[Cite as State v. Hudson, 2013-Ohio-2351.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2011 CA 100
v. : T.C. NO. 07CR926
RAYSHAUN HUDSON : (Criminal appeal from Common Pleas Court) Defendant-Appellant :
:
..........
OPINION
Rendered on the 7th day of June , 2013.
LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E. Columbia St., 4th Floor, P.O. Box 1608, Springfield, OH 45501 Attorney for Plaintiff-Appellee
ADAM JAMES STOUT, Atty. Reg. No. 0080334, 2600 Far Hills Ave., Suite 315, Dayton, OH 45419 Attorney for Defendant-Appellant
.............
FROELICH, J.
{¶ 1} Rayshaun Hudson was convicted after a jury trial in the Clark County Court of 2
Common Pleas of two counts of felonious assault, two counts of tampering with evidence, one
count of possession of drugs, one count of possession of criminal tools, one count of harassment
with a bodily substance, and one count of failure to comply with an order or signal of a police
officer. The trial court sentenced Hudson to an aggregate term of 42 years in prison.
{¶ 2} Hudson contends that he was denied due process when the trial court refused to
continue the trial in order to await a pending competency examination. Hudson also contends
that the trial court erred in sentencing him on two firearm specifications and to consecutive terms
for the two felonious assault charges. Finally, Hudson maintains that his conviction for
tampering with evidence (a weapon) was against the manifest weight of the evidence. For the
following reasons, the trial court’s judgment will be affirmed.
I.
{¶ 3} At around 9:00 a.m. on September 14, 2007, Rayshaun Hudson picked up Stacey
Delaney at Delaney’s home in Trotwood, Ohio. Hudson and Delaney were business and social
acquaintances, and Hudson sometimes asked Delaney to ride around with him. Delaney was
home quite a bit at that point because he had hurt his back. On this particular day, Hudson
intended to drive to Indianapolis to look for his girlfriend, who was pregnant.
{¶ 4} On the way to Indianapolis, Hudson was driving erratically and very fast, despite
Delaney’s request that he slow down. Once they reached Indianapolis, Hudson could not find his
girlfriend, so the two men began to drive back home at around 2:00 or 2:30 p.m. On the way
back, Hudson continued to drive erratically. Hudson was snorting cocaine and was drinking beer
and Wild Irish Rose. When the two men arrived back in Ohio, they ran out of gas. They were
assisted by the Clay Township police, who drove Delaney to a gas station. Delaney knew that 3
Hudson carried a pistol, so he rode with the police to get the gas while Hudson remained with his
vehicle.
{¶ 5} When Hudson and Delaney finally arrived back in the Dayton area, they rode
around some more while Hudson did his “little transactions.” By this time, it was around 4:00 or
5:00 p.m., but Hudson would not take Delaney home. Consequently, Delaney got out of the truck
at a gas station and began walking home. Delaney eventually got back in the truck after Hudson
promised to take him home. However, instead of doing so, Hudson drove to Springfield, Ohio.
{¶ 6} When they arrived in Springfield, Hudson stopped in a large parking lot, and the
two men got in a dispute. According to Delaney, Hudson was trying to give him money, but
Delaney refused it. Apparently, some money blew out of the window. Hudson was also upset
because he thought that Delaney had taken his gun. Before they left the parking lot, Hudson shot
Delaney in the knee. Hudson was looking at Delaney like he didn’t recognize him. When
Delaney asked Hudson why he had shot him, Hudson would not say why. Hudson said, “I feel
like murder.” Hudson then continued to drive around Springfield, pulling into alleys, putting the
gun to Delaney’s side, and talking about the fact that he felt “like murder.” Eventually, Hudson
drove the wrong way down a one-way street with a car coming toward them. Delaney reached
over for the steering wheel because he thought they were going to collide with the car. After they
passed the car, Hudson shot Delaney again, this time in the calf.
{¶ 7} After additionally shooting at a pedestrian, Hudson stopped at an Advance Auto
parking lot. By that point, Delaney had lost a lot of blood. When Hudson pulled up to the back
of the parking lot, he took his hand off the pistol and Delaney grabbed the pistol. When Hudson
attempted to get the pistol back, it went off. Hudson and Delaney struggled over the pistol, went 4
out the passenger door of the truck, and ended up on the ground, in the parking lot, fighting over
the gun. Four or five men who were standing in the parking lot came over during the struggle,
and heard one of the struggling men calling for help. They heard one of the two men yell out,
“He shot me, he’s got a gun.”
{¶ 8} The men in the parking lot called 911, and after a few minutes, Springfield Police
Officer Joseph Lewis responded. Delaney had heard the men say that they had called the police.
Delaney heard sirens, and when he saw a police car come skidding to a stop about ten to fifteen
feet away, he let go of the gun. Delaney then saw that a policeman had his gun out and was
yelling, “Halt, halt.” At that point, Hudson stood up with the gun and got back in the truck.
{¶ 9} Officer Lewis testified that as he pulled into the lot, he could see Hudson
standing over Delaney. Lewis also saw that Hudson’s arm was extended, but he could not see
what was in his hand. Lewis then observed Hudson running to a truck while putting something in
his waistband. Although Lewis ran up and tried to smash out the driver’s side window to extract
Hudson, Hudson was able to escape. Hudson backed up and sped off through an apartment
complex located next to the Advance Auto parking lot. Hudson then proceeded eastbound on
High Street at a very high rate of speed.
{¶ 10} By that point, Springfield Police Officer Gregory Garman had arrived in his
cruiser. Officers Garman and Lewis pursued Hudson through town while he drove at very high
rates of speed, turning his lights off and going left of center several times. At one point, Hudson
crossed the median, went westbound in the eastbound lane, turned around, and went through a
Wal-Mart parking lot. Although the police used stop sticks, they were not successful, because
Hudson drove over the curb to evade them. The officers then lost sight of Hudson for a time. 5
Eventually, however, Springfield Police Officer Jeffrey Williams was flagged down by several
people who said that the fleeing person was in the area of East Pleasant Street. Officer Williams
drove down that block and saw a man standing at the corner. When Williams exited from his
cruiser, Hudson started running eastbound down the sidewalk along a fence line.
{¶ 11} Officer Williams saw Hudson throw something over the fence while he was
running. Eventually, after Hudson slowed down, Williams and another officer tackled and
handcuffed him. No firearm was found either in the truck or on Hudson’s person. When
Williams went back to where Hudson had thrown something over the fence, he found a plastic bag
containing a substance that was later identified as crack cocaine.
{¶ 12} Hudson was taken to the hospital because he was very intoxicated or under the
influence of some substance and needed medical treatment. When Hudson refused to allow
medical staff to pump his stomach, Springfield Police Officer Kevin Hoying assisted the medical
staff by holding Hudson’s head. Hudson eventually slipped free and spit at Hoying.
{¶ 13} In the meantime, Delaney had been transported to the hospital, where he received
surgery for his gunshot wounds, including reconstruction of a bone that supported the inside of his
knee. Delaney identified Hudson as his assailant, and Hudson’s hands also tested positive for
gunshot residue. No gun was found in the area where Hudson and Delaney had been struggling.
{¶ 14} Hudson was charged with various crimes, including the two felonious assault
charges, two counts of tampering with evidence, possession of drugs, possession of criminal tools,
harassment with a bodily substance, and failure to comply with a signal or order of a police
officer. Firearm specifications were also included. After a jury trial, Hudson was found guilty
on all charges, and he was sentenced to a total of 42 years in prison. Hudson appeals from his 6
conviction and sentence.
II.
{¶ 15} Hudson’s First Assignment of Error states that:
APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL
COURT DENIED MR. HUDSON A CONTINUANCE OF THE TRIAL IN
ORDER TO AWAIT A PENDING COMPETENCY EVALUATION.
{¶ 16} In his first assignment of error, Hudson contends that the trial court abused its
discretion by denying his request for a continuance of the trial in order to await a second pending
competency evaluation that was ordered in a contemporaneous case in Montgomery County,
Ohio.1
{¶ 17} “The grant or denial of a continuance is a matter which is entrusted to the broad,
sound discretion of the trial judge. An appellate court must not reverse the denial of a
continuance unless there has been an abuse of discretion.” (Citations omitted.) State v. Unger,
67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). In Unger, the Supreme Court of Ohio noted that
when evaluating requests for continuances, courts should consider the following factors:
[T]he length of the delay requested; whether other continuances have been
requested and received; the inconvenience to litigants, witnesses, opposing counsel
and the court; whether the requested delay is for legitimate reasons or whether it is
1 Hudson had been charged with a number of serious felonies in Montgomery County, based on a high-speed chase that occurred in June 2008, after Hudson was released on bond by Clark County. Hudson was later found guilty of these crimes and was sentenced to 85 years in prison. See State v. Hudson, 2d Dist. Montgomery No. 23328, 2010-Ohio-1622, ¶ 1-3. In April 2010, we affirmed Hudson’s convictions for the high-speed chase, during which a police officer had been seriously injured. We also affirmed Hudson’s convictions on charges in two other Montgomery County cases. One case involved a robbery, and the other involved Hudson’s failure to comply with an officer’s order to stop. In the latter case, Hudson had allegedly discharged a gun into a home. Id. 7
dilatory, purposeful, or contrived; whether the defendant contributed to the
circumstance which gives rise to the request for a continuance; and other relevant
factors, depending on the unique facts of each case.
(Citation omitted.) Id. at 67-68.
{¶ 18} In the case before us, Hudson was indicted in September 2007, and trial was
originally set for November 2007. The trial was continued at the request of the State and was
rescheduled for January 2008. It was then continued several times at the request of the defense,
including one continuance that was based on the court’s having granted defense counsel’s motion
to withdraw.
{¶ 19} In April 2008, the trial court appointed new counsel for Hudson and set a trial
date of June 4, 2008. That trial date was also continued, because Hudson failed to appear. The
court learned at that time that Hudson was in the hospital after having crashed his vehicle while
fleeing from authorities in Montgomery County. At that point, the court ordered Hudson’s bond
forfeited and issued a warrant for his arrest.
{¶ 20} The case was subsequently set for a jury trial on September 9, 2008. However,
on August 29, 2008, Hudson’s counsel filed a motion asking the court to order a competency
evaluation and examination. Defense counsel expressed concern that Hudson might be of
diminished mental capacity and could also have mental health issues that would affect his ability
to assist in his own defense. The trial court ordered a competency examination by the Forensic
Psychiatry Center for Western Ohio, and scheduled a competency hearing for late October 2008.
{¶ 21} At the competency hearing, the State stipulated to the findings in the report, and
the defense stipulated only to the fact that if Dr. Thomas Martin appeared, he would testify as to 8
what was in the report. Defense counsel again expressed the concerns he had originally posed
about Hudson’s competency. The trial court noted, however, that Dr. Martin had prepared an
eight-page report and had found Hudson competent to stand trial. The court stated that it had no
reason to doubt the accuracy of Dr. Martin’s findings, and it held that Hudson was competent to
stand trial.
{¶ 22} On October 27, 2008, the court filed an entry reflecting its findings about
Hudson’s competency. The court also set a trial date of December 15, 2008. Subsequently, on
December 9, 2008, Hudson filed a motion to continue the trial. Hudson noted that he had made a
request in Montgomery County for a second competency evaluation and had been granted
permission for a second opinion on the condition that he pay for it. Hudson further stated that his
family had provided money for the evaluation, which had been scheduled with a doctor from
Forensic Psychiatry of Southwestern Ohio. The trial court overruled Hudson’s motion on
December 11, 2008, and the trial went forward as scheduled.
{¶ 23} Hudson’s counsel also raised the competency issue on the first day of trial.
Defense counsel noted that Hudson had been examined on the preceding Saturday (December 13,
2008), and that the second competency report would be forthcoming. Defense counsel once more
expressed concern about Hudson’s competency. However, the trial court again overruled the
motion. In particular, the court stressed the history of the case, which included Hudson’s
continued problems with any attorneys who represented him, as well as a suggestion in the
original competency report that Hudson was malingering or purposely trying to cause problems in
the case.
{¶ 24} The above facts indicate that the trial court did not act unreasonably, arbitrarily, 9
or unconscionably in refusing to continue the December 15, 2008 trial. As a preliminary matter,
we note that the case had been pending for more than a year and had been continued several times,
primarily at the request of the defense. Hudson was at fault in at least two situations, by failing to
keep in contact with his attorney, and by failing to appear for trial because he had gotten injured
while committing crimes in another county.
{¶ 25} Furthermore, the trial court did allow a competency evaluation, and Hudson
failed to challenge either the examiner’s neutrality or the specific content of the report.2 Hudson
also did not argue that the examination failed to comply with requirements for competency
evaluations found in R.C. 2945.37 or R.C. 2945.371. Finally, Hudson waited until less than a
week before trial to ask for a continuance, when the trial date had been set for about six weeks.
At that point, the State had already issued subpoenas for its witnesses.
{¶ 26} The trial court did not abuse its discretion in refusing to grant a continuance.
Hudson’s first assignment of error is overruled.
III.
{¶ 27} Hudson’s second assignment of error states:
THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO TWO
FIREARM SPECIFICATIONS.
{¶ 28} In his second assignment of error, Hudson contends that the trial court erred in
sentencing him for firearm specifications in connection with each felonious assault charge.
Hudson argues that both charges arose from the same transaction, i.e., Hudson’s restraint of
2 The competency report was not filed with the trial court and is not in the record. However, the record reflects that the report was eight pages long and, as we noted, Hudson did not raise an objection to any specific content in the report. Hudson may have disagreed with the result, but there was no suggestion that the examination was flawed or incomplete in some way. 10
Delaney and driving Delaney in the truck.
{¶ 29} At sentencing, the trial court imposed a sentence of eight years for each felonious
assault charge, plus three years for the firearm specification on each charge, with the sentences to
run consecutively. Thus, the sentences for the felonious assaults totaled 16 years, plus six years
total for the firearm specifications, resulting in a sentence of 22 years for these charges.
{¶ 30} When the trial court imposed separate sentences for the firearm specifications, it
stated that:
Before I proceed with the disposition, I do want the record to be clear that
the Court, in hearing the testimony of the victim, Mr. Delaney, the Court is of the
impression, based upon the evidence that was presented, that the felonious assault
occurred at separate times. Or at least there was a significant period of time in
between those two felonious assaults. And, therefore, the Court’s position, based
on the evidence, is that the firearm specifications for those two felonious assaults
would not merge.
{¶ 31} At the time Hudson was sentenced in December 2008, R.C. 2929.14(D)(1)(a)(ii)
provided for a prison term of three years for firearm specifications, if the specification charged the
offender with “having a firearm on or about the offender’s person or under the offender’s control
while committing the offense and displaying the firearm, brandishing the firearm, indicating that
the offender possessed the firearm, or using it to facilitate the offense[.]”3 R.C. 2929.14(D)(1)(b)
further provided that “[a] court shall not impose more than one prison term on an offender under
division (D)(1)(a) of this section for felonies committed as part of the same act or transaction.”
3 This provision is now codified as R.C. 2929.14(B)(1)(a)(ii). 11
{¶ 32} “Transaction” has been defined as “‘a series of continuous acts bound together by
time, space and purpose, and directed toward a single objective.’” State v. Wills, 69 Ohio St.3d
690, 691, 635 N.E.2d 370 (1994), quoting State v. Caldwell, 9th Dist. Summit No. 14720, 1991
WL 259529, *12 (Dec. 4, 1991).4 In determining whether felonies are committed as part of the
same act or transaction, “[t]he test is not whether there was a separate animus for each offense; the
appro[p]riate consideration is whether the defendant ‘had a common purpose in committing
multiple crimes’ and engaged in a ‘single criminal adventure.’” State v. Like, 2d Dist.
Montgomery No. 21991, 2008-Ohio-1873, ¶ 40, quoting State v. Adams, 7th Dist. Mahoning No.
00 CA 211, 2006-Ohio-1761, ¶ 54, 57. (Other citation omitted.)
{¶ 33} In State v. Walker, 2d Dist. Montgomery No. 17678, 2000 WL 873222 (June 30,
2000), we concluded that even though the defendant’s actions shared a common objective of
escaping the police, they were not part of the same act or transaction, because they “clearly
occurred at different times and in different places.” Id. at *13. The defendant in Walker had a
firearm in his possession while fleeing from police who were pursing him on Interstate 75 from
Dayton toward Cincinnati. After the defendant arrived in downtown Cincinnati, he caused a
traffic accident and seriously injured another motorist, while still in possession of the firearm.
We concluded that the trial court had correctly refused to merge the firearm specifications for
these charges against the defendant. Id. In this regard, we observed that “[t]he mere fact that
[the offenses] share a common objective, escape from the police, is not sufficient to classify them
as part of the same act or transaction.” Id.
4 Wills and Caldwell involved former R.C. 2929.71, a predecessor statute to R.C. 2929.14. R.C. 2929.71 was repealed by S.B.2 in 1996, and R.C. 2929.14 contains analogous provisions. The wording requiring the “same act or transaction” for purposes of merger has remained the same. 12
{¶ 34} We reached a similar conclusion in State v. Twitty, 2d Dist. Montgomery No.
18749, 2002-Ohio-5595. In Twitty, we noted that the defendant’s conduct in attempting to flee
from police in his vehicle was completed before he confronted, attempted to disarm, and assaulted
two police officers. Thus, although the events may have been directed toward the same objective
of evading capture, they “occurred at different times and in different locations” and “were not part
of the same act or transaction for purposes of R.C. 2929.14(D)(1)(b) * * *.” Id. at ¶ 130.
Accordingly, the sentences should not be merged.
{¶ 35} In contrast, in State v. Young, 2d Dist. Montgomery No. 23642, 2011-Ohio-747,
multiple gunshots were fired inside a bar in rapid succession. The case also involved multiple
victims and resulted in felonious assault and murder convictions. We concluded that these
actions were part of a single transaction for purposes of R.C. 2929.14(D)(1)(b). Id. at ¶ 55. As a
result, we held that the trial court erred in imposing separate sentences for each firearm
specification that accompanied the defendant’s felonious assault and murder convictions. Id.
{¶ 36} In the present case, Hudson shot Delaney in the knee when he (Hudson) appeared
to be upset over the possibility that Delaney had taken his pistol and had refused money. Hudson
then drove around Springfield for quite some time before shooting Delaney a second time. The
latter shooting appears to have been motivated by Hudson’s anger over the fact that Delaney
grabbed the steering wheel when it looked as if they were going to collide with another car.
These two incidents did not involve the same objective, and they occurred at different times and in
different locations, as with the incidents in Walker and Twitty. Accordingly, the trial court did
not err by refusing to merge the firearm specifications for the two assault charges.
{¶ 37} Hudson’s second assignment of error is overruled. 13
IV.
{¶ 38} Hudson’s third assignment of error states:
THE CONVICTION OF TAMPERING WITH EVIDENCE, NAMELY A
FIREARM[,] WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 39} In his third assignment of error, Hudson contends that his conviction for
tampering with evidence (a weapon) was against the manifest weight of the evidence, because the
gun was never found and one cannot infer, based on the facts, that Hudson intentionally threw it
away during the chase.
{¶ 40} “[A] weight of the evidence argument challenges the believability of the
evidence and asks which of the competing inferences suggested by the evidence is more
believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶
12. See Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19
(“‘manifest weight of the evidence’ refers to a greater amount of credible evidence and relates to
persuasion”). When evaluating whether a conviction is contrary to the manifest weight of the
evidence, the appellate court must review the entire record, weigh the evidence and all reasonable
inferences, consider witness credibility, and determine whether, in resolving conflicts in the
evidence, the trier of fact “clearly lost its way and created such a manifest miscarriage of justice
that the conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d
380, 387, 678 N.E.2d 541 (1997), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d
717 (1st Dist.1983).
{¶ 41} Because the trier of fact sees and hears the witnesses at trial, we must defer to the
factfinder’s decisions whether, and to what extent, to credit the testimony of particular witnesses. 14
State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). However,
we may determine which of several competing inferences suggested by the evidence should be
preferred. Id. The fact that the evidence is subject to different interpretations does not render
the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A judgment of
conviction should be reversed as being against the manifest weight of the evidence only in
exceptional circumstances. Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.
{¶ 42} Hudson was charged in Count Three with tampering with evidence (a weapon),
in violation of R.C. 2921.12(A)(1), which provides that “[n]o person, knowing that an official
proceeding or investigation is in progress, or is about to be or likely to be instituted, shall . . .
[a]lter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its
value or availability as evidence in such proceeding or investigation[.]”
{¶ 43} Delaney was shot twice, and he identified Hudson as the shooter. Delaney
testified that when the police arrived at the Advance Auto parking lot, Hudson took the gun and
got into his truck. Officer Lewis, who had arrived on the scene, also observed Hudson with his
arm extended. The officer then saw Hudson putting something in his waistband. The police did
not recover a weapon from the parking lot where Delaney and Hudson struggled over the gun.
During the pursuit, the police lost sight of Hudson and the vehicle for a time, and later found him
standing on a street corner. The police did not recover a weapon from Hudson, the truck, or
anywhere. There is no question that the Appellant used a firearm in these felonies and that he
apparently possessed it when he drove away from the parking lot; further, he did not have the
weapon when he was arrested later after a foot chase.
{¶ 44} However, the “inability of law enforcement to find the gun used in a shooting by 15
itself does not show that the defendant ‘altered, destroyed, concealed or removed’ it.” State v.
Beard, 6th Dist. Wood No. WD-08-037, 2009-Ohio-4412, ¶ 18, citing State v. Wooden, 86 Ohio
App.3d 23, 27, 619 N.E.2d 1132 (9th Dist. 1993). In Beard, the “state relied on a faulty
syllogism: Witness saw [defendant] fire a gun. The gun was never found. Therefore,
[defendant] must have tampered with the gun to make it unavailable as evidence against him.”
Id., ¶ 20. See also, e.g., State v. Sims, 2d Dist. Clark No. 2008 CA 92, 2009-Ohio-5875, ¶ 18-29;
State v. Spears, 178 Ohio App.3d 580, 2008-Ohio-5181, 899 N.E.2d 188, ¶ 23-24 (2d Dist.); Like,
2d Dist. Montgomery No. 21991, 2008-Ohio-1873, at ¶ 24.
{¶ 45} In the view of a majority of this court, Hudson’s conviction for tampering with
evidence (weapon) was against the manifest weight of the evidence. The jury may well have
concluded that the defendant disposed of the gun, but the manifest weight of the evidence did not
support a finding that Hudson was guilty of tampering with evidence (weapon).
{¶ 46} Nevertheless, given that Hudson was convicted by a jury, we cannot reverse his
conviction for tampering with evidence (weapon). Section 3(B)(3), Article IV of the Ohio
Constitution provides, in part, that “[n]o judgment resulting from a trial by jury shall be reversed
on the weight of the evidence except by the concurrence of all three judges hearing the cause.”
This court is not unanimous regarding whether the manifest weight of the evidence supports or
does not support Hudson’s conviction for tampering with evidence (weapon). Accordingly,
Hudson’s conviction must stand.
{¶ 47} Hudson’s third assignment of error is overruled.
V.
{¶ 48} Hudson’s fourth assignment of error states: 16
THE TRIAL COURT ERRONEOUSLY SENTENCED APPELLANT TO
CONSECUTIVE SENTENCES FOR TWO COUNTS OF FELONIOUS
ASSAULT.
{¶ 49} In his fourth assignment of error, Hudson contends that the trial court erred in
sentencing him to consecutive sentences for the two counts of felonious assault. In this regard,
Hudson contends that the two offenses are allied offenses of similar import and were committed
with the same animus.
{¶ 50} R.C. 2941.25 provides that:
(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.
(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.
{¶ 51} “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, 2010-Ohio-6314, 942 N.E.2d 1061, at syllabus. The Ohio
Supreme Court explained:
Under R.C. 2941.25, the court must determine prior to sentencing whether 17
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.
In determining whether offenses are allied offenses of similar import under
R.C. 2941.25(A), the question is whether it is possible to commit one offense and
commit the other with the same conduct, not whether it is possible to commit one
without committing the other. * * * If the offenses correspond to such a degree that
the conduct of the defendant constituting commission of one offense constitutes
commission of the other, then the offenses are of similar import.
If the multiple offenses can be committed by the same conduct, then the
court must determine whether the offenses were committed by the same conduct,
i.e., “a single act, committed 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.) Johnson at ¶ 47–51.
{¶ 52} A defendant who argues on appeal that the trial court erred by not merging
multiple offenses bears the burden to show that the offenses are allied pursuant to R.C. 2941.25.
State v. Hale, 2d Dist. Clark No. 11 CA 33, 2012-Ohio-2662, ¶ 24. 18
{¶ 53} Here, Hudson shot Delaney in the leg on two occasions while the two were
driving together on September 14, 2007. Both actions by Hudson constituted felonious assault,
and it is possible for these two identical offenses to have been committed by the same conduct.
{¶ 54} We therefore focus on whether the two shootings by Hudson constituted a single
act with a single animus. The Ohio Supreme Court has interpreted the term “animus” to mean
“purpose or, more properly, immediate motive.” State v. Logan, 60 Ohio St.2d 126, 131, 397
N.E.2d 1345 (1979); see also, e.g., State v. Beverly, 2d Dist. Clark No. 2011 CA 64,
2013-Ohio-1365, ¶ 42.
“Like all mental states, animus is often difficult to prove directly, but must be
inferred from the surrounding circumstances. * * * Where an individual’s
immediate motive involves the commission of one offense, but in the course of
committing that crime he must, A priori, commit another, then he may well possess
but a single animus, and in that event may be convicted of only one crime.”
Logan at 131, 397 N.E.2d 1345. “If the defendant acted with the same purpose,
intent, or motive in both instances, the animus is identical for both offenses.”
State v. Lewis, 12th Dist. Clinton No. CA2008-10-045, 2012-Ohio-885, ¶ 13.
Beverly at ¶ 42.
{¶ 55} Under the facts of this case, Hudson’s two felonious assaults were committed
separately and he had a separate animus for each shooting. Although both shootings occurred
while Hudson and Delaney were together in a vehicle, there was a significant delay between the
first and second shooting. The record reflects that Hudson’s “immediate motive” for the first
shooting was anger over his belief that Delaney may have taken his gun and refused money. 19
After Hudson drove toward oncoming traffic, Hudson shot Delaney a second time in response to
the fact that Delaney attempted to grab the steering wheel. Thus, the record demonstrates that
Hudson’s actions were committed separately and that he had a separate animus for each felonious
assault. Accordingly, the two counts of felonious assault were not subject to merger under R.C.
2941.25.
{¶ 56} Hudson’s fourth assignment of error is overruled.
VI. Conclusion
{¶ 57} The trial court’s judgment will be affirmed.
DONOVAN, J., concurs.
WELBAUM, J., concurring:
{¶ 58} I concur with most of the majority opinion and affirmance, but very respectfully
disagree with its conclusion that Hudson’s Third Assignment of Error, but for a provision of the
Ohio Constitution, should otherwise be sustained. I believe Hudson’s conviction for Tampering
With Evidence was not against the manifest weight of the evidence. As noted by the majority, a
split decision by a court of appeals reversing a conviction resulting from a jury trial on the
manifest weight of the evidence is unconstitutional pursuant to Section 3(B)(3), Article IV, Ohio
Constitution. State v. Miller, 96 Ohio St.3d 384, 2002-Ohio-493, 775 N.E.2d 498, ¶ 39; State v.
Broyles, 5th Dist. Richland No. 2009CA0072, 2010-Ohio-1837. Therefore, Hudson’s conviction
for the same must be affirmed.
{¶ 59} I very respectfully disagree with the majority on this issue for the following
reasons. As we stated in State v. Arthur Hill, 2d Dist. Montgomery No. 25274, 2013-Ohio-2016, 20
¶ 16, the standard for review of Hudson’s claim gives substantial deference to the trier of fact:
“When a conviction is challenged on appeal as being against the
weight of the evidence, an appellate court must review the entire
record, weigh the evidence and all reasonable inferences, consider
witness credibility, and determine whether, in resolving conflicts in
the evidence, the trier of fact ‘clearly lost its way and created such a
manifest miscarriage of justice that the conviction must be reversed
and a new trial ordered.’” State v. Hill, 2d Dist. Montgomery No.
25172, 2013-Ohio-717, ¶ 8, quoting State v. Thompkins, 78 Ohio
St.3d 380, 387, 678 N.E.2d 541 (1997). “A judgment should be
reversed as being against the manifest weight of the evidence ‘only
in the exceptional case in which the evidence weighs heavily against
the conviction.’ ” Id., quoting State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 60} The evidence shows that Hudson disposed of the firearm as he fled during a high
speed chase from police after he had twice shot and threatened Delaney. The pistol was never
found. Nonetheless, the jury may have reasonably inferred that Hudson intentionally threw it
away during his flight in violation of the statute, to wit:
No person, knowing that an official proceeding or investigation is in
progress, or is about to be or likely to be instituted, shall do any of the following:
(1) Alter, destroy, conceal, or remove any record, document, or thing, with
purpose to impair its value or availability as evidence in such proceeding or 21
investigation[.] R.C. 2921.12(A)(1).
{¶ 61} The record contains no basis upon which to conclude that the jury clearly lost its
way and created a manifest miscarriage of justice. Instead, the evidence in the record indicates
that Hudson possessed and disposed of the firearm in violation of the statute.
{¶ 62} According to Delaney, when the police arrived, he (Delaney) let go of the gun,
and Hudson took it. The police officer who arrived on the scene also observed Hudson with his
arm extended. The officer then saw Hudson putting something in his waistband. In addition,
the police did not recover a weapon from the parking lot where Delaney and Hudson struggled
over the gun.
{¶ 63} During the pursuit, the police lost sight of Hudson’s vehicle for a time, and then
later found him standing on a street corner. The police did not recover a weapon from Hudson or
from the truck. A reasonable inference from the facts is that Hudson disposed of the weapon at
some point during the chase for the purpose prohibited by the statute, probably when the police
lost sight of the vehicle. As a result, I believe the conviction for Tampering with Evidence is not
against the manifest weight of the evidence.
{¶ 64} I would overrule Hudson’s Third Assignment of Error on its merits. For these
reasons, I very respectfully disagree with the majority. As a result of the reasoning expressed in
this opinion, the Ohio Constitution requires that this conviction be affirmed.
Copies mailed to:
Lisa M. Fannin Adam James Stout 22
Hon. Douglas M. Rastatter