[Cite as State v. Sutton, 2011-Ohio-2249.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION 

No. 90172 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs.

 MICHAEL SUTTON 

DEFENDANT-APPELLANT 

JUDGMENT: 

REVERSED AND REMANDED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-481840 

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

RELEASED AND JOURNALIZED: May 12, 2011 
ATTORNEY FOR APPELLANT 

 

Paul Mancino, Jr. 

75 Public Square 

Suite 1016 

Cleveland, Ohio 44113 

 

 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Kristen L. Sobieski 

Assistant Prosecuting Attorney 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 

LARRY A. JONES, J.:

{¶ 1} This cause is before this court on remand from the Supreme Court of Ohio. In 

State v. Sutton, Cuyahoga App. No. 90172, 2008-Ohio-3677 (Sutton I), this court found that 

felonious assault and attempted murder were allied offenses of similar import and merged 

appellant’s convictions for felonious assault and attempted murder as to each victim. This 

court also reversed appellant’s conviction for two felony counts of inducing panic and 

remanded the case to the lower court to enter a judgment convicting appellant of two 
misdemeanor counts of inducing panic. Further, this court found that appellant’s sentence of 

421⁄2 years in prison was grossly disproportionate to the severity of his offenses. The 

appellant’s convictions were affirmed by this court in all other respects. 

{¶ 2} Appellant appealed our decision to the Ohio Supreme Court and the state 

cross-appealed on the issue of allied offenses. In February 2009, the Ohio Supreme Court 

dismissed Sutton’s appeal, but accepted the state’s cross-appeal. The trial court stayed further 

action on the case pending the decision of the Supreme Court. 

{¶ 3} In March 2011, the Supreme Court issued a judgment entry stating, in part: 

“This cause is remanded to the court of appeals for further consideration in view of our 

decision in State v. Johnson, [128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061].”

{¶ 4} Thus, our task is to consider whether the Ohio Supreme Court’s decision in 

Johnson affects our original holding in Sutton I, where we merged Sutton’s convictions for 

felonious assault and attempted murder. 

{¶ 5} In Johnson, the Ohio Supreme Court overruled State v. Rance (1999), 85 Ohio 

St.3d 632, 710 N.E.2d 699, which required a comparison of statutory elements solely in the 

abstract under R.C. 2941.25, and held that the court must consider the defendant’s conduct 

when determining whether two offenses are allied offenses of similar import subject to merger 

under R.C. 2941.25. Johnson at ¶44. 

{¶ 6} The Johnson Court held that: 
“In determining whether offenses are allied offenses of similar import under R.C. 

2941.25(A), the question is whether it is possible to commit one offense and commit the 

other with the same conduct, not whether it is possible to commit one without 

committing the other. * * * If the offenses correspond to such a degree that the 

conduct of the defendant constituting commission of one offense constitutes commission 

of the other, then the offenses are of similar import. 

“If the multiple offenses can be committed by the same conduct, then the court must 

determine whether the offenses were committed by the same conduct, i.e., ‘a single act, 

committed with a single state of mind.’ * * * 

“If the answer to both questions is yes, then the offenses are allied offenses of similar 

import and will be merged. 

“Conversely, if the court determines that the commission of one offense will never 

result in the commission of the other, or if the offenses are committed separately, or if 

the defendant has separate animus for each offense, then, according to R.C. 2941.25(B), 

the offenses will not merge.” (Internal citations omitted.) Id. at ¶ 48-51. 

{¶ 7} In other words, “[i]f the multiple offenses can be committed by the same 

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

conduct, i.e., ‘a single act, committed with a single state of mind.’ If the answer to both 

questions is yes, then the offenses are allied offenses of similar import and will be merged.” 

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

149, ¶50. 

{¶ 8} In Sutton I, we analyzed the case pursuant to State v. Cabrales, 118 Ohio St.3d 

54, 2008-Ohio-1625, 886 N.E.2d 181, and found: 
“The facts in this case are straightforward. On the evening in question, appellant and 

three other individuals, Kenny Phillips, Deante Creel, and Akeem Tidmore, were riding 

together in a Chevrolet Caprice. Police officers saw the Chevrolet pull alongside a 

Lincoln Mark VIII containing Ken Tolbert, Chris Lovelady, Kevin Tolbert, and Leonard 

Brown. The police witnessed gunshots coming from the Chevrolet. The driver of the 

Lincoln, Ken Tolbert, and one passenger, Chris Lovelady, sustained head injuries from 

the gunshots; the other two passengers were uninjured.1

“The grand jury issued the following indictment: four counts of attempted murder 

(attempted purposely to cause the death of another); four counts of felonious assault 

(knowingly causing or attempting to cause harm to another with a gun); two counts of 

felonious assault (causing serious physical harm to another); and two counts of 

attempted felonious assault (knowingly attempting to cause serious physical harm to 

another). There were other counts in the indictment, but they are not relevant to the 

issue before us here. 

“ * * * 

“We hold here that shooting at someone and hitting them, but not killing them, and 

shooting at someone but not hitting them, are both manners in which these attempted 

murders were perpetrated. In fact, the various felonious assaults are subsumed in the 

attempted murders. Hence, the first prong (the elements of all the various felonious 

assaults charged here, if proved, would result in the commission of attempted murder) is 

satisfied. 

“The second prong of this inquiry is whether there was a separate animus to each of the 

felonious assaults; we hold there was not. There is one act-shooting the automobile. The 

fact that the automobile had four occupants resulted in single charges relating to each of 

the four victims, but the animus of the felonious assaults and the attempted murders was 

the same. Hence, we conclude that all of the felonious assaults are allied offenses of 

similar import to the attempted murders.” Id. at ¶85-86, ¶93-94. 

{¶ 9} Although our analysis now is under Johnson, and not Cabrales or Rance, the 

outcome is still the same. In considering the conduct of Sutton, we again find that he acted 

 1 A complete recitation of the facts are set forth in Sutton I.
with one animus when he fired multiple successive shots into the car containing the four 

victims; therefore, the animus of the felonious assaults and the attempted murders was the 

same. 

{¶ 10} Thus, under Johnson we hold that the trial court erred in failing to merge the 

felonious assault and attempted murder convictions as to each of the four victims. 

{¶ 11} The case is reversed and remanded to the trial court for proceedings consistent 

with this opinion. 

It is ordered that appellant recover of 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.

 

LARRY A. JONES, JUDGE 

MARY EILEEN KILBANE, A.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR