[Cite as State v. Whipple, 2012-Ohio-2938.] IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110184 TRIAL NO. B-0903962-A Plaintiff-Appellee :
vs. : O P I N I O N.
FONTA WHIPPLE, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: June 29, 2012
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W. Springman, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Sarah M. Schredargus, for Defendant-Appellant.
Please note: This case has been removed from the accelerated calendar. OHIO FIRST DISTRICT COURT OF APPEALS
D INKELACKER , Judge.
{¶1} Following a jury trial, defendant-appellant Fonta Whipple and co-
defendants Jashawn Clark and Eric Long were convicted of several offenses stemming
from two shootings in March 2009. The first shooting took place at the home of
Mark Keeling and Keyonni Stinson on Matthews Drive in Lincoln Heights, Ohio. For
this incident, Whipple was convicted of one count of having weapons while under
disability, one count of improperly discharging a firearm, and three counts of felonious
assault. The second shooting occurred on Interstate 75 between the Sharon Road and
Glendale Milford Road exits. For this incident, Whipple was convicted of one count of
having weapons while under disability and two counts of aggravated murder.
{¶2} Whipple now appeals, raising nine assignments of error.1
The Matthews Drive Shooting
{¶3} The evidence adduced at trial reflects that in the early hours of March 4,
2009, Keeling and Stinson were celebrating a birthday with their friend Kyrie Maxberry
at the Garage Bar in Sharonville, Ohio. They left the bar sometime after 2:00 a.m. for
Keeling’s and Stinson’s home on Matthews Drive in nearby Lincoln Heights. As they
approached Matthews Drive, they noticed Whipple driving a gray van. Clark was in the
front passenger seat of the van, and Long was in the backseat. Keeling testified that he
had felt concerned when he saw Whipple, Clark, and Long because of something that
had occurred when he and the three men were at a local nightclub a few days earlier.
Keeling did not elaborate on that incident.
{¶4} When Keeling, Stinson, and Maxberry reached Keeling’s and Stinson’s
home, it appeared that Whipple had followed them. Moments after they hurried inside,
bullets burst through the front walls of the home. Keeling was shot in the back and
1 Clark and Long have appealed under the case numbers C-110137 and C-110160, respectively.
2 OHIO FIRST DISTRICT COURT OF APPEALS
neck, Maxberry was shot in the face, and Stinson was nearly shot while ducking for
cover. At the scene, police later recovered over two dozen casings shot from three high-
caliber weapons.
{¶5} After a few days passed, Stinson returned to Matthews Drive to clean
her home and to gather her belongings. While she was there, she saw Whipple slowly
driving down Matthews Drive in the same gray van with Clark and Long.
The Interstate 75 Shooting
{¶6} Two weeks later, on March 17, 2009, Alisha Kloth rented a silver Dodge
Caliber for Whipple—the father of her young child—at his request.
{¶7} Later that night, a fight broke out at the Garage Bar. Security guards
intervened and herded several individuals outside the bar, including Scott Neblett.
Across the street, in a Cracker Barrel restaurant parking lot, Neblett exchanged heated
words with Long’s cousin Trenton Evans. The altercation ended when Evans
brandished a firearm. Evans then left the parking lot and walked to an adjacent
Thortons gas station.
{¶8} Meanwhile, standing outside the bar, Derreyl Anderson saw Whipple,
Clark, and Long with Jackie Thomas in a silver Dodge Caliber rolling through the
entrance to the Cracker Barrel parking lot. Anderson also saw Neblett and another man
walking toward a red TrailBlazer.
{¶9} When Evans arrived at Thortons, he saw Whipple, Clark, and Long with
Thomas sitting in a silver Dodge Caliber. As he approached the four men, he heard
them talking about his altercation with Neblett, who soon walked inside the gas station.
{¶10} Shortly thereafter, Anderson noticed the Caliber that he had seen
Whipple driving earlier following the TrailBlazer that he had observed Neblett
approach. Around the same time, William Gray was driving to work on southbound
3 OHIO FIRST DISTRICT COURT OF APPEALS
Interstate 75 when he saw a silver Dodge Caliber and a red Chevrolet Blazer racing up
the on-ramp from Sharon Road. Both vehicles cut in front of his pickup truck. The
Caliber darted back into the right lane, and the Blazer remained in the left lane. Gray
then saw muzzle flashes on the driver’s side of the Caliber and heard multiple gunshots.
The Caliber sped off the highway at the Glendale Milford Road exit while the Blazer
spun out of control, hit a guardrail, and rolled over several times. Police later found
Neblett and Keith Cobb dead in the Blazer, along with several casings shot from three
high-caliber weapons.
{¶11} Later that morning, police discovered the Caliber that Kloth had rented
for Whipple abandoned in Lincoln Heights riddled with bullet holes. The Caliber also
contained hospital discharge papers indicating that Whipple had sustained a gunshot
wound to his hand.
{¶12} A ballistics expert testified that he had analyzed the casings found at
both crime scenes, and had concluded that two of the weapons used in the Interstate 75
shooting were also used in the Matthews Drive shooting. The expert could not rule out
that the third weapon used in each shooting was the same one.
Joinder
{¶13} In his first assignment of error, Whipple argues that the trial court erred
in granting the state’s motion to join the counts concerning both shootings for one trial.
No such motion, however, appears in the record. Instead, the state charged Whipple in
connection with each shooting under one indictment. Nevertheless, Whipple moved to
sever the counts with respect to each shooting. We shall, therefore, consider whether
the trial court erred in denying this motion.
{¶14} The state may charge two or more offenses in the same indictment
where they “are of the same or similar character, or are based on the same act or
4 OHIO FIRST DISTRICT COURT OF APPEALS
transaction, or are based on two or more acts or transactions connected together or
constituting parts of a common scheme or plan, or are part of a course of criminal
conduct.” Crim.R. 8(A). “Joinder is the rule rather than the exception, and it is favored
by the law.” State v. Howard, 1st Dist. No. C-100240, 2011-Ohio-2862, ¶ 15, citing
State v. Franklin, 62 Ohio St.3d 118, 122, 80 N.E.2d 1 (1991). But where “it appears
that a defendant or the state is prejudiced by a joinder of offenses or of defendants in an
indictment * * * the court shall order an election or separate trial of counts, grant a
severance of defendants, or provide such other relief as justice requires.” Crim.R. 14.
“The defendant, however, bears the burden of proving prejudice and of proving that the
trial court abused its discretion in denying severance.” State v. Torres, 66 Ohio St.2d
340, 421 N.E.2d 1288 (1981), syllabus. The state may rebut a defendant’s claim of
prejudice by showing either that (1) the evidence of the joined offenses would be
admissible in separate trials as “other acts” under Evid.R. 404(B), or (2) the “evidence
of each crime joined at trial is simple and direct.” State v. Lott, 51 Ohio St.3d 160, 163,
555 N.E.2d 293 (1990).
{¶15} Whipple maintains that by not severing the counts regarding the
Matthews Drive shooting from the counts regarding the Interstate 75 shooting, the state
impermissibly attempted “to show his character as a thug with a gun and prove he acted
in conformity therewith.” Appellant’s Brief at 5.
{¶16} The Ohio Supreme Court, however, has held that joinder of counts
concerning a murder and an assault was proper where the crimes were committed
three days apart in the same city with the same weapon. State v. Williams, 73 Ohio
St.3d 153, 158, 652 N.E.2d 721 (1995). The court concluded that evidence tending to
show that the same gun was used in both crimes was pertinent to the issue of identity
under Evid.R. 404(B). Id. Accord State v. Martin, 151 Ohio App.3d 605, 2003-Ohio-
5 OHIO FIRST DISTRICT COURT OF APPEALS
735, 784 N.E.2d 1237, ¶ 44 (3d Dist.) (holding that joinder of aggravated-menacing and
aggravated-murder counts was proper where the offenses were committed five months
apart and witnesses connected the defendant to either purchasing or possessing the
weapon used in each incident).
{¶17} In this case, both shootings were of the same or similar character and
were part of a course of criminal conduct. They occurred within two weeks of each
other and within a few miles of the Garage Bar. In addition, witnesses placed Whipple
in the immediate vicinity of the victims shortly before each shooting. Thus, evidence
tending to show that they were committed with the same weapons helped to identify
Whipple as the perpetrator of both crimes. Moreover, the evidence presented with
respect to each shooting was simple and direct “such that the jury was capable of
segregating the proof on each charge.” Id. at ¶ 45, citing State v. Roberts, 62 Ohio St.2d
170, 175, 405 N.E.2d 247 (1980).
{¶18} We, therefore, hold that the Whipple was not prejudiced by the joinder
of these counts in the indictment, and that the trial court did not abuse its discretion in
denying his motion to sever. The first assignment of error is overruled.
Weight and Sufficiency of the Evidence
{¶19} In his second and third assignments of error, Whipple argues that his
convictions were not supported by sufficient evidence and were contrary to the
manifest weight of the evidence, respectively. We are not persuaded.
{¶20} To reverse a conviction for insufficient evidence, we must determine
whether “any rational trier of fact could have found the essential elements of the crime
proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus. By contrast, when reviewing the weight of the
evidence, we act as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387,
6 OHIO FIRST DISTRICT COURT OF APPEALS
678 N.E.2d 541 (1997). We review the entire record, weigh the evidence, consider the
credibility of witnesses, and determine whether the trier of fact clearly lost its way and
created a manifest miscarriage of justice in finding the defendant guilty.” Id.
{¶21} To support these assignments of error, Whipple contends that no
witness actually saw him commit either shooting. This argument is unavailing,
however, given the overwhelming circumstantial evidence implicating Whipple in both
incidents. See, e.g., Jenks at paragraph one of the syllabus (“Circumstantial evidence
and direct evidence inherently possess the same probative value and therefore should
be subjected to the same standard of proof.”).
{¶22} Keeling, Stinson, and Maxberry testified that they had seen Whipple,
Clark, and Long following them in a gray van immediately before the Matthews Drive
shooting. Keeling indicated that he had felt concerned when he saw the three men due
to an incident that had occurred a few days earlier at a local nightclub. Moments after
Keeling and Stinson hurried inside their home with Maxberry, bullets burst through the
front walls. Keeling was shot in the back and neck, Maxberry was shot in the face, and
Stinson was nearly shot while ducking for cover. According to a ballistics expert,
casings found at the scene were shot from three high-caliber weapons.
{¶23} In addition, Kloth admitted that she had rented Whipple a silver Dodge
Caliber the afternoon before the Interstate 75 shooting. Witnesses placed Whipple,
Clark, and Long with Thomas in a silver Dodge Caliber in the early hours of the next
day in the immediate vicinity of Neblett. Anderson testified that he had noticed the
Caliber following a red TrailBlazer that he had earlier seen Neblett approach. Shortly
thereafter, Gray saw occupants of a silver Dodge Caliber shoot the occupants of a red
Chevrolet Blazer nearby on Interstate 75. Police found Neblett and Cobb dead inside
the Blazer along with casings shot from three high-caliber weapons. Later that
7 OHIO FIRST DISTRICT COURT OF APPEALS
morning, police discovered the Caliber that Kloth had rented for Whipple abandoned in
Lincoln Heights riddled with bullet holes, The ballistics expert testified that according
to his analysis of casings found at each shooting, two of the weapons used in the
Interstate 75 shooting were also used in the Matthews Drive shooting. He could not
rule out that the third weapon involved in each incident was the same.
{¶24} On this record, we hold that a rational trier of fact could have found the
essential elements of each offense proven beyond a reasonable doubt, and that the jury
did not clearly lose its way and create a manifest miscarriage of justice in finding
Whipple guilty of each offense. The second and third assignments of error are
overruled.
The Examination of Alisha Kloth
{¶25} In his fourth assignment of error, Whipple argues that the trial court
erred in allowing the state to impeach Kloth—its own witness—by means of prior
inconsistent statements without a sufficient showing of surprise and affirmative
damage.
{¶26} We need not decide, however, whether the trial court erred in this
respect. After thoroughly reviewing the record, we hold that any such error would have
been harmless. The court instructed the jury to consider the statements at issue only to
evaluate the credibility of Kloth and not as substantive evidence. In addition, given the
overwhelming and compelling evidence implicating Whipple in the Interstate 75
shooting, we cannot say that any error which may have occurred was prejudicial. The
fourth assignment of error is, therefore, overruled.
Alleged Police Misconduct
{¶27} In his fifth assignment of error, Whipple argues that the trial court
erred in excluding evidence of alleged police misconduct. The trial court specifically
8 OHIO FIRST DISTRICT COURT OF APPEALS
prevented him from questioning Sergeant LaRoy Smith of the Lincoln Heights Police
Department about Sandra Stevenson, a former Lincoln Heights sergeant, who had
investigated Whipple before leaving the department.
{¶28} Whipple relies exclusively on Bullcoming v. New Mexico, 564 U.S. __,
131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). In that case, the defendant was arrested for
driving while intoxicated. At trial, the state introduced a laboratory report certifying
that the defendant’s blood-alcohol concentration was above the threshold to support
the offense. The analyst who signed the certification was later placed on unpaid leave,
and was not called as a witness. Instead, the state called another analyst who was
familiar with the laboratory’s testing procedures, but had neither participated in nor
observed the test on the defendant’s blood sample. Id. at 2709-2710.
{¶29} The United States Supreme Court held that the admission of the
laboratory report had deprived the defendant of his right to confront a witness against
him under the Sixth Amendment to the United States Constitution. Id. at 2713. See
Melendez-Diaz v. Washington, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009)
(holding that a forensic laboratory report stating that a suspect substance was cocaine
ranked as testimonial for purposes of the Confrontation Clause); Crawford v.
Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“Testimonial
statements of witnesses absent from trial have been admitted only where the declarant
is unavailable, and only where the defendant has had a prior opportunity to cross-
examine.”). The court observed that had the certifying analyst been called to testify,
the defendant “could have asked questions designed to reveal whether incompetence,
evasiveness, or dishonesty accounted for [the analyst’s] removal from his workstation.”
Bullcoming at 2715.
9 OHIO FIRST DISTRICT COURT OF APPEALS
{¶30} Latching onto this remark, Whipple argues that the trial court should
have allowed him to examine Smith about why Stevenson had left the Lincoln Heights
police department. We disagree. The case at bar does not implicate Bullcoming
because no testimonial statements by Stevenson were introduced at trial. Thus, she
was not a witness Whipple had the right to confront. Compare Bullcoming at 2716.
Furthermore, even if testimonial statements by Stevenson had been introduced,
Bullcoming would not have given Whipple the right to cross-examine Smith about
those statements. Indeed we know of no authority standing for that proposition.
The fifth assignment of error is overruled.
Authentication
{¶31} In his sixth assignment of error, Whipple argues that the trial court
erred in admitting two surveillance videos and screenshots from those videos that
purportedly depict the Cracker Barrel parking lot outside the Garage Bar and the
Thortons gas station shortly before the Interstate 75 shooting.
{¶32} We need not decide whether the trial court erred in admitting this
evidence, however, because again, any such error would have been harmless. The
scenes depicted in the videos and screenshots were substantially cumulative to the
testimony of several witnesses who saw Whipple sitting in a silver Dodge Caliber at
Cracker Barrel and Thortons, as well as later following Neblett’s vehicle. Given this
testimony and the other evidence presented at trial, the sixth assignment of error is
Mistrial
{¶33} In his seventh assignment of error, Whipple argues that the trial court
erred in denying his several motions for mistrial. We disagree.
10 OHIO FIRST DISTRICT COURT OF APPEALS
{¶34} The decision whether to declare a mistrial lies within the discretion of
the trial court. E.g., State v. Levingston, 1st Dist. No. C-090235, 2011-Ohio-1665, citing
State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 72. Having
thoroughly reviewed the record, we cannot say that the trial court acted arbitrarily,
unreasonably, or unconscionably in denying these motions. See Blakemore v.
Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). We, therefore, conclude
that the court did not abuse its discretion in this respect. The seventh assignment of
error is overruled.
Merger
{¶35} In his eighth assignment of error, Whipple argues that the trial court
erred in convicting him of both improperly discharging a firearm and the three counts
of felonious assault in connection with the Matthews Drive shooting. We are not
persuaded.
{¶36} Under R.C. 2941.25, a trial court may, in a single proceeding, sentence a
defendant for two or more offenses “having as their genesis the same criminal conduct
or transaction,” if the offenses (1) are not allied offenses of similar import, (2) were
committed separately, or (3) were committed with a separate animus as to each offense.
See State v. Bickerstaff, 10 Ohio St.3d 62, 65-66, 461 N.E.2d 892 (1984), quoting State
v. Moss, 69 Ohio St.2d 515, 519, 433 N.E.2d 181 (1982). “A criminal defendant has the
burden of establishing his entitlement to merger of offenses pursuant to the allied-
offense statute.” State v. Wesseling, 1st Dist. No. C-110193, 2011-Ohio-5882, citing
State v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987). Indeed, there is no
presumption that offenses merge, as each case must be individually considered “given
that the statute instructs courts to examine a defendant’s conduct—an inherently
11 OHIO FIRST DISTRICT COURT OF APPEALS
subjective determination.” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 699, ¶ 52.
{¶37} Whipple fails to show that he is entitled to merger under R.C. 2941.25
because the record demonstrates that he committed each crime at issue with a separate
animus. “The Ohio Supreme Court interprets the term ‘animus’ to mean ‘purpose or,
more properly, immediate motive,’ and infers animus from surrounding
circumstances.” State v. Shields, 1st Dist. No. C-100362, 2011-Ohio-1912, ¶ 16, citing
State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979). The court has
explained that 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.
{¶38} Like all mental states, animus is often difficult to prove directly, but
must be inferred from the surrounding circumstances. Id. at 131. Thus, the manner
in which a defendant engages in a course of conduct may indicate distinct purposes.
See, e.g., State v. Tibbs, 1st Dist. No. C-100378, 2011-Ohio-6716, ¶ 43-48 (the
manner of killing demonstrated a distinct animus to kill the victim separate from the
immediate motive to rob him); State v. Rogers, 8th Dist. Nos. 97093 and 97094,
2012-Ohio-2496, ¶ 32 (length of time spent in the victim’s vehicle indicated a
separate animus for the initial break-in and the subsequent theft of items from the
vehicle); State v. Jackson, 2d Dist. No. 24430, 2012-Ohio-2335, ¶ 140 (where the
force used to effectuate an aggravated robbery is far in excess of that required to
complete the robbery, there is no merger); Logan at syllabus (where the manner in
which a kidnapping is conducted demonstrates “a significance independent of the
other offense,” there exists a separate animus). Courts should consider whether facts
12 OHIO FIRST DISTRICT COURT OF APPEALS
appear in the record that “distinguish the circumstances or draw a line of distinction
that enables a trier of fact to reasonably conclude separate and distinct crimes were
committed.” State v. Glenn, 8th Dist. No. 94425, 2012-Ohio-1530, ¶ 9 (citations
omitted).
{¶39} This “line of distinction” can be drawn either horizontally or vertically.
A court makes this horizontal line of distinction when it considers the amount of time
between the commissions of the offenses (i.e. the amount of time during which the
conduct occurred is such that a separate animus is demonstrated as to each charged
offense). On the other hand, a vertical line of distinction is made when considering the
severity of the conduct (i.e. the conduct so exceeds the degree required to commit the
one offense that a separate animus is demonstrated as to a second offense). This case
falls within the second class.
{¶40} Police recovered 28 shell casings from the crime scene. The casings
were found in the street spread across the length of the property, on the sidewalk, in
the driveway, in the yard, on the porch, and three were found actually inside the
home. Most of the windows of the van the victims had been riding in, which was
parked on the street, had also been shot out. The investigating officer testified that
“there were casings everywhere. The house had been shot up.” Based on where the
casings were found, the shooters had been in the street and had advanced through
the yard and onto the porch. Keyonni Stinson testified that she had heard footsteps
on the porch during the shooting, and that afterward the house had been filled with
smoke and dust. The testimony and photographic evidence demonstrated that
Whipple and his confederates had gone on a shooting rampage at this Lincoln
Heights home, shooting through vehicles, doors, windows, and walls.
13 OHIO FIRST DISTRICT COURT OF APPEALS
{¶41} In this way, this case is distinguishable from cases like State v.
Walton, 5th Dist. No. 2011 CA 00214, 2012-Ohio-2597. In that case, the defendant
stood outside the front door and fired five shots into the door, one of which killed the
victim. He was charged with felony murder, with the predicate offense being
discharging a firearm into a habitation. The court found that the two offenses were
subject to merger, concluding that the two charges were “inextricably part of the
same conduct,” but noted that their conclusion “would not necessarily apply to every
conceivable scenario of a killing from a drive-by shooting into a house.” Id. at ¶ 56.
{¶42} This case presents such a scenario. The level of destruction unleashed
by Whipple upon the home demonstrates that he sought to do more than commit
felonious assault. Whipple has, therefore, not met the burden of establishing that he
is entitled to merger. Accordingly, the eighth assignment of error is overruled.
Ineffective Assistance of Counsel
{¶43} In his ninth assignment of error, Whipple argues that he received
ineffective assistance of counsel. We are not persuaded.
{¶44} To prevail on a claim of ineffective assistance of counsel, an appellant
must show that trial counsel’s performance was deficient, and that the outcome of the
proceedings would have been different but for counsel’s deficient performance.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
“A reviewing court will not second-guess trial strategy and must indulge a strong
presumption that counsel’s conduct fell within the wide range of reasonable
professional assistance.” State v. Finley, 1st Dist. No. C-061052, 2010-Ohio-5203, ¶ 44,
citing State v. Mason, 82 Ohio St.3d 144, 157-158, 694 N.E.2d 932 (1998).
{¶45} Whipple argues that his trial counsel’s performance was deficient
because she did not immediately object to the questioning of Kloth about her prior
14 OHIO FIRST DISTRICT COURT OF APPEALS
inconsistent statement and did not move for a separate trial from Clark and Long. We
cannot, however, say that her performance was a deficiency “so serious that counsel
was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Strickland
at 687. The ninth assignment of error is overruled.
{¶46} Accordingly, the judgment of the trial court is affirmed.
Judgment affirmed.
H ILDEBRANDT , P.J., concurs.
F ISCHER , J., concurs in part and dissents in part.
F ISCHER , J., concurring in part and dissenting in part.
{¶47} Although I agree with nearly all of the majority’s well-reasoned and
well-written opinion, I respectfully must dissent with regard to the single matter of
whether Whipple was convicted of allied offenses of similar import subject to merger
under R.C. 2941.25.
{¶48} As stated by the majority, a trial court may, in a single proceeding,
sentence a defendant for two or more offenses “having as their genesis the same
criminal conduct or transaction,” if the offenses (1) are not allied offenses of similar
import, (2) were committed separately, or (3) were committed with a separate animus
as to each offense. See State v. Bickerstaff, 10 Ohio St.3d 62, 65-66, 461 N.E.2d 892
(1984), quoting State v. Moss, 69 Ohio St.2d 515, 519, 433 N.E.2d 181 (1982).
{¶49} The Ohio Supreme Court has held that “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.” , under State v. Johnson, 128 Ohio St.3d
153, 2010-Ohio-6314, 942, N.E.2d 1061, syllabus, overruling State v. Rance, 85 Ohio
St.3d 632, 710 N.E.2d 699 (1999). Thus, where “the evidence adduced at trial reveals
that the state relied on the same conduct to support the two offenses, and that the
15 OHIO FIRST DISTRICT COURT OF APPEALS
offenses had been committed neither separately nor with a separate animus as to each,
then the defendant is afforded the protection of R.C. 2941.25, and the trial court errs in
imposing separate sentences for the offenses.” State v. Cooper, 1st Dist. Nos. C-110027
and 110028, 2012-Ohio-555, ¶ 13.
{¶50} In this case, Whipple was convicted of one count of improperly
discharging a firearm in violation of R.C. 2923.161(A) and three counts of felonious
assault in violation of R.C. 2903.11(A)(2). Under R.C. 2923.161(A)(1), “No person,
without privilege to do so, shall knowingly do any of the following: (1) Discharge a
firearm at or into an occupied structure that is a permanent or temporary habitation of
any individual.” Under R.C. 2903.11(A)(2), “No person shall knowingly * * * [c]ause or
attempt to cause physical harm to another * * * by means of a deadly weapon or
dangerous ordinance.”
{¶51} The evidence adduced at trial reflects that after Keeling and Stinson
hurried inside their Matthews Drive home with Maxberry, Whipple shot multiple
rounds into the residence, striking Keeling and Maxberry and narrowly missing
Stinson. Because the state relied on the same conduct to prove both the one count of
improperly discharging a firearm and the three counts of felonious assault, these
offenses were allied offenses of similar import. See Cooper at ¶ 15.
{¶52} My analysis, therefore, turns to whether these offenses were
committed with a single animus. Where a defendant acts with the same purpose,
intent, or motive in the commission of two separate crimes, the animus is identical for
each offense. State v. Lewis, 12th Dist. No. CA2008-10-045, 2012-Ohio-885, ¶ 13. See
also State v. Shields, 1st Dist. No. C-100362, 2011-Ohio-1912, ¶ 16, citing State v.
Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979).
16 OHIO FIRST DISTRICT COURT OF APPEALS
{¶53} After thoroughly reviewing the record, I must conclude that Whipple’s
immediate motive was simply to attack Keeling, Stinson, and Maxberry. The
evidence reflects that he followed the three victims to Keeling’s and Stinson’s home,
and moments after they hurried inside, he opened fire on the residence. Although
the record may demonstrate Whipple’s profound depravity, I cannot say that it
evinces a distinct animus with respect to these crimes.
{¶54} Although my opinion would have no bearing on Whipple’s ultimate
sentence—as each of the convictions at issue carried concurrent eight-year prison
terms—I believe that Whipple was convicted of offenses that should have merged.
See State v. Evans, 1st Dist. No. C-100028, 2011-Ohio-2356, ¶ 5, citing State v.
Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 30. I would,
therefore, remand the cause for the limited purpose of resentencing Whipple on
either the count for improperly discharging a firearm or the three counts of felonious
assault pursuant to the state’s election. See State v. Wilson, 129 Ohio St.3d 214, 2011-
Ohio-2669, 951 N.E.2d 381, paragraph one of the syllabus. In all other respects, I
would affirm the judgment of the trial court.
{¶55} Respectfully, I therefore dissent in this limited part.
Please note: The court has recorded its own entry this date.