[Cite as State v. Mackey, 2011-Ohio-2529.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-100311
C-100312
Plaintiff-Appellee, : C-100313
C-100314
vs. : TRIAL NOS. 09TRD-31028A&B
09CRB-18606A&B
COURTNEY MACKEY, :
O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Municipal Court
Judgments Appealed from are: Affirmed in C-100311 and C-100312; Affirmed in
Part, Sentences Vacated, and Cause Remanded in
C-100313 and C-100314
Date of Judgment Entry on Appeal: May 27, 2011
Ernest F. McAdams, Jr., Cincinnati City Prosecutor, and Nicholas Klingensmith,
Assistant City Prosecutor, for Plaintiff-Appellee,
David A. Back, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
C UNNINGHAM , Judge.
{¶1} In these consolidated appeals, defendant-appellant Courtney Mackey
(“Mackey”) appeals from the judgments of the Hamilton County Municipal Court
convicting her on one count of driving under a financial-responsibility-law
suspension, one count of improper backing, one count of obstructing official
business, and one count of falsification. Because the obstructing-official-business
and falsification offenses were allied offenses of similar import committed in a single
course of conduct and with a single animus, we vacate the separate sentences
imposed for those offenses, and we remand those cases to the trial court for
sentencing on only one of the two offenses. In all other respects, we affirm.
{¶2} On April 19, 2009, after Patricia Richardson had returned to her
vehicle that she had illegally parked near the intersection of Vine and Green Streets
in Cincinnati, another vehicle backed into it and damaged it. Cincinnati Police
Officer Quiana Campbell arrived at the scene of the accident. Campbell concluded
that the driver of the vehicle that had struck Richardson’s vehicle had violated the
city’s ordinance on backing, and she asked that driver for identification. The driver,
who stated that she had not seen Richardson’s vehicle, identified herself as Ebony
Mackey, and she provided Ebony Mackey’s social-security number. Campbell issued
Ebony Mackey a citation for the traffic violation.
{¶3} In June 2009, Ebony Mackey appeared before the trial court, based
on the citation, and claimed that she was not involved in the accident. A prosecutor
appeared, as did Richardson and Campbell, who both agreed that Ebony Mackey was
not the woman who had been involved in the collision two months earlier.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} After an investigation, Campbell charged Mackey, who is Ebony’s
sister and whose driver’s license was suspended on the day of the accident, with the
backing violation and with the offense of driving under a suspended license, in the
cases numbered 09TRD-31028A and 09TRD-31028B. In addition, in the cases
numbered 09CRB-18606A and 09CRB-18606B, Campbell charged Mackey with
falsification and obstructing official business based on the false identification
information that Mackey had given her at the scene of the accident.
{¶5} The cases were heard together at a nonjury trial. Richardson testified
and identified Mackey as the driver of the vehicle that had backed into her vehicle.
Campbell also testified. She identified Mackey as the person whom she had cited for
improper backing and the person who had stated that she had not seen Richardson’s
parked vehicle. Further, the state offered into evidence a certified copy of Mackey’s
license suspension that had been in effect on April 19, 2009. The trial court
convicted and sentenced Mackey for all four offenses.
{¶6} In Mackey’s second assignment of error, which we address first, she
challenges the judgment of conviction in the case numbered 09TRD-55767. But the
record does not contain a notice of appeal from that case, and therefore, the
assignment of error related to that case number is not properly before us.
Accordingly, we do not reach the merits of the second assignment of error.
Sufficiency-of-the-Evidence Claim
{¶7} In her third assignment of error, Mackey contends that her conviction
for improper backing was not supported by sufficient evidence. Mackey was
convicted of violating Cincinnati Municipal Code 506-28, which provides that
“[b]efore backing, operators of vehicles shall give ample warning, and while backing
shall exercise vigilance not to injure persons or property on the street or highway.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} Mackey does not quarrel with the sufficiency of the identification
evidence or the evidence establishing that Richardson’s vehicle was damaged. She
contends, however, that the state presented no evidence demonstrating that she had
failed to give ample warning before backing or that she had failed to use vigilance
while backing into Richardson’s illegally parked vehicle.
{¶9} Mackey ignores Richardson’s testimony that her vehicle was not just
stationary, but that it had been parked, as well as the testimony from Campbell that
Mackey had stated at the scene that she had not seen Richardson’s vehicle. This
testimony supported an inference that Mackey had failed to exercise vigilance while
backing her vehicle into Richardson’s vehicle, even though Richardson’s vehicle had
been illegally parked.
{¶10} After viewing the evidence and all the reasonable inferences, we hold
that any rational trier of fact could have found all the elements of the improper
backing beyond a reasonable doubt.1
Weight-of-the-Evidence Claim
{¶11} In her fourth assignment of error, Mackey argues that her convictions
were against the manifest weight of the evidence.
{¶12} When the court reviews the record on a weight-of-the-evidence
challenge, the court sits as a “thirteenth juror” and may disagree with the trier of
facts’ resolution of disputed facts.2 If after reviewing the record and weighing the
evidence and the testimony, the reviewing court determines that the trier of fact
clearly lost its way and created a manifest miscarriage of justice in finding the
1 State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus,
following Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781.
2 State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541.
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OHIO FIRST DISTRICT COURT OF APPEALS
defendant guilty, then the conviction should be reversed and a new trial ordered.3
But the power to do so is discretionary and should only be exercised “ ‘in the
exceptional case in which the evidence weighs heavily against the conviction.’ ”4
{¶13} In attacking the trial court’s finding of guilty, Mackey describes
Richardson’s and Campbell’s identification testimony as “suspect” and “flawed.” But
both women unequivocally identified Mackey at trial, and we perceive no basis to
dismiss their testimony as unreliable. We certainly cannot conclude that the trial
court lost its way and committed a manifest miscarriage of justice by crediting their
testimony. Accordingly, we overrule the fourth assignment of error.
Allied Offenses of Similar Import
{¶14} In her first assignment of error, Mackey contends that obstructing
official business and falsification were allied offenses of similar import committed
neither separately nor with a separate animus as to each and, therefore, that
sentencing her for both offenses violated R.C. 2941.25, Ohio’s multiple-count statute.
{¶15} Under R.C. 2941.25, a trial court, in a single proceeding, may convict
and sentence a defendant for two or more offenses “ ‘ having as their genesis the
same criminal conduct or transaction,’ ” if the offenses (1) were not allied offenses of
similar import, (2) were committed separately, or (3) were committed with a
separate animus as to each offense.5
{¶16} In State v. Johnson,6 the Ohio Supreme Court abandoned the abstract-
elements test of State v. Rance7 and held that “when determining whether two offenses
3 Id.
4 Id., quoting State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717.
5 State v. Bickerstaff (1984), 10 Ohio St.3d 62, 65-66, 461 N.E.2d 892, quoting State v. Moss
(1982), 69 Ohio St.2d 515, 519, 433 N.E.2d 181; see, also, State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1061, at ¶51; State v. Blankenship (1988), 38 Ohio St.3d 116, 117,
526 N.E.2d 816.
6 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.
7 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d 699.
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OHIO FIRST DISTRICT COURT OF APPEALS
are allied offenses of similar import subject to merger under R.C. 2941.25, the conduct of
the accused must be considered.”8 All seven justices concurred in the syllabus
overruling Rance. Although the justices could not reach a majority opinion with regard
to the analysis that courts should use in determining whether two or more offenses are
allied offenses of similar import under R.C. 2941.25(A),9 they uniformly agreed that the
conduct of the accused must be considered.10 Therefore, when, as here, there has been
a trial, we look to the evidence adduced at trial, and if that evidence reveals that the state
relied upon the “same conduct” to prove the two offenses, and that the offenses were
committed neither separately nor with a separate animus to each, then the defendant is
afforded the protections of R.C. 2941.25, and the trial court errs by imposing separate
sentences for the offenses.11
{¶17} To consider Mackey’s conduct in its proper context, we must identify the
conduct proscribed by the statutory sections that the court found Mackey guilty of
violating. The obstructing-official-business statute, R.C. 2921.31(A), provides that “[n]o
person, without privilege to do so and with purpose to prevent, obstruct, or delay the
performance by a public official of any authorized act within the public official’s official
capacity, shall do any act that hampers or impedes a public official in the performance of
the public official’s lawful duties.” R.C. 2921.13(A)(3), the relevant subsection of the
falsification statute, states that “[n]o person shall knowingly make a false statement, or
knowingly swear or affirm the truth of a false statement previously made, when * * *
[t]he statement is made with purpose to mislead a public official in performing the
public official’s official function.”
8 State v. Johnson, supra, syllabus.
9 Id. at ¶47-52 (Brown, C.J.); id. at ¶59-71 (O’Connor, J.); id. at ¶72-83 (O’Donnell, J.)
10 Id. at syllabus.
11 R.C. 2941.25(A); see, also, R.C. 2941.25(B); Johnson, supra, at ¶56.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶18} Mackey was found guilty of the obstructing statute upon evidence that
she falsely identified herself to Officer Campbell, who had been investigating an accident
Mackey had been involved in while driving under a suspended license. The false
information Mackey gave impeded the officer from performing her official duties, where
the officer issued a citation to the wrong individual and appeared in court for a case
accusing the wrong person. There was some evidence that Mackey also impeded a
judge and a prosecutor from doing their duties, but the consideration of these
consequences stray from the focus of our inquiry, which is Mackey’s conduct.
{¶19} Mackey was found guilty of the falsification statute upon evidence that
she had falsely identified herself to Officer Campbell, the investigating officer, after she
had been involved in an accident while driving under a suspended license, to prevent the
officer from citing her.
{¶20} In this case, the evidence reveals that the state relied upon the same
conduct—Mackey’s conduct of falsely identifying herself to Officer Campbell—to prove
both obstructing official business and falsification. Thus, the offenses were allied
offenses of similar import.
{¶21} Having determined that the offenses were allied offense of similar
import, we must now consider, pursuant to R.C. 2941.25(B), whether the offenses were
committed as part of a single course of conduct or with a single state of mind. And we
hold that they were.
{¶22} The record shows that Mackey violated both statutes by one act—falsely
identifying herself to Officer Campbell at the scene of the accident. And the record
reflects that her animus or “immediate motive” in committing each offense was to
prevent Officer Campbell from issuing citations to her, which was a part of Campbell’s
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OHIO FIRST DISTRICT COURT OF APPEALS
official duty as a police officer.12 Therefore, based on the evidence adduced at trial,
Mackey’s violation of both statutes involved a single course of conduct and a single
motive.
{¶23} Where the obstructing-official-business and falsification offenses were
allied offenses of similar import, committed in a single course of conduct with a single
animus, Mackey was entitled to the protection of the multiple-counts statute.
Accordingly, the trial court erred in sentencing her for both offenses. As a result, we
sustain her first assignment of error.
Conclusion
{¶24} In conclusion, in the appeals numbered C-100311 and C-100312, we
affirm the judgments of the trial court convicting Mackey of driving under a
financial-responsibility-law suspension and improper backing. In the appeals
numbered C-100313 and C-100314, we affirm the trial court’s finding that Mackey
had committed obstructing official business in violation of R.C. 2921.31(A) and
falsification in violation of R.C. 2921.13(A)(3). But because the record demonstrates
that those offenses were allied offenses of similar import committed neither
separately nor with a separate animus as to each, Mackey may be sentenced for only
one. Thus, we vacate the separate sentences for these offenses and remand the cases
to the trial court for the imposition of a single sentence for the two offenses.
Judgment accordingly.
HILDEBRANDT, P.J., and SUNDERMANN, J., concur.
Please Note:
The court has recorded its own entry on the date of the release of this decision.
12 State v. Logan (1979), 60 Ohio St.2d 126, 131, 397 N.E.2d 1345.
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