant “gratuitously and repeatedly inflicted serious physical harm

on [the victim].”); State v. Shelton, 1st Dist. Hamilton No. C-170547, 2018-Ohio-

3895, ¶ 50 (force used to perpetuate felonious assault was greater than necessary to

effectuate the aggravated robbery). The record here, including the transcripts and

victim impact statement, reveals that after pushing Ms. Thees to the ground and in

the midst of attempting to remove her clothes, Mr. Smith repeatedly and

continuously punched her in the face.        These blows broke her nose, prompting

swelling in her entire face and requiring multiple stitches under her left eye. The

brutality of the attack left Ms. Thees hospitalized for three days.

       {¶10} In light of the record, and based on the manner and degree of harm

caused, we conclude that the force used during the attempted rape was greater than

necessary to effectuate such an act, and is therefore probative of Mr. Smith’s specific

intent to harm, separate from the animus to perpetrate the rape. See In re K.P. at ¶

9. Because Mr. Smith committed the felonious assault and attempted rape with

separate animus, they do not merge under R.C. 2941.25. See Ruff, 143 Ohio St.3d



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                      OHIO FIRST DISTRICT COURT OF APPEALS


114, 2015-Ohio-995, 34 N.E.3d 892, at ¶ 25. On the record at hand, therefore, the

trial court did not err in refusing to merge Mr. Smith’s convictions.

                                          III.

       {¶11} For his second assignment of error, Mr. Smith claims that the trial

court failed to consider the purposes and principles of sentencing under R.C. 2929.11

and sentencing factors under R.C. 2929.12, when it imposed his sentences.             In

reviewing felony sentences, we adhere to the standard delineated in R.C.

2953.08(G)(2) and may only vacate or modify a felony sentence where we clearly and

convincingly find that the record does not support the trial court’s mandatory

findings under the relevant statutes or that the sentence is otherwise contrary to law.

See R.C. 2953.08(G)(2)(a) and (b); State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 23 (“[A]n appellate court may vacate or modify any sentence

that is not clearly and convincingly contrary to law only if the appellate court finds by

clear and convincing evidence that the record does not support the sentence.”).

       {¶12} “[A] sentence [is] not clearly and convincingly contrary to law where

the trial court * * * considered the purposes and principles of sentencing set forth in

R.C. 2929.11 and the seriousness and recidivism factors contained in R.C. 2929.12,

properly applied postrelease control and imposed a sentence within the statutory

range.” State v. White, 2013-Ohio-4225, 997 N.E.2d 629, ¶ 12 (1st Dist.), citing State

v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18, abrogated on

other grounds, State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231; State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10 (same).

Though a court need consider the purposes and principles of sentencing and factors

delineated in R.C. 2929.11 and 2929.12, the court is not required to make specific

findings in that regard. See State v. Carter, 2017-Ohio-1328, 88 N.E.3d 513, ¶ 40 (1st



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                     OHIO FIRST DISTRICT COURT OF APPEALS


Dist.) (“The trial court is not required to make specific findings on the record with

respect to [R.C. 2929.11 and 2929.12.]”).

       {¶13} Here, while Mr. Smith concedes that his sentences fall within the

relevant statutory ranges, he insists that they are contrary to law because the trial

court failed to consider the criteria under R.C. 2929.11 and 2929.12 when imposing

his sentences, particularly by not considering his mental status and other mitigation.

Contrary to Mr. Smith’s assertions, however, the record indicates that the trial court

properly considered the appropriate sentencing provisions before imposing the

sentences.

       {¶14} At sentencing, the trial court heard mitigation from defense counsel,

which included discussion of Mr. Smith’s psychological problems. The trial court

acknowledged that it had reviewed the presentence investigation report and victim

impact statement, remarking that Mr. Smith did have “some” criminal record. The

trial court considered the serious harm that the victim suffered, noting that Mr.

Smith picked a very vulnerable victim and that she was badly injured as a result of

the attack.

       {¶15}   Based on this, the trial court concluded that Mr. Smith was a

“dangerous person and true threat to society” and after “[h]aving considered all the

sentencing factors under 2929 of the Revised Code” imposed Mr. Smith’s sentences.

The record accordingly confirms that the trial court properly considered the

appropriate sentencing provisions before imposing Mr. Smith’s sentences.          See

White, 2013-Ohio-4225, 997 N.E.2d 629, at ¶ 13-14 (defendant’s sentence was not

clearly and convincingly contrary to law where the record demonstrated that the trial

court considered the applicable sentencing provisions); State v. Kinley, 1st Dist.

Hamilton No. C-190270, 2020-Ohio-542, ¶ 6 (noting that R.C. 2929.11 and 2929.12



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                     OHIO FIRST DISTRICT COURT OF APPEALS


are not fact finding statutes and absent contrary showing we may presume the trial

court considered them). In sum, Mr. Smith’s sentences were not clearly and

convincingly contrary to law.

       {¶16} In accordance with the foregoing analysis, we overrule Mr. Smith’s two

assignments and affirm the judgment of the trial court.

                                                                  Judgment affirmed.

ZAYAS, P.J., and MYERS, J., concur.



Please note:

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




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