[Cite as State v. Patterson, 2015-Ohio-4423.]

IN THE COURT OF APPEALS 

ELEVENTH APPELLATE DISTRICT 

TRUMBULL COUNTY, OHIO 

STATE OF OHIO : O P I N I O N 

 Plaintiff-Appellee/ : 

 Cross-Appellant, CASE NO. 2013-T-0062 

: 

 - vs - 

: 

JAMES LAMAR PATTERSON, 

: 

 Defendant-Appellant/ 

 Cross-Appellee. : 

Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 12 CR 

519. 

Judgment: Affirmed in part, reversed in part, and remanded. 

Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant 

Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 

44481 (For Plaintiff-Appellee/Cross-Appellant). 

Louis M. DeFabio, 4822 Market Street, Suite 220, Youngstown, OH 44512 (For 

Defendant-Appellant/Cross-Appellee). 

DIANE V. GRENDELL, J. 

{¶1} Defendant-appellant/cross-appellee, James Lamar Patterson (aka 

“Fresh”), appeals his convictions and sentencing for various counts of Reckless 

Homicide, Corrupting Another with Drugs, Trafficking in Heroin, and Tampering with 

Evidence. Plaintiff-appellee/cross-appellant, the State of Ohio, cross-appeals the lower 
 2

court’s decision to merge certain Trafficking counts at the time of sentencing. Patterson 

received an aggregate prison sentence of twenty years. The issues before this court 

are whether the alleged failure to conduct a formal arraignment on a superseding 

indictment requires the dismissal of the charges; whether it is error not to sever charges 

for trial where the charges are based on separate drug transactions; whether Drug 

Trafficking, Corrupting Another with Drugs, and Reckless Homicide are allied offenses 

where the sale of heroin to a juvenile results in her death; whether convictions for 

Involuntary Manslaughter, Reckless Homicide, and Corrupting Another with Drugs are 

supported by sufficient/the manifest weight of the evidence, based on testimony that the 

defendant sold drugs which a third person administered to the victim resulting in the 

victim’s death; whether a trial court may increase a particular sentence in order to 

maintain the length of the aggregate sentence after merger; and whether separate 

counts of Trafficking may be supported where the defendant has sold a portion of heroin 

but retained another portion for subsequent sale. For the following reasons, we affirm 

Patterson’s convictions and sentence, except with respect to Trafficking in Heroin 

(Counts 5 and 6) which the trial court erroneously merged. The case is remanded for 

further proceedings consistent with this opinion. 

{¶2} On September 5, 2012, the Trumbull County Grand Jury issued an 

Indictment, charging Patterson with the following: Involuntary Manslaughter (Count 1), a 

felony of the first degree in violation of R.C. 2903.04(A) and (C); Corrupting Another 

with Drugs (Count 2), a felony of the second degree in violation of R.C. 2925.02(A)(3) 

and (C)(1); Corrupting Another with Drugs (Count 3), a felony of the second degree in 

violation of R.C. 2925.02(A)(4) and (C)(1); Trafficking in Heroin (Count 4), a felony of 
 3

the fourth degree in violation of R.C. 2925.03(A)(1) and (C)(6)(b); Trafficking in Heroin 

with a Specification of Forfeiture (Count 5), a felony of the third degree in violation of 

R.C. 2925.03(A)(1) and (C)(6)(c), 2941.1417(A), 2981.02(A)(2) and/or (3)(a), and 

2981.04; Trafficking in Heroin with a Specification of Forfeiture (Count 6), a felony of the 

first degree in violation of R.C. 2925.03(A)(2) and (C)(6)(e), 2941.1417(A), 

2981.02(A)(2) and/or (3)(a), and 2981.04; Possession of Cocaine with a Specification of 

Forfeiture (Count 7), a felony of the fifth degree in violation of R.C. 2925.11(A) and 

(C)(4)(a), 2941.1417(A), 2981.02(A)(2) and/or (3)(a), and 2981.04; and Tampering with 

Evidence (Count 8), a felony of the third degree in violation of R.C. 2921.12(A)(1) and 

(B). 

{¶3} Counts 1 through 4 of the Indictment alleged that, on April 6, 2012, 

Patterson sold heroin in Girard, Ohio, and that the heroin was ultimately used by a 

seventeen-year-old girl named Christine Sheesley who died as a result of her ingestion 

of the heroin. Counts 5 through 8 of the Indictment alleged that, on May 24, 2012, 

Patterson made a drug sale to a police informant during a controlled buy in Girard, 

Ohio, and that Patterson possessed various drugs and attempted to hide or conceal 

those drugs during his arrest. 

{¶4} On October 29, 2012, Patterson was arraigned and entered a plea of Not 

Guilty. 

{¶5} On January 15, 2013, the Trumbull County Grand Jury issued a 

Superseding Indictment. The Superseding Indictment was identical to the original 

Indictment except in the following respects: The Specification of Forfeiture in Counts 5, 

6, and 7 of the original Indictment identified the subject property as “a vehicle.” In the 
 4

Superseding Indictment, the subject property was identified as “a vehicle, one 1999 

Ford Expedition, VIN 1FMPU18L9XLA53467.” Additionally, the Superseding Indictment 

added the following language to Count 6 (Trafficking in Heroin) of the original 

Indictment: “and the amount of the drug involved equals or exceeds ten grams but is 

less than fifty grams of Heroin, and the offense was committed in the vicinity of a 

juvenile, date of birth 04/22/95, * * *.” 

{¶6} On January 29, 2013, the trial court’s docket noted that an 

arraignment/pre-trial hearing was scheduled for February 14, 2013. 

{¶7} On February 14, 2013, the trial court’s docket noted: “set final pre trial[,] 

waiver of speedy trial for an additional 30 days and sets a trial date for [5]/13/13.” 

{¶8} On May 10, 2013, Patterson filed a Motion to Sever Charges, seeking to 

have Counts 1 through 4 tried separately from Counts 5 through 8. 

{¶9} On May 13, 2013, Patterson filed a Motion to Dismiss, on the grounds that 

he “was never arraigned on the superseding indictment.” 

{¶10} A jury trial on the charges against Patterson commenced on May 13, and 

concluded on May 15, 2013. At the beginning of trial, the trial court denied Patterson’s 

Motions to Sever Charges and to Dismiss. The following witnesses testified on behalf 

of the State: 

{¶11} Judy Sheesley testified that she was the mother of Christine Sheesley, 

born on April 6, 1995. On April 6, 2012, Judy Sheesley had dinner with her daughter to 

celebrate her birthday. Christine Sheesley received a gift of sixty dollars in cash. 

{¶12} Captain John Norman of the Girard Police Department testified that, on 

the morning of April 7, 2012, he responded to a dispatch regarding an unresponsive 
 5

female in an apartment at 502 Park Avenue in Girard, Ohio. At the scene, Norman 

discovered Sheesley’s lifeless body, Tyler Stevens (who called the police), and Alexis 

(Lexi) Hugel. After Sheesley’s body was removed, Norman questioned Stevens and 

Hugel at the police station. Stevens and Hugel were interviewed several times and 

initially gave conflicting accounts of events. As a result of the interview, Norman began 

a search for a person known as Fresh, later identified as James Patterson. 

{¶13} Steve Perch, the toxicologist for the Summit County Medical Examiner’s 

Office, analyzed samples of Sheesley’s blood and urine. In Sheesley’s blood Perch 

found morphine present in an amount less than the reportable level of 25 nanograms 

per milliliter. In Sheesley’s urine Perch noted the presence of morphine and 6-

monoacetylmorphine. 

{¶14} Perch explained that morphine (diacetylmorphine) in the blood 

metabolizes in less than ten minutes into a compound known as 6-

monoacetylmorphine. Within fifteen to twenty minutes, the 6-monoacetylmorphine 

breaks down into morphine. Within a few hours, all trace of heroin may be eliminated 

from a person’s blood. A similar process of metabolization occurs in urine, but at a 

slower rate. The primary metabolite, 6-monoacetylmorphine, is peculiar to heroin and 

would not be present if Sheesley had ingested morphine sulfate or other forms of 

morphine. 

{¶15} Perch was unable to offer an opinion as to when Sheesley ingested heroin 

or how much she ingested, but testified to a reasonable degree of scientific certainty 

that she had ingested heroin. 
 6

{¶16} Dr. Humphrey Donald Germaniuk, the coroner and medical examiner for 

Trumbull County, conducted an autopsy on Sheesley and determined her cause of 

death to be “acute heroin intoxication combined with acute pulmonary pneumonia.” Dr. 

Germaniuk noted the presence of moderate edema/congestion in the lungs and mild 

cerebral edema, both of which are consistent with the ingestion of a lethal amount of 

heroin. Dr. Germaniuk also explained that the sudden onset of pneumonia occurs from 

the depression of the respiratory system, an effect of heroin ingestion, which allows 

secretions to enter the lungs. The source of the secretions was unidentified, but they 

may have come from Sheesley’s own bodily fluids (saliva, mucus, et cetera) or an 

external source, such as water being poured on her face. 

{¶17} Alexis Hugel, seventeen-years-old at the time and a friend of Sheesley’s, 

accompanied her on the evening of April 6, 2012. After having dinner with Sheesley’s 

family, they went to Tyler Stevens’ apartment in the early evening. Sheesley had 

decided to do heroin that night. After a phone call from Stevens, Fresh/Patterson 

arrived at the apartment. Patterson remained by the door while “Christine got out 

money and handed it to Tyler and Tyler handed it to Fresh.” In return, “Fresh gave 

Tyler something.” During the transaction, neither Sheesley nor Hugel spoke with 

Patterson. After about fifteen minutes, Patterson departed. 

{¶18} Hugel left the apartment before Stevens and Sheesley ingested the 

heroin. When she returned, Sheesley was “passed out” and “slumped down over [a 

recliner] chair” in the front room. Stevens was “nervous” and “moving around a lot.” 

Sheesley was moved to the bedroom where they tried to awaken her. Sheesley was 

making “gurgling noises” and a sound like “muffled” crying. Around midnight, Patterson 
 7

returned to the apartment. “He said that she needed rest, and that if she didn’t wake up 

to put her in a cold shower.” Patterson remained about a half of an hour in the 

apartment before departing again. Hugel fell asleep. While she slept, Stevens dragged 

Sheesley back into the front room. 

{¶19} When Hugel was first interviewed by the police, she did not mention that 

heroin was involved to avoid getting in trouble. 

{¶20} Tyler Stevens, eighteen-years-old at the time, lived at the Park Avenue 

apartment with his father. Stevens had known Patterson for about three years. On 

April 6, 2012, Stevens arranged to buy fifty dollars worth of heroin from Patterson for 

Sheesley. Stevens called Patterson after Sheesley and Hugel arrived at his apartment. 

Patterson “walked in the door” and “started talking for a minute.” Sheesley remained 

seated near the door. According to Stevens: Patterson “goes to hand me the heroin, I 

said, ‘No, Christine, she has the money. Hand it to her.’” Patterson set the heroin down 

on a table and Sheesley handed him a fifty dollar bill. 

{¶21} After Patterson and Hugel departed, Stevens injected himself with heroin, 

and then Sheesley. Stevens passed out. When he awoke, he found Sheesley passed 

out in the recliner. Later, after Hugel came back, Stevens became concerned and tried 

to awaken Sheesley. He “put water on her,” “shook her,” and “smacked her a few 

times.” Stevens called Patterson and asked him “to come back to smoke a blunt.” 

Patterson “looked at her and said she would be all right.” 

{¶22} The following morning, Stevens called the police. At the time, he believed 

Sheesley was still alive because he heard “the rattles.” 
 8

{¶23} Stevens admitted that he lied to the police about using heroin during his 

initial interview. Stevens also threw away the phone he had used to call Patterson in 

Mill Creek Park and had his father dispose of the needle he used to inject Sheesley. 

{¶24} As a result of Sheesley’s death, Stevens pled guilty to Involuntary 

Manslaughter, Corrupting Another with Drugs, Trafficking in Heroin, and Permitting Drug 

Abuse. In exchange for his testimony against Patterson, the State agreed to 

recommend a five-year prison sentence for all charges. 

{¶25} Officer John Freeman of the Girard Police Department testified that he 

was made aware of Patterson by Captain Norman. Freeman arranged for a confidential 

informant, named Theodore Thomas aka Riggs, to set up a controlled buy of heroin 

from Patterson. 

{¶26} The controlled buy occurred on May 24, 2012, at JP’s Car Wash located 

at 605 Trumbull Avenue, in Girard. Freeman observed a blue Ford Expedition enter 

one of the wash bays and Thomas approach the vehicle. At this point, police officers 

moved on the car wash to effect an arrest. There were three persons in the vehicle: 

Patterson in the driver’s seat; Aaron Profanchik in the passenger’s seat; and Keairra 

Price in the rear seat. Patterson did not comply with Freeman’s command to show his 

hands. Instead, he “was making a lot of furtive movements” and “appeared that he was 

either grabbing for something or attempting to conceal something around his person.” 

Freeman recovered two bags of heroin from the vehicle and two-hundred and seventyfour dollars in cash from Patterson. 

{¶27} Aaron Profanchik was a passenger in Patterson’s vehicle at the time of 

arrest. At the car wash, Profanchik observed a “white dude” handing Patterson money. 
 9

Next, Profanchik heard Patterson say, “the police is on us,” looked up, and saw the 

police approaching with guns drawn and ordering Patterson to “freeze.” Patterson 

screamed, “here, Moochie” (Price’s nickname), and began taking things from his pants 

and throwing them into the back seat. A police officer then tasered Patterson. 

{¶28} Keairra Price is Profanchik’s girlfriend and was seventeen-years-old at the 

time of the controlled buy. She observed the white man approach and give Patterson 

money. When the police appeared, Patterson “threw stuff in the back seat,” which Price 

picked up and put inside her pants. Price surrendered “the stuff” to the police after 

being removed from the vehicle. 

{¶29} Theodore Thomas is a “professional confidential informant” for the Girard 

Police Department. At Officer Freeman’s request, he arranged to buy about twohundred and forty dollars worth of heroin from Patterson. At the car wash, he gave 

Patterson the money and received heroin in a “plastic baggie” with “the corner tied up.” 

At the approach of the police, Thomas ran from the wash bay. 

{¶30} Detective Greg Manente works for the Girard Police Department and is 

assigned to the Northern Ohio United States Marshalls Task Force. Manente testified 

that a typical street buy of heroin involves less than a gram, which is worth “roughly” 

one-hundred and forty to one-hundred and sixty dollars. For an individual to be in 

possession of ten or more grams of heroin is an indication that the individual is 

trafficking. 

{¶31} Manente observed the controlled buy on May 24, 2012: “The driver looked 

at me and immediately turned into the back seat with his hands out of my view.” 
 10

Manente tasered the driver of the vehicle and recovered narcotics from the female in 

the back seat. 

{¶32} Shervone Bufford, a forensic scientist with the Ohio Bureau of Criminal 

Identification and Investigation, analyzed the narcotics seized during the controlled buy. 

She identified the substance recovered from Thomas as 0.5 grams of heroin, the 

substances recovered from the vehicle as 1.1 grams of heroin and 2.7 grams of 

cocaine, and the substance recovered from Price as 10.1 grams of heroin. 

{¶33} Detective Scott Strain, a juvenile detective and school resource officer 

with the Girard Police Department, conducted interviews with Stevens and Hugel and 

participated in the controlled buy resulting in Patterson’s arrest. 

{¶34} At the close of the State’s case, Patterson moved for acquittal pursuant to 

Criminal Rule 29(A). The court denied the motion. Thereafter, Patterson successfully 

motioned the court to include a jury instruction on Reckless Homicide as a lesser 

included offense of Involuntary Manslaughter. 

{¶35} On May 16, 2013, the jury returned the following verdicts: not guilty of 

Involuntary Manslaughter (Count 1), but guilty of the lesser included offense of Reckless 

Homicide, a felony of the third degree in violation of R.C. 2903.041(A) and (B); guilty of 

Corrupting Another with Drugs (Count 2); guilty of Corrupting Another with Drugs (Count 

3); guilty of Trafficking in Heroin (Count 4); guilty of Trafficking in Heroin (Count 5); 

guilty of Trafficking in Heroin (Count 6); not guilty of Possession of Cocaine (Count 7); 

and guilty of Tampering with Evidence (Count 8). On motion of the State, the 

Specifications of Forfeiture were dismissed. 
 11

{¶36} On May 23, 2013, a sentencing hearing was held. Before imposing 

sentence, the trial court merged Counts 2 and 3 (Corrupting Another with Drugs), with 

the State electing to proceed on Count 3, and Counts 5 and 6 (Trafficking in Heroin), 

with the State electing to proceed on Count 6. The court ordered Patterson to serve a 

prison sentence of thirty-six months on Count 1 (Reckless Homicide), seven years 

mandatory on Count 3 consecutive to Count 1, eighteen months on Count 4 (Trafficking 

in Heroin) to run concurrent with Count 1, seven years mandatory on Count 6 to run 

consecutive to Count 3, and thirty-six months on Count 8 (Tampering with Evidence) to 

run consecutive to Count 6, for an aggregate prison term of twenty years, of which 

fourteen years are mandatory. The court further ordered Patterson to pay a mandatory 

fine of $15,000 with respect to Count 3, suspended his driver’s license for a period of 

five years, and advised him of post-release control. 

{¶37} On May 31, 2013, the trial court issued its written Entry on Sentence, 

which failed to include the prison sentence for Count 4. 

{¶38} On June 7, 2013, Patterson filed his Notice of Appeal. 

{¶39} On June 17, 2013, the State filed its Notice of Cross-Appeal. 

{¶40} On August 23, 2013, the trial court issued a Nunc pro Tunc Entry on 

Sentence, including the prison sentence for Count 4. 

{¶41} On appeal, Patterson raises the following assignments of error: 

{¶42} “[1.] The trial court failed to formally arraign the Appellant on the 

Super[s]eding Indictment and Appellant raised this issue prior to trial pursuant to a 

Motion To Dismiss, however, that motion was denied by the trial court. The trial court 
 12

erred in overruling said motion and, therefore, Appellant’s convictions must be 

reversed.” 

{¶43} “[2.] The trial court erred in refusing to sever Counts 1 through 4 from 

Counts 5 through 8 for trial. The two (2) sets of crimes occurred on two (2) separate 

dates. The evidence relating to each charge was not simple and direct and evidence 

relating to one (1) set of charges would not have been admissible, as “Other Acts” 

evidence, at the trial of the second set of charges.” 

{¶44} “[3.] With respect to Counts 1 through 4, the Appellant committed a single 

act, with a single state of mind and, therefore, the offenses were committed by the same 

conduct. As such, the offenses were allied offenses of similar import and should have 

merged for purposes of sentencing. The trial court erred in refusing to merge the 

sentences for said offenses.” 

{¶45} “[4.] The trial court erred in overruling the Appellant’s Crim.R. 29 motion as 

to the Involuntary Manslaughter charge (Count 1) and the Corrupting Another With 

Drugs charges (Counts 2 and 3) as there was insufficient evidence to allow the charges 

to be presented to the jury. Further, the jury’s verdicts of Guilty as to Counts 2 and 3 

[and] the lesser included offense of Reckless Homicide was not supported by sufficient 

evidence and was against the manifest weight of the evidence.” 

{¶46} “[5.] The trial court erred and abused its discretion by increasing the 

Appellant’s sentence on Count 8 from two (2) years to three (3) years at the conclusion 

of the sentencing hearing.” 

{¶47} The State raises the following assignment of error on cross-appeal: 
 13

{¶48} “[1.] The trial court erred in merging Counts 5 and 6 for sentencing 

purposes when they are not allied offenses of similar import.” 

{¶49} In Patterson’s first assignment of error, he contends that the charges 

against him in the Superseding Indictment should have been dismissed as he was 

never formally arraigned on those charges. 

{¶50} The arraignment of a defendant “shall be conducted in open court, and 

shall consist of reading the indictment, information or complaint to the defendant, or 

stating to the defendant the substance of the charge, and calling on the defendant to 

plead thereto.” Crim.R. 10(A). “When a defendant not represented by counsel is 

brought before a court and called upon to plead, the judge or magistrate shall cause the 

defendant to be informed and shall determine that the defendant understands,” inter 

alia, that he “has a right to retain counsel even if the defendant intends to plead guilty, 

and has a right to a reasonable continuance in the proceedings to secure counsel,” and 

that he “has a right to counsel, and the right to a reasonable continuance in the 

proceeding to secure counsel, and, * * * the right to have counsel assigned without cost 

if the defendant is unable to employ counsel.” Crim.R. 10(C)(1) and (2). 

{¶51} “In Ohio, the general rule is that arraignment under the criminal rules is not 

necessary when the defendant knows what he or she is accused of and is able to 

adequately defend himself or herself.” Lewis v. Akron Mun. Court, N.D.Ohio No. 05: 09 

CV 1418, 2011 U.S. Dist. LEXIS 55447, 11 (May 4, 2011), citing Hamilton v. Brown, 1 

Ohio App.3d 165, 167, 440 N.E.2d 554 (12th Dist.1981). “Vacating convictions for lack 

of formal arraignment proceedings is predicated on the existence of possible prejudice. 

* * * The interests presumptively at issue are the right to know of the charges and the 
 14

right to adequately prepare a defense, rights which might be prejudiced by the lack of 

formal charge and entry of plea until the beginning of trial proceedings.” (Citation 

omitted.) Brown at 167; State v. Gates, 11th Dist. Portage No. 2011-P-0001, 2011-

Ohio-5711, ¶ 8 (the purpose of the arraignment is “to advise the accused of his 

constitutional rights and to inform him of the nature of the charge against him”) (citation 

omitted). 

{¶52} Patterson claims he “was prejudiced due to the failure to inform him of his 

rights to counsel * * *[;] had the Appellant been advised of his rights to counsel at his 

arraignment (which would have been several months prior to trial), he would have 

understood, then, that he had a right to seek other counsel or, if he could not afford 

other counsel, that he could seek appointed counsel.” Appellant’s brief at 9-10. 

{¶53} Assuming, arguendo, that Patterson was not formally arraigned on the 

Superseding Indictment,1 we find no prejudice. The record before this court 

demonstrates that Patterson was both aware of and exercising his right to counsel 

irrespective of arraignment under the Superseding Indictment. On October 29, 2012, 

Patterson was formally arraigned under the original Indictment, which was substantially 

similar to the Superseding Indictment. As a result of the prior arraignment, Patterson 

would have been aware of the nature of the charges against him and his constitutional 

rights. Subsequent to the original arraignment, Patterson retained counsel who 

represented him at the February 14, 2013 arraignment/pre-trial. On this date, Patterson 

 

1. The trial court scheduled Patterson for arraignment/pre-trial on the Superseding Indictment on 

February 14, 2013. A pre-trial was held on that date, at which Patterson waived his right to a speedy trial, 

but the court’s docket does not indicate whether there was a reading of the Indictment in open court. On 

November 20, 2013, during the course of the appeal, counsel for Patterson advised this court that a 

transcript of the February 14, 2013 arraignment/pre-trial had been requested, but not prepared. 
 15

executed a Waiver of Speedy Trial rights, which document was signed by both 

Patterson and his counsel. As Patterson had legal representation at this time, the trial 

court was not required under the Criminal Rules to advise him of his Sixth Amendment 

rights. Crim.R. 10(C). Patterson’s subsequent dissatisfaction with trial counsel was in 

no way connected with the failure to formally arraign him under the Superseding 

Indictment. In the absence of any colorable claim of prejudice arising from the 

arraignment procedure in this case, Patterson’s argument must be rejected. 

{¶54} The first assignment of error is without merit. 

{¶55} Under the second assignment of error, Patterson argues that the trial court 

erred by denying his Motion to Sever Charges.2

{¶56} “Two or more offenses may be charged in the same indictment, 

information or complaint in a separate count for each offense if the offenses charged, 

whether felonies or misdemeanors or both, are of the same or similar character, or are 

based on the same act or transaction, or are based on two or more acts or transactions 

connected together or constituting parts of a common scheme or plan, or are part of a 

course of criminal conduct.” Crim.R. 8(A). 

{¶57} In the present case, the two sets of charges, Counts 1 through 4 and 

Counts 5 through 8, are of a similar character (both being drug transactions) and are 

connected inasmuch as the controlled buy arose out of the investigation of Sheesley’s 

death. 

 

2. Patterson’s Motion to Sever Charges was untimely filed on May 10, 2013, three days before trial 

commenced. Crim.R. 12(D) (“[a]ll pretrial motions * * * shall be made within thirty-five days after 

arraignment or seven days before trial, whichever is earlier”); Crim.R. 12(C)(5) (“[t]he following must be 

raised before trial * * * [r]equests for severance of charges or defendants under Crim. R. 14”). The failure 

to file a timely motion for severance is sufficient reason for its denial. State v. Bell, 3rd Dist. Seneca No. 

13-12-39, 2013-Ohio-1299, ¶ 29. 
 16

{¶58} “If it appears that a defendant or the state is prejudiced by a joinder of 

offenses or of defendants in an indictment, information, or complaint, or by such joinder 

for trial together of indictments, informations or complaints, the court shall order an 

election or separate trial of counts, grant a severance of defendants, or provide such 

other relief as justice requires.” Crim.R. 14. 

{¶59} “To prevail on his claim that the trial court erred in denying his motion to 

sever, the defendant has the burden of demonstrating three facts. He must affirmatively 

demonstrate (1) that his rights were prejudiced, (2) that at the time of the motion to 

sever he provided the trial court with sufficient information so that it could weigh the 

considerations favoring joinder against the defendant’s right to a fair trial, and (3) that 

given the information provided to the court, it abused its discretion in refusing to 

separate the charges for trial.” State v. Schaim, 65 Ohio St.3d 51, 59, 600 N.E.2d 661 

(1992); State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981), syllabus. 

{¶60} “When a defendant claims that he was prejudiced by the joinder of 

multiple offenses, a court must determine (1) whether evidence of the other crimes 

would be admissible even if the counts were severed, and (2) if not, whether the 

evidence of each crime is simple and distinct.” Id. “Thus, when simple and direct 

evidence exists, an accused is not prejudiced by joinder regardless of the 

nonadmissibility of evidence of these crimes as ‘other acts’ under Evid.R. 404(B).” 

State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990). 

{¶61} Patterson claims that the joinder in the present case was prejudicial in that 

the events of the May 24, 2012 controlled buy constituted “other acts” evidence which 

tended “to show that Appellant was a drug trafficker and should be convicted in the sale 
 17

of drugs to Mr. Stevens and the death of Ms. Sheesley on that basis alone.” Patterson 

further claims the testimony regarding the controlled buy bolstered Stevens’ and Hugel’s 

credibility which “was significantly called into question given their conflicting testimony 

and their inconsistent and untruthful prior statements.” Appellant’s brief at 14-15. 

{¶62} We find no prejudice resulting from the joinder of charges in the present 

case and that the evidence of each crime was simple and direct. Patterson’s 

involvement in the controlled buy was firmly established by the testimony of police 

officers and the passengers in Patterson’s vehicle. His involvement in Sheesley’s death 

was established by the testimony of Stevens and Hugel. With respect to Stevens’ 

testimony, there was no possibility of misidentification. Stevens testified that he had 

known Patterson for several years and deliberately contacted him to obtain heroin on 

Sheesley’s behalf. If Stevens’ identification were to be discredited, the jury would have 

to conclude that he intentionally lied about the source of the heroin. The corroboration 

of Stevens’ testimony by Hugel’s identification was much more significant than 

Patterson’s subsequent involvement in the controlled buy. Hugel, unlike Stevens, was 

not charged in connection with Sheesley’s death and so received no consideration for 

her testimony. Hugel did not use heroin and did not like Stevens. She observed 

Patterson on two occasions during the night of April 6, during the course of which she 

spoke with him and he introduced himself as “Fresh.” Patterson’s involvement in the 

controlled buy had little corroborative value as to whether Stevens was intentionally 

lying to implicate Patterson in Sheesley’s death. Torres, 66 Ohio St.2d at 344, 421 

N.E.2d 1288 (joinder was not improper where the evidence “was amply sufficient to 

sustain each verdict, whether or not the indictments were tried together”). 
 18

{¶63} Moreover, the testimony regarding the events of April 6, 2012, and May 

24, 2012, was simple and direct. The two incidents involved different witnesses, 

occurred at different locations, and were separated in time by over a month and a half. 

Courts have regularly held that joinder in such circumstances is not improper, even 

when the different sets of charges are drug related. State v. Harris, 8th Dist. Cuyahoga 

Nos. 98183 and 98184, 2013-Ohio-484, ¶ 11 (“the jury could reasonably separate the 

evidence as to each charge” where “the offenses in each case pertained to drug-related 

activity in the appellant’s home, at which the police executed search warrants on two 

separate occasions”); State v. Cassell, 10th Dist. Franklin Nos. 08AP-1093 and 08AP1094, 2010-Ohio-1881, ¶ 59 (“[a]lthough both incidents involved Jones and appellant, 

the incidents took place six months apart, at separate locations”); State v. Wilkins, 12th 

Dist. Clinton No. CA2007-03-007, 2008-Ohio-2739, ¶ 16 (rejecting the argument that 

“the cumulatory effect of evidence made it more likely that a jury would find * * * [the 

appellant] was guilty of the more serious crimes, though those crimes are based 

allegedly on ambiguous evidence,” where the evidence supporting various trafficking 

convictions was simple, direct, and legally sufficient). 

{¶64} The second assignment of error is without merit. 

{¶65} In the third assignment of error, Patterson contends the trial court erred by 

not merging Counts 1 through 4 as allied offenses of similar import. 

{¶66} Ohio’s multiple counts statute or allied offenses of similar import statute 

provides: 

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

constitute two or more allied offenses of similar import, the 
 19

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. 

R.C. 2941.25; State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, 

paragraph three of the syllabus (“a defendant whose conduct supports multiple offenses 

may be convicted of all the offenses if any one of the following is true: (1) the conduct 

constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were 

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

separate animus”). 

{¶67} “In determining whether offenses are allied offenses of similar import 

within the meaning of R.C. 2941.25, courts must evaluate three separate factors—the 

conduct, the animus, and the import.” Id. at paragraph one of the syllabus. “Two or 

more offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the 

defendant’s conduct constitutes offenses involving separate victims or if the harm that 

results from each offense is separate and identifiable.” Id. at paragraph two of the 

syllabus. 

{¶68} The Ohio Supreme Court has recognized that an allied offenses inquiry 

“must focus on the defendant’s conduct to determine whether one or more of the 
 20

convictions may result because an offense may be committed in a variety of ways and 

the offenses committed may have different import.” Id. at ¶ 30. The Supreme Court 

rejected a “bright-line rule” applicable in every situation: “this analysis may be 

sometimes difficult to perform and may result in varying results for the same set of 

offenses in different cases,” which results “are permissible, given that the statute 

instructs courts to examine a defendant’s conduct—an inherently subjective 

determination.” Id. at ¶ 32, citing State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio6314, 942 N.E.2d 1061, ¶ 52 (plurality opinion per Brown, C.J.). 

{¶69} The trial court is not required to merge the offenses until after the jury has 

returned its verdicts. “Allied offenses of similar import do not merge until sentencing, 

since a conviction consists of verdict and sentence.” State v. McGuire, 80 Ohio St.3d 

390, 399, 686 N.E.2d 1112 (1997); Johnson at ¶ 47 (“[u]nder R.C. 2941.25, the court 

must determine prior to sentencing whether the offenses were committed by the same 

conduct”). 

{¶70} “An appellate court should apply a de novo standard of review in reviewing 

a trial court’s R.C. 2941.25 merger determination.” State v. Williams, 134 Ohio St.3d 

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

{¶71} In the present case, the trial court merged Counts 2 and 3, Corrupting 

Another with Drugs, and the State elected to proceed on Count 3. Accordingly, we will 

begin our analysis by comparing Corrupting Another with Drugs with Count 4, 

Trafficking in Heroin, as charged in the Superseding Indictment. To commit Corrupting 

Another with Drugs, the offender must “[f]urnish or administer a controlled substance to 

a juvenile who is at least two years the offender’s junior, when the offender knows the 
 21

age of the juvenile or is reckless in that regard.” R.C. 2925.02(A)(4)(a). To commit 

Trafficking in Heroin, the offender must “[s]ell or offer to sell a controlled substance * * * 

in the vicinity of a juvenile.” R.C. 2925.03(A)(1) and (C)(6)(b). Under the facts of this 

case, the offenses of Trafficking and Corrupting Another with Drugs caused separate, 

identifiable harm, and so were of dissimilar import, and the offenses were committed 

with a separate animus or motivation. 

{¶72} The offense of Trafficking involved two persons, Stevens and Sheesley. 

Stevens contacted Patterson and arranged the sale. When Patterson arrived at the 

apartment, it became evident that the purchase was being made on behalf of Sheesley. 

Patterson’s conduct with respect to Stevens was necessarily different than to Sheesley. 

It was no longer a matter of selling heroin to Stevens, but selling heroin to Stevens for 

the purpose of furnishing the drug to Sheesley. Compare State v. Simmons, 7th Dist. 

Jefferson No. 06 JE 4, 2007-Ohio-1570, ¶ 162 (recognizing, pre-Johnson, that 

Trafficking and Corrupting Another with Drugs are not always committed by the same 

conduct: “inducing or causing a juvenile to commit a felony drug abuse offense does not 

require any sale or offer to sell”). The harm (import) from the sale of heroin to an adult 

(Stevens) is distinct from the harm (import) from the sale of heroin to a juvenile 

(Sheesley). That such a distinction was contemplated by the legislature is evidenced by 

the enhanced penalties prescribed when Trafficking and Corrupting Another with Drugs 

involve a juvenile. 

{¶73} Consistent with the determination that the two offenses were of dissimilar 

import, they were motivated by a distinct state of mind/animus. As noted by the State: 
 22

“[b]y corrupting, as opposed to trafficking, [Patterson’s] motivation changes from one of 

profit to one addicting a minor to a dangerous drug.” Appellee’s brief at 21. 

{¶74} We will now analyze the act of selling/furnishing heroin to a juvenile with 

Count 1, Reckless Homicide. To commit Reckless Homicide, the offender must 

“recklessly cause the death of another.” R.C. 2903.041. The State had predicated the 

original charge, Involuntary Manslaughter, on the commission of either Trafficking in 

Heroin or Corrupting Another with Drugs as predicate offenses. The jury convicted 

Patterson of Reckless Homicide as a lesser included offense of Involuntary 

Manslaughter. It follows that it is at least possible to base a conviction for Reckless 

Homicide on conduct constituting Corrupting Another with Drugs/Trafficking in Heroin. 

{¶75} Patterson’s conviction for Reckless Homicide is evidenced by distinct 

conduct and animus. By acquitting Patterson of Involuntary Manslaughter, predicated 

on the underlying charges of Corrupting Another with Drugs/Trafficking in Heroin, the 

jury necessarily considered Patterson’s conduct outside of the predicate offenses in 

finding him guilty of Reckless Homicide.3 After the sale of the heroin, Stevens, 

concerned about Sheesley’s failure to regain consciousness, called Patterson back to 

the apartment. According to both Stevens and Hugel, Patterson gave assurances that 

Sheesley would be fine, and so dissuaded them from seeking medical attention for 

Sheesley and contributed to her death. Patterson’s return to the apartment after the 

sale of the heroin was completed constituted additional conduct with a separate animus, 

 

3. To commit the offense of Involuntary Manslaughter, the offender must “cause the death of another * * * 

as a proximate result of the offender’s committing * * * a felony.” R.C. 2903.04(A). The jury found 

Patterson guilty of both predicate felonies – Corrupting Another with Drugs and Trafficking in Heroin – but 

acquitted him of the Manslaughter charge. Therefore, the jury must have determined that Sheesley’s 

death was not the proximate result of the conduct constituting Corrupting Another with Drugs/Trafficking 

in Heroin. 
 23

thus preventing the Reckless Homicide charge from merging with the Corrupting 

Another with Drugs and Trafficking in Heroin charges. State v. Jones, 11th Dist. 

Trumbull No. 92-T-4764, 1993 Ohio App. LEXIS 6060, 11 (Dec. 17, 1993) (actions, 

when separated by time and/or distance, may constitute distinct criminal acts); State v. 

Estes, 12th Dist. Preble No. CA2013-04-001, 2014-Ohio-767, ¶ 22 (Abuse of a Corpse 

and Arson charges did not merge where the offender doused the victim’s body with 

gasoline, left the scene, and later returned to light it on fire). 

{¶76} Patterson maintains that the Ohio Supreme Court’s holding in Johnson, 

128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, precludes the conclusion that 

the counts should not merge based on Patterson’s conduct after returning to Stevens’ 

apartment. In Johnson, the defendant was convicted of Felony Murder, based upon the 

predicate offense of Child Endangering, and Child Endangering. Id. at ¶ 53. The 

evidence was that Johnson was engaged in beating the child-victim, but was interrupted 

by the intervention of the victim’s mother. After the mother’s departure, Johnson 

continued the beating which resulted in the victim’s death. Id. at ¶ 54. The State 

argued that there were “two separate incidents of abuse, separated by time and brief 

intervention by Milton’s mother.” The Supreme Court “decline[d] the invitation * * * to 

parse Johnson’s conduct into a blow-by-blow in order to sustain multiple convictions for 

the second beating,” and found that “[t]his beating was a discrete act that resulted in the 

simultaneous commission of allied offenses, child abuse and felony murder.” Id. at ¶ 

56. 

{¶77} Johnson is factually distinguishable. Patterson’s conduct on the night of 

April 6, 2012, did not constitute a “discrete act.” Patterson’s initial presence at Stevens’ 
 24

apartment was for the sole purpose of selling the heroin. That action was completed 

and Patterson departed. Patterson’s return to the apartment several hours later was 

occasioned by Stevens’ anxiety over Sheesley’s failure to regain consciousness. Unlike 

Johnson, Patterson did not return to resume a course of action already begun during 

the first appearance. Patterson’s return may have been a consequence of the earlier 

sale of heroin, but it was not a continuation of that sale. 

{¶78} Johnson is also distinguishable because, in that case, the defendant’s 

Felony Murder conviction was predicated upon Child Endangering, i.e., the act of Child 

Endangering was an essential element in the crime of Felony Murder. As noted above, 

Patterson’s conviction was for Reckless Homicide which was not predicated upon the 

Trafficking charge. Thus, the jury was free to consider whether Patterson’s conduct as 

a whole that evening, not merely the sale of the heroin, contributed to Sheesley’s death. 

{¶79} The third assignment of error is without merit. 

{¶80} In the fourth assignment of error, Patterson argues there was insufficient 

evidence to submit the Involuntary Manslaughter and two Corrupting Another with 

Drugs charges to the jury, and that his Reckless Homicide and Corrupting Another with 

Drugs convictions were against the manifest weight of the evidence. 

{¶81} The manifest weight of the evidence and the sufficiency of the evidence 

are distinct legal concepts. State v. Elmore, 111 Ohio St.3d 515, 2006-Ohio-6207, 857 

N.E.2d 547, ¶ 44. With respect to the sufficiency of the evidence, “[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 elements of the crime proven beyond 

a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), 
 25

paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 

2781, 61 L.Ed.2d 560 (1979). 

{¶82} Whereas “sufficiency of the evidence is a test of adequacy as to whether 

the evidence is legally sufficient to support a verdict as a matter of law, * * * weight of 

the evidence addresses the evidence’s effect of inducing belief.” State v. Wilson, 113 

Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, citing State v. Thompkins, 78 

Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997). “In other words, a reviewing court 

asks whose evidence is more persuasive -- the state’s or the defendant’s?” Id. An 

appellate court considering whether a verdict is against the manifest weight of the 

evidence must consider all the evidence in the record, the reasonable inferences, the 

credibility of the witnesses, and whether, “in resolving conflicts in the evidence, the jury 

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

must be reversed and a new trial ordered.” Thompkins at 387, quoting State v. Martin, 

20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 

{¶83} In order to convict Patterson of Involuntary Manslaughter, the State was 

required to prove, beyond a reasonable doubt, that he “cause[d] the death of another * * 

* as a proximate result of the offender’s committing or attempting to commit a felony.” 

R.C. 2903.04(A). For the lesser included offense of Reckless Homicide, the State was 

required to prove that he “recklessly cause[d] the death of another.” R.C. 2903.041(A). 

“A person acts recklessly when, with heedless indifference to the consequences, the 

person disregards a substantial and unjustifiable risk that the person’s conduct is likely 

to cause a certain result or is likely to be of a certain nature.” R.C. 2901.22(C). 
 26

{¶84} In order to convict Patterson of Corrupting Another with Drugs, the State 

was required to prove, beyond a reasonable doubt, that he “knowingly * * * [b]y any 

means, administer[ed] or furnish[ed] to another * * * a controlled substance, and thereby 

cause[d] serious physical harm to the other person” (Count 2), and “[b]y any means * * * 

[f]urnish[ed] or administer[ed] a controlled substance to a juvenile who is at least two 

years the offender’s junior, when the offender knows the age of the juvenile or is 

reckless in that regard” (Count 3). R.C. 2925.02(A)(3) and (4)(a). 

{¶85} With respect to the Corrupting Another with Drugs charges, Patterson 

maintains that there was insufficient evidence that he “administer[ed] or furnish[ed]” a 

controlled substance to Sheesley, since the evidence only demonstrated that the drug 

transaction occurred between Patterson and Stevens. We disagree. 

{¶86} “Furnished,” as defined for the jury, meant “provided, supplied or gave 

access to.” It does not matter if the heroin was sold or delivered directly to Stevens, 

provided that the sale gave Sheesley access to it. According to Hugel’s testimony, 

Sheesley gave the money to Stevens who gave it to Patterson. According to Stevens’ 

testimony, he told Patterson that Sheesley was purchasing the heroin. Accepting either 

witness’ version of events (in a light most favorable to the State), there was sufficient 

evidence that Patterson knew he was giving Sheesley access to heroin by the sale to or 

through Stevens. State v. Schwab, 4th Dist. Athens No. 12CA39, 2014-Ohio-336, ¶ 3 

(testimony that the appellant “kept his medications in a kitchen cabinet, to which anyone 

in the home had access” was sufficient evidence of furnishing drugs to another); State 

v. Hardison, 9th Dist. Summit No. 23050, 2007-Ohio-366, ¶ 29-30 (testimony that 
 27

appellant hid drugs in a minor’s dresser drawer was sufficient evidence of furnishing 

drugs to another). 

{¶87} With respect to Corrupting Another with Drugs (Count 3), Patterson 

maintains that there was insufficient evidence that he recklessly, i.e., “with heedless 

indifference to the consequences, * * * perversely disregard[ed] a known risk that such 

circumstances are likely to exist,” furnished a controlled substance to a juvenile two 

years his junior. Former R.C. 2901.22(C); R.C. 2907.01(I) (“‘[j]uvenile’ means an 

unmarried person under the age of eighteen”). We disagree. 

{¶88} Stevens testified that he was eighteen years old on the date of Sheesley’s 

death and that he had known Patterson for several years. It is reasonable to infer that 

Patterson would be aware of Stevens’ approximate age and that his friends would be of 

a similar age. Moreover, the jury was able to view Hugel, who was present and of the 

same age as Sheesley, and pictures of Sheesley, both alive and deceased. Thus, the 

jury could determine based on the appearance of the persons present at Stevens’ 

apartment whether Patterson acted recklessly as to Sheesley’s age. 

{¶89} With respect to Involuntary Manslaughter, Patterson maintains that there 

was insufficient evidence that Sheesley’s death was the proximate result of the sale of 

heroin. “It is impossible to suggest that Appellant could have foreseen as a 

consequence of his drug sale to Mr. Stevens that Stevens would, subsequently, inject 

Ms. Sheesley with heroin and that she would, subsequently, die as a result of said 

injection.” Appellant’s brief at 14-15. We disagree. 

{¶90} There are several cases upholding convictions for Involuntary 

Manslaughter predicated on drug trafficking and/or possession. State v. Shoemaker, 
 28

3rd Dist. Union No. 14-06-12, 2006-Ohio-5159, ¶ 68 (“Justin’s death, resulting from a 

morphine overdose, could have reasonably been anticipated by an ordinarily prudent 

person as likely to result from Shoemaker’s trafficking in morphine”); State v. Baksi, 

11th Dist. Trumbull No. 98-T-0123, 1999 Ohio App. LEXIS 6271, 44 (Dec. 23, 1999) 

(“appellant prepared an extremely strong hit of heroin and * * * he subsequently gave 

the loaded syringe to another inmate who was known to abuse drugs”); State v. 

Grunden, 65 Ohio App.3d 777, 783-784, 585 N.E.2d 487 (3rd Dist.1989) (“reasonable 

minds could readily have concluded at the close of the state’s case that the infant’s 

death was proximately caused by the defendant’s conduct in leaving a gram of cocaine 

unattended on a coffee table”). 

{¶91} Patterson counters that these cases are distinguishable (at least 

Shoemaker and Baksi) in that the offenders personally administered and/or furnished 

the drugs to the decedents. We find the distinction to be immaterial as to whether the 

deaths proximately resulted from the offenders’ drug activity. The possibility of 

overdose is a reasonably foreseeable consequence of the sale of heroin. 

{¶92} In the present case, the evidence showed that Patterson sold heroin that 

he knew was being purchased with Sheesley’s money and so he could reasonably 

assume that she would use the heroin. Several hours later, Patterson was contacted by 

Stevens who was becoming agitated by Sheesley’s failure to regain consciousness. 

Fully aware that the heroin he sold caused her to be in that state, Patterson failed to 

seek medical attention or have such attention sought on her behalf. The failure to do so 

resulted in her death from acute pneumonia. Based on the foregoing evidence, there 
 29

was sufficient evidence to support Patterson’s convictions, and those convictions were 

not against the manifest weight of the evidence. 

{¶93} The dissent would reverse the conviction for Reckless Homicide on the 

grounds that the State failed to introduce evidence that Sheesley would have survived 

had medical attention been sought. Such a conclusion, however, could be reasonably 

inferred from the testimony of Dr. Germaniuk, who described the conditions leading to 

the onset of acute pneumonia. According to Dr. Germaniuk’s testimony, the cause of 

the pneumonia was the entry of secretions into the lungs resulting from Sheesley’s 

depressed respiratory system. It does not require expert testimony to infer that the 

longer Sheesley remained in a catatonic state, the greater the likelihood that pneumonia 

would develop. 

{¶94} The dissent also fails to appreciate that Patterson’s conviction for 

Reckless Homicide does not merely rest on his furnishing the heroin to Sheesley, but 

his subsequent advice to Stevens and Hugel that Sheesley would be “all right” and 

needed rest, rather than medical attention. While every incidence of heroin use may 

“not [be] substantially likely to cause death” (infra at ¶137), the failure to seek medical 

attention for one already in a heroin-induced coma is evidence of a substantial and 

unjustifiable risk that such conduct is likely to, and in this case did, result in death. 

{¶95} The fourth assignment of error is without merit. 

{¶96} In the fifth assignment of error, Patterson argues the trial court erred by 

increasing his sentence for Tampering with Evidence from two to three years, after 

realizing that a four-year sentence could not be imposed for Reckless Homicide, being a 
 30

third-degree felony. R.C. 2929.14(A)(3)(b) (maximum prison sentence for third-degree 

felony is thirty-six months). 

{¶97} “The court hearing an appeal [of a felony sentence] shall review the 

record, including the findings underlying the sentence or modification given by the 

sentencing court.” R.C. 2953.08(G)(2). “The appellate court may increase, reduce, or 

otherwise modify a sentence that is appealed under this section or may vacate the 

sentence and remand the matter to the sentencing court for resentencing * * * if it 

clearly and convincingly finds * * * [t]hat the record does not support the sentencing 

court’s findings under division * * * (C)(4) of section 2929.14, or * * * [t]hat the sentence 

is otherwise contrary to law.” R.C. 2953.08(G)(2); State v. Belew, 140 Ohio St.3d 221, 

2014-Ohio-2964, 17 N.E.3d 515, ¶ 10-12. 

{¶98} The overriding purposes of felony sentencing in Ohio “are to protect the 

public from future crime by the offender * * * and to punish the offender.” R.C. 

2929.11(A). “A sentence imposed for a felony shall be reasonably calculated to achieve 

the two overriding purposes of felony sentencing set forth in division (A) of this section, 

commensurate with and not demeaning to the seriousness of the offender’s conduct 

and its impact upon the victim, and consistent with sentences imposed for similar crimes 

committed by similar offenders.” R.C. 2929.11(B). 

{¶99} It is well-recognized that a sentencing court “has discretion to determine 

the most effective way to comply with the purposes and principles of sentencing.” R.C. 

2929.12(A). The Ohio Supreme Court has described a sentencing court’s discretion as 

“full discretion to impose a prison sentence within the statutory range.” State v. Mathis, 

109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus; State 
 31

v. Ries, 11th Dist. Portage No. 2008-P-0064, 2009-Ohio-1316, ¶ 13 (“[s]uch discretion is 

plenary”). “[T]he trial court is not obligated, in the exercise of its discretion, to give any 

particular weight or consideration to any sentencing factor.” State v. Holin, 174 Ohio 

App.3d 1, 2007-Ohio-6255, 880 N.E.2d 515, ¶ 34 (11th Dist.). 

{¶100} At the sentencing hearing, the trial court orally pronounced a forty-eight 

month sentence for Reckless Homicide and a twenty-four month sentence for 

Tampering with Evidence. After being advised that the maximum possible sentence for 

Reckless Homicide was thirty-six months, the court acknowledged “some typos in my 

sentencing notes” and that it would “make an amendment.” The court stated the 

sentences for Reckless Homicide and Tampering with Evidence would both be thirty-six 

months, which maintained the aggregate sentence as “the same total of 20 years.” 

{¶101} Patterson contends that it was improper for the trial court to increase the 

prison term for Tampering with Evidence in order to maintain an aggregate sentence of 

twenty years: “such a decision must still be based upon a trial court’s consideration of 

the factors set forth in the sentencing statutes and not based upon a whim or desire that 

a total sentence be of a certain length.” Appellant’s brief at 26. 

{¶102} With respect to sentencing for multiple offenses, the Ohio Supreme Court 

has held that “the judge lacks the authority to consider the offenses as a group and to 

impose only an omnibus sentence for the group of offenses.” State v. Saxon, 109 Ohio 

St.3d 176, 2006-Ohio-1245, 846 N.E.2d 824, ¶ 9. “Instead of considering multiple 

offenses as a whole and imposing one, overarching sentence to encompass the entirety 

of the offenses as in the federal sentencing regime, a judge sentencing a defendant 

pursuant to Ohio law must consider each offense individually and impose a separate 
 32

sentence for each offense.” Id. (rejecting what has been referred to as the “sentencingpackage doctrine”). 

{¶103} Relying on these pronouncements in Saxon, several courts of appeals 

have held that it is error for a trial court to lengthen particular individual sentences in 

order to maintain a consistent aggregate sentence. State v. Edwards, 6th Dist. Wood 

No. WD-13-037, 2014-Ohio-2436, ¶ 12 (“where the trial court has expressly referred 

without elaboration to the exact same set of findings and factors in both sentencings, we 

are not convinced that the record in support of the resentence to a higher prison term is 

sufficient”) (citation omitted); State v. Quinones, 8th Dist. Cuyahoga No. 97054, 2012-

Ohio-1939, ¶ 10 (the trial court erred “[b]y increasing the length of the remaining rape 

count to effectuate its original intent to have him serve five years”); State v. Bradley, 2nd 

Dist. Champaign No. 06CA31, 2008-Ohio-720, ¶ 35 (“[t]he trial court erred when it 

imposed harsher sentences in order to serve the purposes and principles of sentencing 

with respect to the aggregate of the four separate offenses the court imposed”). 

{¶104} These cases are distinguishable from the present case. In the cases 

cited, the trial courts imposed the lengthier prison sentence for a particular offense on 

remand. In other words, the sentences in those cases had become final and were 

subsequently reversed on appeal. In resentencing, the courts re-imposed the same 

aggregate sentence by enhancing particular individual sentences without providing a 

valid explanation for the enhancements. Edwards at ¶ 13; Quinones at ¶ 11. 

{¶105}In the present case, the trial court adjusted Patterson’s sentence, as it 

explained, based on “some mistakes in my own notes.” As noted by the State, the 

adjustment occurred before the sentencing hearing had concluded or a written entry 
 33

was journalized. “[A]ny oral pronouncements by [the court are] subject to revision 

before journalization,” inasmuch as a “court of record speaks only through its journal 

and not by oral pronouncement or mere written minute or memorandum.” (Citation 

omitted.) State ex rel. Marshall v. Glavas, 98 Ohio St.3d 297, 2003-Ohio-857, 784 

N.E.2d 97, ¶ 5. Given that “oral pronouncements by a trial court judge are subject to 

revision before journalization[,] * * * [c]ourts may increase sentences when the sentence 

does not constitute a final order.” State v. Fought, 6th Dist. Lucas No. L-10-1348, 2011-

Ohio-4047, ¶ 13; State v. Singfield, 9th Dist. Summit No. 24576, 2009-Ohio-5945, ¶ 22 

(citation omitted). 

{¶106} Accordingly, we find no abuse of discretion in the trial court’s adjustment 

of Patterson’s sentence for Tampering with Evidence upon the discovery of the 

erroneous sentence for Reckless Homicide. 

{¶107} The fifth assignment of error is without merit. 

{¶108}In the State’s sole assignment of error on cross-appeal, it contends that 

the trial court erred in merging Counts 5 and 6 (Trafficking in Heroin), with the State 

electing to proceed on Count 6. We agree. 

{¶109}In Count 5, the jury found Patterson guilty of Trafficking in Heroin in an 

amount that “equals or exceeds one gram but less than five grams.” Specification #1 to 

Count Five of the Indictment. Count 5 was based on the heroin sold to and recovered 

from the confidential informant. R.C. 2925.03(A)(1) (“[n]o person shall knowingly * * * 

[s]ell * * * a controlled substance”). In Count 6, the jury found Patterson guilty of 

Trafficking in Heroin in an amount that “equals or exceeds five grams but less than ten 

grams.” Specification #1 to Count Six of the Indictment.” Count 6 was based on the 
 34

heroin recovered from the vehicle Patterson was operating. R.C. 2925.03(A)(2) (“[n]o 

person shall knowingly * * * [p]repare for shipment, ship, transport, deliver, prepare for 

distribution, or distribute a controlled substance”). 

{¶110} Applying the analysis set forth above under Patterson’s third assignment 

of error, we find the two counts of Trafficking in Heroin were motivated by a different 

animus and were based on different conduct and physical evidence. A certain amount 

of heroin was sold to Thomas, and a certain amount of heroin, prepared for distribution, 

was retained for subsequent sale to other persons. Thus, it was error for the trial court 

to merge the two counts. State v. Lewis, 12th Dist. Clinton No. CA2008-10-045, 2012-

Ohio-885, ¶ 21 (convictions under R.C. 2925.03(A)(1) and (2) did not merge, where 

“Lewis sold less than five grams of crack cocaine to an undercover agent, left the 

scene, and when stopped by law enforcement, discarded other crack cocaine rocks, 

and a bag of crack cocaine rocks was found near him after he was tackled”). 

{¶111} The State’s sole assignment of error on cross-appeal is with merit. 

{¶112} For the foregoing reasons, the judgment of the Trumbull County Court of 

Common Pleas is affirmed in part and reversed in part. This case is remanded for 

resentencing with instructions for the trial court to impose sentence for Count 5 

(Trafficking in Heroin). In all other respects, Patterson’s convictions and sentence are 

affirmed. Costs to be taxed against the appellant. 

THOMAS R. WRIGHT, J., concurs in part and dissents in part with a 

Concurring/Dissenting Opinion, 

COLLEEN MARY O’TOOLE, J., concurs in part and dissents in part with a 

Concurring/Dissenting Opinion. 
 35

______________________________________ 

THOMAS R. WRIGHT, J., concurs in part and dissents in part with a 

Concurring/Dissenting Opinion. 

{¶113}I concur with the majority’s disposition of Patterson’s first, second, and fifth 

assignments, as well as the state’s cross-appeal. I dissent, however, on the third and 

fourth assignments. 

{¶114} Regarding appellant’s third assignment of error, counts three and four 

merge as allied offenses of similar import. R.C. 2941.25(A). Although the trial court 

made a dual-motive finding, we owe no deference as merger issues are questions of 

pure law that are reviewed de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio5699, ¶1. 

{¶115}In Johnson, the court strongly cautioned appellate courts from over 

analyzing a defendant’s conduct in order to avoid merger. Specifically, it found that two 

separate beatings, divided only by a brief break, did not warrant the imposition of the 

two distinct offenses of child abuse and felony murder. State v. Johnson, 128 Ohio 

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶56. In finding that the child abuse and 

felony murder charges merged, the court expressly refused “to parse Johnson’s conduct 

into a blow-by-blow [analysis] in order to sustain multiple convictions for the second 

beating.” Id. Although Johnson addressed conduct, the same applies to animus. 

Absent evidence clearly showing that a defendant had dual motives while performing a 

single act, courts should not surmise such. 
 36

{¶116} Turning to the fourth assignment, the majority operates under the 

misconception that reckless homicide is a lesser included offense of involuntary 

manslaughter when it clearly is not. “An offense may be considered a lesser included 

offense of another when (1) one offense carries a greater penalty than the other; (2) the 

greater offense cannot be committed without the lesser included offense also being 

committed; and (3) some element of the greater offense is not required to prove the 

commission of the lesser offense.” State v. Evans, 122 Ohio St.3d 381, 2009-Ohio2974, 911 N.E.2d 889. 

{¶117}Involuntary manslaughter requires proof that an offender caused the death 

of another as a proximate result of the offender committing a felony, R.C. 2903.04(A), 

while reckless homicide requires proof that the offender recklessly caused the death of 

another, regardless of whether the reckless conduct constitutes a felony. R.C. 

2903.041(A). Involuntary manslaughter can be committed without reckless homicide 

also being committed. Accordingly, although defense counsel requested the reckless 

homicide instruction, it should not have been given.4

{¶118} As the state did not charge reckless homicide and since it is not a lesser 

included offense of involuntary manslaughter, appellant’s recklessness, if any, and 

whether such caused Sheesley’s death were not the issues being tried. If, then, as, the 

majority concludes, the state carried its burden, it did so coincidentally and fortuitously. 

{¶119} There is one act and one omission that arguably support the reckless 

homicide conviction, specifically, the heroin sale and Patterson’s failure to secure 

medical attention. 

 

4. Defense counsel requested a reckless homicide instruction after the close of evidence. 
 37

{¶120} Viewed through the reckless homicide prism as opposed to involuntary 

manslaughter, the state was required to prove beyond a reasonable doubt that 

Patterson recklessly caused Sheesley’s death. R.C. 2903.041(A); R.C. 2901.05(A). 

“Cause” is defined as “an act or failure to act which in a natural and continuous 

sequence directly produces the (death) * * *, and without which [the death] would not 

have occurred.” Section 417.23 Ohio Jury Instruction (2015). 

{¶121} Unlike involuntary manslaughter, which adopts the culpable mental state 

of the underlying criminal offense, a reckless homicide charge requires proof beyond a 

reasonable doubt that Patterson recklessly caused Sheesley’s death. R.C. 2903.04; 

Stanley v. Turner, 6 F.3d 399, 402, 1993 U.S. App. LEXIS 25688. 

{¶122}“A person acts recklessly when, with heedless indifference to the 

consequences, the person disregards a substantial and unjustifiable risk that the 

person’s conduct is likely to cause a certain result or is likely to be of a certain nature.” 

(Emphasis added.) R.C. 2901.22(C). 

{¶123} Risk is defined as a “significant possibility, as contrasted with a remote 

possibility, that a certain result may occur or that certain circumstances may exist.” 

R.C. 2901.01(A)(7). Whereas a “‘[s]ubstantial risk’ means a strong possibility, as 

contrasted with a remote or significant possibility, that a certain result may occur or that 

certain circumstances may exist.” R.C. 2901.01(A)(8). 

{¶124} The drafters of R.C. 2901.22, defining “Culpable mental states” based the 

definition of reckless on the analysis in Roszman v. Sammett, 26 Ohio St.2d 94, 269 

N.E.2d 420 (1970).5 R.C. 2901.22 Committee Comment to H 511 (1974). Roszman

 

5. The Roszman court used the term “wanton misconduct” in place of recklessness. 
 38

outlines the requisite proof needed to establish “recklessness” as requiring evidence 

that a defendant “shows all absence of care or an absolute perverse indifference to the 

safety of others, knowing of a dangerous situation, yet failing to use ordinary care to 

avoid injury to others.” (Emphasis added.) Id. at 98. “Such perversity on the part of the 

[defendant] must be found to be under such circumstances and existing conditions that 

the party doing the act, or failing to act, must be conscious from his knowledge of such 

surrounding circumstances and existing conditions that his conduct will, in all 

probability, result in injury.” (Citation omitted.) Id. at 97. 

{¶125}“The State must prove, beyond a reasonable doubt, therefore, that the 

defendant had a subjective realization of a substantial and unjustifiable risk and a 

conscious decision to ignore it.” State v. Theriault, 1993 Conn. Super LEXIS 3056, 10 

(Oct. 7, 1993) (holding in part that the defendant’s sale of heroin was insufficient to 

support her conviction for reckless homicide), citing State v. Jupin, 26 Conn. App. 331, 

602 A.2d 12 (1992). 

{¶126}In State v. Peck, 172 Ohio App.3d 25, 2007-Ohio-2730, 872 N.E.2d 1263, 

the court reversed Peck’s conviction of reckless homicide since there was insufficient 

evidence establishing that Peck recklessly caused the death of a driver of a passing car. 

Peck was a tow truck operator who failed to realize that the tow truck he was operating 

had an underrated snatch block attached for the heavy tow in issue. Peck did not 

realize that the snatch block would fail. The snatch block broke and was catapulted into 

the windshield of an unsuspecting motorist. The evidence did not prove that Peck knew 

of the risk associated with his conduct, i.e., he was unaware that he was using the 
 39

wrong equipment that ultimately resulted in the accident and the death of a passing 

driver, and as such, it did not support his conviction for reckless homicide. Id. at 32. 

{¶127} Peck explained that the defendant’s “mere failure to perceive or avoid a 

risk, because of a lack of due care, does not constitute reckless conduct.” Id. at 29 

citing Columbus v. Akins, 10th Dist. Franklin No. 83AP-977, 1984 Ohio App. LEXIS 

10935 (Sept. 27, 1984). Instead, one who acts recklessly “is aware of the risk and 

disregards it; [whereas,] the negligent actor is not aware of the risk but should have 

been aware of it.” Id. at 30 citing Wharton’s Criminal Law, 15th Ed., Section 27, at 170 

(Emphasis sic). In assessing whether a defendant acts recklessly, a court must “assess 

the defendant’s knowledge of the specific risk created by the defendant’s conduct, not 

the defendant’s knowledge of the general risk inherent in the activity, in determining 

criminal liability for reckless homicide. Otherwise, there could be criminal liability for 

even negligent conduct whenever the defendant is aware that he is engaged in an 

inherently dangerous activity.” (Emphasis added.) (Citation omitted.) Id. at 31. 

{¶128}“While heroin is a truly dangerous drug, it is also an accepted fact that the 

injection of heroin into the body does not generally cause death in the normal heroin 

transaction.” Napier v. State, 357 So.2d 1001, 1009, 1977 Ala. Crim. App. LEXIS 1531 

(June 28, 1977) (holding that the sale of heroin in that case supported the murder 

conviction based on the defendant’s knowledge of the potency and high quality of the 

heroin; he knew another friend had nearly overdosed on the same batch; and since the 

defendant had asked his friends to “test” the heroin to aid him in cutting the heroin for 

sale.) 
 40

{¶129}In Lofthouse v. Commonwealth, 13 S.W.3d 236 (Ky. 2000), the Supreme 

Court of Kentucky reversed the defendant’s reckless homicide conviction that arose 

from supplying heroin and cocaine to his friend. Joseph Lofthouse arrived at the home 

of Jerry Buford with cocaine and heroin that he obtained from his regular drug dealer. 

The two initially drank beer and ingested cocaine together. Hours later they drank more 

beer and decided to try the heroin as suggested by the dealer as “something new.” 

Buford ultimately died as a result of his lethal ingestion of cocaine, ethanol, and 

morphine. Lofthouse was convicted by a jury of two counts of trafficking in a controlled 

substance and reckless homicide. Id. at 237-238. 

{¶130} The court of appeals affirmed his convictions, but the Kentucky Supreme 

Court disagreed with his reckless homicide conviction based on the lack of evidence. It 

explained: “the Commonwealth needed to prove not only the toxic qualities of cocaine 

and heroin, but also that a layperson, such as [Lofthouse], should have reasonably 

known that there was a substantial risk that the amount of cocaine and heroin ingested 

by Buford would result in his death. That is especially true where, as here, [Lofthouse] 

did not directly cause the victim’s death, but only furnished the means by which the 

victim caused his own death.” Id. at 241. 

{¶131} The Supreme Judicial Court in Commonwealth v. Catalina, 407 Mass. 779 

(July 3, 1990), found that the facts surrounding the defendant’s sale of heroin in that 

case were sufficient to support the indictment for manslaughter based on defendant’s 

reckless conduct.6 However, the defendant in Catalina was fully aware of the high 

potency of the type of heroin that he was selling at the time; he warned the victim of its 

 

6. The Supreme Judicial Court did not consider whether there was sufficient evidence to support the 

conviction. Instead, it was considering an appeal from a motion to dismiss the defendant’s indictment. 
 41

high potency; he knew that the victim had overdosed before; and he knew this type of 

heroin had nearly caused another’s death. Id. at 781-782. 

{¶132} Further, in People v. Cruciani, 36 N.Y.2d 304 (1975), New York’s highest 

court affirmed the defendant’s manslaughter conviction based on reckless conduct in 

injecting a narcotic in the victim’s arm. The court agreed with the jury’s decision 

because the defendant admittedly injected the victim with heroin when she was already 

“completely bombed out” on depressants and could neither fully walk nor talk. Id. Thus, 

there was sufficient evidence that the defendant was aware and consciously 

disregarded a substantial and unjustifiable risk that the victim was highly susceptible to 

overdose in light of her condition at the time the defendant injected the heroin. Thus, he 

recklessly caused her death. 

{¶133}In Commonwealth v. Bowden, 456 Pa. 278, 309 A.2d 714 (1973), the 

Pennsylvania Supreme Court agreed that the defendant’s second-degree murder 

charge was improper because it was founded on his injection of heroin into his friend 

who later died from an adverse reaction. The two men were addicts. The court held 

that the defendant had not committed an act of gross recklessness because he injected 

the victim with a dose of heroin that was usually tolerable for an addict, and the medical 

testimony supported that the amount of heroin ingested would not normally cause death 

in an addict. It explained, “the injection of heroin into the body does not generally cause 

death. Unfortunately, there are thousands of individuals who use or abuse heroin daily. 

* * * ‘While there has recently been a substantial increase in deaths from narcotics, the 

proportion of such deaths to the number of times narcotics are currently being used by 

addicts and for legal medical treatment is not nearly great enough to justify an 
 42

assumption by a person facilitating the injection of a narcotic drug by a user that the 

latter is thereby running a substantial and unjustified risk that death will result from that 

injection.’” Id. at 284, quoting People v. Pinckney, 328 N.Y.S. 2d 550, 556-557 

(App.Div.1972). Thus, and based on the facts before it, “Bowden could not [have] 

‘reasonably anticipate[d] that death * * * was likely to result.” Id. at 285; see also State 

v. Dixon, 109 Ariz. 441, 511 P.2d 623 (1973) (holding that the sole act of selling heroin 

does not support a second-degree murder charge when the drugs were ingested out of 

the presence of the seller.) 

{¶134} There was insufficient evidence to support Patterson’s reckless homicide 

conviction based on his sale of heroin. The question of legally sufficient evidence is a 

matter of law, requiring an appellate court to “‘view the evidence in a light most 

favorable to the prosecution, [and determine] whether any rational trier of fact could 

have found the essential elements of the crime proven beyond a reasonable doubt.’” 

State v. Peck, 172 Ohio App.3d 25, 28, 2007-Ohio-2730, 872 N.E.2d 1263, quoting 

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 paragraph two of the syllabus 

(1991). 

{¶135}In concluding that the sale of heroin could be sufficient to rise to the level 

of recklessness, the majority simply assesses the general risks inherent in the activity of 

heroin dealing. This is problematic because it essentially substitutes a negligence 

standard for the applicable recklessness standard, thereby impermissibly lowering the 

state’s burden of production. 

{¶136} As indicated above, to rise to the level of recklessness, a court must 

analyze a defendant’s knowledge of the specific risks created by his or her conduct. 
 43

{¶137} Although heroin use is dangerous, it is not substantially likely to cause 

death. Accordingly, absent additional circumstances previously discussed, but not 

present in our case, Patterson, in selling heroin, did not disregard a substantial and 

unjustifiable risk. Therefore, the heroin sale does not support a reckless homicide 

conviction. 

{¶138} The majority also concludes that the reckless homicide conviction is 

supported by Patterson’s failure to seek medical help. As discussed by the majority, 

Sheesley had ingested heroin and, as a result, was in a catatonic state for hours before 

Patterson was informed. Moreover, Dr. Germaniuk testified that Sheesley died as a 

result of acute pneumonia caused by the heroin use. Although Patterson knew that 

Sheesley was unconscious, there is no evidence to suggest that he was aware that 

Sheesley had acute pneumonia. This condition was only revealed as a result of the 

autopsy. 

{¶139} Patterson could not, therefore, consciously disregard the risk of 

Sheesley’s progressing pneumonia without some foreknowledge of that condition. 

Without this necessary subjective scienter element, the existence of Sheesley’s 

developing pneumonia has no bearing on Patterson’s failure to seek medical attention. 

{¶140} Further, even assuming it was reckless for Patterson not to seek medical 

attention in light of the circumstances, there was no evidence that his omission caused 

or likely caused Sheesley’s death. 

{¶141} When Patterson arrived at the apartment for the second time, Sheesley 

had already been in an unconscious state for several hours. From a medical 

standpoint, there is no evidence, whatsoever, as to the progression of her pneumonia at 
 44

that time and what, if anything, could have been done to save her. Accordingly, there is 

insufficient evidence on causation as no reasonable juror could conclude that 

Patterson’s failure to act caused Sheesley’s death. Whether this was a situation where 

prompt medical attention would have made a difference is speculative. 

{¶142} Based on the foregoing, there is insufficient evidence to support 

Patterson’s reckless homicide conviction and it should be vacated. As to all other 

issues, I concur. 

______________________________________ 

COLLEEN MARY O’TOOLE, J., concurs in part, and dissents in part, with a Concurring 

and Dissenting Opinion. 

{¶143}I concur with the majority’s well-reasoned disposition of Mr. Patterson’s 

assignments of error. I respectfully dissent regarding its disposition of the state’s 

assignment of error on cross-appeal. I agree with the learned trial court that Counts 5 

and 6, both for trafficking in heroin, and arising from the controlled buy, properly merge. 

{¶144} The majority cites to the Twelfth District’s opinion in Lewis, supra, to 

support its conclusion that the two counts should not merge. The facts set forth in 

Lewis are minimal, to say the least, but are distinguishable from those presented here. 

Appellant in Lewis sold crack to an undercover officer in a controlled buy, from a car. 

Id. at ¶19. Thereafter, the car was stopped by police, and appellant fled, dropping crack 

as he ran. Id. Thus, Lewis presents a situation in which there were two, distinct, 

instances wherein drugs were discovered, separated by time and place. 
 45

{¶145}In this case, Mr. Patterson sold heroin to the confidential agent; police 

began to close in on his car; and Mr. Patterson tossed his remaining drugs into the 

backseat, to his companion’s girlfriend. Practically speaking, it was one swift event – 

resulting in two counts of trafficking. In Johnson, supra, the defendant was beating a 

child; stopped when the boy’s mother entered the room; then resumed the beating when 

she left. Id. at ¶54. The state obtained convictions for child abuse, and felony murder. 

Id. at ¶56. Defendant contended the crimes should merge, a conclusion with which the 

trial court and the First District disagreed. Id. at ¶3-5. The Supreme Court of Ohio 

found merit in defendant’s contention. Relevantly, it stated, “We decline the invitation of 

the state to parse Johnson’s conduct into a blow-by-blow in order to sustain multiple 

convictions for the second beating. This beating was a discrete act that resulted in the 

simultaneous commission of allied offenses, child abuse and felony murder.” Id. at ¶56. 

The conduct forming the basis of the two counts merged by the trial court in this case is 

even less divisible than that in Johnson. By reversing the trial court’s decision to merge 

Counts 5 and 6, we are engaging in the parsing of conduct disapproved by the Johnson 

court. 

{¶146}I would affirm the judgment of the trial court in all respects.