State v. Tripplett

[Cite as State v. Tripplett, 

.]

                                COURT OF APPEALS OF OHIO

                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


STATE OF OHIO,                                        :

                 Plaintiff-Appellee,                  :
                                                               No. 112306
                 v.                                   :

KONSHAWNTE TRIPPLETT,                                 :

                 Defendant-Appellant.                 :


                                 JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
                            AND REMANDED
                 RELEASED AND JOURNALIZED: December 21, 2023


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-22-670338-A


                                                Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Benjamin Fuchs, Assistant Prosecuting
                 Attorneys, for appellee.

                 Law Offices of Jaye M. Schlachet, Jaye M. Schlachet, and
                 Eric M. Levy, for appellant.
MICHAEL JOHN RYAN, J.:

            Defendant-appellant, Konshawnte Tripplett, appeals his convictions for

two counts of felonious assault and one count of domestic violence against his sister

(referred to herein as “sister” or “victim”), which were rendered after a bench trial.

For the reasons that follow, we affirm in part, reverse in part and remand.

I. Procedural History and Facts

             Tripplett met with his sister and another family member at a local bar

to discuss a family dispute. Tripplett’s sister attempted to intervene in a physical

confrontation that occurred between Tripplett and the other family member.

Tripplett assaulted his sister by punching her in the face, hitting her with a bottle on

the mouth, and choking her. She was able to free herself from Tripplett’s grasp.

After the attack, the victim left the scene and drove to another area before calling for

emergency assistance, telling emergency responders that the assault occurred there

and not at the bar. The victim also told police that Tripplett stole her keys and

money but testified that she retrieved her keys from the bar the next day. The victim

needed stitches on the inside and outside of her mouth to close the wound caused

by the bottle. The victim was left with a scar, which she used makeup to conceal.

             At the close of the state’s case, Tripplett sought an acquittal under

Crim.R. 29 based on his claim that the victim’s testimony was incredible as it related

to the elements of each crime. The trial court overruled the motion. The trial court

found Tripplett guilty of felonious assault under R.C. 2903.11(A)(1) (causing serious

physical harm), felonious assault under R.C. 2903.11(A)(2) (causing physical harm
by means of a deadly weapon), and domestic violence under R.C. 2919.25(A)

(causing physical harm to a family member).          The trial court requested a

presentence-investigation report and set a date for a sentencing hearing. At his

sentencing hearing, Tripplett did not raise the issue of whether any of his offenses

merged as allied offenses of similar import. The trial court imposed an 18-month

term of community-control sanctions for each offense, with conditions.

            Tripplett filed a delayed notice of appeal and raises four assignments of

error for our review:

      I. The trial court committed plain error when it failed to merge
      appellant’s convictions.

      II. Appellant’s rights under the Sixth Amendment to the United States
      Constitution made applicable to the state of Ohio through the
      Fourteenth Amendment were violated when he received ineffective
      assistance of trial counsel.

      III. The three convictions entered against appellant must be vacated
      with appellant acquitted of all charges as the convictions are not
      supported by sufficient evidence.

      IV. The three convictions entered against appellant must be vacated
      and the case remanded for a new trial as the convictions are against the
      manifest weight of the evidence presented at trial.

II. Law and Analysis

   A. Sufficiency and manifest weight of the evidence

            For ease of review, we will first discuss Tripplett’s third and fourth

assignments of error in which Tripplett claims his convictions were not supported
by sufficient evidence and were against the manifest weight of the evidence.1

             The test for sufficiency of the evidence requires a determination of

whether the prosecution met its burden of production at trial. State v. Bowden,

8th Dist. Cuyahoga No. 92266, 

, ¶ 12. An appellate court’s function

when reviewing the sufficiency of the evidence to support a criminal conviction is to

examine the evidence admitted at trial to determine whether such evidence, if

believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt. State v. Murphy, 

, 

 (2001).

“‘The 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. Walker, 

, 

, 

, ¶ 12, quoting State v. Jenks, 

, 

 (1991), paragraph two of the syllabus.

      Serious physical harm

             Tripplett claims that the state (1) failed to prove serious physical harm

for the purpose of the R.C. 2903.11(A)(1) felonious assault conviction; (2) failed to

prove that the bottle constituted a “deadly weapon” for the purpose of the

R.C. 2903.11(A)(2) felonious assault conviction; and (3) failed to demonstrate that

the victim and Tripplett were biologically related for the purposes of the

R.C. 2919.25(A) domestic violence conviction.


      1 If we were to find that there was insufficient evidence to support his convictions

or that they were against the manifest weight of the evidence, it would not be necessary
to consider the remaining assignments of error. See App.R. 12.
             “Serious physical harm” is defined, in pertinent part, as “[a]ny physical

harm that carries a substantial risk of death”; “[a]ny physical harm that involves

some permanent incapacity, whether partial or total, or that involves some

temporary, substantial incapacity”; or “[a]ny physical harm that involves some

permanent disfigurement or that involves some temporary, serious disfigurement.”

R.C. 2901.01(A)(5).

             Tripplett contends that there was insufficient evidence to support the

element of “serious physical harm” because the state failed to show that the victim

lost consciousness. This court has held that the temporary loss of consciousness,

“irrespective of duration,” constitutes a temporary substantial incapacity and,

therefore, is considered a serious physical harm under R.C. 2901.01(A)(5). State v.

Chambers, 8th Dist. Cuyahoga No. 99864, 

.              The victim

testified that she was “fading away” before “all of a sudden” regaining the ability to

fight free. Thus, according to Tripplett, she never lost consciousness and any harm

suffered does not rise to the level of serious physical harm.

              The victim testified that Tripplett assaulted her by punching her in the

head, hitting her in the face with a bottle, and choking her. Because Tripplett was

convicted of one count of felonious assault (serious physical harm), the state had to

show that only one of his acts caused serious physical harm, not that each or more

than one of his actions against his sister caused this harm.

             ‘“This court has consistently held that the need for stitches constitutes

serious physical harm for purposes of a felonious assault conviction.” State v.
Wynn, 8th Dist. Cuyahoga No. 103824, 

, quoting State v.

Studgions, 8th Dist. Cuyahoga No. 94153, 

, ¶ 10.

              The victim testified as follows:

       When the incident first took place, my brother hit me in the mouth with
       a bottle and the bottle split the mouth open. And my lip, it was really
       hard to talk, the lip was like super swole. And it got split open from the
       outside and also from the inside.

       Q. So there was like a gash on your lip?

       A. Yeah, but the skin was kind of flopped open, so it took a plastic
       surgeon to stitch me up. He did a good job.

(Tr. 31).

              The victim was also asked:

       Q. So you did go to the hospital?

       A. Yes.

       Q. And you received treatment for the –

       A. My injuries.

       Q. — the cut on your face?

       A. Yes.

       Q. And you said you received stitches?

       A. That is correct.

       Q. How many stitches did you receive?

       A. I believe I received three to four on the outside of my mouth, maybe
       three, and then I had some on the inside of my mouth that I received.
       So probably like six stitches.

(Tr. 38.)
              As of the day of trial, the victim had a visible scar, which she testified

she uses makeup to conceal. The evidence established that the stitches the victim

received were caused by Tripplett hitting her in the face with a bottle and the injury

left a scar; therefore, the state showed sufficient evidence that Tripplett caused

serious physical harm.

      Unnecessary to Conclude Whether Choking Cause Serious
      Physical Harm to Victim

              The dissent complains that we ignore whether Tripplett’s act of

choking constituted serious physical harm and sua sponte concludes that it did. We

do not; we simply need not address it. Tripplett was convicted of only one count of

felonious assault – serious physical harm; therefore, the state had to show that only

one of his acts (either the bludgeoning with the bottle or the choking) caused serious

physical harm. Because we determine the state showed by sufficient evidence that

Tripplett caused serious physical harm with the bottle, it would be superfluous to

also determine whether the choking caused serious physical harm.

              The dissent claims that we must determine whether the act of choking

caused serious physical harm because the state asked the court to consider the loss

of consciousness as a basis to convict Tripplett. The state never argued that the

choking met the element of “serious physical harm” for a felonious assault

conviction. In its opening statement, the state concedes that the victim did not lose

consciousness (“the victim was strangled to the point where she [ ] almost lost

consciousness”). The victim testified she almost, but did not, lose consciousness. In
closing argument, the state stated that Tripplett choked his sister “to the point where

she thought she was going to lose consciousness.” Much to the dissent’s chagrin, we

decline to adopt an argument not set forth by either party at trial.

              Even if we considered whether Tripplett’s act of choking the victim

constituted serious physical harm, we would conclude that it did not and the state

did not show sufficient evidence of physical harm via choking. The victim testified

that Tripplett put her in a chokehold, told her to “go to sleep,” and that she was “kind

of fading away, then all of the sudden I got strength and I fought him off * * * .”

There is no evidence in the record, either testimonial or through medical records,

that the victim lost consciousness, even for a short time or that the force applied in

the chokehold was one that carried a substantial risk of death.                 See R.C.

2901.01(A)(5)(b) (serious physical harm is any physical harm that carries a

substantial risk of death).2

              The state showed sufficient evidence of serious physical harm via the

bottle; it is therefore unnecessary to determine whether the act of choking also

caused serious physical harm.




      2 The dissent attempts to twist the statement that “[t]here is no evidence in the

record, either testimonial or through medical records, that the victim lost consciousness,
even for a short time or that the force applied in the chokehold was one that carried a
substantial risk of death” into an adoption of a “bright-line conclusion” that “temporary,
substantial incapacity” under R.C. 2901.01(A)(5) means “total loss of consciousness.”
This attempt is rejected simply by giving words their plain meaning.
      Bottle was a Deadly Weapon

              Tripplett next claims that the state failed to prove that the bottle

constituted a deadly weapon for the purpose of the R.C. 2903.11(A)(2) conviction

because the state presented no evidence regarding the composition of the bottle, i.e.,

whether it was glass, aluminum, or plastic. According to Tripplett’s theory, only a

glass bottle can constitute a deadly weapon because the other materials would not

be substantial enough to cause a death, and moreover, the evidence in this case

demonstrated that despite Tripplett repeatedly striking the victim in the face with

the bottle, the victim only needed stitches for a “split lip.”

               R.C. 2923.11(A) defines “deadly weapon” as “any instrument, device,

or thing capable of inflicting death, and designed or specially adapted for use as a

weapon, or possessed, carried, or used as a weapon.” 

 “The test for whether

something is a deadly weapon is not whether it in fact inflicted a fatal injury, but

whether it is capable of doing so.” State v. Grayson, 8th Dist. Cuyahoga No. 110388,

. Generally, “a trier of fact ‘is permitted to infer the deadly

nature of an instrument from the facts and circumstances of its use.’” State v. Dean,

9th Dist. Lorain No. 18CA011290, 

, quoting State v.

Vondenberg, 

, 

 (1980).             The size and

composition of the item wielded as a weapon is generally immaterial. “No item, no

matter how small or commonplace, can be safely disregarded for its capacity to

cause death when it is wielded with the requisite intent and force.” State v. Moody,

5th Dist. Licking No. 09 CA 90, 

, ¶ 40, citing In re Smith, 

, 

 (8th Dist.2001), and State v. Deboe, 

,

 (6th Dist.1977). Thus, the legal test is not based on the outcome of

the assault, but rather the capability to turn the everyday item into and be used as a

deadly weapon. Generally, what constitutes a “deadly weapon” is an issue for the

trier of fact.

                 Tripplett’s argument is based on his claim that the state must prove

the composition of the bottle in order to demonstrate its capability of being used as

a deadly weapon.        The legal standard, however, depends on the reasonable

inferences derived from the facts and circumstances of the use of the weapon in each

particular case. In this case, the victim testified that she was repeatedly struck with

the bottle with sufficient force to cause serious physical harm. Tripplett then tried

to “finish [her] off” by choking her to the point that she was “fading away.” Under

these facts and circumstances, the trier of fact was permitted to draw an inference

from Tripplett’s use of the bottle in the attack that he meant the bottle to be capable

of “finishing [the victim] off” and when that failed despite the level of force exerted,

he resorted to choking the victim. We cannot determine, as a matter of law, that the

composition of the bottle is legally significant when there is some evidence that the

bottle was wielded as a deadly weapon. See, e.g., State v. Bitting, 9th Dist. Summit

No. 28317, 

 (concluding that a plastic BB gun could constitute

a “deadly weapon” when used as a bludgeon).
      Domestic Violence – Family or Household Member

               And finally, as to the sufficiency of the evidence, Tripplett claims that

the state failed to present sufficient evidence that the victim was his biological sister

for the purposes of the domestic violence conviction.

               As is relevant to this case, R.C. 2919.25(F)(1)(a)(ii) defines a family or

household member as a person related by consanguinity to the offender who has

resided with the offender. The victim testified that she and Tripplett were related

through their mother and “she and [Tripplett] were moved around together by

family until they were separated when she was around six years old.” Tripplett has

not identified any authority supporting a claim that the state is required to prove a

biological relationship through genetic testing or birth documentation, and this

court need not independently search for that authority. As it stands, the victim’s

testimony is sufficient to establish her familial relationship to Tripplett for the

purposes of R.C. 2919.25.

      Convictions Were Not Against Manifest Weight of the Evidence

               Next, Tripplett claims his convictions are against the weight of the

evidence because the victim lied to investigators about where the attack occurred,

who was involved, and made claims regarding alleged thefts that were not supported

by evidence.

               To evaluate a claim whether a verdict is against the manifest weight of

the evidence
      we review the entire record, weigh the evidence and all reasonable
      inferences, consider the credibility of witnesses, and determine
      whether in resolving conflicts in the evidence, the [trier of fact] clearly
      lost its way and created such a manifest miscarriage of justice that we
      must reverse the conviction and order a new trial.

State v. Wilks, 

, 

, 

, citing

State v. Thompkins, 

, 

 (1997).

               Reversing a conviction based upon the weight of the evidence should

occur “‘only in the exceptional case in which the evidence weighs heavily against the

conviction.’” Thompkins at 

 quoting State v. Martin, 

,

 (1st Dist.1983).

              Although the victim’s testimony may have presented credibility

problems for the state’s case, Tripplett has not demonstrated that this is an

extraordinary case that requires reversal. 

. There is no dispute

that the victim was treated for the injuries that align with her version of the attack.

She identified her attacker as her brother, Tripplett. Although there may have been

some inconsistencies in the victim’s testimony, the trial court, as trier of fact, was in

the best position to determine her credibility. We find no reason to deem the

victim’s testimony inherently unreliable with respect to the elements of the crimes

committed, and therefore, we cannot conclude that the trial court lost its way in

convicting Tripplett.

               In light of the above, the third and fourth assignments of error are

overruled.
B. Allied Offenses and Ineffective Assistance of Trial Counsel

               Next, Tripplett argues that his convictions were allied offenses of

similar import and should have merged for purposes of sentencing. He also argues

that his counsel was ineffective for failing to object when the trial court sentenced

him without merging his convictions.

               R.C. 2941.25, Ohio’s allied-offenses statute, provides:

      (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 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.

              In determining whether offenses are subject to merger for sentencing

under R.C. 2941.25, courts evaluate three separate factors — the import, the

conduct, and the animus. State v. Ruff, 

, 

, 

, paragraphs one and three of the syllabus. Offenses do not merge, and

a defendant may be convicted of and sentenced for multiple offenses, if any one of

the following is true: (1) the offenses are dissimilar in import or significance, (2) the

offenses were committed separately, or (3) the offenses were committed with

separate animus or motivation. 

 at paragraph three of the syllabus, ¶ 25, 31. “The

defendant bears the burden of establishing his [or her] entitlement to the protection

provided by R.C. 2941.25 against multiple punishments for a single criminal act.”
State v. Jones, 

, 

 (8th Dist.), citing State v.

Washington, 

, 

, 

.

               Offenses are dissimilar in import or significance 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.” Ruff at ¶ 23. Thus, “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.” Id. at ¶ 26.

               Offenses are committed separately within the meaning of

R.C. 2941.25(B) if ‘“one offense was complete before the other offense occurred, * * *

notwithstanding their proximity in time and that one [offense] was committed in

order to commit the other.”’ 

, quoting State v. Woodard, 2d Dist.

Montgomery No. 29110, 

.            Thus, “‘when one offense is

completed prior to the completion of another offense during the defendant’s course

of conduct, those offenses are separate acts.’” Jones at 

 quoting Woodard at 

               For purposes of R.C. 2941.25(B), animus has been defined as

“‘“purpose or, more properly, immediate motive.”’”         State v. Priest, 8th Dist.

Cuyahoga No. 106947, 

, ¶ 12, quoting State v. Bailey, 8th Dist.

Cuyahoga No. 100993, 

, quoting State v. Logan, 

, 

 (1979). ‘“If the defendant acted with the same purpose,

intent, or motive in both instances, the animus is identical for both offenses.”’ 

, quoting State v. Lane, 12th Dist. Butler No. CA2013-05-074, 2014-Ohio-

562, ¶ 12. Animus is often difficult to prove directly but can be inferred from the

surrounding circumstances. Jones at 

 citing Lane at 

               Our review of whether two offenses are allied offenses of similar

import is generally de novo. State v. Williams, 

, 

,

. However, in this case, Tripplett did not object to the

imposition of multiple sentences. In State v. Rogers, 

, 2015-

Ohio-2459, 

, the Ohio Supreme Court held

       [a]n accused’s failure to raise the issue of allied offenses of similar
       import in the trial court forfeits all but plain error, and a forfeited error
       is not reversible error unless it affected the outcome of the proceeding
       and reversal is necessary to correct a manifest miscarriage of justice.
       Accordingly, an accused has the burden to demonstrate a reasonable
       probability that the convictions are for allied offenses of similar import
       committed with the same conduct and without a separate animus;
       absent that showing, the accused cannot demonstrate that the trial
       court’s failure to inquire whether the convictions merge for purposes of
       sentencing was plain error.

Id. at ¶ 3.

               As to Tripplett’s claim that his counsel was ineffective for failing to

object when the court sentenced him on three separate convictions, in order to

prevail on a claim of ineffective assistance of counsel, an appellant must satisfy the

two-prong test set forth in Strickland v. Washington, 

, 

,

 (1984). An appellant must show that counsel’s performance was

deficient and must additionally show prejudice resulting from the deficient

performance. 

.
       Felonious Assault Offenses Merge

               As discussed, Tripplett was convicted of one count of felonious assault,

under R.C. 2903.11(A)(1) (causing serious physical harm) and one count of felonious

assault under R.C. 2903.11(A)(2) (causing physical harm by means of a deadly

weapon).

               Recently, in In re J.O., 8th Dist. Cuyahoga No. 111747, 2023-Ohio-

2293, this court found plain error when the trial court failed to merge juvenile

adjudications of delinquent on two counts of felonious assault.3 The appellant was

charged with one count of felonious assault under R.C. 2903.11(A)(1) (serious

physical harm) and one count of felonious assault under R.C. 2903.11(A)(2) (deadly

weapon) stemming from shooting another child in the face. This court found that

the appellant’s convictions should have merged because “the only difference

between subsections (1) and (2) is that a deadly weapon was used; however, the

same harm was caused by the same act.” 

 at ¶ 50– 51.

               Likewise, here, the victim testified that her brother hit her in the face

with a bottle, she had to go to the hospital and receive multiple stitches, and the

injury left her with a scar that she uses concealer to cover up:

       [Tripplett] ended up punching me. We scuffling. Then he took a bottle,
       hit me in my mouth with the bottle, end up having to get stitches from
       the inside of my mouth and outside of my mouth. I fell to the ground,
       he comes behind me and he put me in a choke hold, told me to go to
       sleep. I was kind of fading away, then all of the sudden I got strength
       and I fought him off * * *.

       3 The dissent states that we “sua sponte” cite In re J.O.    Not only does this court
routinely cite cases the parties fail to mention in appellate briefing or oral argument, but
In re J.O. was released after the parties filed their appellate briefs.
(Tr. 24-25).

               Both felonious assaults were committed with the same act — Tripplett

striking his sister in the face multiple times with a bottle. Additionally, the state’s

theory at trial was that the bottle caused serious physical harm (Tr. 102, Crim.R. 29

argument).

               Tripplett’s felonious assault offenses were committed at the same

time, at the same location. The offenses were committed with the same animus, to

harm his sister. The offenses were also not dissimilar in import; the state did not

show that Tripplett’s conduct caused separate identifiable harm to the victim.

      Domestic Violence and Felonious Assault Offenses Committed
      Separately

               Next, we consider whether the crime of domestic violence should

merge.    Tripplett was convicted of one count of domestic violence under

R.C. 2919.25(A) (causing physical harm to a family member).

               The testimony presented at trial demonstrates the victim suffered

separate harm as a result of the felonious assault and domestic violence offenses. In

State v. Norris, 5th Dist. Licking No. 16 CA 7, 

, the court found that

the felonious assault and domestic violence offenses did not merge when the

defendant punched the victim in the face (domestic violence) and also cut her in the

chest with a knife (felonious assault). The court found that the victim sustained

separate injuries from the punch to the face and the knife wound. Id. at ¶ 19.
              Likewise, here, Tripplett punched his sister in the head, causing

abrasions to her head. The victim testified, “I had to get three to four stitches inside

my mouth. * * * my hand was injured too. I also [a] had contusion to my head from

the punches I received from [Tripplett].” Thus, the injury from the punch to the

victim’s head was separate from the harm to the victim’s mouth caused by the bottle.

Therefore, the domestic violence and felonious assault offenses do not merge and

the trial court did not commit plain error by sentencing Tripplett separately on those

offenses.

      Prejudice Shown

              Our analysis does not end here, however. Tripplett must also show

that he was prejudiced by the trial court’s failure to merge his convictions. In his

brief on appeal, Tripplett stated he would suffer the “collateral consequences” of

multiple convictions.     There are consequences for each felony conviction a

defendant receives; the collateral consequences touch just about every facet of that

felon’s life — from his or her ability to secure and maintain housing and

employment, opportunities to seal or expunge convictions, ability to receive

government assistance, and the right to vote or ability to own a firearm.

              Thus, we conclude that Tripplett’s counsel should have raised the

issue of merger with the trial court and the trial court committed plain error when

it failed to merge Tripplett’s felonious assault convictions.

              We vacate Tripplett’s felonious assault sentences and remand for a

new sentencing hearing on those counts. On remand, the trial court shall merge the
felonious assault offenses for sentencing, the state shall elect the offense on which it

wishes Tripplett to be sentenced, and the trial court shall impose a sentence that is

appropriate for that offense.

               The first and second assignments of error are sustained.

               Judgment affirmed in part and reversed in part. Case remanded to

the lower court for proceedings in accordance with this opinion.

      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.


________________________
MICHAEL JOHN RYAN, JUDGE

LISA B. FORBES, P.J., CONCURS IN JUDGMENT ONLY;
SEAN C. GALLAGHER, J., DISSENTS (WITH SEPARATE OPINION)


SEAN C. GALLAGHER, J., DISSENTING:

               I dissent from the majority’s decision to reverse the sentences

imposed on what it deems to be allied offenses. Tripplett failed to timely preserve

an allied offense challenge and has forfeited all but plain error. In light of the record

and his limited appellate argument that relies on overturned case authority, he has

not demonstrated plain error.
              Tripplett met with two of his siblings at a local bar to discuss a family

dispute.   The victim, Tripplett’s sister, attempted to intervene in a physical

confrontation that occurred between Tripplett and her brother. Tripplett assaulted

his sister by punching her in the face, bludgeoning her with a bottle on the mouth,

and then trying to “finish [the victim] off” by choking her to the point that the victim

testified to “fading away.” As Tripplett was choking his sister, he told her to “go to

sleep.” She was able to eventually free herself from his grasp. The victim needed

stitches on the inside and outside of her mouth to close the wound caused by the

bottle. At the close of the state’s case, Tripplett sought an acquittal under Crim.R. 29

based on his claim that the victim’s testimony was incredible as it related to the

elements of each crime. The trial court overruled the motion.

              After the bench trial, the trial court found Tripplett guilty of felonious

assault under R.C. 2903.11(A)(1) (causing serious physical harm), felonious assault

under R.C. 2903.11(A)(2) (causing physical harm by means of a deadly weapon), and

domestic violence under R.C. 2919.25(A) (causing physical harm to a family

member). The trial court requested a presentence-investigation-report and set a

date for a sentencing hearing. At that hearing, Tripplett did not present any

argument, much less mention the potential for merger. The trial court imposed an

18-month term of community control sanctions for each offense, with a 60-day

period of GPS monitoring.

              Tripplett filed this delayed appeal advancing four assignments of

error: (1) that the trial court committed plain error when it failed to merge the three
convictions; (2) that Tripplett’s trial attorney provided ineffective assistance in

failing to raise the allied-offense issue at sentencing; and (3) that the three

convictions are based on insufficient evidence; or (4) are against the weight of the

evidence produced at trial.

               Tripplett first claims the trial court committed plain error by failing to

merge the three offenses based on R.C. 2941.25, Ohio’s allied-offense statute. He

cites State v. Joseph, 8th Dist. Cuyahoga Nos. 111276, 111277, and 111278, 2022-

Ohio-4404, ¶ 724 for the proposition that the trial court has a duty to conduct an

allied-offense analysis when multiple charges facially present a question of merger

under R.C. 2941.25. Id., citing State v. Rogers, 

, 

,

¶ 27 (8th Dist.). That proposition of law, however, was reversed in State v. Rogers,

, 

, 

, with the Ohio Supreme Court

holding that the “accused bears the burden of proof to demonstrate plain error on

the record * * * and must show ‘an error, i.e., a deviation from a legal rule’ that

constitutes ‘an “obvious” defect in the trial proceedings.’” Id. at ¶ 22, quoting

State v. Barnes, 

, 

 (2002). Even if the error is

“obvious,” the defendant is required to demonstrate that the error affected the

outcome of the proceeding, in other words, a “reasonable probability that the error



       4 In Joseph, the offender was convicted of two counts of having weapons while

under disability under R.C. 2923.13 based on a single incident in which police officers
arrested the offender in possession of firearms. The state contended that his prior
conviction established the disability, but that the offender was also a fugitive from justice
because he attempted to evade police executing a search warrant for the purposes of the
separate animus analysis. Id. at ¶ 74.
resulted in prejudice — the same deferential standard for reviewing ineffective

assistance of counsel claims.” Id., citing United States v. Dominguez Benitez, 

, 

, 

 (2004).

              Tripplett’s entire argument is based on the claim that the three

separate convictions were based on a single course of conduct. According to his

argument, it was therefore necessary to merge the convictions under State v. Ruff,

, 

, 

. Tripplett has not, however,

demonstrated prejudice. This should have disposed of both the first and second

assignments of error in light of the interwoven standard.

              Under Ruff’s analysis, “[t]wo 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.” 

 at paragraph two of the syllabus. Offenses

do not merge, and a defendant may be convicted of and sentenced for multiple

offenses if (1) the offenses are dissimilar in import or significance; (2) the offenses

were committed separately; or (3) the offenses were committed with separate

animus or motivation. 

 at paragraph three of the syllabus. Upon plain error

review, a defendant must demonstrate that none of the exceptions to merger exist.

              Tripplett’s claims that all three acts of punching the victim,

bludgeoning her with the bottle, and choking her nearly to the point of total

unconsciousness, were part of the continuing-course-of-conduct, and therefore, the

trial court was obligated to merge the offenses.
               He cites no authority for a broad proposition that allied-offense

analysis considers a continuing course of conduct to form the basis of the merger, a

position seemingly adopted by the majority in contravention of precedent from this

district. See State v. Head, 8th Dist. Cuyahoga No. 111562, 

,

citing State v. Rucker, 

, 

 (8th Dist.).

R.C. 2941.25, in fact, does not reference a course of conduct exception to multiple

convictions, and Tripplett’s argument has already been overruled by a panel from

this district. See id.5

               The majority’s sua sponte reliance on In re J.O., 8th Dist. Cuyahoga

No. 111747, 

, for the proposition that a single act cannot constitute

two offenses, is misplaced. The state did not rely on the act of bludgeoning the victim

with the bottle for both felonious assault convictions: the state expressly relied on

the loss of consciousness to substantiate the serious physical harm element. In fact,


       5  The legislature does refer to a “course of conduct” with respect to capital
sentencings under R.C. 2929.04(A)(5), so the legislature is aware of the distinction that
language has on sentencing analysis. The closest analog for the continuing-course-of-
conduct theory under R.C. 2929.14, as it relates to felony sentencing, is the exception to
imposing multiple sentences for firearm specifications. Under the separate test for
imposing multiple firearm specifications, R.C. 2929.14(B)(1)(b) provides that “a court
shall not impose more than one prison term on an offender under division (B)(1)(a) of
this section for felonies committed as part of the same act or transaction.” (Emphasis
added.) That same act or transaction language does not apply to the allied-offense
analysis either. See, e.g., State v. Dean, 

, 

, 

. The three different methods of committing the criminal acts against the
victim in this case can constitute separate acts or separate harms. See, e.g., State v.
Nicholas, 

, 

 (1993) (holding that three rape charges
arising from vaginal intercourse, cunnilingus, and digital penetration of the vagina did
not merge because they were based on separate conduct); State v. McSwain, 8th Dist.
Cuyahoga No. 105451, 

, ¶ 47 (the three acts of rape and one act of GSI
were separately committed despite the fact the rapes occurred during one course of
continuing conduct).
Tripplett conceded in his appellate briefing that the loss of consciousness could form

the basis of the felonious assault conviction predicated on serious physical harm.

The state relied on this concession in its appellate briefing to argue that the loss of

consciousness constituted a serious physical harm for the purposes of the

sufficiency-of-the-evidence review.        The majority’s discussion ignores the

arguments presented and fails to provide the state an opportunity to respond to the

majority’s claim that only the bludgeoning conduct underlies the serious physical

harm element.

              “Serious physical harm” is defined, in pertinent part, as “[a]ny

physical harm that carries a substantial risk of death,” “[a]ny physical harm that

involves some permanent incapacity, whether partial or total, or that involves some

temporary, substantial incapacity,” or “[a]ny physical harm that involves some

permanent disfigurement or that involves some temporary, serious disfigurement.”

R.C. 2901.01(A)(5). With respect to choking conduct, it has been recognized that

the temporary loss of consciousness, “irrespective of duration,” constitutes a

temporary substantial incapacity and, therefore, is considered a serious physical

harm under R.C. 2901.01(A)(5). State v. Chambers, 8th Dist. Cuyahoga No. 99864,

.        Tripplett has cited no authority specifically defining

“temporary, substantial incapacity” to mean a “total loss of consciousness” of any

specific duration. See App.R. 16(A)(7).

              The majority takes up that mantle and declares that “temporary,

substantial   incapacity”   under   R.C.    2901.01(A)(5)   means     “total   loss   of
consciousness.” No citation to any authority has been provided to support that

bright-line conclusion.    Because Tripplett failed to provide any analysis or

discussion upon which it can be concluded that “temporary, substantial incapacity”

means “total loss of consciousness,” we should not resolve the question asked by the

majority, and this panel should certainly avoid sua sponte creating a bright-line

definition of temporary, substantial incapacity that requires the state to prove the

“total loss of consciousness.”

              Since the majority’s analysis is beyond that which was provided by

Tripplett, the question becomes whether any definition of “serious physical harm”

is implicated by Tripplett’s conduct in choking the victim to the point she believed

he was going to “finish her off” with the bottle. R.C. 2901.01(A)(5)(b) provides an

alternative definition of “serious physical harm”: “[a]ny physical harm that carries a

substantial risk of death.” Choking a human being is meant to deprive that person

of oxygen. The nature of the act itself carries a substantial risk of death depending

on the force applied. See, e.g., State v. Mukes, 2d Dist. Montgomery No. 28350,

 (strangling a person can constitute serious physical harm

under R.C. 2901.01(A)(5)(b)).

              There is no dispute from Tripplett that his choking the victim caused

physical harm and that the force applied was sufficient to cause the victim to be

“fading away” and cause her to believe that Tripplett intended to “finish her off”

before she was able to break free. The act of choking another human can (but may

not always) be considered serious physical harm depending on the particular facts
of each case. See generally R.C. 2903.18(B). Neither Tripplett nor the majority have

discussed the implications of R.C. 2901.01(A)(5)(b), which is manifestly applicable

to the underlying facts of this case. Given the failure to address the pertinent

definition of “serious physical harm,” I would overrule Tripplett’s broadly asserted

argument.

              But regardless, the record demonstrates that the trier of fact was

asked to consider the loss of consciousness at trial as a basis to convict Tripplett.

During its closing argument, the state relied on the loss of consciousness as a basis

to support the convictions: “At one point he cut her with a bottle and also choked

her to the point where she thought she was [going to] lose consciousness.”

Tr. 105:19-21; see also tr. 108:9-11. The state went on to clarify that “for these

reasons the State believes it has proven its case beyond a reasonable doubt in each

of the three counts of the indictment and ask this Court to find Mr. Tripplett guilty

on all three counts.” Tr. 108:15-20. If the state never intended to rely on the loss of

consciousness as a basis to prove an element of the crime, then there was no need

for the state to reference that conduct as a basis to support the convictions. Tripplett

implicitly conceded this analysis in light of the argument he presented for review,

solely relying on the choking incident as the basis of the serious physical harm

element of felonious assault.

              In light of the limited and unsupported argument presented, I cannot

conclude that Tripplett has met his burden to demonstrate prejudice under either

the plain error review or his ineffective-assistance-of-counsel claim. The state has
never been presented the opportunity to rebut the majority’s argument. Tripplett

never presented it to the trial court. At best, the majority’s conclusion as to the allied

offense issue is one that implicates the ineffective-assistance-of-counsel claim,

which mandates a reversal to the trial court for further proceedings, not an outright

reversal of the convictions. But “[u]ltimately, if the harm resulting from each offense

is separate and identifiable, the offenses are of dissimilar import and do not merge.”

State v. McKnight, 

, 

 (10th Dist.). Tripplett has

not provided any reason to distinguish the line of authority analyzing the separate

conduct or the separate harm considerations, and therefore, he has not

demonstrated prejudice.

               I would overrule Tripplett’s first two assignments of error with respect

to the allied offense issue and address the remainder of his arguments as presented.

I therefore dissent from the majority’s decision.