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State v. Forney

Court of Appeals of Ohio, Second District

August 9, 2013

STATE OF OHIO Plaintiff-Appellee
v.
KANDIS J. FORNEY Defendant-Appellant

Criminal Appeal from (Common Pleas Court) Trial Court Case No. 2012-CR-92

KEVIN S. TALEBI, Atty. Reg. #0069198, by JANE A. NAPIER, Atty. Reg. #0061426, Champaign County Prosecutor's Office, Attorney for Plaintiff-Appellee

ADAM JAMES STOUT, Atty. Reg. #0080334, 2600 Far Hills Avenue, Suite 315, Dayton, Ohio 45419 Attorney for Defendant-Appellant

OPINION

FAIN, P.J.

(¶ 1} Defendant-appellant Kandis Forney appeals from her conviction and sentence for Failure to Report a Crime, Complicity to Tampering with Evidence, and Obstructing Justice. She contends that the trial court erred by failing to merge the convictions of Complicity to Tampering with Evidence and Obstructing Justice for purposes of sentencing. She further contends that the trial court erred by sentencing her to consecutive sentences on those counts. Forney also claims that the trial court did not follow the proper statutory procedure regarding the forfeiture of her vehicle. Finally, she contends that the trial court improperly imposed a term of mandatory post-release control.

(¶ 2} We conclude that the offenses of Complicity to Tampering with Evidence and Obstructing Justice of which Forney was convicted are not allied offenses of similar import, because each involved a separate animus. We further conclude that the trial court followed the applicable law and did not abuse its discretion with regard to sentencing. The forfeiture of Forney's vehicle was not error. Finally, we conclude that the trial court did not improperly impose post-release control. Accordingly, the judgment of the trial court is Affirmed.

I. Forney's Involvement in the Events Following the Murder of Jessica Sacco

(¶ 3} Jessica was residing in Urbana with Matthew Puccio. Forney and her husband, Andrew Forney, began living with Sacco and Puccio in November 2011.

(¶ 4} During the early morning hours of March 22, 2012, Sacco was stabbed in the abdomen by Matthew Puccio. Forney was aware of the stabbing. Sacco did not die from the stab wound. Some time later, Puccio suffocated Sacco by placing a plastic bag over her head. After Sacco died, Puccio, Andrew Forney and Christopher Wright proceeded to dismember Sacco's body in the bathroom of the residence. Thereafter, the Forneys used their vehicle to transport Puccio and the dismembered body parts, which were placed in plastic bags, to Wright's home in Hamilton, Ohio. Puccio spent the night in Wright's house, while the Forneys slept in their van with the body parts. At some point, Puccio discarded the body parts. Eventually the parties were apprehended.

II. The Course of Proceedings

(¶ 5} Forney was indicted on two counts of Failure to Report a Crime, two counts of Possession of Criminal Tools, one count of Complicity to Tampering with Evidence and two counts of Obstructing Justice. The Complicity to Tampering and Obstructing Justice counts carried forfeiture specifications regarding Forney's vehicle, which was used to transport the body parts. Pursuant to a plea agreement, Forney pled guilty to two counts of Failure to Report a Crime, and one count each of Complicity to Tampering with Evidence and Obstructing Justice. The remaining charges were dismissed.

(¶ 6} The trial court sentenced Forney to 30 days in jail on each of the convictions for Failure to Report a Crime, a prison term of 36 months for Obstructing Justice, and a prison term of 36 months for Complicity to Tampering with Evidence. The trial court ordered that the prison terms for Obstructing Justice and Complicity to Tampering with Evidence be served consecutively, with the other two counts running concurrently to each other and to the prison terms. The trial court also entered an order of forfeiture of Forney's vehicle. From her conviction and sentence, Forney appeals.

III. Because Forney's Complicity to Tampering with Evidence Conviction Related to the Disposal of the Murder Victim's Body, and her Obstruction of Justice Conviction Involved her Aiding the Murderer to Elude Justice, the Two Offenses Were Each Committed with a Separate Animus, and They Are Not Allied Offenses of Similar Import

(¶ 7} Forney's First Assignment of Error states as follows:

THE COURT ERRED IN SENTENCING APPELLANT KANDIS FORNEY TO ALLIED OFFENSES BECAUSE THE CONDUCT THE [SIC] SUPPORTED THE CONVICTIONS OF COMPLICITY TO TAMPERING WITH EVIDENCE AND OBSTRUCTING JUSTICE WAS THE SAME CONDUCT WITH THE SAME ANIMUS.

(¶ 8} Forney contends that the trial court erred by failing to merge, for purposes of sentencing, her convictions for Complicity to Tampering with Evidence and Obstructing Justice. In support, Forney argues that by "accompanying Mr. Puccio to leave the murder scene and to transport the Ms. Sacco's body [sic] and by providing him with transportation to do so, [she] simultaneously committed" the two offenses with a single state of mind – to help him dispose of the evidence.

(¶ 9} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶ 48-51, the Supreme Court of Ohio held:

In determining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the question is whether it is possible to commit one offense and commit the other with the same conduct, not whether it is possible to commit one without committing the other. * * * If the offenses correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.
If the multiple offenses can be committed by the same conduct, then the court must determine whether the offenses were committed by the same conduct, i.e., "a single act, committed ...

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