[Cite as State v. Patton, 2022-Ohio-3567.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. Earle E. Wise, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
KEVIN PATTON, : Case No. 2021 CA 0017
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County
Court of Common Pleas, Case No.
2020-CR-0671N
JUDGMENT: Affirmed
DATE OF JUDGMENT: October 6, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP MATTHEW J. MALONE
Richland County Prosecutor The Law Office of Matthew J. Malone, LLC
10 East Main Street
By: PHILIP D. BOGDANOFF Ashland, Ohio 44805
Special Assistant Prosecuting Attorney
38 South Park Place, 2nd Floor
Mansfield, Ohio 44902
Richland County, Case No. 2021 CA 0017 2
Baldwin, J.
{¶1} Appellant, Kevin Patton, appeals the Richland County Court of Common
Pleas decision to sentence him on a count of Attempted Murder and a count of Improperly
Discharging a Firearm at or into a Habitation rather than merging the counts. Appellee is
the State of Ohio.
STATEMENT OF THE FACTS AND THE CASE
{¶2} Patton objected to Albert Hackett’s relationship with his Mother, Andrea
Patton and, on September 15, 2020, he expressed his objection by attempted to kill
Hackett with a firearm. Despite being at close range and having two opportunities to fire
his weapon, Patton was unsuccessful and was chased off by the wounded Hackett.
{¶3} Appellant and his Mother both had a positive relationship with Hackett, but
the relationship between Appellant and Hackett soured when Patton knocked on his door
early one morning and ran off, waking Hackett when he was scheduled to work early in
the morning. That incident prompted Hackett to decide he no longer wanted to see Patton.
{¶4} On September 15, 2020 at 2:30 p.m. Hackett, Andrea Patton and a third
person, Lavonia Crutcher were at Hackett’s home, on the porch, playing cards. Patton
and Crutcher were speaking with Appellant via cellphone and Hackett told Patton that he
did not want Appellant at his home. Within ten minutes, Appellant appeared and began
making disparaging remarks about Hackett to his Mother. He and Hackett exchanged
words and the conversation became heated. Hackett told Patton to leave but he would
not. Patton pulled out a gun and backed off the porch as Hackett came across the table
toward him. Patton shot three times at Hackett, who was still on the porch and Hackett
Richland County, Case No. 2021 CA 0017 3
realized he had been hit, but that did not stop him and he began chasing Patton down the
street.
{¶5} Patton shot at Hackett a fourth time and escaped from Hackett. Hackett
returned home, told his guests to leave and called 911 for treatment of his wounds.
{¶6} A neighbor witnessed and recorded a portion of the confrontation on her
cell phone. The thirteen second video shows Hackett chasing Patton and Patton firing his
last shot at Hackett.
{¶7} The Mansfield Police were dispatched to the scene and as one officer
approached, he saw Patton driving in the opposite direction in a red SUV that was later
driven by Patton’s Mother. A detective responded to the scene and discovered three nine
millimeter shell casings in the driveway and sidewalk near Hackett’s house and another
further west on the sidewalk. All were fired from the same gun.
{¶8} Patton was arrested and charged with Attempted Murder in violation of R.C.
2903.02 and 2923.02, a felony of the first degree; Felonious Assault in violation of R.C.
2903.11, a felony of the second degree; Improperly Discharging Firearm at or into a
Habitation in violation of R.C. 2923.161, a felony of the second degree; and Having
Weapons While Under Disability in violation of R.C. 2923.13, a felony of the third degree.
The jury convicted him on all counts, the trial court merged the Felonious Assault charge
with the Attempted Murder charge and imposed an aggregate sentence of twenty-five to
thirty and one-half years in prison, plus 813 days.
{¶9} Patton filed a timely appeal and submitted one assignment of error:
Richland County, Case No. 2021 CA 0017 4
{¶10} “I. THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT
SEPARATELY FOR THE OFFENSES OF ATTEMPTED MURDER AND IMPROPERLY
DISCHARGING A FIREARM AT OR INTO A HABITATION.”
ANALYSIS
{¶11} Patton failed to object to his sentence in the trial court. In State v. Rogers,
the Ohio Supreme Court examined a case where the defendant was convicted of multiple
offenses pursuant to a guilty plea. State v. Rogers 143 Ohio St.3d 385, 2015-Ohio-2459,
38 N.E.3d 860. The defendant appealed and argued for the first time on appeal that some
of the convictions should have merged for sentencing. Id. at ¶ 11. The matter was certified
as a conflict and presented to the Ohio Supreme Court. In making its decision, the Court
clarified the difference between waiver and forfeiture as it pertains to allied offenses. Id.
at ¶ 19–21. The Court rejected the argument that by entering a guilty plea to offenses that
could be construed to be two or more allied offenses of similar import, the accused waives
the protection against multiple punishments under R.C. 2941.25. Id. at ¶ 19. The Court
held that by failing to seek the merger of his or her convictions as allied offenses of similar
import in the trial court, the accused forfeits his or her allied offenses claim for appellate
review. Id. at ¶ 21. “[F]orfeiture is the failure to timely assert a right or object to an error,
and * * * ‘it is a well-established rule that “an appellate court will not consider any error
which counsel for a party complaining of the trial court's judgment could have called but
did not call to the trial court's attention at a time when such error could have been avoided
or corrected by the trial court.” ’ ” Id. at ¶ 21.
{¶12} The accused may raise a forfeited claim on appeal through Crim.R. 52(B).
Pursuant to Crim.R. 52(B), “plain errors or defects affecting substantial rights may be
Richland County, Case No. 2021 CA 0017 5
noticed although they were not brought to the attention of the court.” The Court held in
Rogers:
An 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.
143 Ohio St.3d 385, ¶ 3, 38 N.E.3d 860.
{¶13} The Court in Rogers reaffirmed that even if an accused shows the trial court
committed plain error affecting the outcome of the proceeding, the appellate court is not
required to correct it. Id. at ¶ 23. The Supreme Court stated: We have “admonish[ed]
courts to notice plain error ‘with the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice.’ ” (Emphasis added.) Barnes at 27, 94
Ohio St.3d 21, 759 N.E.2d 1240, quoting State v. Long, 53 Ohio St.2d 91, 372 N.E.2d
804 (1978), paragraph three of the syllabus. Rogers at ¶ 23. Accord, State v. Carr, 5th
Dist. Ashland No. 15-CA-00007, 57 N.E.3d 262, 2016-Ohio-9, ¶ 10-12; State v. Starr, 5th
Dist. Ashland No. 16-COA-019, 2016-Ohio-8179, ¶ 10-12.
Richland County, Case No. 2021 CA 0017 6
{¶14} Patton did not raise plain error. Because Patton does not claim plain error
on appeal, we need not consider it. See, State v. Quarterman, 140 Ohio St.3d 464, 2014-
Ohio-4034, 19 N.E.3d 900, ¶ 17–20 (appellate court need not consider plain error where
appellant fails to timely raise plain-error claim); State v. Gavin, 4th Dist. Scioto
No. 13CA3592, 2015-Ohio-2996, ¶ 25, citing Wright v. Ohio Dept. of Jobs & Family
Servs., 9th Dist. Lorain No. 12CA010264, 2013-Ohio-2260, ¶ 22 (“when a claim is
forfeited on appeal and the appellant does not raise plain error, the appellate court will
not create an argument on his behalf”). However, even if we were to consider Patton's
argument he would not prevail.
{¶15} Patton was indicted and convicted of Attempted Murder in violation of R.C.
2903.02 and 2923.02, a felony of the first degree; Felonious Assault in violation of R.C.
2903.11, a felony of the second degree; Improperly Discharging Firearm at or into a
Habitation in violation of R.C. 2923.161, a felony of the second degree; and Having
Weapons While Under Disability in violation of R.C. 2923.13, a felony of the third degree.
The charge of Attempted Murder was merged with the charge of Felonious Assault, but
Patton claims that the charge of Improperly Discharging a Firearm at or into a Habitation
should have also been merged.
{¶16} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.2d 892, the
Ohio Supreme Court revised its allied-offense jurisprudence:
A trial court and the reviewing court on appeal when considering
whether there are allied offenses that merge into a single conviction under
R.C. 2941.25(A) must first take into account the conduct of the defendant.
In other words, how were the offenses committed? If any of the following is
Richland County, Case No. 2021 CA 0017 7
true, the offenses cannot merge and the defendant may be convicted and
sentenced for multiple offenses: (1) the offenses are dissimilar in import or
significance—in other words, each offense caused separate, identifiable
harm, (2) the offenses were committed separately, and (3) the offenses
were committed with separate animus or motivation.
**
An affirmative answer to any of the above will permit separate
convictions. The conduct, the animus, and the import must all be
considered.
Id., ¶ 25.
{¶17} The Attempted Murder charge requires that Patton purposely or knowingly
engaged in conduct that, if successful, would have purposely caused the death of
Hackett. The Improper Discharge count required proof that Patton, without having
privilege to do so, discharged a firearm at or into an occupied structure that is a permanent
or temporary habitation of any individual. Patton does not dispute the jury’s findings that
his actions support a finding that he committed both offenses, but claims that the offenses
should be merged as they were committed with the same animus, were not committed
separately and did not cause separate or identifiable harm.
{¶18} We find sufficient evidence in the record to support a finding that the trial
court did not commit plain error by failing to merge the offenses as there are grounds to
conclude that the offenses occurred separately. Patton fired four shots at Hackett, but the
shots were not simultaneously fired. He fired at Hackett three times while Hackett was on
the porch then began to flee when Hackett lunged toward him and gave chase. He fired
Richland County, Case No. 2021 CA 0017 8
a fourth time further west of the porch as Hackett pursued him. Consequently, we find
that there were two separate incidents of discharge of the firearm, and while the shots
occurred in close proximity and time, they occurred separately. State v. Heatherington,
5th Dist. Richland No. 2021 CA 0021, 2022-Ohio-1375, ¶ 113 appeal not allowed, 167
Ohio St.3d 1483, 2022-Ohio-2765, 192 N.E.3d 518, ¶ 113. We also find that the record
supports a conclusion that the first shots were directed at or into Hackett’s home as well
as at Hackett, while the fourth shot, fired as Patton fled, was aimed at Hackett.
Consequently, if we had considered the merits of Patton’s argument, we would still deny
the assignment of error
{¶19} Patton did not bring this matter to the attention of the trial court, so he was
limited to arguing that the trial court committed plain error. Patton did not offer an
argument to support plain error and we will not create an argument on his behalf. Patton’s
assignment of error is denied.
{¶20} The judgment of the Richland County Court of Common Pleas is affirmed.
By: Baldwin, J.
Wise, Earle, P.J. and
Wise, John, J. concur.
State v. Patton
Combined Opinion