[Cite as State v. Birchell,
2025-Ohio-26.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
Hon. Andrew J. King, J.
-vsCase No. 24-COA-021
JUSTIN BIRCHELL
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Ashland County Court of
Common Pleas, Case No. 22-CRI-212
JUDGMENT: Judgment Affirmed in part, Reversed in
part, and Remanded for resentencing
DATE OF JUDGMENT ENTRY: January 6, 2025
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CHRISTOPHER R. TUNNELL CHRISTOPHER BAZELEY, ESQ.
Ashland County Prosecutor 9200 Montgomery Road, Suite 8A
Cincinnati, Ohio 45242
ANDRES R. PEREZ
Assistant Prosecuting Attorney
Appellate Division
110 Cottage Street, Third Floor
Ashland, Ohio 44804
Ashland County, Case No. 24-COA-021 2
Hoffman, P.J.
{¶1} Defendant-appellant Justin Birchell appeals the judgment entered by the
Ashland County Common Pleas Court convicting him following his pleas of guilty to
aggravated burglary (R.C. 2911.11), violation of a protection order (R.C. 2919.27), and
assault (R.C. 2903.13), and sentencing him to consecutive terms of incarceration of four
to six years for aggravated burglary and 30 months incarceration for violation of a
protection order. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On October 12, 2022, Appellant broke into his former girlfriend’s home and
assaulted her. At the time, a civil protection order protected the victim from Appellant.
He was indicted by the Ashland County Grand Jury on November 18, 2022, with
aggravated burglary, violation of a protection order, and assault.
{¶3} The State moved to amend the charge of violation of a protection order to
correct the type of protection order as set forth in the indictment. Appellant consented to
the amendment, and the trial court granted the motion.
{¶4} Appellant entered pleas of guilty to all counts of the indictment, and was
convicted upon his pleas. The case proceeded to sentencing. The State represented the
convictions of aggravated burglary and assault would merge, and elected to have
Appellant sentenced for aggravated burglary. Appellant made no argument concerning
merger. The trial court sentenced Appellant to four to six years incarceration for
aggravated burglary and 30 months incarceration for violation of a protection order, to be
served consecutively.
{¶5} It is from the April 30, 2024 judgment of the trial court Appellant prosecutes
his appeal, assigning as error:
Ashland County, Case No. 24-COA-021 3
THE TRIAL COURT ERRED WHEN IT FAILED TO MERGE
BIRCHELL’S VIOLATING A PROTECTION ORDER CONVICTION WITH
HIS OTHER CONVICTIONS FOR SENTENCING.
{¶6} Appellant argues because the conviction for violation of a protection order
is supported by the same conduct as the convictions for aggravated burglary and assault,
the conviction of violation of a protection order is an allied offense of similar import which
should have merged with the other convictions. R.C. 2941.25 governs allied offenses:
(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.
{¶7} This test requires a court to ask three questions in conducting a merger
analysis: “(1) Were the offenses dissimilar in import or significance? (2) Were they
committed separately? and (3) Were they committed with separate animus or motivation?
An affirmative answer to any of [these questions] will permit separate convictions. The
Ashland County, Case No. 24-COA-021 4
conduct, the animus, and the import must all be considered.” State v. Ruff, 143 Ohio St.3d
114,
2015-Ohio-995,
34 N.E.3d 892, ¶ 31. An allied-offenses analysis must be driven by
the facts of each case. “[T]he analysis must focus on the defendant's conduct to
determine whether one or more convictions may result, because an offense may be
committed in a variety of ways and the offenses committed may have different import.”
Id.
{¶8} There are two circumstances in which offenses will be deemed dissimilar in
import, making sentences for multiple counts permissible. The first circumstance is
“[w]hen a defendant's conduct victimizes more than one person [because] the harm for
each person is separate and distinct.” Id. at ¶ 26. The second circumstance is when a
defendant's conduct against a single victim constitutes two or more offenses and “the
harm that results from each offense is separate and identifiable from the harm of the other
offense.” Id. Therefore, the Ohio Supreme Court has held “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.” Ruff at ¶ 26. Whether the offenses have similar
import will be revealed by “[t]he evidence at trial or during a plea or sentencing hearing.”
Id.
{¶9} Appellant failed to object to the trial court’s failure to merge the violation of
a protection order conviction with the other convictions, and thus he must demonstrate
plain error on appeal. To establish plain error, Appellant must show an error occurred,
the error was obvious, and there is a reasonable probability the error resulted in prejudice,
Ashland County, Case No. 24-COA-021 5
meaning the error affected the outcome of the trial. State v. McAlpin, 2022-Ohio-1567,
¶66, citing State v. Rogers,
2015-Ohio-2459, ¶ 22.
{¶10} Appellant was convicted of violation of a protection order in violation of R.C.
2919.27:
(A) No person shall recklessly violate the terms of any of the
following:
(1) A protection order issued or consent agreement approved
pursuant to section 2919.26 or 3113.31 of the Revised Code;
(2) A protection order issued pursuant to section 2151.34, 2903.213,
or 2903.214 of the Revised Code;
(3) A protection order issued by a court of another state.
{¶11} Appellant cites this Court to two cases in which a conviction of violation of
a protection order was found to be an allied offense of a crime committed with the same
conduct. In State v. Seymour, 2012-Ohio-3125 (12th Dist.), the court held domestic
violence, aggravated burglary, and violation of a protection order were allied offenses of
similar import because they were committed with the same conduct. Similarly, in State v.
O’Brien,
2013-Ohio-13 (11th Dist.), the court found violation of a protection order merged
with felonious assault when supported by the same conduct.
{¶12} As noted by the State, both Seymour and O’Brien predate the Ohio
Supreme Court’s decision in Ruff, supra, and therefore neither court considered whether
the convictions were of dissimilar import. The State does not argue Appellant’s conduct
Ashland County, Case No. 24-COA-021 6
in violating the protection order was different from his conduct in committing aggravated
burglary and assault. Rather, the State argues the offense of violating a protection order
is not of similar import because it presents a separate and identifiable harm from assault
and aggravated burglary. The State argues the harm caused by Appellant’s violation of
the protection order is disregard for the authority of the court, and not harm caused to his
former girlfriend, who was the victim of the assault and aggravated burglary.
{¶13} This Court previously held discharging a firearm near prohibited premises
and felonious assault were not allied offenses of similar import when supported by the
same conduct:
The offense of discharging a firearm over a public road or highway is
a strict liability offense, and the public is the victim of the offense. State v.
James, 8th Dist. No. 102604, 2015-Ohio-4987,
53 N.E.3d 770, ¶ 34, cause
dismissed, 146 Ohio St.3d 1403,
2016-Ohio-3146,
50 N.E.3d 569, ¶ 34.
Accordingly, the offense does not merge with felonious assault. See, e.g.,
State v. Wright, 7th Dist. Mahoning No. 15 MA 0092, 2017-Ohio-1211, ¶ 24;
State v. Wood, 10th Dist. Franklin No. 19AP-649, 2020-Ohio-4895,
160
N.E.3d 439, ¶ 50; State v. Johnson, 8th Dist. Cuyahoga No. 105424, 2018-
Ohio-1387, 110 N.E.3d 863, ¶ 34
In State v. Williams, 8th Dist. No. 107221, 2019-Ohio-794,
132
N.E.3d 1233, the defendant argued his offenses for murder and discharging
a weapon over a public highway should merge. The court held the victim of
the murder offense was a specific victim, while the victim of the discharging
Ashland County, Case No. 24-COA-021 7
a firearm upon or over a public road or highway was the public at large,
including the witnesses in the vicinity; the latter offense posed a great risk
of harm to the public which was separate and differed in its significance from
harm to a specific victim. Id. at ¶ 49.
Likewise, in the instant case, the act of discharging the gun over a
public road posed a risk of harm to the public, which is separate and differed
in significance from the harm posed to the specific occupants of the vehicle.
The evidence demonstrated the gun was fired in a residential neighborhood,
during the afternoon hours when children were outside playing. Tr. 292. The
gunshot was witnessed by at least one neighbor, Almedia Carter. By
Appellant's own testimony, he shot directly toward a community park,
intending for the trees in the park to “catch” the bullet. Tr. 647. We find the
trial court did not err in failing to merge the offenses of discharging a weapon
over a public road and felonious assault, as the victims of each offense were
different and the harm caused was separate and identifiable.
{¶14} State v. Anderson, 2021-Ohio-2316, ¶ 39-41 (5th Dist.).
{¶15} In the instant case, we disagree with the State’s contention the victim of the
crime of violation of a protection order is the court, not the person protected by the order.
In Anderson, supra, the statute prohibiting discharging a firearm over a public road was
clearly enacted to protect the public, not necessarily a specific victim. The risk of harm
caused by discharging a weapon over a public road is separate from the risk of harm
caused by discharging a weapon at a defendant’s intended victim. However, in the instant
Ashland County, Case No. 24-COA-021 8
case, the State points to no “harm” caused to the court system other than Appellant’s
display of disrespect for a prior order of the court. The protection order itself is designed
for the protection of a specific victim, not for the protection of the court system. We find
it necessarily follows the purpose of criminalizing the violation of the order is to protect
the person covered by the order, not to protect the court system. We find the offense of
violation of the protection order in the instant case, where the crime was committed by
the same conduct as the crimes of aggravated burglary and assault, is an allied offense
of similar import.
{¶16} We further find in the instant case, the error is plain error. The indictment
alleges Appellant violated the protection order on or about October 12, 2022, the same
date set forth in the indictment for aggravated burglary and assault, and further alleges
he violated the protection order while committing a felony offense. We find the error was
obvious, and Appellant has demonstrated a reasonable probability the error affected his
sentence.
{¶17} The assignment of error is sustained.
Ashland County, Case No. 24-COA-021 9
{¶18} The judgments of conviction are affirmed. The judgment of sentence is
reversed as to the sentence for the conviction of violation of a protection order, and this
case is remanded to the Ashland County Common Pleas Court for resentencing,
according to law and consistent with this opinion.
By: Hoffman, P.J.
Baldwin, J. and
King, J. concur
