[Cite as State v. Esper, 2017-Ohio-7069.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105069




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                        DOUGLAS DANIEL ESPER, JR.
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-16-604280-A

        BEFORE: Keough, A.J., Kilbane, J., and McCormack, J.

        RELEASED AND JOURNALIZED: August 3, 2017
ATTORNEYS FOR APPELLANT

Mark Stanton
Cuyahoga County Public Defender
By: Cullen Sweeney
Deputy Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Margaret Kane
       Mary McGrath
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, A.J.:

      {¶1} Appellant, Douglas Daniel Esper, Jr., appeals his convictions.         For the

reasons that follow, we reverse his sentence and remand for resentencing.

      {¶2} In March 2016, Esper was named in a three-count indictment charging him

with felonious assault and two counts of child endangering. According to the indictment

and the bill of particulars, the charges stemmed from an incident that occurred on

February 19, 2016, and resulted in serious physical harm to Esper’s four-month-old son.

      {¶3} Esper pleaded guilty to felonious assault, in violation of R.C. 2903.11(A)(1),

and one count of child endangering, in violation of R.C. 2919.22(B)(1). In exchange, the

state agreed to dismiss Count 3, child endangering in violation of R.C. 2919.22(A).

      {¶4} After hearing arguments pertaining to merger, the trial court determined that

Esper committed the two offenses with a separate animus, concluding that the two

offenses did not merge for sentencing. Accordingly, the trial court sentenced Esper to

eight years for felonious assault to be served consecutively to three years for child

endangering, for a total prison term of eleven years.        Esper appeals, raising two

assignments of error.

      {¶5} In his first assignment of error, Epser contends that the trial court erred by

convicting and sentencing him to consecutive sentences on allied offenses of similar

import.
       {¶6} Because Esper raised the issue of allied offenses in the trial court, we review

the trial court’s merger determination under R.C. 2941.25 de novo. State v. Williams,

134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

       {¶7} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, the Ohio

Supreme Court held that courts considering whether there are allied offenses that merge

into a single conviction under R.C. 2941.25 should focus on the defendant’s conduct. Id.

at ¶ 25. R.C. 2941.25(A) allows only a single conviction for conduct by a defendant that

constitutes “allied offenses of similar import.” However, under R.C. 2941.25(B), a

defendant charged with multiple offenses may be convicted of all the offenses if (1) the

defendant’s conduct constitutes offenses of dissimilar import or significance, (2) the

conduct demonstrates that the offenses were committed separately, or (3) the conduct

shows that the offenses were committed with a separate animus. Ruff at ¶ 31.

       {¶8} In this case, Esper pleaded guilty to felonious assault in violation of R.C.

2903.11(A)(1), which provides that no person shall knowingly cause serious physical

harm to another. He also pleaded guilty to child endangering with a serious physical

harm specification, in violation of R.C. 2919.22(B)(1), which provides that no person

shall abuse a child resulting in serious physical harm.

       {¶9} The state and the trial court relied upon this court’s decision in State v.

Porosky, 8th Dist. Cuyahoga No. 94705, 2011-Ohio-330, in finding that these offenses

were not allied offenses and did not merge. This reliance is misplaced.
       {¶10} We initially note that Porosky was decided under the standard set forth in

State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.                 As the

Supreme Court recently noted, “[t]he lead opinion in Johnson did not receive the support

of a majority of this court, and more recent decisions of this court have rendered the

analysis of the Johnson lead opinion largely obsolete.” State v. Earley, 145 Ohio St.3d

281, 2015-Ohio-4615, 49 N.E.3d 266, citing Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,

34 N.E.3d 892, at ¶ 16. For this reason alone, the analysis set forth in Porosky should

not be applied in determining whether Esper’s offenses are allied.

       {¶11} Moreover, Porosky is factually distinguishable because Porosky pleaded

guilty to felonious assault and child endangering in violation of R.C. 2919.22(A). As

this court noted,

       Porosky first harmed his son (felonious assault) and then endangered him
       by failing to seek medical attention for the baby for approximately 12 hours
       * * *. Thus, even if child endangering and felonious assault could be
       considered allied offenses under the Johnson framework, in this case, the
       offenses do not merge since Porosky committed them with a separate
       animus.

Id. at ¶ 11.

       {¶12} As explained by the Legislative Service Commission, R.C. 2919.22 focuses

on “child neglect and abuse.” Subsection (A) defines the offense of neglect as the

“violation of a duty of care, protection, or support which results in a substantial risk to his

health or safety.”    Committee Comment to R.C. 2919.22.             Subsection (B) of R.C.

2919.22, on the other hand, “deals with actual physical abuse of a child, whether through

physical cruelty or through improper discipline or restraint.” Id.
       {¶13} The Ohio Supreme Court has similarly distinguished between the two types

of child endangering by explaining that division (B) deals with affirmative acts of

physical abuse whereas division (A) is concerned with circumstances of neglect. State v.

Kamel, 12 Ohio St.3d 306, 309, 466 N.E.2d 860 (1984), citing State v. Sammons, 58 Ohio

St.2d 460, 391 N.E.2d 713 (1979) (an affirmative act of abuse is a required element for a

conviction under R.C. 2919.22(B); whereas subsection (A) involves acts of omission).

“[A]n inexcusable failure to act in discharge of one’s duty to protect a child, where such

failure to act results in a substantial risk to the child’s health or safety, is an offense under

R.C. 2919.22(A).” Id. at 309 (finding that the failure to secure medical attention for

son’s injuries or to prevent further injury, constituted a violation of R.C. 2919.22(A)).

       {¶14} Accordingly, and as the defense points out, the trial court’s reliance on

Porosky might be correct if Esper had pleaded guilty to both causing an injury to his son

that resulted in serious physical harm (felonious assault) and to violating his parental duty

of care to obtain proper medical care (child endangering in violation of R.C. 2919.22(A)).

 However, Esper did not plead guilty to those two offenses. Rather, he pleaded guilty to

the single act of causing serious physical harm to his son under two different statutes —

felonious assault and child endangering under R.C. 2919.22(B). Although Esper was

charged with violating a duty of care to his son in failing to seek adequate medical

attention in Count 3 of the indictment, that charge was dismissed pursuant to the plea

agreement. This detail is significant when determining whether Esper’s offenses are

allied because the court reviews the offenses that a defendant pleads to or is found guilty
of, not the offenses that are dismissed or those that do not result in a guilty finding. See

R.C. 2941.25.

       {¶15} In this case, the record reflects that Esper’s conduct that gave rise to the

felonious assault charge was the same conduct that gave rise to the endangering children

charge under R.C. 2919.22(B)(1) — his shaking of the child, which caused substantial

physical harm to the child. Esper’s conduct was committed with the same animus — out

of anger and frustration on February 19, 2016. Esper’s subsequent conduct of failing to

seek immediate medical assistance was the basis for the dismissed endangering children

charged under R.C. 2919.22(A).

       {¶16} Accordingly, we find that the trial court erred in failing to merge Count 1,

felonious assault, and Count 2, endangering children in violation of R.C. 2919.22(B)(1),

because the offenses were committed by the same conduct and with the same animus.

Esper’s first assignment of error is sustained. Having sustained the first assignment of

error, Esper’s second assignment of error contending that his counsel was ineffective for

failing to properly advise him of the maximum sentence is hereby rendered moot.

       {¶17} Judgment reversed, and case remanded for the trial court to merge the

felonious assault and child endangering charges. The state shall elect upon which

charge the trial court should impose the sentence.

       It is ordered that appellant recover from appellee 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.




KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

MARY EILEEN KILBANE, J., CONCURS;
TIM McCORMACK, J., DISSENTS WITH SEPARATE OPINION


TIM McCORMACK, J., DISSENTING:

       {¶18} I write to ratify the sentencing work product of the trial judge in this

criminal case, which is the subject of this appeal.      Herein, we find both a deeply

disturbing assault of life-threatening battery against a 12-week old infant and separately

seven subsequent days of          knowing, purposeful, and further abuse through

life-endangering failure to address and then to misrepresent the basis of the increasingly

critical condition of the victim infant. Both forms of abuse suffered by the infant, which

were spread over multiple days, resulted from separate acts of criminal conduct of the

appellant.

       {¶19} The trial court established that the appellant’s violent felonious assault

conduct was separate from the subsequent abuse that two distinct criminal violations were

committed against the 12-week-old infant.       The felonious assault against the infant

resulting in permanent brain damage occurred on February 19, 2016.        The infant will
suffer from the violence of that day forever with the community most likely having to

provide specialized therapy services for a lifetime.

        {¶20} The knowing, conscious, deceitful, and purposeful prolonging of suffering

and endangering of the life of the infant on each day, February 19, 20, 21, 22, 23, 24, and

25 constitutes separate conduct, separate animus, and separate import.           First the

felonious assault on February 19 threatened the life and viability of the infant.

Subsequently, the deceitful acts of the appellant lying to emergency care personnel led to

the purposeful withholding of critical care resulting in the significant decline of the

infant’s condition and further deterioration that directly endangered the infant victim’s

life.   The trial court made these distinctions and should be affirmed.
