[Cite as State v. Hoffer, 2026-Ohio-235.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, Case No. CT2025-0076
Plaintiff - Appellee Opinion & Judgment Entry
-vs- Appeal from the Court of Common Pleas of Muskingum County, JOHN T. R. HOFFER, Case No. CR2025-0123
Defendant - Appellant Judgment: Affirmed
Date of Judgment: January 23, 2026
BEFORE: Craig R. Baldwin; Kevin W. Popham; David M. Gormley, Judges
APPEARANCES: Joseph A. Palmer, Muskingum County Prosecuting Attorney’s Office, Zanesville, Ohio, for Plaintiff-Appellee; April F. Campbell, Dublin, Ohio, for Defendant- Appellant.
Gormley, J.
{¶1} Appellant John Hoffer challenges his convictions on charges of felonious
assault and discharging a firearm on or near prohibited premises. According to Hoffer,
the crimes were allied offenses that should have been merged before he was sentenced.
Because we agree with the trial court’s conclusion about the merger issue, we affirm
Hoffer’s sentence on both charges.
The Key Facts
{¶2} In December 2024, a woman was allegedly sexually assaulted at a home
on Swingle Street in Zanesville. A carload of angry people then drove to that home, and
while they were outside it, someone came out of the home with a gun. That prompted the group in the car to leave the residence, and they then drove to a nearby apartment
complex where they began to devise a plan to return to the residence and confront the
individual whom they believed had sexually assaulted the woman. At this point, Hoffer
joined the group.
{¶3} Now themselves armed with firearms, Hoffer and the others in the car began
driving back toward the home on Swingle Street. Before they reached that destination,
though, they saw someone walking on Greenwood Avenue. Believing that that person
had been involved in the suspected sexual assault, a passenger in the vehicle tried to
shoot him with a shotgun. When that passenger was unable to fire the gun, Hoffer
grabbed it and fired two shots at the pedestrian, who was seriously injured by the gunfire.
{¶4} Hoffer and others were indicted on multiple charges stemming from the
incident. Hoffer agreed to plead guilty to the charges of felonious assault (along with an
accompanying firearm specification alleging that the crime had been — in the words of
R.C. 2941.146(A) — “committed by discharging a firearm from a motor vehicle”),
discharging a firearm on or near prohibited premises, and having a weapon while under
a disability. The plea agreement did not include any recommendation on the sentence.
{¶5} At the sentencing hearing, the parties initially expressed differing views
about whether the felonious-assault and discharging-a-firearm charges should be
merged. The State argued that the felonious-assault charge addressed Hoffer’s shooting
of the victim, while the discharging-a-firearm charge addressed his act of shooting over a
roadway. Hoffer’s counsel ultimately agreed that the charges “don’t merge under a strict
analysis of the rough factors.” The trial court then found that the two charges did not
merge, and Hoffer was convicted and sentenced on both of them. {¶6} Hoffer now appeals, arguing in his sole assignment of error that the trial
court erred by failing to merge the two charges.
The Trial Court Correctly Declined to Merge Charges of Felonious Assault and Discharging a Firearm on or Near Prohibited Premises
{¶7} An appellate court reviews de novo a trial court’s ruling on whether offenses
merge under R.C. 2941.25. State v. Williams, 2012-Ohio-5699, ¶ 28. That statute
provides that “[w]here the same conduct by defendant can be construed to constitute two
or more allied offenses of similar import, the indictment . . . may contain counts for all
such offenses, but the defendant may be convicted of only one.” R.C. 2941.25(A). “At
the heart of R.C. 2941.25 is the judicial doctrine of merger” which “‘prohibits multiple
punishments for the same offense.’” Williams at ¶ 13, quoting State v. Underwood, 2010-
Ohio-1, ¶ 23.
{¶8} In determining whether two or more crimes are “allied offenses of similar
import,” courts must look at the three separate factors of conduct, animus, and import.
State v. Ruff, 2015-Ohio-995, paragraph one of the syllabus. By pleading guilty to
felonious assault, Hoffer admitted that he had knowingly caused (or attempted to cause)
physical harm to another using a deadly weapon. R.C. 2903.11(A)(2). And in pleading
guilty to discharging a firearm on or near prohibited premises, Hoffer admitted to
discharging a firearm on or over a public road or highway and, as a result of that
discharge, causing serious physical harm to a person. R.C. 2923.162(A)(3) and (C)(4).
That latter crime does not require the State to prove any particular guilty mindset on the
part of a defendant, for as we have explained, R.C. 2923.162 “‘is a statute intended to
benefit the public good and thus imposes strict liability.’” State v. Thorpe, 2024-Ohio-
1957, ¶ 21 (5th Dist.), quoting State v. James, 2015-Ohio-4987, ¶ 33 (8th Dist.). {¶9} Hoffer contends that the same conduct — firing a gun from a vehicle and
causing physical harm to a victim — underlies both the felonious-assault and discharging-
a-firearm charges. But two offenses are of dissimilar import “‘when the defendant’s
conduct constitutes offenses involving separate victims or if the harm that results from
each offense is separate and identifiable.’” Thorpe at ¶ 18, quoting Ruff at paragraph two
of the syllabus. “[W]hen the defendant’s conduct put more than one individual at risk, that
conduct could support multiple convictions because the offenses were of dissimilar
import.” Ruff at ¶ 23.
{¶10} Ohio courts, including ours, have repeatedly held that the crimes of
felonious assault and discharging a firearm on or near prohibited premises do not merge
because an individual is the victim of the former, while the public is the victim of the latter.
See, e.g., State v. Henry, 2025-Ohio-774, ¶ 19–20 (6th Dist.) (“The victim in the felonious
assault offense was . . . a specific, targeted victim, while the victim in the discharge of a
firearm on or near prohibited premises offense . . . was the public at large,” so “the trial
court did not err in not merging the two offenses”); State v. Anderson, 2021-Ohio-2316, ¶
39 (5th Dist.) (because “the public is the victim” of an R.C. 2923.162(A)(3) discharging-a-
firearm offense, that crime “does not merge with felonious assault”); State v. Wood, 2020-
Ohio-4895, ¶ 54 (10th Dist.) (“Appellant's act of firing gunshots on a public roadway . . .
harmed the public at large, . . . [while his] conviction for felonious assault required harm
to particular victims, . . . and thus differed in the significance and nature of the harm it
addressed”); In re T.P.-A., 2019-Ohio-2038, ¶ 18 (2d Dist.) (finding offenses did not merge
because “L.M. was the victim of the felonious assault, and the public at large was the
victim of the improper discharge [of a firearm] offense” and the defendant’s “act of firing a handgun across the roadway itself violated the statute, placed numerous people at risk,
and harmed the public at large”) (internal quotations and citation omitted); State v.
Johnson, 2018-Ohio-1387, ¶ 30 (8th Dist.) (“Johnson's discharging a firearm into a
habitation, felonious assault, and discharging a firearm on or near a prohibited premises
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[Cite as State v. Hoffer, 2026-Ohio-235.]
COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, Case No. CT2025-0076
Plaintiff - Appellee Opinion & Judgment Entry
-vs- Appeal from the Court of Common Pleas of Muskingum County, JOHN T. R. HOFFER, Case No. CR2025-0123
Defendant - Appellant Judgment: Affirmed
Date of Judgment: January 23, 2026
BEFORE: Craig R. Baldwin; Kevin W. Popham; David M. Gormley, Judges
APPEARANCES: Joseph A. Palmer, Muskingum County Prosecuting Attorney’s Office, Zanesville, Ohio, for Plaintiff-Appellee; April F. Campbell, Dublin, Ohio, for Defendant- Appellant.
Gormley, J.
{¶1} Appellant John Hoffer challenges his convictions on charges of felonious
assault and discharging a firearm on or near prohibited premises. According to Hoffer,
the crimes were allied offenses that should have been merged before he was sentenced.
Because we agree with the trial court’s conclusion about the merger issue, we affirm
Hoffer’s sentence on both charges.
The Key Facts
{¶2} In December 2024, a woman was allegedly sexually assaulted at a home
on Swingle Street in Zanesville. A carload of angry people then drove to that home, and
while they were outside it, someone came out of the home with a gun. That prompted the group in the car to leave the residence, and they then drove to a nearby apartment
complex where they began to devise a plan to return to the residence and confront the
individual whom they believed had sexually assaulted the woman. At this point, Hoffer
joined the group.
{¶3} Now themselves armed with firearms, Hoffer and the others in the car began
driving back toward the home on Swingle Street. Before they reached that destination,
though, they saw someone walking on Greenwood Avenue. Believing that that person
had been involved in the suspected sexual assault, a passenger in the vehicle tried to
shoot him with a shotgun. When that passenger was unable to fire the gun, Hoffer
grabbed it and fired two shots at the pedestrian, who was seriously injured by the gunfire.
{¶4} Hoffer and others were indicted on multiple charges stemming from the
incident. Hoffer agreed to plead guilty to the charges of felonious assault (along with an
accompanying firearm specification alleging that the crime had been — in the words of
R.C. 2941.146(A) — “committed by discharging a firearm from a motor vehicle”),
discharging a firearm on or near prohibited premises, and having a weapon while under
a disability. The plea agreement did not include any recommendation on the sentence.
{¶5} At the sentencing hearing, the parties initially expressed differing views
about whether the felonious-assault and discharging-a-firearm charges should be
merged. The State argued that the felonious-assault charge addressed Hoffer’s shooting
of the victim, while the discharging-a-firearm charge addressed his act of shooting over a
roadway. Hoffer’s counsel ultimately agreed that the charges “don’t merge under a strict
analysis of the rough factors.” The trial court then found that the two charges did not
merge, and Hoffer was convicted and sentenced on both of them. {¶6} Hoffer now appeals, arguing in his sole assignment of error that the trial
court erred by failing to merge the two charges.
The Trial Court Correctly Declined to Merge Charges of Felonious Assault and Discharging a Firearm on or Near Prohibited Premises
{¶7} An appellate court reviews de novo a trial court’s ruling on whether offenses
merge under R.C. 2941.25. State v. Williams, 2012-Ohio-5699, ¶ 28. That statute
provides that “[w]here the same conduct by defendant can be construed to constitute two
or more allied offenses of similar import, the indictment . . . may contain counts for all
such offenses, but the defendant may be convicted of only one.” R.C. 2941.25(A). “At
the heart of R.C. 2941.25 is the judicial doctrine of merger” which “‘prohibits multiple
punishments for the same offense.’” Williams at ¶ 13, quoting State v. Underwood, 2010-
Ohio-1, ¶ 23.
{¶8} In determining whether two or more crimes are “allied offenses of similar
import,” courts must look at the three separate factors of conduct, animus, and import.
State v. Ruff, 2015-Ohio-995, paragraph one of the syllabus. By pleading guilty to
felonious assault, Hoffer admitted that he had knowingly caused (or attempted to cause)
physical harm to another using a deadly weapon. R.C. 2903.11(A)(2). And in pleading
guilty to discharging a firearm on or near prohibited premises, Hoffer admitted to
discharging a firearm on or over a public road or highway and, as a result of that
discharge, causing serious physical harm to a person. R.C. 2923.162(A)(3) and (C)(4).
That latter crime does not require the State to prove any particular guilty mindset on the
part of a defendant, for as we have explained, R.C. 2923.162 “‘is a statute intended to
benefit the public good and thus imposes strict liability.’” State v. Thorpe, 2024-Ohio-
1957, ¶ 21 (5th Dist.), quoting State v. James, 2015-Ohio-4987, ¶ 33 (8th Dist.). {¶9} Hoffer contends that the same conduct — firing a gun from a vehicle and
causing physical harm to a victim — underlies both the felonious-assault and discharging-
a-firearm charges. But two offenses are of dissimilar import “‘when the defendant’s
conduct constitutes offenses involving separate victims or if the harm that results from
each offense is separate and identifiable.’” Thorpe at ¶ 18, quoting Ruff at paragraph two
of the syllabus. “[W]hen the defendant’s conduct put more than one individual at risk, that
conduct could support multiple convictions because the offenses were of dissimilar
import.” Ruff at ¶ 23.
{¶10} Ohio courts, including ours, have repeatedly held that the crimes of
felonious assault and discharging a firearm on or near prohibited premises do not merge
because an individual is the victim of the former, while the public is the victim of the latter.
See, e.g., State v. Henry, 2025-Ohio-774, ¶ 19–20 (6th Dist.) (“The victim in the felonious
assault offense was . . . a specific, targeted victim, while the victim in the discharge of a
firearm on or near prohibited premises offense . . . was the public at large,” so “the trial
court did not err in not merging the two offenses”); State v. Anderson, 2021-Ohio-2316, ¶
39 (5th Dist.) (because “the public is the victim” of an R.C. 2923.162(A)(3) discharging-a-
firearm offense, that crime “does not merge with felonious assault”); State v. Wood, 2020-
Ohio-4895, ¶ 54 (10th Dist.) (“Appellant's act of firing gunshots on a public roadway . . .
harmed the public at large, . . . [while his] conviction for felonious assault required harm
to particular victims, . . . and thus differed in the significance and nature of the harm it
addressed”); In re T.P.-A., 2019-Ohio-2038, ¶ 18 (2d Dist.) (finding offenses did not merge
because “L.M. was the victim of the felonious assault, and the public at large was the
victim of the improper discharge [of a firearm] offense” and the defendant’s “act of firing a handgun across the roadway itself violated the statute, placed numerous people at risk,
and harmed the public at large”) (internal quotations and citation omitted); State v.
Johnson, 2018-Ohio-1387, ¶ 30 (8th Dist.) (“Johnson's discharging a firearm into a
habitation, felonious assault, and discharging a firearm on or near a prohibited premises
convictions do not merge because they were committed against separate victims”).
{¶11} But this case is different, Hoffer argues, because he pled guilty to a
discharging-a-firearm charge that accused him, under R.C. 2923.162(C)(4), of causing
“serious physical harm” to a victim, and that same victim was in turn the person who was
the victim of Hoffer’s felonious-assault offense. Those facts, he claims, shift his
discharging-a-firearm offense from one that victimized the public to one that harmed a
particular person, and so he urges us to conclude that his two same-victim offenses
should have been merged. We are not persuaded.
{¶12} Notably, at least two Ohio appellate courts have already considered and
rejected the kind of merger argument that Hoffer raises. See, State v. Johnson, 2022-
Ohio-4629, ¶ 28–29 (2d Dist.) (“our analysis does not change even though Johnson’s
discharge of a firearm offense was elevated to a second-degree felony due to Johnson’s
causing physical harm to Lake,” so “the trial court did not err by failing to merge Johnson's
convictions for discharge of a firearm on or near a prohibited premises and felonious
assault”), State v. Johnson, 2019-Ohio-4265, ¶ 19 (10th Dist.) (“we are mindful that
Johnson’s act of shooting Staten elevated the degree of the offense of discharging a
firearm on or near prohibited premises to a first-degree felony pursuant to R.C.
2923.162(C)(4), [but] we nonetheless still find the offense of discharge of a firearm on or
near prohibited premises, under these specific facts, to cause separate and distinct harm to the public,” so that charge did not merge with a voluntary-manslaughter charge alleging
that Johnson had caused the death of the same person harmed by the discharging-a-
firearm offense).
{¶13} We agree with those courts. The statutes that define the two crimes at issue
in this case focus on different conduct, with the discharging-a-firearm offense targeting
the inherently dangerous-to-the-public act of firing a projectile over a public road, while
the felonious-assault offense aims to punish the act of knowingly using a deadly weapon
to harm a particular person. Even where, as here, the same person happens to have
been harmed by the defendant’s violations of the two statutes, the offenses are distinct
because the harm caused by the discharging offense is never confined to one person and
always extends to the public at large.
{¶14} We agree with the trial court, too, that the R.C. 2941.146(A) firearm
specification that was appended to the felonious-assault charge is not a factor in the
merger determination. Firearm specifications do not merge with the underlying crimes at
issue in a case. See State v. Logan, 2025-Ohio-1772, ¶ 12 (“when the trial court
sentences a defendant for a firearm specification, it is not sentencing for a separate
offense but instead is imposing additional punishment for the underlying offense”); State
v. Roberts, 2023-Ohio-142, ¶ 123 (6th Dist.) (“firearm specifications are sentence
enhancements, not separate criminal offenses, and do not merge with the underlying
felony”); State v. Ford, 2011-Ohio-765, ¶ 19 (a firearm specification and the underlying
crime “are not allied offenses of similar import as defined in R.C. 2941.25, because a
firearm specification is a penalty enhancement, not a criminal offense, [and] [p]enalties
for a specification and its predicate offense do not merge under R.C. 2941.25”). {¶15} To be sure, R.C. 2929.14(B)(1)(b) and (B)(1)(g) indicate that trial courts
cannot impose multiple prison terms for multiple firearm specifications in certain cases,
but those provisions are of no consequence in this case, where Hoffer pled guilty to just
one specification.
{¶16} For the reasons explained above, the judgment of the Court of Common
Pleas of Muskingum County is affirmed. Costs are to be paid by Appellant John Hoffer.
By: Gormley, J.;
Baldwin, P.J. and
Popham, J. concur.