[Cite as State v. Westfall, 2015-Ohio-175.]


                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 101256



                                              STATE OF OHIO

                                                         PLAINTIFF-APPELLEE

                                                   vs.

                                              JOHN WESTFALL

                                                         DEFENDANT-APPELLANT




                             JUDGMENT:
  AFFIRMED IN PART AND REVERSED IN PART; REMANDED FOR RESENTENCING




                                       Criminal Appeal from the
                                Cuyahoga County Court of Common Pleas
                                      Case No. CR-13-579173-A

        BEFORE: S. Gallagher, P.J., E.T. Gallagher, J., and Stewart, J.

        RELEASED AND JOURNALIZED: January 22, 2015
ATTORNEY FOR APPELLANT

Kevin M. Cafferkey
1370 Ontario Avenue
2000 Standard Building
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Yosef M. Hochheiser
Assistant Prosecuting Attorney
Justice Center
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, P.J.:

        {¶1} Appellant John Westfall appeals his conviction and sentence. For the reasons

stated herein, we affirm the conviction, but we reverse the sentence and remand for resentencing

because the offenses are subject to merger.

        {¶2} Appellant was charged under a three-count indictment with attempted murder,

felonious assault, and domestic violence. Each of the first two counts contained a notice of prior

conviction and repeat violent offender specification. Appellant entered a plea of not guilty and

waived his right to a jury trial. The case proceeded to a bench trial. The trial court found

appellant guilty of all three counts as charged.

        {¶3} The charges of attempted murder and felonious assault were merged as allied

offenses of similar import, and the state elected to proceed with sentencing on the attempted

murder offense. The trial court imposed a consecutive prison sentence of seven years for the

offense of attempted murder and 12 months for the offense of domestic violence, with credit for

time served. The court also imposed five years of mandatory postrelease control.

        {¶4} Appellant filed this appeal, raising four assignments of error for our review. Under

his first assignment of error, appellant claims there was insufficient evidence to support his

convictions for attempted murder and domestic violence. 1 A claim of insufficient evidence

raises the question whether the evidence is legally sufficient to support the verdict as a matter of

law. State v. Thompkins, 78 Ohio St.3d 380, 386, 1997-Ohio-52, 678 N.E.2d 541. In reviewing

a sufficiency challenge, “[t]he 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


        1
            We note that appellant has not challenged his conviction for felonious assault, which was merged with
the offense of attempted murder for sentencing.
elements of the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259,

574 N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶5} In order to establish the offense of attempted murder, the state was required to prove

that appellant attempted to “purposely cause the death of another[.]” R.C. 2903.02(A); R.C.

2923.02(A). “A person acts purposely when it is his specific intention to cause a certain result,

or, when the gist of the offense is a prohibition against conduct of a certain nature, regardless of

what the offender intends to accomplish thereby, it is his specific intention to engage in conduct

of that nature.” R.C. 2901.22(A). “Criminal attempt” occurs when one purposely does an act

constituting “a substantial step in a course of conduct planned to culminate in his commission of

the crime.” State v. Woods, 48 Ohio St.2d 127, 357 N.E.2d 1059 (1976), paragraph one of the

syllabus, overruled on other grounds by State v. Downs, 51 Ohio St.2d 47, 364 N.E.2d 1140

(1977). “To constitute a substantial step, the conduct must be strongly corroborative of the

actor’s criminal purpose.” Id.

       {¶6} In order to establish the offense of domestic violence pursuant to R.C. 2919.25(A),

the state was required to prove that appellant “knowingly cause[d] or attempt[ed] to cause

physical harm to a family or household member.” A “family or household member” includes a

person residing with and “living as a spouse” of the offender. R.C. 2919.25(F)(1). This

includes one “who * * * is cohabiting with the offender.” R.C. 2919.25(F)(2).

       {¶7} According to the victim’s testimony, on the night of June 13, 2013, appellant came

home drunk and the victim asked him to go somewhere else to sleep it off. The appellant

pushed his way into the home, locked the door behind him, threw the victim onto the floor, put

his hands around her neck, and told her over and over that he was going to kill her, that she was

“going to die tonight,” and to “say [her] prayers.” The victim was able to get her hands between
appellant’s hands and her neck. The appellant grabbed the victim by the hair, whisked her

around the room, and repeatedly punched her. During the attack, a hole was placed in the wall.

Appellant proceeded to place the victim in another choke hold, causing the victim to temporarily

lose consciousness and defecate herself. The victim pled for her life, but appellant told her “you

have to die.” The victim asked for a last request. Appellant allowed her to roll a cigarette, and

she asked him for a washrag. During this time, the victim was able to call 911.

        {¶8} A responding officer testified that when he arrived, he observed bloodstains on the

carpet and the victim ran outside in a panic. He described the victim as looking “like she was in

fear for her life, just crying and swollen face, bloody lip * * *. She looked like she had been

beaten pretty badly, scratch marks on her neck.” The officer found appellant sitting on the

couch inside and noticed the whole living room was in disarray. Appellant was taken into

custody, and the victim was taken to the hospital. The officer testified that before EMS took the

victim out of the home, she went upstairs and changed her clothes because she had urinated and

defecated on herself.

        {¶9} A domestic violence detective who responded to the scene testified that she

observed bloodstains and hair on the floor, as well as a hole in the wall. The detective observed

the victim had extensive bruising to much of her head, neck, and body, and some swelling. She

further testified that strangulation can result in defecation.

        {¶10} Testimony in the case also reflected that the victim and the appellant had been

dating since mid-April 2013; that appellant moved in with the victim on May 21, 2013; and that

the incident in this case occurred on the night of June 13, 2013. The defendant provided the

address he had been living at with the victim and where the incident occurred to the police. The

victim had a rule that the appellant was not allowed into the home when he was drunk.
       {¶11} Appellant asserts that the record reflects he stopped choking the victim after she

lost consciousness and that the circumstances show his course of conduct was not planned to

culminate in the commission of murder. However, the record shows that appellant continued to

tell the victim “you have to die” after she regained consciousness.

       {¶12} Appellant also asserts that he did not have a key to the victim’s home and lived

with her as a guest as opposed to cohabitating with the victim. However, there was evidence

that appellant was the victim’s boyfriend and that they lived together in the same home, which

appellant himself provided as his address.

       {¶13} After viewing the evidence in a light most favorable to the prosecution, we find any

rational trier of fact could have found the essential elements of the crimes proven beyond a

reasonable doubt.    The state showed appellant intended to murder the victim and that he

committed a substantial step toward his commission of the crime. The victim was not required

to actually die for the offense to be complete. Both the appellant’s statements that he was going

to kill the victim and that she had to die, and his conduct in choking the victim to the point of

unconsciousness, were reflective of appellant’s criminal purpose to cause the death of the victim.

 Further, there was sufficient evidence to establish that the victim and appellant were cohabiting

together and the trial court could have reasonably concluded that appellant was a family or

household member. Appellant’s first assignment of error is overruled.

       {¶14} Under his second assignment of error, appellant claims his convictions for

attempted murder and domestic violence were against the manifest weight of the evidence. He

reiterates arguments raised under his sufficiency challenge, questions the credibility of the

victim’s testimony, asserts that the victim’s drinking may have contributed to her loss of
consciousness, and claims the position of the hole in the wall did not correspond to the victim’s

testimony that it was caused when her head hit the wall.

       {¶15} When reviewing a claim challenging the manifest weight of the evidence, the court,

reviewing the entire record, must weigh the evidence and all reasonable inferences, consider the

credibility of witnesses, and determine whether, in resolving conflicts in the evidence, the trier of

fact clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52,

678 N.E.2d 541. Reversing a conviction as being against the manifest weight of the evidence

should be reserved for only the exceptional case in which the evidence weighs heavily against the

conviction. Id. A claim that a jury verdict is against the manifest weight of the evidence

involves a separate and distinct test that is much broader than the test for sufficiency. State v.

Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 193.

       {¶16} In this case, the victim described a brutal attack by appellant in which she was

choked, beaten, thrown, and choked again to the point of unconsciousness, with appellant

repeatedly threatening that he was going to kill her throughout the attack. Police testimony

indicated the victim ran outside looking as though she was in fear for her life, and the police

noticed visible scratch marks on the victim’s neck, as well as extensive bruising and some

swelling on her head, neck, and body. Photographs were also introduced depicting the serious

physical harm caused to the victim.

       {¶17} After carefully reviewing the evidence, we cannot say that this is one of the

exceptional cases where the evidence weighs heavily against the conviction for attempted murder

or for domestic violence. The court did not create a manifest injustice by concluding appellant

was guilty of the crimes as charged.
       {¶18} Under his third assignment of error, appellant claims he was denied effective

assistance of counsel because defense counsel failed to raise the affirmative defense of

abandonment. In order to substantiate a claim of ineffective assistance of counsel, the appellant

must show “(1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for

counsel’s errors, the proceeding’s result would have been different.” State v. Perez, 124 Ohio

St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 200, citing Strickland v. Washington, 466 U.S.

668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,

538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. The defendant has the burden

of proving his counsel rendered ineffective assistance. Perez at ¶ 223.

       {¶19} We can discern no reasonable basis for trial counsel to have pursued an affirmative

defense of abandonment. “It is well-established that once criminal intent is formed and ‘such

intent has been coupled with an overt act toward the commission of the contemplated offense, the

abandonment of the criminal purpose will not constitute a defense to a charge of attempting to

commit a crime.’” State v. Ramsey, 8th Dist. Cuyahoga No. 59549, 1992 Ohio App. LEXIS 891

(Feb. 27, 1992), quoting State v. Cooper, 52 Ohio St.2d 163, 370 N.E.2d 725 (1977), vacated in

part on other grounds, 438 U.S. 911, 98 S.Ct. 3137, 57 L.Ed.2d 1157 (1978). In light of the

overt acts by appellant in threatening to kill the victim, beating her, and choking her to the point

of unconsciousness and defecation, we find there is no reasonable probability that the verdict

would have been different had trial counsel chosen to present the affirmative defense of

abandonment in this case. Appellant’s third assignment of error is overruled.

       {¶20} Under his fourth assignment of error, appellant claims the trial court erred by

failing to merge the offense of attempted murder and domestic violence. In State v. Johnson,
128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the Ohio Supreme Court established a

two-pronged test to determine whether multiple offenses are allied offenses of similar import

under R.C. 2941.25(A). Id. at ¶ 48. First, the court must examine “whether it is possible to

commit one offense and commit the other with the same conduct.” “If the multiple offenses can

be committed by the same conduct, then the court must determine whether the offenses were

committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’” Id.

at ¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50

(Lanzinger, J., dissenting). “If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.” Id. at ¶ 50. We apply a de novo standard of

review to the trial court’s merger determination. See State v. Williams, 134 Ohio St.3d 482,

2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

       {¶21} The state does not dispute that it is possible to commit both attempted murder and

domestic violence with the same conduct. The dispute herein focuses on whether the offenses

were committed separately or with a separate animus.        The state argues that the domestic

violence conviction arose from appellant’s beating the victim and throwing her around the room,

and the attempted murder conviction arose from his later act of choking the victim until she

passed out. The state asserts these were separate acts. However, unlike the case cited by the

state, State v. Harmon, 9th Dist. Summit No. 26502, 2013-Ohio-1769, ¶ 29, in this case there

was no break in the series of events from which the offenses arose, and the conduct occurred

with a single animus.

       {¶22} Our review of the record reflects that appellant engaged in a single course of

conduct with a single animus. The victim testified that after appellant pushed his way into the

home, he threw the victim on the floor, put his hands around her neck, and told her that he was
going to kill her. Appellant would throw the victim down when she tried to get up. During the

attack, appellant was punching the victim. He grabbed her by the hair and whisked her around

the room, and he placed her into another choke hold until she passed out. All throughout the

attack, appellant told the victim that he was “going to kill [her]” and that she was “going to die

tonight” and to “say your last wishes.”

       {¶23} Because the attempted murder and domestic violence are allied offenses of similar

import, committed through a single course of conduct and with single state of mind, the offenses

are subject to merger under R.C. 2941.25. Accordingly, the trial court erred in sentencing

appellant for both offenses. We, therefore, sustain appellant’s fourth assignment of error, vacate

his sentence, and remand for resentencing. The state retains the right to elect which allied

offense to pursue on resentencing.

       {¶24} Judgment affirmed in part and reversed in part; case remanded for resentencing.

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

       The court finds there were reasonable grounds for this appeal.

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

court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



SEAN C. GALLAGHER, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR
