[Cite as State v. Morgan, 2021-Ohio-4443.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. Craig R. Baldwin, P.J. 

 Plaintiff-Appellee : Hon. William B. Hoffman, J. 

 : Hon. Earle E. Wise, Jr., J. 

-vs- : 

 : 

HARLEY MORGAN : Case No. 2021 CA 00029 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 20 CR 00503 

JUDGMENT: Affirmed 

DATE OF JUDGMENT: December 17, 2021 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

PAULA M. SAWYERS APRIL F. CAMPBELL 

20 S. Second Street 46 1/2 N. Sandusy Street 

Newark, OH 42055 Delaware, OH 43015 
Licking County, Case No. 2021 CA 00029 2 

Wise, Earle, J.

{¶ 1} Defendant-Appellant Harley Morgan appeals the March 19, 2021 judgment 

of the Licking County Court of Common Pleas which sentenced him to an aggregate total 

of 31.5 years incarceration following convictions for attempted murder, three counts of 

aggravated burglary, three counts of felonious assault, and one count of menacing by 

stalking. Plaintiff-Appellee is the state of Ohio. 

Facts and Procedural History 

{¶ 2} In March of 2020, Kenneth "Will" Wright committed suicide. Will was the 

father of H.K's 4 children. H.K. met Appellant Morgan, who was a friend of Wright's at 

Wright's funeral. 

{¶ 3} In June of 2020, Morgan contacted H.K. via Facebook messaging. In the 

message Morgan told H.K. he was very depressed over Wright's suicide and needed 

someone to talk to. The two became friends and then began a relationship in mid-August 

2020. 

{¶ 4} The relationship quickly soured, however, when Morgan immediately 

displayed obsessive behavior with H.K. After approximately a week, H.K told Morgan she 

did not want to see him anymore. 

{¶ 5} Morgan did not take the news well and continued to call and text. When 

H.K. ignored Morgan he showed up at her apartment with an artificial rose. He told her 

his feelings for her would die when the rose died. Morgan's behavior frightened H.K. 

{¶ 6} On August 26, 2020, H.K. realized someone had been in her apartment. A 

basement window had been kicked in and she found a set of her keys in between the 

storm door and her front door. She further noticed her Facebook account had been 
Licking County, Case No. 2021 CA 00029 3 

tampered with. While she had been at work that day she had received a message from 

Facebook alerting her to the fact that an unknown device had been used to log into her 

account. She noted all her male Facebook friends had been deleted and blocked. Further, 

messages had been sent through her account that H.K. had not sent herself. H.K. 

suspected Morgan because the search history on her account had not been cleared and 

contained a search for Morgan's ex-girlfriend which H.K. had not performed. H.K had 

never provided Morgan with her Facebook password. 

{¶ 7} H.K. messaged Morgan letting him know she knew he had been in her 

account. She told him his behavior was not acceptable and she did not want to hear from 

him again. Morgan responded by sending a message indicating he was going to harm 

himself. He told her not to blame herself. H.K. was aware Morgan had posted a fake news 

meme on his Facebook timeline with his photo and a headline stating "man commits 

suicide in park." H.K. knew Morgan had a gun because he had sent her a photo of the 

gun, and believed he would use it to harm himself. 

{¶ 8} For hours Morgan continued to send messages tending to indicate he was 

going to harm himself. H.K. already felt Wright's suicide was her fault and felt if Morgan 

killed himself that would be her fault as well. She finally told Morgan to stop as he had 

gone too far, and that she wanted to be left alone. 

{¶ 9} On September 2, 2020, H.K. came home to find her apartment had been 

broken into again. Maintenance again repaired the window and additionally installed a 

lock on the basement door at H.K.'s request. 

{¶ 10} Following this break-in, H.K. was scared to stay at home and stayed 

elsewhere. In her minivan, at her sister's home, or her friend A.A.'s home. 
Licking County, Case No. 2021 CA 00029 4 

{¶ 11} A.A. was familiar with H.K.'s problems with Morgan as he had showed up 

uninvited at her home on August 13, 2020 while H.K. was there. On that occasion Morgan 

stood outside leaning on H.K.'s minivan until she finally came outside to talk to him. 

Around the same time, A.A. had also received suspicious messages from H.K.'s 

Facebook account. She and H.K. never communicated through Facebook and the 

messages came at 2:00 a.m. When A.A. asked H.K. about the messages she found H.K. 

had not sent them. 

{¶ 12} On September 15, 2020, H.K. had been at A.A.'s home along with her 

children, ages 7, 4, and 3-year-old twins, for most of the evening. When she was 

preparing to leave she noticed a smaller dark colored SUV parked a few houses down. 

The driver circled around parked again and then flipped the lights on and off. Both women 

were concerned. A.A. later texted H.K. a photo of the vehicle she had found on Facebook 

with Morgan in the driver's seat. The same vehicle would later be recorded on several 

security cameras in the area of H.K.'s apartment and in H.K.'s apartment complex. 

{¶ 13} H.K. arrived home where she had not been since September 4. That night 

she put the children in her bed so they could watch a movie and she went to the basement 

to start laundry. She went back upstairs and fell asleep with the children before finishing 

the laundry, failing to lock the basement door. 

{¶ 14} At approximately 4:45 a.m. H.K woke to a man standing over her with his 

hand over her mouth. The man wore a mask, but H.K recognized Morgan's eyes. H.K. 

saw her 7-year-old son B. sitting in front of her and heard Morgan say to B. "It's me, Justin, 

and nobody hurts Justin." Justin was an ex-boyfriend of H.K. Morgan then directed B. to 
Licking County, Case No. 2021 CA 00029 5 

"find mommy's phone so we can call for help." H.K. next felt herself being dragged off the 

bed and being stabbed repeatedly. 

{¶ 15} When Morgan paused his assault and turned his attention to H.K.'s children 

who were still sitting on the bed, H.K. ran downstairs and toward the front door of the 

apartment. Morgan caught her before she could get to the door and put the knife to her 

neck. H.K. grabbed the knife off her neck twice and ripped off Morgan's mask. She told 

Morgan to stop and added "Will wouldn't want you to do this." Morgan simply asked how 

H.K. knew it was him. 

{¶ 16} H.K. continued to struggle and yell for help. B. showed up with a baseball 

bat and attempted to help his mother by striking Morgan with the bat. But Morgan grabbed 

the bat from B. and used it to strike H.K. in the face and head. Morgan then grabbed 

H.K.'s car and house keys and fled the scene. 

{¶ 17} While that was happening, H.K.'s next-door neighbors Justin and Stephanie 

Smith heard about 10 minutes of banging and commotion before hearing H.K. yell for 

help. Justin ran out of his apartment in time to see Morgan fleeing. Justin gave chase for 

a short distance but Morgan got away. Justin returned to find Stephanie tending to H.K. 

who was lying on the floor of her living room covered in blood. When Stephanie asked 

H.K. who had done this, H.K. replied "Harley Morgan." The two stayed with her until help 

arrived. 

{¶ 18} Newark Police and Paramedics arrived on the scene. H.K. was able to 

provide information as to who had attacked her and the weapons he used. She suffered 

multiple stab wounds all over her body and blunt force trauma to her head. She was 

transported to a Columbus trauma hospital. 
Licking County, Case No. 2021 CA 00029 6 

{¶ 19} Morgan was later located at the home of a woman he had been seeing since 

September 2020. He had used her black Dodge Journey SUV to get to and from the crime 

scene. The clothing he was wearing was seized and later examined by the Bureau of 

Criminal investigation. Blood found on Morgan's pants belonged to H.K. 

{¶ 20} The cell phones of both Morgan and H.K. were examined by Geoffrey 

Moran of the State Highway Patrol Criminal Intelligence Analysis Unit. Moran performed 

an extraction from each phone to create State's Exhibits 23 and 24, which were 

PowerPoint presentations of the information extracted from the phones. The information 

included Morgan's search history showing he sought information on GPS tracking and 

monitoring systems, his attempts to get into H.K.'s Facebook account, the photo of the 

gun he sent to H.K. and the website he used to create the fake news meme announcing 

his suicide. The extraction additionally included Morgan's conversations with others after 

he fled the crime scene and was looking for assistance in remaining undiscovered. 

{¶ 21} The attack left H.K. critically injured and on life support. She suffered more 

than 20 stab wounds causing both lungs to collapse as well as bowel and other internal 

injuries. H.K. additionally suffered a concussion, broken ribs and numerous defensive 

wounds on her hands. Her pinky finger was nearly sliced off. Emergency surgery was 

required. 

{¶ 22} As a result of these events, on September 23, 2020, the Licking County 

Grand Jury returned an eight-count indictment charging Morgan as follows: 

{¶ 23} Count one, attempted murder in violation of R.C. 2923.02 and 2923.02(A), 

a felony of the first degree; 
Licking County, Case No. 2021 CA 00029 7 

{¶ 24} Counts two and three, aggravated burglary in violation of R.C. 

2911.11(A)(2), felonies of the first degree; 

{¶ 25} Counts four and five, felonious assault in violation of R.C. 2903.11(A)(2), 

felonies of the second degree; 

{¶ 26} Count six, menacing by stalking in violation of R.C. 2903.211(A)(1), a felony 

of the fourth degree; 

{¶ 27} Count seven, aggravated burglary in violation of R.C. 2911.11(A)(2), a 

felony of the first degree; and 

{¶ 28} Count eight, Felonious assault in violation of R.C. 2903.11(A)(2), a felony 

of the second degree. 

{¶ 29} Morgan pled not guilty to the charges and elected to proceed to a jury trial 

which began on March 9, 2021. On March 11, 2021, after hearing the above outlined 

evidence and deliberating, the jury found Morgan guilty as charged. He was subsequently 

sentenced to an aggregate total of 31.5 to 37 years incarceration. 

{¶ 30} Morgan timely filed an appeal and the matter is now before this court for 

consideration. He raises four assignments of error as follow: 

I 

{¶ 31} "THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING EXHIBIT 

23 AND TESTIMONY CONCERNING THAT EXHIBIT OVER MORGAN'S OBJECTION, 

BECAUSE IT WAS INADMISSABLE, HARMING MORGAN AT HIS TRIAL" 

II 
Licking County, Case No. 2021 CA 00029 8 

{¶ 32} "THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING 

MORGAN'S FACEBOOK RECORDS BECAUSE IT WAS NOT ADMISSIBLE, AND 

HARMFUL TO ADMIT AT MORGAN'S TRIAL." 

III 

{¶ 33} "MORGAN WAS DENIED HIS RIGHT TO A FAIR TRIAL IN THIS CASE 

BECAUSE OF CUMULATIVE ERROR." 

IV 

{¶ 34} "THE TRIAL COURT ERRED IN FAILING TO MERGE MORGAN'S 

COUNTS 1-5 AND 7-8: MORGAN HAD ONE ANIMUS, AND ENGAGED IN ONE 

CONTINUING COURSE OF CRIMINAL CONDUCT, AND AGGRAVATED BURGLARY 

MERGES WITH THE PREDICATE OFFENSES." 

I, II, III 

{¶ 35} We address Morgan's first three assignments of error together. In these 

assignments of error Morgan argues the trial court abused its discretion by admitting 

state's exhibits 23, a power point presentation of the information obtained from H.K. and 

Morgan's cell phones, and state's exhibit 13, Morgan's Facebook account information. In 

the alternative, Morgan argues he was denied a fair trial due to cumulative error. We 

disagree. 

Standard of Review 

{¶ 36} "Ordinarily, a trial court is vested with broad discretion in determining the 

admissibility of evidence in any particular case, so long as such discretion is exercised in 

line with the rules of procedure and evidence." Rigby v. Lake City, 58 Ohio St.3d 269, 271 

(1991). An appellate court must limit its review of the trial court's admission or exclusion 
Licking County, Case No. 2021 CA 00029 9 

of evidence to whether the trial court abused its discretion. Id. The abuse of discretion 

standard is more than an error of judgment; it implies the court ruled arbitrarily, 

unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983). 

Generally, all relevant evidence is admissible. Evid.R. 402. 

Power Point Presentation 

{¶ 37} Appellant first argues admission of state's exhibit 23 and testimony 

regarding the exhibit was a violation of Evid.R 404(B). We disagree. 

{¶ 38} Rule 404(B) of the Ohio Rules of Evidence and R.C. 2945.59 preclude 

admission of other acts evidence to prove a character trait in order to demonstrate 

conduct in conformity with that trait. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio5695, 983 N.E.2d 1278, ¶16. There are, however, exceptions to the rule. Evidence of 

other crimes, wrongs, or acts of an accused tending to show the plan with which an act 

is done may be admissible for other purposes, such as those listed in Evid.R. 404(B); to 

show "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident." 

{¶ 39} In considering other acts evidence, trial courts should conduct a three-step 

analysis. The first step is to consider whether the other acts evidence is relevant to making 

any fact that is of consequence to the determination of the action more or less probable 

than it would be without the evidence. Evid.R. 401. Second, the trial court must consider 

whether evidence of the other crimes, wrongs, or acts is presented to prove the character 

of the accused in order to show activity in conformity with the character or whether the 

other acts evidence is presented for a legitimate purpose, such as those stated in Evid.R. 

404(B), proof of motive, opportunity, intent, preparation, plan, knowledge, identity or 
Licking County, Case No. 2021 CA 00029 10 

absence of mistake or accident. Finally, a trial court is to consider whether the probative 

value of the other acts evidence is substantially outweighed by the danger of unfair 

prejudice. See Evid.R. 403, Williams, at ¶¶19-20. 

{¶ 40} "Because R.C. 2945.59 and Evid.R. 404(B) codify an exception to the 

common law with respect to evidence of other acts of wrongdoing, they must be construed 

against admissibility, and the standard for determining admissibility of such evidence is 

strict." State v. Broom, 40 Ohio St.3d 277, 281-82, 533 N.E.2d 682 (1988). As cautioned 

by the Ohio Supreme Court in State v. Lowe, 69 Ohio St.3d 527, 634 N.E.2d 616 (1994), 

"... we therefore must be careful ... to recognize the distinction between evidence which 

shows that a defendant is the type of person who might commit a particular crime and 

evidence which shows that a defendant is the person who committed a particular crime." 

Id. at 530. Evidence to prove the character of person the defendant is to show he acted 

in conformity therewith is barred by Evid.R. 404(B). 

State's Exhibit 23 

{¶ 41} Morgan first challenges the trial court's admission of the PowerPoint 

presentation of the cell phone extraction performed by Geoffrey Moran. Specifically, 

Appellant argues the photos of his hand with a gun in it, the fake news meme he created, 

and his web browser history showing he researched tracking and monitoring devices were 

not relevant to the charges. He additionally argues there was no propensity reason to 

introduce the evidence, that much of it was hearsay, and that it was unduly inflammatory 

and prejudicial. 

{¶ 42} We start by noting Morgan was charged with menacing by stalking pursuant 

to R.C. 2903.211(A)(1). That section states: 
Licking County, Case No. 2021 CA 00029 11 

(A)(1) No person by engaging in a pattern of conduct shall knowingly 

cause another person to believe that the offender will cause physical 

harm to the other person or a family or household member of the

other person or cause mental distress to the other person or a family 

or household member of the other person. In addition to any other 

basis for the other person's belief that the offender will cause physical 

harm to the other person or the other person's family or household 

member or mental distress to the other person or the other person's 

family or household member, the other person's belief or mental

distress may be based on words or conduct of the offender that are 

directed at or identify a corporation, association, or other 

organization that employs the other person or to which the other 

person belongs. 

{¶ 43} Our examination of the record and the exhibits in question reveal Morgan 

terrorized and manipulated H.K. causing her mental distress and fear of harm in several 

ways. This included using the fact that the father of H.K.'s children had committed suicide 

to his advantage. After Morgan posted the fake news meme about his own death on 

Facebook he asked H.K. " Can I see you one more time? Please?" When she refused 

Morgan replied "Don't blame yourself for this." T. 153. Further, contrary to Morgan's 

assertion that he never sent the photo of the gun to H.K., H.K. was aware Morgan had 

the means to take his own life because he had indeed previously sent her the photo of 
Licking County, Case No. 2021 CA 00029 12 

the firearm. T. 153-154 Morgan made H.K. believe he would harm himself because H.K. 

chose to end their relationship. T. 154. We therefore find both the photo of Morgan's hand 

holding a gun and the fake news meme about Morgan taking his own life were relevant 

to the charge of menacing by stalking by causing H.K. emotional distress and were 

presented for the legitimate purposes of proving motive and intent, and not unduly 

prejudicial. Accordingly, the trial court committed no abuse of discretion in admitting the 

same. 

{¶ 44} Morgan additionally argues the emails, texts, and web-search history 

obtained through the extraction performed on his phone and contained in state's exhibit 

23 were not relevant and contained hearsay within hearsay. 

{¶ 45} The emails and web-search history slides contained in the exhibit pertained 

to Morgan's own searches for tracking/monitoring devices as well as services to monitor 

someone's phone. These slides were relevant to the menacing by stalking charge 

demonstrating Morgan engaged in a pattern of conduct designed to stalk, harass, and 

cause H.K. to believe Morgan would cause her physical harm and mental distress. Text 

messages contained in the exhibit pertained to both Morgan's consideration of how to 

handle H.K's decision to end their relationship and attempts to remain undiscovered 

following his attack on her. The former were relevant to prove Morgan's plan to exact 

revenge for H.K.'s act of rejecting him and the latter were evidence of flight after he did 

so. It is well established that evidence of flight is admissible, as it tends to show 

consciousness of guilt. Sibron v. New York, 392 U.S. 40, 66, 88 S.Ct. 1889, 20 L.Ed.2d 

917(1967). 
Licking County, Case No. 2021 CA 00029 13 

{¶ 46} As for the exhibit containing hearsay, we note Evid.R. 801(D)(2)(a) provides 

that “[a] statement is not hearsay if * * * [t]he statement is offered against a party and is 

(a) the party's own statement.” The exhibit contained Morgan's own statements and 

results of his own searches. 

{¶ 47} We conclude the trial court did not abuse its discretion in admitting State's 

Exhibit 23. 

Facebook Account Information 

{¶ 48} Appellant next argues his Facebook records, contained in exhibit 13, were 

admitted in error because they were not authenticated. We disagree. 

{¶ 49} Evid.R. 901 governs authentication of evidence. Evid.R. 901(A) provides 

"[t]he requirement of authentication or identification as a condition precedent to 

admissibility is satisfied by evidence sufficient to support a finding that the matter in 

question is what its proponent claims." Evid.R. 901(B)(1) provides the authentication 

requirement can be satisfied through the "[t]estimony of [a] witness with knowledge" that 

"a matter is what it is claimed to be." 

{¶ 50} In State v. Callender, 10th Dist. No. 15AP-15, 2015-Ohio-4255 at ¶ 32 the 

Tenth District Court of Appeals addressed the foundation required for admissibility of 

Facebook posts: 

Evid.R. 901 states that all evidence must be properly authenticated 

before it is admissible into evidence. Exhibits are properly 

authenticated when there is evidence "sufficient to support finding 

that the matter in question is what the proponent claims." Evid.R. 
Licking County, Case No. 2021 CA 00029 14 

901(A). Authenticity can be demonstrated by extrinsic evidence or 

the evidence can be self-authenticating. Authentication is satisfied 

when a proponent presents foundational evidence or testimony from 

which a rational jury may determine that the evidence is what its 

proponent claims it to be. State v. Farrah, 10th Dist. No. 01AP-968, 

2002-Ohio-1918, ¶ 39. "The proponent need not offer conclusive 

evidence as a foundation must merely offer sufficient evidence to 

allow the question as to authenticity or genuineness to reach the 

jury." State v. Caldwell, 9th Dist. No. 14720, 1991 Ohio App. LEXIS 

5879 (Dec. 4, 1991). 

{¶ 51} In this matter, Newark Police Department Detective Timothy Fleming 

testified he submitted a preservation request to Facebook for the Facebook accounts of 

both H.K. and Appellant. He additionally secured a search warrant for both accounts. T. 

610-611, 613. Detective Fleming further testified the records he received from Facebook 

contained a verified phone number associated with Appellant, his known email, user 

name, and references to the instant offenses. T. 615-620. 

{¶ 52} Appellant offered no challenge to this foundational evidence and testimony. 

We find this information and the testimony regarding the information was sufficient to 

support a finding that the records were indeed what the state alleged them to be. We 

therefore overrule Appellant's complaints as to state's exhibit 13. 

Cumulative Error 
Licking County, Case No. 2021 CA 00029 15 

{¶ 53} Appellant's third assignment of error alleges Appellant was denied a fair trial 

due to cumulative error as set forth in his first two assignments of error. 

{¶ 54} In State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, the 

Supreme Court of Ohio recognized the doctrine of cumulative error. However, where we 

have found the trial court did not err, cumulative error is inapplicable. State v. Carter, 5th 

Dist. Stark No. 2002CA00125, 2003-Ohio-1313 at ¶ 37. 

{¶ 55} In the instant matter, we have found no error in the admission of state's 

exhibits 13 and 23. The doctrine of cumulative error is therefore inapplicable. 

{¶ 56} The first three assignments of error are overruled. 

IV 

{¶ 57} In his final assignment of error, Appellant argues the trial court erred by 

failing to merge counts 1 through 5 and 7 and 8. Appellant argues these offenses were 

committed with a singular animus and were one continuing course of conduct requiring 

merger. We disagree. 

{¶ 58} R.C. 2941.25 governs multiple counts and states the following: 

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

constitute two or more allied offenses of similar import, the 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 
Licking County, Case No. 2021 CA 00029 16 

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. 

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

syllabus, the Supreme Court of Ohio held the following: 

1. 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.

2. 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. 

3. Under R.C. 2941.25(B), 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. 

{¶ 60} The Ruff court explained at ¶ 26: 
Licking County, Case No. 2021 CA 00029 17 

At its heart, the allied-offense analysis is dependent upon the facts 

of a case because R.C. 2941.25 focuses on the defendant's conduct. 

The evidence at trial or during a plea or sentencing hearing will reveal 

whether the offenses have similar import. When a defendant's 

conduct victimizes more than one person, the harm for each person 

is separate and distinct, and therefore, the defendant can be 

convicted of multiple counts. Also, a defendant's conduct that

constitutes two or more offenses against a single victim can support 

multiple convictions if the harm that results from each offense is 

separate and identifiable from the harm of the other offense. We 

therefore hold that 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. 

{¶ 61} In the matter at hand, both parties filed sentencing memorandums 

addressing the issue of merger. Morgan argued, as he does here on appeal, that 

because the offenses arose from one continuous attack, all of the felonious assault 

convictions should merge with the attempted murder and all the aggravated 

burglaries should merge with the felonious assault convictions.

{¶ 62} The state's sentencing memorandum argued Morgan's convictions 

for felonious assault as contained in counts four and five of the indictment which 

involved use of the knife and caused serious physical harm merged with count 
Licking County, Case No. 2021 CA 00029 18 

one, attempted murder. The state further argued felonious assault as contained in 

count eight of the indictment and involving the use of the bat did not merge with 

any other offense as it resulted in harm separate from that inflicted by the knife. 

Finally, the state argued aggravated burglary as contained in counts two, three, 

and seven merged with each other as they were the result of one continuous 

trespass, but did not merge with any other conviction as the crime of aggravated 

burglary was completed the moment Morgan entered H.K.'s home. 

{¶ 63} The trial court agreed with the state and found attempted murder as 

contained in count one and the felonious assaults as contained in counts four and 

five involving the knife merged. The state elected to proceed on count one, 

attempted murder. Transcript of sentencing (TS) at 9-10. The court further agreed 

that the aggravated burglaries contained in counts two, three, and seven merged 

and the state elected to proceed on count two. TS at 10. 

{¶ 64} We also agree. The bat and the knife each caused separate, 

identifiable harm and therefore count eight, felonious assault involving the bat, did 

not merge with any other offense. 

{¶ 65} Moreover, while the aggravated burglary counts contained in counts 

two, three, and seven merge with each other, they do not merge with any other 

count. Morgan committed the crime of aggravated burglary when he entered H.K's 

home through the basement widow with the intent to commit a crime. T. 289. See 

State v. Lewis 5th Dist. No. 15-CA-106, 2016-Ohio-7002 ¶ 28; State v. Huhn 5th 

Dist. No. 15-CA-0006, 2015-Ohio-4929 ¶ 21-22. 
Licking County, Case No. 2021 CA 00029 19 

{¶ 66} We conclude the trial court did not err in failing to merge counts one 

through five and counts seven and eight. The final assignment of error is overruled. 

{¶ 67} The judgment of conviction and sentence of the Licking County Court 

of Common Pleas is affirmed. 

By Wise, Earle, J. 

Baldwin, P.J. and 

Hoffman, J. concur. 

EEW/rw