[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.