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IN TIIE SUPREME C[3U127[' OF OHIO

STATE OF OHIO

Plaintiff-Appellee

vs.

KANICJIS FORNEY

Defendant-Appel lant

Supreme Court Case No.

MEMORANDUM IN SUPPORT OF JI.TIZIST)IC'I'It)N

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ON APPEAL FROM THE CHAMPAIGNCOUNTY COURT OF API'EALS, SECONDAPPELLATE DISTRICTNo. 2012 CA 36

!

Adam Jaines Stout, Esq., 0080334Attorney for Appellant2600 Far Hills Avenue, Ste 315Dayton, OH 45419(937)-293-1911

Counsel for Defendant-Appellant

Kevin Talebi, Esq.Champaign County Prosecutor's Office200 N. Main St.Urbana, OH 43078

Cocu2sel for Plaintiff-Appellee

I. Table of Contents

Contents1. Table of Contents .......................................................... .............................................................. ii

H. Explanation of Why this Court Should Accept .Turisdiction ................................................................. 1

111. Statement of Facts ........................... .... ......... .......................................................................... 2

IV. Statemen---t-o t e C-ase ... . ... .... ..... .................... :. : ........... ............................................. 3...... . .....

V. Arguiment .............................................................................................................................................. 4

A. Proposition of Law: Cornplicity to Tampering with Evidence and Obstruction of Justice are

Allied Offenses of a Similar ltnport . ........... ................................................................ ........................... .. 4

1. The Offenses of Obstructing Justice and Complicity to Tainpering With Evidence Can be

Committed by the same Conduct........... > ................. .................... ............... .......................................... 5

2. The Offenses of Obstructing Justice and Complicity to Tampering With Evidence were

Committed with the Same A.nianus.................. ..................................................................................... 7

B. Proposition of Law Two; A Court Ordering the Forfeiture of Personal Property Pursuant to R.C.

2981.01 et seq. Withorrt Conducting a"Proportionality Review" as Required Under R.C. 2981.04(B)

and 2981,09(A) Constitutes an Excessive Fine Uncleo- the Eighth Amendmelit of the U.S. Constitution

and Section 9, Article I of the Ohio Constitution and Cojtstitutes "Plain Error." ..... ............................... 8

VI. Conclusion ............................................................................................................................ ........

ii

II. Explanation of Why this C®ur-t Should Accept.l!nrisdic$iou

This appeal presents a matter of public and great general interest to criminal law in Ohio,

naAnely the Merger Offenses of Similar Import when the offenses in question are Complicity to

Tampering with Evidence and Obstruction of Justice. The application and analysis of the allied

offenses statute ORC § 2941.25 has underwent ongoing change in recent history leading up to

this Court's overturning of the Rance decision in 2010.

Further, this Court has not specifically addressed the issue of the definition of "animus"

in recent history and the facts of this case appropriately show the difficulty in the application of

the "separate animus" provision of ORC § 2941.25(B), particularly when the conduct is the

single act of allowing a co-defendant to use her car. This case is also of novel interest in the

application o:E'the analysis of the Complicity Statute for the purpose of merging allied offenses of

a similar import.

"I'he holding in the Second District's contains a serious flaw in that it improperly inserts a

second animus from the single act and motive of the Defendant allowing Mr. Puccio to use her

vehicle, when Mr. Puccio used the vehicle to transport the remains of Ms, Sacco. The Court held

that there were two animus's present in the commission of a single act. Further, the Second

Districts decision overlooks the significance of the fact that Ms.1~'orney was also convicted with

Complicity to Tampering with 1?vidence rather than being convicted directly of Tampering with

Evidence

Further, this decision allows the State and courts to speculate as to additional possible

motives or to impute the purpose of a co defendant when determining whether two crimes are

allied offenses of a single import. The trial cotu-t in this case was faced with a situation of a

Defendant's where Mr. Puccio loaded Ms. Fomey's vehicle with the remains of Ms. Sacco and

Mr. Forney drove Mr. Puccio and Ms. Forney.

"I'his case also presents a novel issue over the application of the Criminal Forfeiture

specification for instrumentalities of an offense and the Defendant's Due Process rights. The

trial court's decision allows court's to issues sentences that are contrary to law when the court

does not determine the value of property that is determined to be an "instrumentality" for the

commissior^ of the offense. Appellant respectfizlly submits that this Court accept.jurisdiction and

further review this case.

111. Statement of Facts

On or about March 22, 2012 through March 24, 2012 in Chamaign County, Ohio,

Matthew Puccio, Andrew Forney, Kandis Forney, Sharon Cook and Christopher Wright were all

charged in connection with the murder and dismemberment of Jessica Sacco Ms. Sacco was

stabbed with a knife by Mr. Puccio and subtly suffocated by Mr. Puccio. Mr. Puccio, Mr.

Forney and Mr. Wright dismembered the body. Appellant Ms. Forney did not participate in the

dismemberment or the actual killing.

Mr. Puccio then loaded up the remains into the F'orney's car and Mr. Puccio, Mr. Fomey

and Ms. Forney then traveled in the F orney's car with the remains to a residence in Hamilton,

Ohio to stay for some time. Mr. Forney drove the Forney's car with Mr. Mr. Puccio and Ms.

Forney was only a passeaiger. Ms. Forney did not load the remains into the vehicle and did not

drive the vehicle.

After arriving in Hamilton, Mr. and Ms. Forney slept in the van overnight because there

was no room in the house. Mr. Forney and Mr. Puccio then took the remains to another vehicle

2

to transport the remains to Kentucky and dispose of them. All of the defendants were eventually

arrested.

IV. Statement of the Case

On Apri15, 2012 Ms. T'orney was indicted on two counts of Possession of Criminal Tools

(felony of the fifth degree), two counts of Failure to Report a Crime (fourth degree

misdemeanors), two counts of Obstructing Justice (felonies of the third degree) and one count of

Complicity to Tampering with Evidence (felony of the third degree). The Coniplicity to

Tampering with Evidence and Obstructing Justice charges also inchided forfeiture specifications

for a 2001 (;hevrolet Venture van owned by Mr. and Ms. Forney used to further the commission

of the charges.

On or about July 12, 2012, Ms. Forney entered into plea bargain where she pled guilty to

two counts of Failure to Report a Crime, one count of Complicity to Tampering with Evidence

and one count of Obstructing Justice in exchange the Possession of Criminal Tools charges and

the other Obstruction of Justice charge %vas dismissed. The plea agreement also indicated that

post-release control would not be mandatory.

The matter was then sent for sentencing hearing on August 21, 2012. The State

submitted its interpretation of the events that transpired in this case. During which time the trial

court made considerable inquiry into the issue of whether the Obstructing Justice charge and

Complicity to Tampering with Evidence charges would merge under Ohio's Allied offenses

statute. The State argued that these same act that supported both charges was done with more

than one distinct animus. The trial court declined to merge the two counts. The sentenced her to

consecutive sentences for three years on each felony for a total of six years and sentenced her to

thirty days each on the misdemeanor charges and were rari concurrently with each other and with

3

the felony charges.. Further, the trial court also ordered the forfeiture of the vehicle. T'he court

also orally explained to the Appellant that post release control-would be optional. However the

trial court's Journal Entry of Judgment, Conviction and Sentence gives the following language:

Upon release from prison Defendant is ordered to he subject to postrelease control for a maximum of three years, all subject to Parole Boarddetermination according to law. (emphasis added)

The Appellant then timely filed her appeal to the Second District Court of Appeals. The

Second District Court of Appeals affirmed the trial Court's decision finding that the convictions

for Obstruction of Justice and Complicity to Tampering with Evidence did not merge. The

Second District stated the following in its decision:

While the crimes involved the same mode of transport, and occurred at thesame time, the crimes had two distinct purposes. One crime involved thetransport, of the body parts, for the purpose of impairing their value oravailability as evidence, while the other crime involved the transport ofPuccio, for the purpose of hindering his discovery, apprehension andprosecution. Although Forney's underlying motive for committing bothcrimes may have been to help Puccio avoid having to answer for Sacco'smurder, each had a distinct purpose

The trial court also held that the k'orfeiture of the Vehicle was valid because the Defendant did

not object to the forfeiture.

V. Argument

A. Proposition of f,aw, Complicity to Tampering with Evidence andObstruction of Justice are Allied Offenses of a Similar Itnport.

Appellant submits that the sentence is not authorized by law and that she was sentenced

to allied offenses, namely that the conviction for Complicity to Tampering with Evidence and

convictions have been merged. Double Jeopardy prohibits a Defendant from being convicted

more than once for the same offense or "allied offenses." While a defendant can plead guilty to

allied offenses, he cannot be senteilced for each allied offense, even if the sentences are to be

served concurrently. t7RC' § 2941.25 (Ohio's allied offenses statute) provides the following:

4

(A) Where the same conduct by defendant can be construed to constitutetwo or more allied offenses of similar import, the indictment orinformation may contain counts for all such offenses, but the defendantmay be convicted of only one.

(B) Where the defendant's conduct constitutes two or more offenses ofdissimilar import, or where his conduct results in two or more offenses ofthe same or similar kind committed separately or with a separate animusas to each, the indictment or information may contain counts for all sttchoffenses, and the defendant may be convicted of all of them.

In determining whether a defendant's conduct constitutes two or more offenses of similar

import, the Court has consistently recognized that the purpose of R.C. 2941.25 is to prevent

shotgun convictions, that is, multiple findings of l;t.iilt and corresponding punishments heaped on

a defendant for closely related offenses arising from the same occurreiice. State, v. Geiger, 45

Ohio St.2d at 242, 74 0.O.2d 380, 344 N.E.2d 133.

When determining whether two offenses are allied offenses of similar import subject to

merger under R.C. 2941.25, the conduct of the accused must be considered. State v. Johnson,

128 Ohio St.3d 153, 201(l-Ohio-6314 (Ohio 2010). Under R.C. 2941.25, the court must

determine prior to sentencing whether the offenses were committed by the same conduct. Thus,

the Court need not perform any hypothetical or abstract comparison of the offenses at issue in

order to conclude that the offenses are subject to merger. Id< Further, in light of the Johnson

case, courts should consider the applicability of the allied offenses statute as it applies to the

crimes of Obstructing Justice and Tampering with Evidence. See Stczte v. McIntyre, Summit App.

No. 26449, 2012-Ohio-5657, (9"' Dist. App., December 5, 2012).

1. The Offenses of Obstructing Justice and Complicity to TamperingWith Evidence Can be Committed by the same Conduct.

By accompanying iYlr. Puccio to leave the murder scene and to transport the Ms. Sacco's

body and by providing him with transportation. to do so,Ms, Forney simultaneously committed

Complicity to Tampering with Evidence and Obstructing Justice, both third. degree felonies. In

deten.nining whether offenses are allied offenses of similar import under R.C. 2941.25(A), the

court should consider the statutory elements of each offense in the context of the defendant's

conduct. See State v. Williams, 2012-Ohio-5699, 2011-0619 (Ohio 2012).

a) Complicity to Tampering witdi Evidence.

Ms. Forney was indicted with aiding and abetting the crime of tampering with evidence.

R.C. 2923.0J(A)(2) states: "No person, acting with the kind of culpability required for the

conunission of an offense, shall [a]id or abet another in committing the offense." When the

degree of culpability is purposeful conduct, the aider and abettor must assist the principal with

that purpose, and therefore, which requires the State to prove "that the defendant shared the

criminal intent of the principal. Such intent may be inferred from the circumstances surrounding

the crime." State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio=1336, 754N`E.2d 796, syllabus.

State v. Chessman, Montgomery App. No. C.A. 24451 2012-Ohio-1427, (2"a Dist. App., 3une 15,

2009).

The crime of Tampering with Evidence, under R.C. 2921.12(A)(1) is committed when a

"person, knowing that an official proceeding or investigation is in progress, or is about to be or

likely to be instituted ... [a]lter[s], destroy[s], conceal[5], or remove[s] any record, document, or

thing, with purpose to impair its value or availability as evidence in such proceeding or

investigation."

Ms. Forney aided and abetted Mr. Puccio's Tampering with Evidence by allowing him to

load her and her husband's car with the remains of Ms. Sacco and take said remains to Kentucky,

thereby assisting him to remove the remains from the area where they were originally located;

thereby tampering with evidence.

6

b) Obstructing Justice.

When one aids and abets another in tampering with evidence by providing the principal

with transportation to remove evidence from the scene of the crime, one also conYrnits

Obstructing Justice. Obstructing Justice pursuant to R.C. 2921.32(A)(2) is committed when "[a]

person, with purpose to hinder the discovery, apprehension, prosecution, conviction, or

punishment of another for crime or to assist another to benefit from the commission of a crime,

and [a] person, with purpose to hinder the discovery, apprehension, prosecution, adjudication as

a delinquent child, or disposition of a child for an act that if committed by an adult would be a

crime or to assist a child to benefit from the commission of an act that if committed by an adult

would be a crime ...(p]rovide[s] the other person or child with money, transportation, a

weapon, a disguise, or other means of avoiding discovery or apprehension."

TThe act of allowing Mr. Puccio to take the remains of Ms. Sacco in her and her husband's

car to Kentucky to dispose of the remains (thereby tampering witli evidence) the same act also

constitutes Obstructing Justice pursuant to R.C. 2921.32(A)(2), because Mr. Puccio was

provided the means to potentially avoid discovery or apprehension.

2. The Offenses of Obstructing Justice and Complicity to Tampering

With Evidence were C'ommi4:te€i with the Same Animus.

Then, the Court must determine whether the offenses were committed by the same

animus. 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 with a single state of mind." If the answer to both questions is yes, then the offenses

are allied offenses of siniilar import and A-Till be merged. Johnson, 128 Ohio St.3d at 1 49-50,

quoting .S'tate v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, t 54.

7

In the case before this Court, the single act of allowing Mr. Puccio to use the vehicle that

belonged to Mr. and Ms. Forney to remove the remains of Ms. Sacco from where she was killed

to Kentucky was condircted with a single state of mind. By helping Mr. Puccio transport the

body to Hamilton, OH (where she was left) he was also leaving the city where the murder

occurred, thereby obstructing justice. The sequence of events constitutes one continuous act by

aiding Mr. Puccio in Tampering with Evidence Appellant is necessarily also Obstructing Justice.

Fuither, Ms. Forney, by allowing Mr. Puccio to load the car with the remains, to ride in

the car to take the car to Kentucky with her husband, ultimately, took a passive role in the crime

to Mr. Puccio's lead. Mr. Puccio killed Ms. Sacco, tie dismembered her. He loaded her in the

car. Ms. Forney was merely the owner of the car and was a passenger in the car. Because of her

relatively passive role and the court's reliance on ir-nputing she did not have additional acts that

would suggest a separate animus. Taking Mr. Puccio to bury the remains was part of the same

continuous act. Thus, Appellant respectfully submits that this Court should grants jurisdiction

and further review this case..

B. Proposition of Law 'Fwo: A Court Ordering the Forfeiture of PersonalProperty Pursuant to R.C. 2981.01 et seq. Without Conducting a"Proportionalzty

Review" as Required Under R.C. 2981.04(B) and 2981.09(A) Constitutes anExcessive Fine Under the Eighth Amendment of the U.S. Constitution and Section 9,Article I of the Ohio Constitution and Constitutes "Plain Error."

The Trial Court's Order of Forfeiture of the Appellant's Vehicle without a

Proportionality Review required under R.C. 2981.04(13) and 2981.09(A) is plain error because it

constitutes and "excessive fine" under the Excessive Fines Clause of the Eighth Amendment to

the United States Constitution and Section 9, Article I of the (3hio Constitution. R.C. 2981.04(B)

provides that if person is convicted of an offense and the indictment charging the offense

contains a specification covering property subject to forfeiture under R.C. 2981.02, the trier of

8

fact must determine wliether the person's property shall be forfeited. Property subject to

forfeiture under R.C. 2981.02 includes " an instrurnentality that is used in or intended to be used

in the commission or facilitation of' certain enumerated offenses, including felonies or attempted

felonies. R.C. 2981.02(A)(3). If the state proves by a preponderance of the evidence that the

property is in whole or part subject to forfeiture under R.C. 2981.02, after a proportionality

review under R.C. 2981.09 "when relevant," the trier of fact must return a verdict of forfeiture

that specifically describes the extent of the property subject to forfeiture.

R.C. 2981.09(A) prohibits property from being forfeited as an " instrumentality" of an

offense " to the extent that the amount or value of the property is disproportionate to the severity

of the offense." R.C. 2981.09(A) imposes on the owner of the property "the burden of going

forward with the evidence and the burden to prove by a preponderance of the evidence that the

amount or value of the property subject to forfeiture is disproportionate to the severity of the

offense." R.C. 2981.09(C) provides a non-exhaustive list of factors a court must consider in

determining " the severity of the offense," including "[tjhe seriousness of the offense and its

impact on the community, including the duration of the activity and the harm caused or intended

by the person whose property is subject to forfeiture [J" and " [t]he extent to which the person

whose property is subject to forfeiture participated in the offense." R.C. 2981.09(C)(1) and (2).

The proportionality review required by R.C. 2981.04(B) and 2981.09(A) is mandated by the

Excessive Fines Clause of the Eighth Amendment to the United States Constitution and Section

9, Article I of the Ohio Constitution, because the forfeiture of property is a form of punishment

for a specified offense and thus is a" fine" for purposes of the United States and Ohio

Constitutions. State v. Hill, 70 Ohio St:3d 25, 32-35, 635 hI.E.2d 1248 (1994).

9

The factors set forth in R.C. 2981.09(C) that a trial court must consider in determining the

seriousness of the offense for purposes of R.C. 2981.09(A) closely follow the factors a court

must consider in determining whether forfeiture " is grossly disproportionate to the seriousness

of the offense," and therefore constitutes an " excessive fine" within the meaning of the Eighth

Amendment. See Hill at 33, 635 N.1;.2d1248, quoting United State.s v. Sarbello, 985 F.2d716,

724 (3rd Cir. 1993). Moreover, "forfeitures are not favored in law or equity," and " forfeiture

statutes must be strictly construed against the state." State v. King Fayette App. No. CA2008-10-

035, 2009-C>hio-2812, (Twelfth Dist., June 15, 2009).

There is now a conflict in the district courts between the Second District and the Twelfth

District. The Twelfth District's decision in State v. Luong, the appellant was changed with

marijuana possession and cultivation. 977 N.E.2d 1075 (Ohio App. 12 Dist. 2012). As a result

his vehicle and his tools and equipment constituted property that was subject to forfeiture under

R.C. 2981.04(B) and that such property constituted instrumentalities under R.C. 2981.02(A)(3),

since the propei-ty was used to commit, or to facilitate the commission of, his offenses. Luong

977.N.E.2d at 1082. At the sentencing hearing, the trial court declared appellant's vehicle and

his tools and equipment forfeited, but failed to make an express finding on whether the amount

or value of his vehicle and his tools and equipment is disproportionate to the severity of his

offenses. The Twelfth District overturned the trial court and held that the trial court was still

required to conduct a proportionality review under R.C. 2981.09(A) to determine whether the

amount or value of his vehicle and his tools and equipment is disproportionate to the severity of

his offenses because the trial court failed to make any determination as to whether the forfeiture

of appellant's tools and equipment that he used to conduct his marijuana grow operation is

disproportionate to the severity of his offenses. Luong 977.N.E.2d at 1085.

10

In this Case, Ms. Forney pled guilty to Complicity to Tampering with Evidence and

Obstruction of Justice with forfeiture specifications, which is an admission of the facts contained

in the indictment including the forfeiture specification. At the Sentencing Hearing, and during

the Plea hearing the Court did not conduct a "proportionality review," or hear any testimony on

the extent that the amount or value of the property and whether it is disproportionate to the

severity of the offense. During the sentencing hearing, there was only testimony on the facts

surrounding nature of the crimes. There was no determination of the value of the car or

determination that the nature of the offense outweighed the value of the vehicle. However; the

Second District affirmed the Chan-ipaign County Common Pleas Courts Decision and did not

require that the trial court conduct a proportionality review. The Second District held that

because the she acquiesced to the forfeiture. The Defendant did not object to the Even though

R.C. 2981.09 placed the burden on the Defendant, the failure to have a proportionality review

coiistitutes plain error as the forfeiture without the review imposes an excessive tine.

Thus, Appellant respectfully submits that this Court should accept jurisdiction and further

review this case.

11

VI. Conclusion

Based on the foregoing reasons, Appellant respectfully submits that the within appeal

presents questions of public or great general interest as would warrant further review by this

Court. Review is also warranted upon leave granted in a felony case. It is respectfully submitted

that jurisdiction should be accepted.

Respectfully submitted,

-^___ ^^ - - ---^

Adam James Stout, Esq. (0080334)Attorney for Defendant-Appellant4640 Far Hills Ave., Ste 315Dayton, Oli 45419Tel: (937)-293-1911Fax: (937)-293-2518

CERTIFICATE OF SERVICE

I hereby certify a copy of the foregoing was sent served on the Champaign County

Prosecutor's Office on March 26, 2013 by hand delivery.

Adam James Stout

12

STATE OF OHIO

Plaintiff-Appelfee

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

CHAMPAIGN COUNTY

V.

KANDIS J. FORNEY

Defendant-Appellant

Appellate Case No. 2012-CA-36

Trial Court Case No. 2012-CR-92

(Criminal Appeal fromCommon Pleas Court)

FINAL ENTRY

Pursuant to the opinion of this court rendered on the 9th day

of August ' 2013, the judgment of the trial court is Affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), it is hereby ordered that the clerk of the Champaign

County Court of Appeals shall immediately serve notice of this judgment upon all parties and

make a note in the docket of the mailing.

.

MIKE FAIN, Presiding Ju^ge

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

_2-

^

JEFFR RdELICH, Judge

FREY M. WELBAUM, Judge

Copies mailed to:

Kevin S. TalebiJane A. NapierChampaign County Prosecutor's Office200 N. Main StreetUrbana, OH 43078

Adam James Stout2600 Far Hills AvenueSuite 315Dayton, OH 45419

Hon. Nick A. SelvaggioChampaign County Common Pleas Court200 N. Main StreetUrbana, OH 43078-1642

TxE COURT OF APPEAI_s OF ©HlO

SEC'OND APPELLATE DIS"['ItICT

STATE OF OHIO

Plaintiff-Appellee

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

CHAMPAIGN COUNTY

Appellate Case No. 2012-CA-36

Trial Court Case No. 2012-CR-92V.

KANDIS J. FORNEY

Defendant-Appellant

(Criminal Appeal fromCommon Pleas Court)

OPINION

Rendered on the 9th day of August, 2013.

KEVIN S. TALEBI, Atty. Reg. #0069198, by JANE A. NAPIER, Atty. Reg. #0061426,Champaign County Prosecutor's Office, 200 North Main Street, Urbana, Ohio 43078

Attorney for Plaintiff-Appellee

ADAM JAMES STOUT, Atty. Reg. #0080334, 2600 Far Hills Avenue, Suite 315, Dayton,Ohio 45419

Attorney for Defendant-Appellant

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

TI-IE- COURT OF APPEALS OF OHIOSE1CONIJ APPELLATE DTSTTZICT

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.

(12) 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

THE c(}URT oF APPEALS OF OHIOSECOND APPELLATF, DISTRICT

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.

11. The Course of Proceedings

(15) 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.

(16) 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.

111. 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

'THF COURT QF APPEALS OF OHI4SEC'.ONU A.PI'E LLATI; I>ISTRICT

-4-

to Elude Justice, the Two Offenses Were Each Committed with a

Separate Animus, and They Are Not Allied Offenses of Similar Import

(17) 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.

(19) 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.

TH;E COURT OF APPEALS OF nHlo

SECOND APPELLATE I3ISTRICT

_j_

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 with a single state of mind." * * *

If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

Conversely, if the court determines that the commission of one

offense will never result in the commission of the other, or if the offenses are

committed separately, or if the defendant has separate animus for each

offense, then, according to R.C. 2941.25(B), the offenses will not merge.

(Citations and quotations omitted, emphasis in original.)

(¶ 10) The defendant bears the burden to prove entitlement to merger. State v.

Jackson, 2d Dist. Montgomery No. 24430, 2012-Ohio-2335, ¶ 134.

(111) Forney was charged with Complicity to Tampering with Evidence in violation

of R.C. 2923.02(A)(2) and 2921.12(A)(1). R.C. 2921.12(A) provides that a person commits

the crime of tampering with the evidence when she "know[s] that an official proceeding or

investigation is in progress, or is about to be or likely to be instituted, [and she]* * * [a]lters,

destroy [s], conceal[s], or remove[s] any record, document, or thing, with purpose to impair

its value or availability as evidence in such proceeding or investigation."

(112) Forney was also convicted of Obstruction of Justice in violation of R.C.

2921.32, which provides that "[n]o person, with purpose to hinder the discovery,

apprehension, prosecution, conviction, or punishment of another for crime or to assist

another to benefit from the commission of a crime, and no person, with purpose to hinder

the discovery, apprehension, prosecution, * * * shall * * * [p]rovide the other person * * *

THE COURT OF APPEALS OF 0:E€10SECOND APf'ELI,ATL DISTRICT

with money, transportation, a weapon, a disguise, or other means of avoiding discovery or

apprehension." R.C. 2921.32(A)(2).

{¶ 13) The indictment alleged the underlying facts for both offenses. With regard

to Complicity to Tampering with Evidence, the indictment stated that Forney aided and

abetted Puccio in committing the offense of Tampering with Evidence by using her vehicle

"to remove and transport the severed limbs and fingers of the deceased Jessica Rae

Sacco from her residence in Urbana, Champaign County, Ohio, to Hamilton, Butler County,

Ohio." The charge regarding Obstruction of Justice alleges that Forney "with purpose to

hinder the discovery and apprehension of [Puccio] * * * provided [Puccio] with

transportation in your motor vehicle * * * from the scene of a homicide [in Urbana] to * k*

Hamilton, Butler County, Ohio, so as to help him avoid detection by law enforcement

authorities."

{¶ 14} Forney admitted the commission of the offenses upon which she was

indicted. While the crimes involved the same mode of transport, and occurred at the same

time, the crimes had two distinct purposes. One crime involved the transport of the body

parts, for the purpose of impairing their value or availability as evidence, while the other

crime involved the transport of Puccio, for the purpose of hindering his discovery,

apprehension, and prosecution. Although Forney's underlying motive for committing both

crimes may have been to help Puccio avoid having to answer for Sacco's murder, each

crime had a distinct purpose, and they are therefore not allied offenses of similar import.

(115) Accordingly, the First Assignment of Error is overruled.

THE COliRT OF APPEALS OF f)IIIOSECOND APPE LLA'TF_• DISTRIC°T

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IV. Where a Criminal Defendant Expressly Declines an Invitation to Object to a

Forfeiture, the Trial Court Is Not Required to Conduct a Proportionality Review

(116) Forney's Second Assignment of Error provides:

THE TRIAL COURT ERRED IN ORDERING THE FORFEITURE OF

APPELLANT'S VEHICLE BECAUSE THE COURT FAILED TO CONDUCT

A "PROPORTIONALITY REVIEW"AS REQUiREDUR4DER R.C. 2981.04(B)

AND 2981.09(A).

(117) Forney contends that the trial court failed to conduct a review to determine

whether the value of the vehicle was proportional to the nature of the offense.

{¶ 18) "In Ohio, forfeitures are typically not favored in law or in equity." In re

Forfeiture of Property of Rhodes, 2d Dist. Montgomery No. 25464, 2013-Ohio-3046, ¶ 6.

Thus, forfeiture statutes must be strictly construed against forfeiture. State v. Lilliock, 70

Ohio St.2d 23, 26-26, 434 N.E.2d 723 (1982).

(¶ 19) R.C. 2981.04(B) states in pertinent part:

If a person pleads guilty to * * * an offense * * * and the * * * indictment

* *'" charging the offense or act contains a specification covering property

subject to forfeiture under section 2981.02 of the Revised Code, the trier of

fact shall determine whether the person's property shall be forfeited. If the

state or political subdivision proves by a preponderance of the evidence that

the property is in whole or part subject to forfeiture under section 2981.02 of

the Revised Code, after a proportionality review under section 2981.09 of the

Revised Code when relevant, the trier of fact shall return a verdict of

forfeiture that specifically describes the extent of the property subject to

TE{E COURT OF APPEALS OF OHIOSECONT)APPI;LLATE DISTRICT

forfeiture. * * *

{¶ 20} Property subject to forfeiture includes "an instrumentality that is used in or

intended to be used in the commission or facilitation of * * * a felony *'` *." R.C.

2981.02(A)(1)(a). Property is not subject to forfeiture as an "instrumentality" if the value

of the "property is disproportionate to the severity of the offense." The defendant has the

burden to prove, by a preponderance of the evidence, the fact that the value of the

instrumentality is disproportionate to the severity of the offense. R.C. 2981.09(A).

{¶ 21} Forney does not dispute that her vehicle was an instrumentality subject to

forfeiture. She contends that the trial court erred by failing to hold a proportionality review.

In support, she cites State v. Luong, 2012-Ohio-4519, 977 N.E.2d 1075 (12th Dist.), for the

proposition that the trial court's failure to hold a proportionality review constitutes plain

error, notwithstanding the defendant's failure to request a proportionality review. Id. at ¶

44. That court reasoned, in part, that a proportionality review is "mandated by the

Excessive Fines Clause of the Eighth Amendment to the United States Constitution and

Section 9, Article I of the Ohio Constitution, because the forfeiture of property is a form of

punishment for a specified offense and thus is a 'fine' for purposes of the United States

and Ohio Constitutions." (Citation omitted.) 1d. at ¶ 37.

{¶ 22} We find the facts in this case distinguishable from those in Luong. Like the

defendant in Luong, Forney did not seek a review on proportionality. Luong at ¶ 43. But

unlike the defendant in Luong, Forney was specifically asked whether she had any

objection to the forfeiture of the vehicle. Her counsel replied that she had no objection to

the forfeiture. By declining the trial court's invitation to object to the forfeiture of her vehicle,

Forney acquiesced in the forfeiture, thereby affirmatively waiving the requirement of a

TI-II; COURT OF APPEALS OF OHIOSECOND APPELLf1TE DISTRICT

proportionality review.

{¶ 23} As noted above, R.C. 2981.04(B) provides that after the State has proved

that the property is subject to forfeiture, the trier of fact, "after a proportionality review under

section 2981.09 of the Revised Code when relevant, * * * shall return a verdict of

forfeiture." (Emphasis added). R.C. 2981.09(A) states that the burden of proving that the

value of the property is disproportionate to the severity of the offense is on the owner of the

property. This language supports the conclusion that if a defendant acquiesces to a

forfeiture, then there is no error in failing to hold a proportionality hearing. This holding only

applies to the facts of this case: to wit, there is no showing of any liens on the vehicle, the

vehicle does not appear to hold much value from the record, and the defendant specifically

acquiesced to the forfeiture.

{¶ 24} The Second Assignment of Error is overruled.

V. The Record Does Not Support Eorney's Contention that She

Was Sentenced to a Mandatory Term of Post-Release Control

{T 25) For her Third Assignment of Error, Forney asserts the following:

THE TRIAL COURT ERRED IN IMPOSING POST-RELEASE

CONTROL PURSUANT TO R.C. 2967.28 BY IMPOSING MANDATORY

POST-RELEASE CONTROL.

{¶ 26) Forney contends that the trial court imposed mandatory post-release control,

because the sentencing entry omits a statement that post-release control is optional and

will be imposed, if necessary, at the discretion of the Ohio Adult Parole Authority.

THE, COURT OF APPEALS OF OI-IIOSECOti'U ,A.I'PE.LLATE DISTRICT

{¶ 27) R.C. 2967.28 provides that felony prison sentences are subject to post-

release control, either mandatory or discretionary, based on the nature and degree of the

offense. R.C. 2967.28(B) and (C). Based on her offenses, Forney was subject to a

discretionary three years of post-release control.

{¶ 28) The sentencing entry in this case provides: "Upon release from prison,

Defendant is ordered to be subject to post release control for a maximum of three (3)

years, all subject to Parole Board determination according to law."

(1291 At the sentencing hearing, the trial court advised Forney of the fact that she

would be subject to post-release control:

At the time you complete your sentence, the Adult Parole Authority will

advise you if post release control is to apply, if so, for how long. Can last for

three years. Current practice is to actively supervise it for one, but can last

for three. There are rules to follow on post release control. If the rules aren't

followed, you can be punished. Punishment can be as severe as time

behind bars either in a local jail or a state prison for up to one-half of your

original sentence. In addition to that, if you're on post release control and

you're charged with a new crime where prison is a possible penalty, you not

only have to face that new crime and its penalty, but you can also be sent

back to prison on this original charge for either one year or the balance or

your post release control time period, whichever is greater.

{¶ 30) Based upon the record, we find no merit to Forney's contention that the trial

court improperly sentenced her to a mandatory term of post-release control. The Third

Assignment of Error is overruled.

'PHE COURT OF APPEALS OF OHIDSECONI) APPELLATE DISTRIC"I.

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4lI. The Trial Court's Decision to Impose Consecutive Sentences for Forney's

Felony Offenses Is Neither Contrary to Law Nor an Abuse of Discretion

(131) The Fourth Assignment of Error states:

THE TRIAL COURT ERRONEOUSLY SENTENCED APPELLANT TO

CONSECUTIVE SENTENCES FOR COMPLICITY TO TAMPERING WITH

EVIDENCE AND OBSTRUCTING JUSTICE.

(132) Forney contends that the record does not support the trial court's decision to

impose consecutive sentences. In support, she argues that her only role in the murder of

Sacco was a passive one; i.e., she did not play an active role in the killing or in the transfer

of Sacco's remains.

{¶ 33} When reviewing a felony sentence, an appellate court must first determine

whether the sentencing court complied with all applicable rules and statutes in imposing

the sentence, including R.C. 2929.11 and 2929.12, in orderto decide whetherthe sentence

is contrary to law. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124,

¶ 4. If the sentence is not clearly and convincingly contrary to law, the trial court's decision

in imposing the term of imprisonment must be reviewed under an abuse-of-discretion

standard, Id. The term "abuse of discretion" has been defined as an attitude that is

unreasonable, arbitrary or unconscionabfe. Hufman v. Hair Surgeon, Inc., 19 Ohio St.3d

83, 87, 482 N.E.2d 1248 (1985).

(1341 A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing, which "are to protect the ptiblic from future crime

by the offender and others and to punish the offender using the minimum sanctions that

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SECOND APPELLATE DISTRICT

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the court determines accomplish those purposes without imposing an unnecessary burden

on state or local government resources." R.C. 2929.11(A). A court imposing a sentence

for a felony "has discretion to determine the most effective way to complywith the purposes

and principles of sentencing set forth in section 2929.11 of the Revised Code." R.C.

2929.12(A).

{¶ 35} R.C. 2929.14(C)(4) requires a trial court to make certain findings before

imposing consecutive sentences:

If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while

the offender was awaiting trial or sentencing, was under a sanction imposed

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one

or more courses of conduct, and the harm caused by two or more of the

multiple offenses so committed was so great or unusual that no single prison

term for any of the offenses committed as part of any of the courses of

conduct adequately reflects the seriousness of the offender's conduct.

THE CCS^UR'r OF APPEALS ClF' OHIQSECOND APPELLATE DISTRICT

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶ 36) At the sentencing hearing, the trial court stated, at Tr. 32-33:

Court specifically finds in imposing consecutive terms that the

consecutive sentence is necessary to protect the public from future crime

and to punish the defendant.

Court makes those findings based on the nature of defendant's

participation in the criminal activity. Court finds that the consecutive

sentences are not disproportionate to the seriousness of this defendant's

conduct, and to the danger this defendant poses to the public.

Court finds that at least two of the multiple offenses were committed

as part of one or more courses of conduct, and the harm caused by two or

more of the multiple offenses was so great or unusual that no single prison

term for any of the offenses adequately reflects the seriousness of the

offender's conduct.

{I 37) We conclude that the trial court complied with all applicable rules and

statutes in imposing Forney's sentence, including R.C. 2929.11 and R.C. 2929.12. Thus,

the sentence is not clearly and convincingly contrary to law.

{¶ 38) We also conclude that the sentence imposed does not constitute an abuse

of discretion. While it is true that Forney did not play an active role in the murder or

dismemberment of the body, she displayed a disregard for the law by failing on multiple

occasions to inform the authorities of the murder, dismemberment and transport of the

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dismembered body parts that took place in her presence. According to the record, the

parties knew that Sacco was alive following the stabbing, and that she remained so for a

period of time until Puccio decided to kill her by suffocation. The dismemberment occurred

over the course of about two days and Forney entered the bathroom where the

dismemberment took place. Forney's vehicle was used to transport Puccio and the body

parts to Hamilton, and Forney slept in the vehicle with the parts for at least one night, while

Puccio slept inside the Wright residence. These facts establish that both of Forney's felony

offenses were more serious forms of Complicity to Tampering with Evidence and

Obstruction of Justice.

(139) Forney's Fourth Assignment of Error is overruled.

VI1. Conclusion

{¶ 40) All of Forney's Assignments of Error being overruled, the judgment of the trial

court is Affirmed.

FROELICH and WELBAUM, JJ., concur.

Copies mailed to:

Kevin S. TalebiJane A. NapierAdam James StoutHon. Nick A. Selvaggio

THE COIJI2T OF APP:GALS OF OHIOSECOND APPL LLA'I'I: I)IS'rIt1CT