State v. Barnett

[Cite as State v. Barnett, 2026-Ohio-1604.]




                                    IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                              BROWN COUNTY




 STATE OF OHIO,                                     :
                                                              CASE NO. CA2025-04-005
       Appellee,                                    :
                                                                  OPINION AND
 vs.                                                :           JUDGMENT ENTRY
                                                                    5/4/2026
 BRIAN CONLEY BARNETT,                              :

       Appellant.                                   :

                                                    :




       CRIMINAL APPEAL FROM BROWN COUNTY COURT OF COMMON PLEAS
                           Case No. CRI2024-2063


Zachary A. Corbin, Brown County Prosecuting Attorney, and Mary McMullen, Assistant
Prosecutor, for appellee.

Elizabeth Miller, Ohio Public Defender, and Russell Patterson, Assistant Public Defender,
for appellant.


                                               ____________
                                               OPINION


         M. POWELL, J.

         {¶ 1} Brian Conley Barnett appeals his convictions for involuntary manslaughter

and trafficking in fentanyl. For the following reasons, we affirm.
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                           I. Factual and Procedural Background

       {¶ 2} In April 2024, a neighbor discovered Vickie Compton and Darrell Nease

dead in their bedroom. Police officers found drugs and paraphernalia near the bodies.

Autopsies determined that both victims died from mixed-drug overdoses.

       {¶ 3} Barnett was charged in an 11-count indictment with, among other offenses,

two counts of involuntary manslaughter and one count each of trafficking in fentanyl and

illegal conveyance of drugs. The involuntary manslaughter counts alleged that Barnett

caused the deaths of Compton and Nease "as a proximate result of [Barnett] committing

or attempting to commit the felony offense of Corrupting Another with Drugs . . . and/or

Trafficking in Drugs." Both involuntary manslaughter counts cited R.C. 2903.04(A), the

substantive provision, and R.C. 2903.04(C), the penalty provision specifying that

"[v]iolation of division (A) . . . is a felony of the first degree."

       {¶ 4} At trial, the State presented evidence, including text messages, establishing

that Compton had agreed to travel to and meet with Barnett to purchase drugs shortly

before she was found dead with Nease. The trial court instructed the jury on the elements

of first-degree involuntary manslaughter under R.C. 2903.04(A), explaining that

conviction required proof that Barnett "did cause the death of [the victim] and such death

was the proximate result of Brian Barnett committing or attempting to commit the felony

offense of Corrupting Another with Drugs, in violation of 2925.02(A)(3), and/or Trafficking

in Drugs, in violation of 2925.03(A)(1)."

       {¶ 5} The jury returned guilty verdicts on both involuntary-manslaughter counts

and the trafficking count, among others. The verdict form for Count One, concerning the

death of Nease, stated: "We the Jury, in the issue joined, find Brian Conley Barnett guilty

of Involuntary Manslaughter, in violation of R.C. §2903.04(A) of the Ohio Revised Code

as charged in Count One of the Indictment." The verdict form for Count Two, concerning

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the death of Compton, contained different language: "We the Jury, in the issue joined,

find Brian Conley Barnett guilty of Involuntary Manslaughter, in violation of R.C.

§2903.04(C) of the Ohio Revised Code as charged in Count Two of the Indictment." Thus,

whereas the verdict form for Count One cited R.C. 2903.04(A), the substantive provision,

the verdict form for Count Two cited only R.C. 2903.04(C), the penalty provision.

      {¶ 6} Neither party objected to the verdict forms at trial. The trial court found that

the involuntary-manslaughter counts did not merge with the trafficking count and

sentenced Barnett to consecutive prison terms totaling 16 to 19 years.

      {¶ 7} Barnett appealed.

                                       II. Analysis

      {¶ 8} Barnett raises two assignments of error. First, he contends that the trial

court erred by convicting him of first-degree involuntary manslaughter on Count Two.

Second, Barnett argues that his convictions for involuntary manslaughter and trafficking

in fentanyl should have merged for sentencing purposes.

                       A. Degree of Involuntary Manslaughter

      {¶ 9} The first assignment of error alleges:

             BECAUSE THE VERDICT FORM FOR COUNT TWO
             FOUND MR. BARNETT GUILTY OF ONLY THIRD-DEGREE
             INVOLUNTARY MANSLAUGHTER, THE TRIAL COURT
             ERRED BY CONVICTING HIM OF FIRST-DEGREE
             INVOLUNTARY MANSLAUGHTER.

      {¶ 10} In his first assignment of error, Barnett contends that the trial court erred by

convicting him of first-degree involuntary manslaughter for Count Two when the jury-

verdict form cited only the penalty provision of the involuntary-manslaughter statute.

Barnett argues that because the verdict form failed to state either the degree of the

offense or that an additional element was present, R.C. 2945.75(A)(2) required the trial

court to treat the verdict as a finding of guilt for only third-degree involuntary

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manslaughter, the least degree of the offense. The State concedes that the verdict form

contained an error but maintains that the error was merely clerical and did not affect

Barnett's substantial rights.

                                   1. Standard of Review

       {¶ 11} Barnett failed to raise an objection to the verdict form for Count Two, so he

forfeited all but plain error on appeal. See State v. Mays, 2024-Ohio-4616, ¶ 26. Under

Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed," but

"three elements must be met in order to find reversible error." Id. at ¶ 27. "There must

[first] be a deviation from a legal rule, that deviation must be an obvious defect in the trial

proceedings, and the deviation must have affected substantial rights." (Citation omitted.)

Id. "'Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice.'" State

v. Nicholson, 2024-Ohio-604, ¶ 114, quoting State v. Long, 53 Ohio St.2d 91 (1978),

paragraph three of the syllabus.

              2. Whether R.C. 2945.75 Applies to Involuntary Manslaughter

       {¶ 12} Before applying R.C. 2945.75 to this case, we must first determine whether

the statute applies to involuntary manslaughter at all.

       {¶ 13} The involuntary-manslaughter statute, R.C. 2903.04, pertinently provides:

              (A) No person shall cause the death of another or the unlawful
              termination of another's pregnancy as a proximate result of
              the offender's committing or attempting to commit a felony.

              (B) No person shall cause the death of another or the unlawful
              termination of another's pregnancy as a proximate result of
              the offender's committing or attempting to commit a
              misdemeanor of any degree, a regulatory offense, or a minor
              misdemeanor . . . .

              (C) Whoever violates this section is guilty of involuntary
              manslaughter. Violation of division (A) of this section is a
              felony of the first degree. Violation of division (B) of this

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              section is a felony of the third degree.

The statute creates two different forms of involuntary manslaughter. Division (A) prohibits

causing death as a proximate result of committing or attempting to commit a felony, and

a violation constitutes a first-degree felony. Division (B) prohibits causing death as a

proximate result of committing or attempting to commit a misdemeanor or certain other

lesser offenses, and a violation constitutes a third-degree felony.

       {¶ 14} R.C. 2945.75 addresses the requirements for verdict forms when an offense

may be charged at different degrees. The statute pertinently provides:

              (A) When the presence of one or more additional elements
              makes an offense one of more serious degree:

                      ...

                      (2) A guilty verdict shall state either the degree of the
                      offense of which the offender is found guilty, or that
                      such additional element or elements are present.
                      Otherwise, a guilty verdict constitutes a finding of guilty
                      of the least degree of the offense charged.

       {¶ 15} The statute applies only "[w]hen the presence of one or more additional

elements makes an offense one of more serious degree." R.C. 2945.75(A). So the key

question is whether the predicate felony in division (A) of the involuntary-manslaughter

statute, as opposed to the predicate misdemeanor in division (B), operates as an

"additional element" that "makes an offense one of more serious degree" within the

meaning of R.C. 2945.75(A), or whether it constitutes an essential element that defines

a distinct offense.

       {¶ 16} Neither party briefed this issue. The State conceded that the verdict form

failed to satisfy R.C. 2945.75 and argued only that the error was clerical and subject to

plain-error review. Barnett assumed that R.C. 2945.75 governed. But whether a statute

applies to the facts of a case is a legal question that an appellate court may address


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regardless of whether the parties have raised it. Appellate courts are not bound by the

parties' agreement on matters of law and may determine the correct legal framework to

apply. The applicability of R.C. 2945.75(A) is a pure question of statutory interpretation,

which is a question of law.

              i. Distinct Offense Versus Additional Enhancing Element

       {¶ 17} R.C. 2945.75(A) governs only cases in which an "additional element"

elevates the degree of the same offense (an "Additional Enhancing Element"). See State

v. Armbruster, 2024-Ohio-2763, ¶ 70 (12th Dist.) (Powell, J., concurring in part and

dissenting in part). It does not reach cases in which the legislature has defined separate

offenses with their own elements (each a "Distinct Offense").

       {¶ 18} The Ohio Supreme Court's decision in State v. Eafford, 2012-Ohio-2224,

shows how to distinguish Additional Enhancing Elements from Distinct Offenses. In

Eafford, the defendant was convicted and sentenced for felony possession of cocaine. Id.

at ¶ 1. The Eighth District Court of Appeals vacated Eafford's felony conviction under R.C.

2945.75(A), holding that he was convicted of misdemeanor possession of drugs only

because the jury-verdict form failed to state the degree of the offense or to specify that

Eafford had possessed cocaine.

       {¶ 19} The State appealed to the Ohio Supreme Court, arguing that because the

indictment, evidence, and jury instructions all concerned cocaine, the verdict must have

encompassed possession of cocaine as a fifth-degree felony. The Court concluded that

the identity of the drug is an essential element of a possession offense. Id. at ¶ 13-15. "In

other words, possession of cocaine is a distinct offense and not an enhanced specie[s]

of possession of drugs." Armbruster at ¶ 70 (Powell, J., concurring in part and dissenting

in part), citing Eafford at ¶ 15. In short, the identity of the drug defines a Distinct Offense.

       {¶ 20} Decisions from other Ohio appellate courts support this understanding. In

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State v. Howze, 2024-Ohio-5447, ¶ 56-60 (7th Dist.), the Seventh District addressed

whether R.C. 2945.75(A) applied to aggravated possession of drugs where the verdict

form did not specify that methamphetamine is a Schedule II controlled substance. The

appellate court noted that the case did not involve an additional enhancing element

because methamphetamine possession is a distinct offense under R.C. 2925.11(C)(1)

("aggravated possession of drugs"), rather than an enhanced form of general drug

possession ("possession of drugs"). Similarly, in State v. Cunningham, 2020-Ohio-3586,

¶ 27 (8th Dist.), the Eighth District addressed a verdict form for corrupting another with

drugs that failed to specify heroin as the controlled substance. The appellate court

concluded that R.C. 2945.75(A) did not apply because "'it is not an additional element

that changes the degree of the offense; it is the statutorily classified character of the drug

involved.'" Cunningham at ¶ 27, quoting State v. Emerson, 2016-Ohio-8509, ¶ 15 (2d

Dist.).

                                ii. The Pelfrey Distinction

          {¶ 21} The Ohio Supreme Court in Eafford distinguished its earlier decision in

State v. Pelfrey, 2007-Ohio-256. In Pelfrey, the defendant was convicted of tampering

with government records. Tampering with records is ordinarily a first-degree

misdemeanor under R.C. 2913.42(B)(2)(a), but the offense becomes a third-degree

felony when "the writing, data, computer software, or record is kept by or belongs to a

local, state, or federal governmental entity." R.C. 2913.42(B)(4). The Court held that the

governmental nature of the records constituted an Additional Enhancing Element subject

to R.C. 2945.75(A), not a Distinct Offense. The Court emphasized that "Pelfrey's offense

of tampering with records would have constituted a misdemeanor under R.C.

2913.42(B)(2)(a) but for the additional element that the records at issue were government

records." Pelfrey at ¶ 13.

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       {¶ 22} Contrast Eafford with Pelfrey. In Pelfrey, the defendant committed the same

underlying criminal act, tampering with records, but the governmental character of those

records elevated the offense from a misdemeanor to a felony. The defendant's conduct

was identical regardless of whether the records were governmental—only the penalty

changed. But in Eafford, possession of cocaine and possession of Schedule III, IV, or V

substances are entirely Distinct Offenses with different elements, even though both fall

under R.C. 2925.11. The identity of the controlled substance defines which offense has

been committed.

             iii. Comparing Involuntary Manslaughter to Other Offenses

       {¶ 23} To determine whether involuntary manslaughter follows Pelfrey or Eafford,

we examine the statutory structure and compare it to other offenses that Ohio courts have

analyzed under R.C. 2945.75(A).

       {¶ 24} R.C. 2903.11, the felonious-assault statute, provides an example of an

Additional Enhancing Element. Division (D)(1)(a) of the statute states that felonious

assault "is a felony of the second degree" but then provides: "If the victim of a violation of

division (A) of this section is a peace officer or an investigator of the bureau of criminal

identification and investigation, felonious assault is a felony of the first degree." The

offense remains felonious assault either way. The identity of the victim as a peace officer

is a circumstance that increases the degree. This structure plainly falls within R.C.

2945.75(A)'s scope. See Armbruster, 2024-Ohio-2763, at ¶ 74 (12th Dist.) (Powell, J.,

concurring in part and dissenting in part).

       {¶ 25} Similarly, R.C. 2919.27, the protection-order-violation statute, defines a

single offense and enumerates circumstances that function as Additional Enhancing

Elements. The basic offense of violating a protection order is a first-degree misdemeanor.

R.C. 2919.27(B)(2). But the offense becomes a fifth-degree felony if the offender has

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certain prior convictions, R.C. 2919.27(B)(3), and a third-degree felony "if the offender

violates a protection order or consent agreement while committing a felony offense," R.C.

2919.27(B)(4). The Ohio Supreme Court in Mays, 2024-Ohio-4616, at ¶ 13-14,

considered this statute and recognized that R.C. 2945.75(A) applies in such cases

because the prior convictions and the commission of a concurrent felony offense are

Additional Enhancing Elements that elevate the degree of the same offense.

       {¶ 26} R.C. 2921.331, the failure-to-comply statute at issue in our recent decision

in State v. Palma, 2025-Ohio-1318 (12th Dist.), follows the same pattern. That statute

creates a single conduct prohibition in division (A), and the penalty provision in division

(C)(5) contains an Additional Enhancing Element that increases the offense level from a

first-degree misdemeanor to a third-degree felony if the offender's operation of a motor

vehicle "caused a substantial risk of serious physical harm to persons or property." The

Additional Enhancing Element does not define a Distinct Offense. Rather, it enhances the

penalty for the same offense of fleeing a police officer. We accordingly applied R.C.

2945.75 to the verdict form. Palma at ¶ 18-21.

       {¶ 27} The common feature running through felonious assault, protection-order

violations, and failure to comply is that each statute creates a single conduct prohibition,

and the Additional Enhancing Element operates on that single prohibition to increase the

penalty. But the structure of the involuntary-manslaughter statute is different.

       {¶ 28} The Seventh District's decision in State v. Thomas, 2021-Ohio-2350 (7th

Dist.), shows why. In Thomas, the court addressed R.C. 2911.12, the burglary statute,

which contains in division (A) three ways of committing "burglary," a second- or third-

degree felony, and in division (B) the separate offense of "trespass in a habitation when

a person is present or likely to be present," a felony of the fourth degree. The court

concluded that the offense in division (B) was not a lesser degree of burglary but a

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different offense altogether. Thomas at ¶ 33. Importantly, Thomas recognized that R.C.

2945.75 "'applies to different degree levels within "an offense," not to different offenses

altogether.'" Id., quoting State v. Evans, 2015-Ohio-3161, ¶ 11 (2d Dist.). The court

applied R.C. 2945.75 to distinguish between second- and third-degree burglary within

division (A), where Additional Enhancing Elements elevated the same offense. But the

court refused to extend the statute to the Distinct Offense defined in division (B). Id. at ¶

27-35.

         {¶ 29} Thomas thus shows that a single statute can contain both degrees of the

same offense—where R.C. 2945.75 applies—and Distinct Offenses—where it does not.

The question is whether the varying element is an Additional Enhancing Element that

changes the degree of a single offense or an essential element that defines a Distinct

Offense.

   iv. Involuntary Manslaughter: Essential Elements Defining Distinct Offenses

         {¶ 30} The involuntary-manslaughter statute, R.C. 2903.04, does not establish a

single base offense that is enhanced by additional circumstances. Instead, it creates two

separate prohibitions with different elements from the outset. Division (A) of the statute

prohibits causing death "as a proximate result of the offender's committing or attempting

to commit a felony." Division (B) prohibits causing death "as a proximate result of the

offender's committing or attempting to commit a misdemeanor of any degree, a regulatory

offense, or a minor misdemeanor." These are not the same criminal act distinguished only

by aggravating circumstances. They are different forms of culpable conduct altogether.

         {¶ 31} The predicate offense, whether felony or misdemeanor, is part of the

prohibited act itself. The statute does not say "no person shall cause death" with an

enhancement for deaths resulting from felonies. Rather, it separately prohibits causing

death through commission of a felony and causing death through commission of a

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misdemeanor. Each prohibition stands independently with its own elements. Several

features of the statute show that divisions (A) and (B) create separate offenses rather

than degrees of the same offense.

       {¶ 32} As we said, the statutory structure creates separate prohibitions. Divisions

(A) and (B) each begin with "No person shall," creating different prohibitions on conduct.

This is the critical feature. In R.C. 2919.27 (protection-order violation), by contrast, the

single conduct prohibition appears in division (A) ("No person shall recklessly violate the

terms of" a protection order), and division (B) then assigns different penalties based on

Additional Enhancing Elements (aggravating circumstances). The same is true for R.C.

2921.331 (failure to comply), where division (A) creates a single prohibition and division

(C)(5) enhances the penalty based on the risk of harm caused. In those statutes, the

Additional Enhancing Elements operate on a single prohibition (i.e., single offense). But

in the manslaughter statute, divisions (A) and (B) contain separate and independent

prohibitions, each defining different conduct. Division (C) then states, "Whoever violates

this section is guilty of involuntary manslaughter," followed by separate penalty provisions

for "[v]iolation of division (A)" and "[v]iolation of division (B)." The language structure in

R.C. 2903.04 mirrors that in R.C. 2925.11 (drug possession), where Eafford found Distinct

Offenses.

       {¶ 33} Also, the predicate felony or misdemeanor is a Distinct Offense. Trafficking

in fentanyl, the predicate felony in this case, contains its own elements, culpable mental

state, and penalties. It can be prosecuted independently of any resulting death. This

differs from circumstances like "victim is a peace officer" in felonious assault, which is not

itself a Distinct Offense.

       {¶ 34} In addition, the felony/misdemeanor distinction reflects different types of

culpability. The legislature apparently determined that causing death through inherently

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more dangerous conduct (felonies) warrants first-degree penalties, while causing death

through less dangerous conduct (misdemeanors) warrants third-degree penalties. These

are not different punishments for the same wrong. Rather, they indicate that the two forms

of involuntary manslaughter are different wrongs that share the same result.

       {¶ 35} Lastly, "proximate result of committing a felony" describes an essential

element of a Distinct Offense. The felony is not an add-on to a base involuntary-

manslaughter offense. Instead, it is critical to defining which specific prohibition in R.C.

2903.04 applies.

                    v. The Analogy to Drug-Possession Offenses

       {¶ 36} Looking at the parallel to drug-possession offenses under R.C. 2925.11 is

helpful. In that context, the type of drug determines which Distinct Offense has been

committed. These are Distinct Offenses with different elements. For example, R.C.

2925.11(C)(2) defines "possession of drugs" (Schedule III, IV, or V substances), while

R.C. 2925.11(C)(4) defines "possession of cocaine." The type of drug determines which

of several Distinct Offenses has been committed.

       {¶ 37} By contrast, the amount or weight of a controlled substance operates as an

Additional Enhancing Element within a single offense. R.C. 2925.11(C)(4) establishes

possession of cocaine as a Distinct Offense, then provides, "The penalty for the offense

shall be determined as follows," followed by subdivisions that increase the degree based

on weight. The weight is an "additional element" that "makes an offense one of more

serious degree" under R.C. 2945.75(A).

       {¶ 38} Involuntary manslaughter under R.C. 2903.04 follows the drug-type pattern.

Whether the predicate offense was a felony or a misdemeanor determines which of two

separately codified prohibitions has been violated, just as whether the substance

possessed was a Schedule III drug or cocaine determines which of two different offenses

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has been committed. The predicate felony in R.C. 2903.04(A) is an essential element

defining a Distinct Offense.

                               vi. The Counterargument

       {¶ 39} It could be argued that because both violations are called "involuntary

manslaughter" and share the same result (death) and same causal element (proximate

result), they should be treated as degrees of the same offense with the

felony/misdemeanor distinction serving as an Additional Enhancing Element. We think

this argument is unpersuasive for several reasons.

       {¶ 40} First, this reading would stretch R.C. 2945.75 beyond the language of the

statute. The statute applies when "the presence of one or more additional elements

makes an offense one of more serious degree." R.C. 2945.75(A). But when the legislature

creates separate conduct prohibitions in separate divisions and designates violations of

each as constituting the offense, it has created multiple Distinct Offenses with the same

name. It has not simply made "an offense" more serious.

       {¶ 41} We acknowledge that unlike R.C. 2925.11, where the statute gives the

distinct offenses different names ("possession of drugs" versus "possession of cocaine"),

R.C. 2903.04(C) uses the single label "involuntary manslaughter" for violations of both

divisions. But the shared label does not mean that divisions (A) and (B) define degrees

of the same offense. As the Seventh District recognized in Thomas, the critical feature is

not the name assigned in the penalty provision but whether the statute creates separate

conduct prohibitions with distinct elements. See Thomas, 2021-Ohio-2350, at ¶ 33-35

(7th Dist.). In Thomas, divisions (A) and (B) of R.C. 2911.12 happened to have different

names—"burglary" and "trespass in a habitation when a person is present or likely to be

present." Id. at ¶ 34. But the court's reasoning did not turn on the naming convention.

Instead, it turned on the fact that the legislature had created separate prohibitions with

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distinct elements in separate divisions of the statute. Id. at ¶ 33. In the present case,

divisions (A) and (B) of R.C. 2903.04 are similarly structured as separate prohibitions.

Each begins with "No person shall" and each specifies a different type of predicate

offense.

      {¶ 42} Second, accepting this argument would require treating many clearly

Distinct Offenses as mere degrees. Assault and felonious assault share elements and

differ primarily in the severity of harm or circumstances. Compare R.C. 2903.13(A)

(assault: "physical harm") with R.C. 2903.11(A)(1) (felonious assault: "serious physical

harm"). But the law treats them as Distinct Offenses, not degrees of a single offense.

      {¶ 43} Third, Eafford's reasoning about drug offenses applies with equal force

here. If possession of cocaine is a "separate offense," Eafford, 2012-Ohio-2224, at ¶ 15,

and not an enhanced species of possession of drugs because they are codified in

separate divisions despite sharing common elements, then involuntary manslaughter

predicated on felony commission should be distinct from involuntary manslaughter

predicated on misdemeanor commission for the same reason.

                             vii. Distinguishing Elements

      {¶ 44} How to distinguish essential elements of Distinct Offenses not subject to

R.C. 2945.75 from Additional Enhancing Elements for the same offense subject to R.C.

2945.75, then, depends on whether the legislature created Distinct Offenses or merely

included Additional Enhancing Elements of the same offense. Distinct Offenses are

indicated by different statutory divisions, each designating violations as constituting an

offense, with predicates defining which offense applies. Additional Enhancing Elements

of the same offense are indicated by a single prohibition with specified circumstances that

elevate punishment.

      {¶ 45} The difference can be illustrated by comparing R.C. 2903.04 as enacted

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with a hypothetical alternative. Had the legislature wanted to create a single involuntary-

manslaughter offense with a felony enhancement, it could have drafted one conduct

prohibition (causing death as a proximate result of committing any offense) with a penalty

provision that increased the degree when the predicate was a felony. That structure,

analogous to the felonious-assault, protection-order, and failure-to-comply statutes

discussed above, would plainly trigger R.C. 2945.75. But the legislature did not do that.

It created two separate "No person shall" prohibitions with separate violation designations

in division (C).

                                3. Application to this Case

       {¶ 46} Barnett was charged with violating R.C. 2903.04(A), which prohibits causing

death as the proximate result of committing a felony. The indictment alleged that

Compton's death "was the proximate result of Brian Conley Barnett committing or

attempting to commit" either corrupting another with drugs or trafficking in drugs, both

felony offenses. The jury was instructed on the elements of R.C. 2903.04(A), and the jury

found Barnett guilty of the predicate felonies of corrupting another with drugs and

trafficking in fentanyl.

       {¶ 47} The verdict form for Count Two stated that the jury found Barnett "guilty of

Involuntary Manslaughter, in violation of R.C. §2903.04(C) of the Ohio Revised Code as

charged in Count Two of the Indictment." The citation to division (C) rather than division

(A) was clearly erroneous, as division (C) contains only penalty provisions, not elements

of the offense. Nevertheless, the verdict form referred to the indictment, which charged a

violation of R.C. 2903.04(A).

       {¶ 48} Because, as we have concluded, R.C. 2945.75(A) does not apply to

involuntary manslaughter, the deficiency in the verdict form does not mandate entry of

conviction for a "lesser degree" of the offense. Rather, the question is simply whether the

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verdict, considered in context, adequately reflects the jury's finding that Barnett violated

R.C. 2903.04(A). This approach is consistent with the approach used by the Ohio

Supreme Court in Eafford. There, having concluded that the identity of the drug was an

essential element rather than an additional enhancing element, the Court did not simply

stop its analysis. Instead, it evaluated the verdict in context under a plain-error analysis,

examining the indictment, the evidence, and the jury instructions to determine whether

the verdict was adequate despite its deficiency. Eafford, 2012-Ohio-2224, at ¶ 17-25.

While the review in Eafford benefited the defendant, Eafford's review method is a neutral

way to identify which offense the jury actually convicted on, and it can be used regardless

of which party benefits from the clarification (here, the prosecution's position, maintaining

Barnett's first-degree conviction). Accordingly, we follow the same approach here. Given

that the jury was instructed solely on R.C. 2903.04(A), found Barnett guilty of the predicate

felonies, and the verdict form referred to the charge "as charged in . . . the Indictment,"

we conclude that the jury's finding of guilt for first-degree involuntary manslaughter is

sufficiently established.

       {¶ 49} This conclusion rests on the inapplicability of R.C. 2945.75(A) to the Distinct

Offenses of involuntary manslaughter predicated on the commission of a felony versus

involuntary manslaughter predicated on the commission of a misdemeanor. The rule

established in Pelfrey, prohibiting courts from looking beyond the four corners of a verdict

form, applies when R.C. 2945.75 governs. See Pelfrey, 2007-Ohio-256, at ¶ 14. Here,

the statute does not govern.

       {¶ 50} Because R.C. 2945.75 does not govern the Distinct Offenses in the

involuntary-manslaughter statute, the citation to division (C) rather than division (A) in the

verdict form did not constitute a deviation from a legal rule within the meaning of the first

prong of the plain-error standard. The verdict form was deficient in that it cited the wrong

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statutory division, but that deficiency does not implicate R.C. 2945.75(A)'s automatic

consequence of reduction to the least degree of the offense charged. And even assuming

that the erroneous citation constituted a deviation from a legal rule, the error did not affect

Barnett's substantial rights. The jury was instructed only on R.C. 2903.04(A), found

Barnett guilty of the predicate felonies, and returned a verdict expressly incorporating the

indictment's charge. Under these circumstances, there is no reasonable probability that

the outcome of the trial would have been different.

       {¶ 51} In sum, we conclude that R.C. 2945.75(A) does not apply to the Distinct

Offense of involuntary manslaughter predicated on the commission of a felony, as

charged in this case. The statutory structure of R.C. 2903.04, the completeness of the

predicate offenses, and the analogy to drug-possession offenses under Eafford all

support treating R.C. 2903.04(A) and (B) as Distinct Offenses rather than Additional

Enhancing Elements of the same offense. The commission of a felony as opposed to a

misdemeanor is not an Additional Enhancing Element but a fundamental component of

the Distinct Offense under R.C. 2903.04(A). Because R.C. 2945.75(A) does not apply,

the deficiency in the verdict form does not require entry of conviction for third-degree

involuntary manslaughter. The verdict form's failure to specify the degree of the offense

or to state that the death resulted from a felony does not trigger the statutory consequence

that "a guilty verdict constitutes a finding of guilty of the least degree of the offense

charged," R.C. 2945.75(A)(2).

       {¶ 52} The first assignment of error is overruled.

                               B. Merger of Allied Offenses

       {¶ 53} The second assignment of error alleges:

              THE TRIAL COURT UNLAWFULLY PUNISHED MR.
              BARNETT TWICE FOR THE SAME CONDUCT WHEN IT
              CONVICTED   HIM    OF   BOTH   INVOLUNTARY

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               MANSLAUGHTER AND TRAFFICKING IN FENTANYL.

       {¶ 54} In his second assignment of error, Barnett contends that the trial court erred

by failing to merge his involuntary-manslaughter convictions with his conviction for

trafficking in fentanyl. Barnett argues that because all offenses arose from a single drug

transaction, the offenses were allied and subject to mandatory merger under R.C.

2941.25. The State responds that no merger is required because the offenses involve

separate and distinct victims—Nease and Compton for involuntary manslaughter and the

public at large for drug trafficking. We agree with the State.

                                   1. Standard of Review

       {¶ 55} We note at the outset that Barnett did not request merger at sentencing, nor

did he object to the trial court's determination that the offenses did not merge. "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." State v. Rogers, 2015-Ohio-2459, ¶ 3. Thus, Barnett must "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,

[he] cannot demonstrate that the trial court's failure to inquire whether the convictions

merge for purposes of sentencing was plain error." Id.

                                        2. Governing Law

       {¶ 56} Ohio's allied offense statute, R.C. 2941.25, prohibits the imposition of

multiple punishments for the same criminal conduct. The statute provides:

               (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.


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              (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.

In State v. Ruff, 2015-Ohio-995, the Ohio Supreme Court established the framework for

analyzing allied offenses. The Court held that offenses do not merge, and a defendant

may be convicted and sentenced for multiple offenses, if any of the following is true: "(1)

the offenses are dissimilar in import or significance—in other words, each offense caused

separate, identifiable harm, (2) the offenses were committed separately, or (3) the

offenses were committed with separate animus or motivation." Id. at ¶ 25. If the answer

to any of these inquiries is yes, multiple convictions are permissible.

       {¶ 57} Critically, Ruff also explained that "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." Id. at ¶ 23. The Court emphasized that "[a]t its heart, the allied-

offense analysis is dependent upon the facts of a case because R.C. 2941.25 focuses on

the defendant's conduct." Id. at ¶ 26.

                                         3. No Merger

       {¶ 58} We conclude that Barnett's involuntary-manslaughter convictions and his

fentanyl-trafficking conviction do not merge because the offenses involved separate

victims and caused separate, identifiable harms.

       {¶ 59} This court and others have recognized that drug-trafficking offenses and

offenses causing harm to specific individuals involve different victims. The victim of a

drug-trafficking offense is not the particular person who purchases or consumes the drugs

but the public or society as a whole. See State v. Workman, 2017-Ohio-2802, ¶ 23 (12th


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                                                                      Brown CA2025-04-005

Dist.) (stating that "the victim of the trafficking was the public at large"); State v. Stubbs,

2024-Ohio-839, ¶ 87 (8th Dist.) (the victim of drug trafficking offenses is "society in

general"); State v. Bontrager, 2022-Ohio-1367, ¶ 16, 30 (4th Dist.). Involuntary

manslaughter, by contrast, is an offense against the person killed. Here, Nease and

Compton were the victims of the involuntary-manslaughter offenses.

       {¶ 60} Barnett urges us to reject this analysis as inconsistent with Ruff's mandate

that merger determinations depend on the facts of each case. He argues that treating

drug trafficking as having a different victim from involuntary manslaughter creates a

categorical rule that drug trafficking can never merge with a person-specific offense. But

offenses involving the same transaction and the same people can involve "separate

victims."

       {¶ 61} The allied-offense analysis in Ruff asks not simply whether the same

individuals were incidentally involved in both offenses but whether the harm each offense

is designed to address runs to the same or different victims. Drug-trafficking laws protect

society from the corrosive effects of drug distribution. These harms exist regardless of

whether any particular buyer suffers a fatal overdose. Involuntary-manslaughter statutes,

by contrast, protect individuals from death caused by another's commission of a felony.

The fact that Barnett's conduct violated both statutes means that his conduct caused

multiple types of harm to multiple victims.

       {¶ 62} In applying Ruff's analysis to the facts of this case, we conclude that as a

factual matter, the victim of Barnett's trafficking offense (the public) is different from the

victims of his involuntary-manslaughter offenses (Nease and Compton). Our conclusion

is a case-specific application of Ruff.

       {¶ 63} Barnett attempts to distinguish Workman and Bontrager on factual grounds,

but the principle those cases articulate applies with equal force here. In Workman, we

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declined    to   merge   corrupting-another-with-drugs    and   drug-trafficking   offenses,

recognizing that the offenses involved different victims. Workman, 2017-Ohio-2802, at ¶

22-23 (12th Dist.). The Fourth District reached the same conclusion in Bontrager, holding

that involuntary manslaughter and drug trafficking do not merge because they involved

the decedent (manslaughter) and the public (drug trafficking). Bontrager, 2022-Ohio-1367

at ¶ 30. (4th Dist.).

       {¶ 64} Barnett cites cases in which trial courts, often by agreement of the parties,

have merged involuntary-manslaughter or corrupting-another-with-drugs offenses with

drug-trafficking offenses. See, e.g., State v. White, 2024-Ohio-5158 (11th Dist.); State v.

Williams, 2020-Ohio-4430 (7th Dist.). But the fact that some courts have ordered merger

in particular cases does not establish that merger was legally required in those cases,

especially where, as in White, the State agreed to merger. Such cases provide little

guidance because they do not analyze the separate-victim issue that Ruff, Workman, and

Bontrager identify as dispositive.

       {¶ 65} Finally, we address Barnett's contention that the offenses were committed

with the same conduct and animus. Even assuming this were true, it would not compel

merger. Under Ruff, multiple convictions are permissible if any one of the three criteria is

satisfied, namely, dissimilar import, separate commission, or separate animus. Ruff,

2015-Ohio-995, at ¶ 25. The criteria are disjunctive. Because Barnett's drug-trafficking

and involuntary-manslaughter offenses involve separate victims and therefore are of

dissimilar import, it is unnecessary to analyze whether they were committed with the same

conduct or animus. See Armbruster, 2024-Ohio-2763, at ¶ 16 (12th Dist.) (concluding

offenses need not merge because they involved separate victims without addressing

whether offenses were committed with same conduct or animus).

       {¶ 66} Barnett has not demonstrated a reasonable probability that his involuntary-

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manslaughter and drug-trafficking convictions are allied offenses of similar import. The

offenses involved separate victims and caused separate, identifiable harms. Ohio law

permits punishment for both. The trial court did not err, plainly or otherwise, by declining

to merge the offenses.

       {¶ 67} The second assignment of error is overruled.

                                     III. Conclusion

       {¶ 68} We have overruled the two assignments of error presented. The trial court's

judgment is affirmed.

       BYRNE, P.J., and SIEBERT, J., concur.




                            JUDGMENT ENTRY

       The assignments of error properly before this court having been ruled upon, it is
the order of this court that the judgment or final order appealed from be, and the same
hereby is, affirmed.

      It is further ordered that a mandate be sent to the Brown County Court of Common
Pleas for execution upon this judgment and that a certified copy of this Opinion and
Judgment Entry shall constitute the mandate pursuant to App.R. 27.

       Costs to be taxed in compliance with App.R. 24.



                                        /s/ Matthew R. Byrne, Presiding Judge



                                        /s/ Mike Powell, Judge



                                        /s/ Melena S. Siebert, Judge




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