State v. West

2013 Ohio 487

Opinion

[Cite as State v. West, 2013-Ohio-487.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 98274

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

REONTE D. WEST DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-555955

BEFORE: Kilbane, J., Celebrezze, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: February 14, 2013 ATTORNEY FOR APPELLANT

Tyresha Brown-O’Neal Brown-O’Neal Law 420 Lakeside Place 323 Lakeside Avenue, West Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor Sherrie S. Royster Assistant County Prosecutor The Justice Center - 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 MARY EILEEN KILBANE, J.:

{¶1} Defendant-appellant, Reonte West, appeals from his convictions for

felonious assault, vandalism, possession of a firearm in a liquor permit premises, and

having a weapon while under disability. This court notes that the indictment in this

matter originally identified the defendant as “Rayonte West,” the fraternal twin brother of

defendant herein. On December 9, 2011, the State moved to amend the indictment to

identify the defendant as “Reonte West,” and explained that it had made a typographical

error in identifying defendant as “Rayonte West.” This court further recognizes that the

State’s motion to amend was not ruled upon in the lower court, but the motion was

unopposed. In addition, the Cleveland Municipal Court charging documents and the

probable cause determination were correctly issued in the name of “Reonte West.” The

common pleas trial court file, transcript of proceedings, the brief of the appellant, and the

brief of the appellee all correctly identify the defendant as “Reonte West.” Other

portions of the record incorrectly identify the defendant as “Rayonte West.” Therefore,

we have sua sponte corrected the record in this appeal and in the Cuyahoga C.P. No.

555955 to identify “Reonte West” as the defendant in this matter.

{¶2} On November 7, 2011, following an alleged altercation with Michael

Calhoun (“Calhoun”) at Whitmore’s Barbeque (“Whitmore’s”), 15301 Kinsman Road in

Cleveland, defendant was indicted pursuant to a six-count indictment. Counts 1 and 2 charged him with the felonious assault of Calhoun in violation of R.C. 2903.11(A)(1)

(causing serious physical harm), and felonious assault in violation of R.C. 2903.11(A)(2)

(causing physical harm with a deadly weapon). Count 3 charged him with vandalism of

Whitmore’s in violation of R.C. 2909.05(B)(1)(b), and Count 4 charged him with

possessing a firearm in a liquor permit premises in violation of R.C. 2923.121. The first

four counts also set forth one- and three-year firearm specifications. Count 5 charged

defendant with having a weapon while under disability in violation of R.C.

2923.13(A)(3), and Count 6 charged him with criminal damaging in violation of

R.C. 2909.06(A)(1).

{¶3} Defendant pled not guilty and waived his right to a jury trial as to the charge

of having a weapon while under disability. The matter then proceeded to a jury trial on

March 7, 2012.

{¶4} The State’s evidence demonstrated that on September 15, 2011, at

approximately 10:45 p.m., a shooting occurred at Whitmore’s, and patron Calhoun was

struck in the leg.

{¶5} Calhoun testified that he frequents Whitmore’s regularly. He acknowledged

that patrons, including himself, are usually patted down for weapons before they are

permitted to enter the bar. He stated that he does not carry a gun. Calhoun further

testified that he knows the defendant from the neighborhood, and that defendant’s twin

brother, Rayonte, is his friend. On the night of September 15, 2011, Calhoun and an

acquaintance, George Grizzley (“Grizzley”), went to Whitmore’s to sell concert tickets to people at the bar. A security guard was on duty and patted down patrons for weapons.

Calhoun ordered food in the restaurant section in the eastern half of the establishment and

then went to the bar in the western half and spoke with the bartender. Another friend,

Ravon Crockett (“Crockett”) was also there. Defendant and his older brother,

Rayshawn, entered the bar. According to Calhoun, defendant “stayed back, faked like he

was going to walk past me, swung on me.” Calhoun and defendant began to fight, and

his brother Rayshawn “faked like he had a gun.” Calhoun backed away, and patrons

began to flee through the rear exit door. Defendant and Rayshawn walked to the front

door, and Calhoun and his friends went toward the front door to watch them. Someone

then warned Calhoun to watch out. According to Calhoun, defendant reentered the bar

from the area of the emergency exit and aimed a gun at him. Calhoun began to run

toward the back of the bar, but he could not get away. He heard a gunshot, and his legs

went numb. Calhoun’s friends carried him to the kitchen portion of the establishment

and then called for an ambulance. Calhoun testified that he heard one shot inside

Whitmore’s then several other shots coming from outside. He then heard glass breaking.

{¶6} Calhoun was transported to MetroHealth Hospital where he received

surgery on his leg. While in the hospital, Calhoun determined that he was going to

“handle [the matter] in the street,” so he told Cleveland police officers that he did not

know who shot him. Later, however, he changed his mind, and when a detective

indicated that the police received information that “Rayonte” was the shooter, Calhoun informed the detective that the assailant was actually “Reonte,” and identified defendant

from a photo array.

{¶7} Calhoun acknowledged that he and the defendant are both friends with a

female bartender and that he and defendant had argued prior to September 15, 2011. He

indicated, however, that they never had a physical confrontation prior to that date.

Calhoun denied that he called for someone to get his gun. Calhoun also denied that his

friend Crockett had a weapon and denied that Crockett was the person who had shot him.

{¶8} Grizzley testified that he and Calhoun were together at Whitmore’s, and

that a security guard had searched each patron for weapons upon entry. He then stepped

outside with Crockett. Someone told Grizzley that one of his relatives was involved in a

fight so he went back inside. By this point, the fight had ended and he told Calhoun to

be calm. Grizzley felt someone behind him and when he turned around, he saw someone

aiming a weapon at them. The individual fired a shot, and Grizzley fell to the floor for

safety. Grizzley acknowledged that it was dark in the bar and that he could not identify

the assailant, but he was certain that he did not see Calhoun or Crockett with a gun.

{¶9} Roneshia Brown (“Brown”), the barmaid on duty that night, testified that

she saw two men fighting with Calhoun, then afterward, a gunshot was fired into

Whitmore’s from the area of the exit door. Calhoun was struck in the leg so Brown

called police. On cross-examination, Brown stated that the security guard was supposed

to check identification and frisk every patron who enters, but he does not always do his job well. She also stated that Crockett had been outside when the fight occurred, and he

then re-entered the bar before the shooting started. She denied that Calhoun asked for

his gun.

{¶10} Vanessa Whitmore (“Vanessa”), vice president of Whitmore’s, testified that

the establishment has an Ohio Liquor License and had a valid license on the date of the

shooting. Vanessa further established that the emergency exit is unlocked during

business hours and that it is possible to enter the establishment from that door.

{¶11} Crockett testified that he was at the bar with Calhoun and Grizzley. He

stepped outside but came back inside the bar when he learned that Calhoun was involved

in a fight. Crockett observed an individual restraining Calhoun, and Calhoun explained

that he had just gotten into a fight with defendant. Crockett walked to the front door to

see where defendant had gone. He then heard a gunshot and, when he re-entered the

bar, Calhoun collapsed in his arms. At that point, an older man warned the group not to

go outside because he had seen men with guns running through the parking lot.

{¶12} Crockett went outside to confront the security guard about what had

happened, and he observed defendant at the car wash adjacent to Whitmore’s. Crockett

testified that defendant began shooting at him. One of the bullets struck the front

window of the bar. Crockett ran inside and joined others hiding behind the restaurant

counter as defendant continued to shoot at the building. Crockett testified that he did not

have a weapon, that he did not shoot Calhoun, and that Calhoun was not accidentally shot by one of his friends following the initial argument with defendant. He additionally

stated that the security guard searched everyone who entered the premises.

{¶13} Crockett acknowledged that prior to this incident, Calhoun did not like the

defendant, but he denied that Calhoun wished to harm the defendant.

{¶14} Cleveland police officers responded to the scene and obtained information

that the shooter was Rayonte West, defendant’s twin brother, and arrested him.

Cleveland Police Detective Michael Shay subsequently spoke with Calhoun who

identified Reonte as the shooter. Detective Gerald Sowul then prepared a six-person

photo array that contained defendant’s photograph, and Calhoun identified defendant as

the assailant. However, Calhoun refused to make a written statement.

{¶15} Cleveland police officers recovered a shell casing from a .40 caliber

semi-automatic handgun just inside the emergency door of the bar on the western half of

the establishment, and two shell casings outside and across the street from the front of the

premises. They also found a slug and glass shards inside the bar, beneath the front

window, and another slug inside the bar near the jukebox. The officers also

photographed a pool of blood on the floor of the restaurant portion in the eastern half of

establishment.

{¶16} Patron Jermaine Henderson (‘Henderson”) testified that he was ordering

food and heard someone shout that a man had a gun. Henderson fled out the back exit

and hid near a dumpster. He heard shots being fired through Whitmore’s. As

Henderson left, he observed bullet holes in the driver’s side passenger door of his Ford F150 truck that was parked facing southward or away from the Whitmore’s. The bullet

penetrated the outer portion of his truck door and wedged toward the door frame.

{¶17} Defendant presented two witnesses, DeMarco Clayton (“Clayton”) and

Deanna Gibson (“Gibson”). Clayton testified that he observed defendant alone in the

parking lot of Whitmore’s. Defendant was talking on his cell phone and did not re-enter

the establishment.

{¶18} Gibson testified that she had plans to meet defendant at Whitmore’s bar on

September 15, 2011. The security guard checked her for weapons and she waited for

defendant. She then watched as the security guard also searched him for weapons.

Neither had a gun. According to this witness, Calhoun approached defendant from

behind, hit him in the face, and the two men started fighting. Calhoun then yelled for

someone to give him his gun and said that he was going to shoot defendant. Defendant

then ran out of the bar as gunshots were fired at him. Gibson further testified that shots

continued to be fired from inside the bar after the defendant fled. She stated that she

believes that one of the men with Calhoun accidentally shot Calhoun while firing at

defendant.

{¶19} On March 14, 2012, defendant was convicted of both counts of felonious

assault, vandalism, and illegally possessing a firearm in liquor permit premises, as well as

the firearm specifications. The jury acquitted defendant of the charge of criminal

damaging, and the court convicted defendant of the charge of having a weapon while

under disability. {¶20} The trial court referred the matter for a presentence investigation and report.

On April 18, 2012, the court held a sentencing hearing. On that date, the trial court

sentenced defendant to a total of nine years of imprisonment. The court merged the

felonious assault convictions, and sentenced defendant to six years of imprisonment for

felonious assault and three years of consecutive time for the firearm specification. The

court also sentenced defendant to a total of four years for the vandalism charge (one year,

plus three years for the firearm specification); six years for having a firearm in liquor

permit premises (three years, plus three years for the firearm specification); and three

years for having a weapon while under disability. All terms were ordered to be served

concurrently with each count but consecutive with the firearm specification for a total

sentence of nine years, and also imposed three years of mandatory postrelease control

sanctions. Defendant now appeals and assigns three errors for our review.

{¶21} Defendant’s first assignment of error states:

The convictions are against the manifest weight and the sufficiency of the

evidence.

{¶22} Within this assignment of error, defendant maintains that the State failed to

prove that he, rather than one of Calhoun’s friends, was the assailant who fired shots in

the bar and shot Calhoun.

{¶23} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460,

2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of the

evidence as follows: Raising the question of whether the evidence is legally sufficient to support

the jury verdict as a matter of law invokes a due process concern. State v.

Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing

such a challenge, “[t]he relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d

492, paragraph two of the syllabus, following Jackson v. Virginia (1979),

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.

{¶24} In this matter, Calhoun testified that the defendant left the bar after the

initial fight. Calhoun then went to the front of the bar to watch for him, but defendant

suddenly re-entered from the area of the emergency exit and aimed a gun at him.

Calhoun began to run toward the back of the bar, but he could not get away. Although

Calhoun did not initially cooperate with the police, he later identified Reonte as his

assailant and identified him from a photo array. He testified at trial that he was positive

that defendant is the person who shot him. In addition, Crockett testified that following

the initial fight, he walked to the front door to see where defendant had gone. He then

heard a gunshot and, when he re-entered the bar, he found that Calhoun had been shot.

As Crockett went outside to confront the security guard about what had happened, he

observed defendant at the car wash adjacent to Whitmore’s. According to Crockett,

defendant began shooting at him, striking the front window of the bar. {¶25} In addition, the physical evidence corresponded with the testimony from

these witnesses. Calhoun was struck in the back of his calf, which is consistent with his

testimony that as he watched for defendant toward the front window of the bar, defendant

re-entered from the emergency exit and began firing a handgun. Further, Cleveland

police officers recovered a shell casing from a .40 caliber semi-automatic handgun just

inside the emergency door of the bar on the western half of the establishment, and two

shell casings outside and across the street from the front of the premises. They also

found a slug and glass shards inside the bar, beneath the front window, and another slug

inside the bar near the jukebox.

{¶26} Therefore, we conclude that a rational trier of fact, viewing the evidence in a

light most favorable to the prosecution, could have concluded that defendant was the

assailant in the shooting of Calhoun and the additional shooting that occurred inside and

toward Whitmore’s. The State presented sufficient evidence to establish that defendant

knowingly caused serious physical harm to Calhoun in violation of R.C. 2903.11(A)(1),

that he knowingly caused physical harm to Calhoun by means of a handgun, in violation

of R.C. 2903.11(A)(2), that he caused physical harm to the bar with a deadly weapon, in

violation of R.C. 2909.05(B)(1)(b), and that he possessed a firearm in liquor permit

premises in violation of R.C. 2923.121. There is also sufficient evidence to establish that

while defendant had the firearm, he was subject to a disability in connection with Case

No. CR-506151, as alleged by the State. There is sufficient evidence to support the

convictions in this matter. {¶27} With regard to a manifest weight challenge, the Ohio Supreme Court in

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, states:

[T]he reviewing court asks whose evidence is more persuasive — the state’s or the defendant’s? * * * “When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees with the factfinder’s resolution of the conflicting testimony.” [Thompkins at 387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652.

{¶28} Moreover, an appellate court may not merely substitute its view for that of

the jury, but must find that “‘in resolving conflicts in the evidence, the jury clearly lost its

way and created such a manifest miscarriage of justice that the conviction must be

reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight

grounds is reserved for “‘the exceptional case in which the evidence weighs heavily

against the conviction.’” Id., quoting Martin.

{¶29} In this matter, the State’s evidence demonstrated that defendant exited the

bar after fighting with Calhoun and that he then re-entered through the emergency door

and began firing, striking Calhoun in the back of his leg. The defendant then fled out of

the building to the adjacent parcel, then shot at Crockett, shattering Whitmore’s front

window. Moreover, the testimony of the each of the State’s witnesses was corroborated

by the physical evidence, including shell casings located just inside the emergency exit

door and a spent shell located among glass fragments inside the bar beneath the front

window. The evidence presented by the defense, on the other hand, conflicted with the physical evidence, including shell casings located across the street from Whitmore’s and

broken glass found inside the restaurant. Therefore, we are unable to conclude that the

jury clearly lost its way and created such a manifest miscarriage of justice in convicting

defendant in this matter, or that this is the exceptional case in which the evidence weighs

heavily against the conviction. The convictions are not against the manifest weight of

the evidence.

{¶30} The first assignment of error is without merit.

{¶31} Defendant’s second assignment of error states:

The Appellant was unduly prejudiced, at sentencing, by the testimony of

[two Cleveland police officers] with regard to the past unconfirmed conduct

of [Defendant] and his brother Rayonte West.

{¶32} Within this assignment of error, defendant complains that the remarks of

two Cleveland police officers regarding defendant’s uncharged “other acts” prejudiced

his sentencing hearing.

{¶33} In State v. Blake, 3d Dist. No. 14-03-33, 2004-Ohio-1952, the court held

that a trial court may not impose a sentence that is predicated upon the court’s belief that

the defendant is guilty of other offenses where there is no evidence that he committed

those offenses.

The Blake court explained that

“[a]lthough all of these things can be considered to determine likelihood to recidivate, they cannot be the sole basis for imposing the maximum sentence. To allow that is to permit [the defendant] to be convicted of those offenses without a trial or an opportunity to defend himself by cross-examining the witnesses.” Accord State v. Fisher, 11th Dist. No. 2002-L-020, 2003-Ohio-3499, State v. Park, 3d Dist. No. 3-06014, 2007-Ohio-1084.

{¶34} In this matter, the record reflects that after the verdict was announced, the

trial court referred the matter for a presentence investigation and report. The court then

held a sentencing hearing approximately one month later, on April 18, 2012. At that

time, the court advised defendant that it had read the letters submitted on his behalf, and

the court then permitted two Cleveland police officers to address the court. The officers

stated that the police have been to defendant’s family’s home on multiple occasions, that

defendant’s “name [comes] up over and over again regarding violent situations, usually

towards women,” and that the family is uncooperative with police.

{¶35} In this matter, after hearing from the police officers and from the defendant,

the trial court stated as follows:

The Court has considered all the relevant seriousness and recidivism factors, the overriding purposes and principles of sentencing; namely to protect the public from future crime by defendant and others, and also to punish the defendant using the minimum sanctions * * *

[T]his was a bad case, in my view. I mean, not only were the injuries severe, I think there were several operations that required skin grafts.

It was a situation where anyone could have been hurt or killed, because they were in a bar, and I just think that’s reckless. I think that is reflective of not caring about human life.

I mean, it’s just beyond my comprehension that someone would just start firing a gun in a bar with plenty of people in there.

I mean, if you had a beef with the guy, it’s bad enough that you’re trying to hurt him, but you’re hurting, trying to hurt him in a manner where you can hurt any innocent bystander. * * * I mean, I don’t understand, in the time that we live, when there’s more opportunities than ever, why it’s almost like you young men are living in the dark ages, shooting each other up and shooting things up and just random craziness. It just doesn’t make sense. So I do believe that a minimum sentence would be inappropriate. I believe that the Court must protect the public from people who will react to situations like this, in the manner that you reacted.

{¶36} From the foregoing, the trial record indicates that the court did not consider

the remarks of the officers when it fashioned its sentence, as the court did not mention the

other uncharged conduct or reference the officers’ remarks regarding defendant’s alleged

general propensity for violence. To the contrary, the court required a presentence

investigation, considered letters offered on defendant’s behalf, and reflected at length

upon the seriousness of the offenses, the harm that defendant had caused, and the need to

protect the public. In any event, the trial court did not impose a maximum term on any

count. There is, therefore, no basis upon which we can conclude that the officers’ remarks

tainted the proceedings. State v. Treesh, 90 Ohio St.3d 460, 488, 2001-Ohio-4, 739

N.E.2d 749.

{¶37} Moreover, applying the two-step approach for reviewing reviewing a

felony sentence set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

N.E.2d 124, ¶ 4, we find no error. That is, examining all applicable rules and statutes in

imposing the sentence, we conclude that the sentence is not clearly and convincingly

contrary to law, because the six-year term imposed for felonious assault, a felony of the

second degree, is within the two to eight year statutory range for that offense. R.C.

2903.11 and 2929.14(A). Similarly, the one-year term for vandalism, a fifth-degree felony, is within the six to twelve month statutory range for this offense under

R.C. 2909.05(B)(1)(b) and R.C. 2929.14(A)(5). The three-year term for illegally

possessing a firearm in liquor permit premises, a third-degree felony, is within the twelve

to sixty month statutory range for this offense under R.C. 2909.05(E) and R.C.

2929.14(A)(3). The three-year term for having a weapon while under disability, a third

degree felony under R.C. 2923.13(B), is within the nine to thirty-six month range for this

offense. R.C. 2929.14(A)(3)(b). Therefore, the trial court imposed a sentence within

the permissible statutory ranges herein, never imposing a maximum term, and we find no

abuse of discretion in connection with the sentence terms. State v. Foster, 109 Ohio

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at paragraph seven of the syllabus. The second

assignment of error is without merit.

{¶38} Defendant’s third assignment of error states:

The trial court failed to merge counts 2, 4, & 5 of the indictment.

{¶39} In this assignment of error, defendant asserts that his convictions for

felonious assault under R.C. 2903.11(A)(2) (causing physical harm with a deadly

weapon), possessing firearm in liquor permit premises in violation of R.C. 2923.121, and

having a weapon while under disability in violation of R.C. 2923.13(A)(3) are allied

offenses of similar import.

{¶40} Under Ohio law, “[w]here 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.” R.C. 2941.25(A). But

“[w]here 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.” R.C. 2941.25(B).

{¶41} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

the Ohio Supreme Court redefined the test for determining whether two offenses are

allied offenses of similar import subject to merger under R.C. 2941.25. The Johnson

court expressly overruled State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d

699, which required a “comparison of the statutory elements in the abstract” to determine

whether the statutory elements of the crimes correspond to such a degree that the

commission of one crime will result in the commission of the other. Pursuant to

Johnson, the conduct of the accused must be considered in determining whether two

offenses should be merged as allied offenses of similar import under R.C. 2941.25. Id., at

the syllabus. The determinative inquiry is two-fold: (1) “whether it is possible to commit

one offense and commit the other with the same conduct,” and (2) “whether the offenses

were committed by the same conduct, i.e., ‘a single act, committed with a single state of

mind.’” Id. at ¶ 48-49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569,

895 N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting). “If the answer to both questions is yes,

then the offenses are allied offenses of similar import and will be merged.” Id. at ¶ 50.

“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.” Id. at ¶ 51.

{¶42} In the instant case, for the purposes of sentencing, the trial court merged the

felonious assault convictions in Counts 1 and 2 that pertained to Calhoun. Defendant

claims that the felonious assault under R.C. 2903.11(A)(2) (causing physical harm to

Calhoun with a deadly weapon), possessing a firearm in a liquor permit premises in

violation of R.C. 2923.121, and having a weapon while under disability in violation of

R.C. 2923.13(A)(3) are allied offenses of similar import.

{¶43} In State v. Cowan, 8th Dist. No. 97877, 2012-Ohio-5723, this court

considered whether the offenses of felonious assault, having a weapon while under

disability, improper handling of a firearm in a motor vehicle, and discharge of a firearm

near a prohibited premises, were committed with one animus and should have merged.

The court stated:

The felonious assault conviction was the result of Cowan shooting at Robert. However, the improper handling of a firearm in a motor vehicle and discharge of a firearm on or near a prohibited premises occurred approximately one hour before. The improper handling of a firearm concerned Cowan’s driving away with a loaded revolver after stranding his passengers. The discharge of a firearm concerned Cowan shooting his gun twice at the ground while sitting in the vehicle, after threatening Artemus. Therefore, these offenses each involved a separate animus and could not result in the commission of each other under these factual circumstances.

We also conclude that the animus of having a weapon under disability is making a conscious choice to possess a weapon. Here, Cowan necessarily acquired the guns sometime prior to committing the other crimes. The fact that he then used the weapons to commit the other crimes does not absolve Cowan of the criminal liability that arises solely from his decision to illegally possess the weapons. See State v. Jones, 1st Dist. No. C-110059, 2011-Ohio-6633; State v. Dillingham, 12th Dist. No. CA2011-03-043, 2011- Ohio-6348; State v. Bray, 2d Dist No. 2010 CA 14, 2011-Ohio-4660.

Id.; accord State v. Elder, 5th Dist. No. 2011-CA-00058, 2011-Ohio-4438 (animus for

possessing a weapon under disability is different from the animus for felonious assault).

{¶44} We further note that in State v. Young, 2d Dist. No. 23642, 2011-Ohio-747,

the court addressed a bar fight that escalated into a fatal shooting and considered whether

the defendant could be convicted and sentenced for carrying a concealed weapon, illegal

possession of a firearm in a liquor permit establishment, and having a weapon while

under disability. The court analyzed the issue as follows:

Young, a person under disability, necessarily acquired a handgun sometime before concealing it on his person. Thus, the elements of proof for having a weapon while under disability were satisfied when Young acquired the firearm. His subsequent conduct of concealing the handgun constituted a separate and distinct act from initially acquiring the weapon. Similarly, Young acquired the handgun and concealed it on his person before entering a liquor-permit establishment. His subsequent conduct of bringing the weapon into a bar constituted a separate and distinct act from acquiring and concealing it. As a result, each of these offenses was committed separately under R.C. 2941.25(B). Therefore, even if the crimes were allied offenses under R.C. 2941.25(A), the trial court did not err in convicting and sentencing Young separately for carrying a concealed weapon, illegal possession of a firearm in a liquor-permit establishment, and having a weapon while under disability.

Id. at ¶ 49.

{¶45} Analyzing defendant’s conduct with these concepts in mind, we note that

defendant, a person under a weapons disability, had a gun ready at hand on the night of

September 15, 2011. He was in possession of that gun prior to entering the bar through the emergency exit. Once inside with the gun, he then shot Calhoun, fled from the bar,

then continued to fire shots into Whitmore’s from across the street. Therefore, the record

demonstrates that the offense of having a weapon while under a disability had already

occurred before defendant entered the bar. Thereafter, he possessed the gun inside the

bar, before committing the offense of felonious assault upon Calhoun. Therefore, we

conclude that defendant’s conduct resulted in the commission of three distinct offenses

committed separately and with a separate animus as to each. He was therefore properly

convicted and sentenced on the three individual charges of felonious assault on Calhoun,

possession of a firearm in a liquor permit premises, and having a weapon while under

disability pursuant to R.C. 2941.25(B).

{¶46} The third assignment of error is without merit.

{¶47} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE FRANK D. CELEBREZZE, JR., P.J., and PATRICIA A. BLACKMON, J., CONCUR