State v. Cannon , 2014 Ohio 4801 ( 2014 )

[Cite as State v. Cannon, 2014-Ohio-4801.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100658
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEMETRICE CANNON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-574884-A
BEFORE: E.A. Gallagher, J., Boyle, A.J., and Jones, J.
RELEASED AND JOURNALIZED: October 30, 2014
ATTORNEY FOR APPELLANT
Paul A. Mancino
Mancino Mancino & Mancino
75 Public Square Building
Suite 1016
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Scott Zarzycki
Frank Romeo Zeleznikar
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶1} Defendant-appellant Demetrice Cannon appeals his convictions in the Cuyahoga
County Court of Common Pleas. For the following reasons, we affirm in part, reverse in part
and remand.
{¶2} On June 18, 2013, Cannon was indicted on charges of aggravated murder, murder,
two counts of felonious assault, and having a weapon while under disability. Appellant plead
not guilty to the charges, waived his right to a jury trial, and the case proceeded to a bench trial.
For the purposes of R.C. 2923.13(A)(3), Cannon stipulated to prior felony drug trafficking
convictions.
{¶3} The facts presented at trial were as follows: in the early hours of May 2, 2013,
Kenyahta Steel died as a result of being shot four times with a .40 caliber firearm near the
intersection of East 38th Street and Longwood Road in Cleveland, Ohio. Earlier that evening,
Steel and Cannon had been shooting dice that deteriorated into a heated argument. As Steel was
leaving the scene in an automobile, Cannon jogged to pursue the car and flagged Steel down.
Cannon again argued with Steel for several minutes and, ultimately, Cannon shot Steel three to
four times, which was testified to by two eyewitnesses: Demarco Parker and Brittany
Baker-Terrell, as well as the appellant.
{¶4} After being Mirandized, when questioned by Cleveland police, Cannon initially
claimed he was nowhere near the incident at the time of the shooting and did not even know
Steel. After several witnesses at trial rebutted that assertion, Cannon claimed that he acted in
self-defense, asserting that Steel shot at him first.
{¶5} This claim was overwhelmingly rebutted by other evidence. Two eyewitnesses
testified to seeing Cannon shoot Steel but not to seeing Steel shooting at Cannon. Steel suffered
four gunshot wounds. Police found four identical .40 caliber shell casings near the scene of the
crime. Steel did own a firearm, but several witnesses testified that Steel did not have a firearm
on his person that evening.
{¶6} The only evidence, aside from Cannon’s testimony, that Steel had fired a weapon at
Cannon was gunshot residue found on Steel’s left hand. While this residue is consistent with
having fired a gun with his left hand, it is also consistent with being shot near his left arm at a
range of one to four feet and/or Steel grabbing his wounded leg with his left hand after being shot
at close range, which two eyewitnesses testified to having seen.
{¶7} The trial court returned a verdict finding Cannon guilty of the lesser included
offense of murder with a three-year firearm specification and having a weapon while under
disability. The trial court found Cannon not guilty of the remaining counts.1 Cannon was
sentenced to 15 years to life on the murder conviction, three years for the firearm specification
and one year for having a weapon while under disability, for a total of 19 years to life. This
appeal followed.
{¶8} Cannon’s first assignment of error states:
Defendant was denied a fair trial when the prosecutor argues that the defendant
was guilty because he failed to explain to the police his self-defense version.
{¶9} Cannon did not object to the testimony of Det. Raymond Diaz who testified that
Cannon, when speaking with police after being arrested, did not present a self-defense
explanation for his actions. The prosecution argued that Cannon’s claim of self-defense lacked
credibility due to his prior statements to police. Cannon’s failure to object to the testimony of
1
Although the trial court found Cannon not guilty of Counts 2, 3 and 4, the court’s journal
entry of October 25, 2013, and the sentencing entry issued on the same date contain a clerical error in
that they state that those counts were nolled.
Diaz deprived the trial judge of any opportunity to rule on this issue. As a result, Cannon has
waived all but plain error. State v. Harris, 8th Dist. Cuyahoga No. 99817, 2013-Ohio-5733, ¶ 13.
An error constitutes plain error if it is obvious and affects a substantial right. State v.
Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 108. Plain error exists only
where it is clear that the verdict would have been otherwise but for the error. State v. Skatzes, 104
Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 52. Notice of plain error is to be taken with
utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of
justice. State v. Phillips, 74 Ohio St.3d 72, 83, 656 N.E.2d 643 (1995).
{¶10} Cannon asserts that the state’s argument that Cannon did not present his
self-defense claim to police amounts to impeaching the defendant by causing the trier of fact to
draw an impermissible inference of guilt from his silence and therefore violated the rule of Doyle
v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). We disagree.
{¶11} Once a criminal defendant receives the warnings required by Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), it is improper for the state to impeach the
defendant by causing the jury to draw an impermissible inference of guilt from the defendant’s
post-arrest silence. Doyle at 611. The rationale behind this rule is that Miranda warnings carry
the state’s “implicit assurance” that an arrestee’s invocation of the Fifth Amendment right to
remain silent will not later be used against him. Wainwright v. Greenfield, 474 U.S. 284,
290-291, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). Because a defendant’s post-Miranda warning
silence could be nothing more than an invocation of his right to silence, it would be
fundamentally unfair to permit a breach of that assurance by allowing impeaching questions as to
why the defendant failed to give an exculpatory account to the police after receiving the
warnings. Id. at 295; State v. Rogers, 32 Ohio St.3d 70, 71, 512 N.E.2d 581 (1987).
{¶12} The rule in Doyle does not apply where “no governmental action induce[s] the
defendant to remain silent” Fletcher v. Weir, 455 U.S. 603, 606, 102 S.Ct. 1309, 71 L.Ed.2d 490(1982). So pre-arrest silence may be used for impeachment purposes because the state has done
nothing to induce the defendant to believe that he has a right to remain silent before arrest.
Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); State v. Leach,
102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335, ¶ 20-22. The same applies to post-arrest,
pre-Miranda warning, silence, Fletcher at 605-607, and any voluntary post-Miranda warning
statements. Anderson v. Charles, 447 U.S. 404, 408-409, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980).
The United States Supreme Court explained in Anderson:
Doyle bars the use against a criminal defendant of silence maintained after receipt
of governmental assurances. But Doyle does not apply to cross-examination that
merely inquires into prior inconsistent statements. Such questioning makes no
unfair use of silence, because a defendant who voluntarily speaks after receiving
Miranda warnings has not been induced to remain silent. As to the subject matter
of his statements, the defendant has not remained silent at all.
Id. at 408.
{¶13} In this instance, the impeachment arguments made by the state at trial complied
with the holdings of Jenkins and Anderson. Pursuant to Jenkins, the state’s comments about the
disconnect between Cannon’s pre-arrest silence and his alibi defense were permissible.
Cannon’s claim that the state violated Doyle is similarly without merit because Cannon did not
exercise his right to remain silent; he waived it. He spoke openly with police, initially telling
them that he did not shoot the victim, was not near the scene of the crime and did not know the
victim. Cannon’s prior statements, which were inconsistent with other evidence, were being
used to impeach him; Cannon’s silence was not. Cannon’s first assignment of error is
overruled.
{¶14} Cannon’s second assignment of error states:
Defendant was denied a fair trial when the prosecutor cross-examined defendant
concerning allged [sic] statements made by a witness who did not testify at trial.
{¶15} Under Evid.R. 611(B), “[c]ross-examination shall be permitted on all relevant
matters and matters affecting credibility.” “The limitation of * * * cross-examination lies within
the sound discretion of the trial court, viewed in relation to the particular facts of the case. Such
exercise of discretion will not be disturbed in the absence of a clear showing of an abuse of
discretion.” State v. Acre, 6 Ohio St.3d 140, 145, 451 N.E.2d 802 (1983). However, “[i]t is
improper for an attorney, under the pretext of putting a question to a witness, to put before a jury
information that is not supported by the evidence.” State v. Smidi, 88 Ohio App.3d 177, 183, 623
N.E.2d 655 (6th Dist.1993).
{¶16} In this instance, the state cross-examined Cannon regarding statements that he
purportedly made to Brandy Wyatt, a person who did not testify at trial, with respect to him not
being present at the scene of the murder in contravention of his trial testimony. Cannon argues
that this line of questioning denied him a fair trial. We disagree.
{¶17} Cannon’s reliance on Smidi is misplaced. Smidi involved a jury trial wherein a
prosecutor implied by his questions that he possessed evidence that would rebut the defendant’s
testimony and improperly introduced technical information to the jury.
{¶18} In this case, the prosecutor’s questioning of Cannon was not analogous to Smidi.
First, this was a bench trial, which carries with it the presumption that only “relevant, material,
and competent evidence” is considered absent a showing to the contrary. State v. Vason, 8th
Dist. Cuyahoga No. 88069, 2007-Ohio-1599, ¶ 19, citing State v. Baston, 85 Ohio St.3d 418,
421, 709 N.E.2d 128 (1999). The prosecutor’s questions, which concerned prior inconsistent
statements made by Cannon, spoke directly to Cannon’s credibility. Furthermore, this
testimony was merely cumulative in light of the state’s introduction of Cannon’s contradictory
statements to police and was, at most, harmless error. State v. Chambers, 8th Dist. Cuyahoga
No. 99864, 2014-Ohio-390, ¶ 40 (error in the admission of evidence is harmless if there is no
reasonable possibility that exclusion of the evidence would have affected the result of the trial).
Cannon’s second assignment of error is overruled.
{¶19} Cannon’s third assignment of error states:
Defendant was denied effective assistance of counsel guaranteed by the Sixth
Amendment.
{¶20} Cannon argues that because his attorney failed to file a motion to suppress, object
to hearsay testimony and/or object to prosecutorial misconduct, he was denied effective
assistance of counsel.
{¶21} In order to prevail on a claim of ineffective assistance of counsel, the appellant
must show (1) that counsel’s performance was deficient, and (2) that the deficient performance
prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington, 466
U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989). Counsel’s performance may be found to be deficient if counsel “made errors
so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth
Amendment.” Strickland at 687. To establish prejudice, “the defendant must prove that there
exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would
have been different.” Bradley at 143.
{¶22} In determining whether counsel’s performance fell below an objective standard of
reasonableness, “[j]udicial scrutiny of counsel’s performance must be highly deferential.”
Strickland at 689. Because of the difficulties inherent in determining whether counsel rendered
effective assistance in any given case, a strong presumption exists that counsel’s conduct fell
within the wide range of reasonable, professional assistance. Id.{¶23} First, Cannon argues that by failing to file a motion to suppress, he was denied
effective assistance of counsel. We disagree.
{¶24} “Failing to file a motion to suppress does not constitute ineffective assistance of
counsel per se. To establish ineffective assistance of counsel for failure to file a motion to
suppress, a defendant must prove that there was a basis to suppress the evidence in question.”
State v. Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65.
{¶25} In this instance, Cannon argues that his attorney instructed Det. Diaz that no
statement should be taken from Cannon upon his arrest. However, the record does not support
this contention. To the contrary, the record reflects that Det. Diaz testified to advising Cannon
of his constitutional rights in a video-recorded interview room prior to questioning him. We
cannot say that the trial counsel’s performance was deficient because there is no credible
evidence to support the notion that a motion to suppress would have been successful.
{¶26} Cannon next argues that his attorney provided ineffective assistance of counsel by
failing to object to hearsay testimony offered by Det. Diaz regarding whether Steel was right- or
left-handed. The state does not dispute that the relevant testimony was hearsay but argues that
Cannon cannot demonstrate a reasonable probability that, but for the failure to object to this
testimony, the result of the trial would have been different. We agree.
{¶27} Cannon argues that Det. Diaz’s testimony that Cannon was right- handed
improperly undermined his self-defense claim that Steel fired a gun at him prior to his own shots
because gunshot residue was discovered on Steel’s left hand.
{¶28} We are unpersuaded by Cannon’s argument. The record was rife with evidence
suggesting that the gunshot residue on Steel’s left hand was not from firing a firearm, but from
being shot by Cannon. There was no trace metal found on either of Steel’s hands that would
indicate he held a firearm. The gunshot residue was consistent with being shot at a range of one
to four feet or by Steel grabbing his left leg after being shot there at close range. The
eyewitnesses testified to seeing Cannon shoot Steel, but not to Steel shooting at Cannon.
Therefore, we hold the failure to object to the hearsay statements was harmless in that there was
no reasonable probability that, but for the error, the result of the trial would have been different.
{¶29} Finally, Cannon repackages his argument from his first assignment of error,
asserting that the prosecution’s statements concerning the failure of Cannon to present a
self-defense version of events to police amounted to prosecutorial misconduct, and the failure of
defense counsel to object to that misconduct amounts to ineffective assistance of counsel. We
disagree.
{¶30} The test for prosecutorial misconduct is whether the prosecutor’s remarks or
questions were improper, and if so, whether they prejudicially affected substantial rights of the
accused. State v. Hicks, 194 Ohio App.3d 743, 2011-Ohio-3578, 957 N.E.2d 866, ¶ 30 (8th
Dist.). A prosecutor’s conduct during trial cannot be grounds for error unless the conduct
deprives the defendant of a fair trial. State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394(1987). The focus of that inquiry is on the fairness of the trial, not on the culpability of the
prosecutor. State v. Bey, 85 Ohio St.3d 487, 496, 709 N.E.2d 484 (1999). “[G]iven the myriad
safeguards provided to assure a fair trial, and taking into account the reality of the human
fallibility of the participants, there can be no such thing as an error-free, perfect trial, and * * *
the Constitution does not guarantee such a trial.” United States v. Hasting, 461 U.S. 499,
508-509, 103 S.Ct. 1974 76 L.Ed.2d 96 (1983). (Emphasis added.)
{¶31} Our focus upon review is whether the prosecutor’s comments violated appellant’s
substantial rights, thereby depriving appellant of a fair trial such that there is a reasonable
probability that, but for the prosecutor’s misconduct, the result of the proceeding would have
been different. Hicks at ¶30; State v. Onunwor, 8th Dist. Cuyahoga No. 93937,
2010-Ohio-5587, ¶ 42, citing State v. Loza, 71 Ohio St.3d 61, 641 N.E.2d 1082 (1994).
We note, however, that a defendant’s substantial rights cannot be
prejudiced when the remaining evidence, standing alone, is so
overwhelming that it constitutes defendant’s guilt and the outcome of the
case would have been the same regardless of evidence admitted
erroneously. Hicks at 30, citing State v. Williams, 38 Ohio St.3d 346,
528 N.E.2d 910 (1988).
{¶32} Pursuant to our analysis in this first assignment of error, we cannot say that there
was prosecutorial misconduct nor that the failure to object to it was error by trial counsel, let
alone a harmful one. Cannon’s third assignment of error is overruled.
{¶33} Cannon’s fourth assignment of error states:
Defendant was denied due process of law when the court overruled his motions
for judgment of acquittal.
{¶34} “[T]he test an appellate court must apply when reviewing a challenge based on a
denial of a motion for acquittal is the same challenge based on the sufficiency of the evidence to
support a conviction.” State v. Thompson, 127 Ohio App.3d 511, 525, 713 N.E.2d 456 (8th
Dist.1998). This court has said, in evaluating a sufficiency of evidence argument:
[c]ourts are to assess not whether the state’s evidence is to be believed, but
whether, if believed, the evidence against a defendant would support a conviction.
The 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. The weight and
credibility of the evidence are left to the trier of fact.
State v. Jackson, 8th Dist. Cuyahoga No. 86542, 2006-Ohio-1938, ¶ 23.
{¶35} Cannon was convicted of murder in violation of R.C. 2903.02 with a three-year
firearm specification pursuant to R.C. 2941.145(A) and having a weapon while under disability
in violation of R.C. 2923.13(A)(3). R.C. 2903.02(A) prohibits purposely causing the death of
another. R.C. 2923.13(A)(3) prohibits firearm possession by anyone with a current indictment
or prior conviction of a felony drug offense. R.C. 2941.145 imposes an additional three-year
prison term when “the offender had a firearm on or about the offender’s person or under the
offender’s control while committing the offense and displayed the firearm, brandished the
firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense.”
{¶36} Cannon fails to present a specific sufficiency argument and instead attacks the
credibility of the eyewitnesses to the shooting. Cannon’s argument is without merit. Two
eyewitnesses, Demarco Parker and Brittany Baker-Terrell, testified that they witnessed Cannon
shoot Steel. Cannon himself testified to shooting Steel. Three witnesses and Cannon himself
testified to an argument over a dice game between Cannon and Steel taking place prior to the
shooting. Other witnesses who were in the area testified that they heard three or four gun shots
during the time of the incident. Investigators found four shell casings at the scene of the crime,
all the same type and caliber, indicating that they all came from the same firearm. Dr.
Armstrong, a pathologist from the Cuyahoga County medical examiner’s office, testified that
Steel died as a result of four gunshot wounds. Four .40 caliber Smith & Wesson shell casings
were recovered from the scene. Gunshot residue on Steel’s body was consistent with being shot
from a distance of one to four feet, which was also consistent with the testimony of Demarco
Parker.
{¶37} In regard to Cannon’s conviction for having a weapon while under disability,
Cannon stipulated to a prior felony drug trafficking offense, demonstrating disability under R.C.
2913.13(A)(3), and Cannon himself admitted to possessing and using a firearm to shoot Steel.
{¶38} Cannon’s fourth assignment of error is overruled.
{¶39} Cannon’s fifth assignment of error states:
Defendant is entitled to a new trial as the judgment and verdict are against the
manifest weight of the evidence.
{¶40} A manifest weight challenge questions whether the prosecution met its burden of
persuasion. State v. Byrd, 8th Dist. Cuyahoga No. 98037, 2012-Ohio-5728, ¶ 27. When
considering a manifest weight challenge, a reviewing court reviews the entire record, weighs the
evidence and all reasonable inferences therefrom, considers the credibility of the witnesses and
determines whether the finder of fact clearly lost its way. State v. Jackson, 8th Dist. Cuyahoga
No. 86542, 2006-Ohio-1938, ¶ 29. A reviewing court may reverse the judgment of conviction
if it appears that 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. Id.{¶41} Cannon argues that the eyewitness testimony in this case was weak due to the fact
that Brittany Baker-Terrell wavered on the stand regarding whether she personally viewed the
shooting or had heard about it from others. Cannon points out that the only other eyewitness,
Demarco Parker, was a friend of the victim. However, aside from these perceived weaknesses
in the state’s case, there was overwhelming evidence to support the trial court’s verdict.
Cannon himself admitted to shooting Steel. His self-defense argument was contradicted by
evidence recovered from the scene, his own inconsistent statement to police and eyewitness
testimony that refuted Cannon’s claim that Steel fired a gun at him. In light of the evidence
presented at trial and analyzed in the fourth assignment of error, we cannot say that the finder of
fact clearly lost its way in finding appellant guilty of the above offenses.
{¶42} Cannon’s fifth assignment of error is overruled.
{¶43} Cannon’s sixth assignment of error states:
Defendant was denied due process of law when defendant received a consecutive
sentence based on judicial fact-finding.
{¶44} When reviewing a felony sentence, we follow the standard of review set forth in
R.C. 2953.08(G)(2), which provides in relevant part:
The court hearing an appeal under division (A), (B), or (C) of this section shall
review the record, including the findings underlying the sentence or modification
given by the sentencing court. The appellate court may increase, reduce, or
otherwise modify a sentence that is appealed under this section or may vacate the
sentence and remand the matter to the sentencing court for resentencing. The
appellate court’s standard for review is not whether the sentencing court abused
its discretion. The appellate court may take any action authorized by this
division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court’s findings under division
(B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
Id.{¶45} A sentence is not clearly and convincingly contrary to law where the trial court
considers the purposes and principles of sentencing under R.C. 2929.11 as well as the
seriousness and recidivism factors listed in R.C. 2929.12, properly applies postrelease control
and sentences a defendant within the permissible statutory range. State v. A.H., 8th Dist.
Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10, citing State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912, 896 N.E.2d 124.
{¶46} R.C. 2929.14(C)(4) authorizes the court to require an offender to serve multiple
prison terms consecutively for convictions on multiple offenses. Consecutive sentences can be
imposed if the court finds that (1) a consecutive sentence is necessary to protect the public from
future crime or to punish the offender and (2) that consecutive sentences are not disproportionate
to the seriousness of the offender’s conduct and to the danger the offender poses to the public. In
addition to these two factors, the court must find any of the following:
(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed pursuant
to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under
post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more
courses of conduct, and the harm caused by two or more of the multiple offenses
so committed was so great or unusual that no single prison term for any of the
offenses committed as part of any of the courses of conduct adequately reflects the
seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
Id.{¶47} In this instance, the trial court stated in its sentencing journal entry that it
considered all required factors of law and there is no dispute that the individual sentences are
within the applicable statutory ranges. Further, during sentencing, the trial court found that
consecutive sentences were necessary to protect the public from future crime, that consecutive
sentences were not disproportionate to the seriousness of the offenses and that Cannon’s prior
criminal history demonstrated a disregard for social norms. The trial court made the required
findings to support consecutive sentences and the record supports the court’s findings.
{¶48} Cannon appears to argue that the court improperly engaged in judicial fact-finding
regarding his consecutive sentences in violation of the Sixth Amendment. The Ohio Supreme
Court rejected this argument in State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d
768. In Hodge, the court explained that “[a]fter [Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711,
172 L.Ed.2d 517 (2009)], it is now settled law * * * that the jury-trial guarantee of the Sixth
Amendment to the United States Constitution does not preclude states from requiring trial court
judges to engage in judicial fact-finding prior to imposing consecutive sentences.” Id. at ¶ 19.
{¶49} Sua sponte, we note that the Ohio Supreme Court recently held that a trial court
must incorporate its consecutive sentence findings into its sentencing entry. State v. Bonnell,
140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29.
“A trial court’s inadvertent failure to incorporate the statutory findings in the
sentencing entry after properly making those findings at the sentencing hearing
does not render the sentence contrary to law; rather, such a clerical mistake may
be corrected by the court through a nunc pro tunc entry to reflect what actually
occurred in open court.” Id. at ¶ 30.
{¶50} Consequently, Cannon’s sixth assignment of error is overruled in part and
sustained in part.
{¶51} Cannon’s seventh assignment of error states:
Defendant was subjected to unconstitutional multiple punishments when the court
failed to merge the firearm specifications with the offense of having a weapon
while under a [sic] disability.
{¶52} In his final assignment of error Cannon argues that the trial court erred in failing to
merge his convictions for murder with a firearm specification and having a weapon while under
disability.
{¶53} Our review of an allied offenses question is de novo. State v. Webb, 8th Dist.
Cuyahoga No. 98628, 2013-Ohio-699, ¶ 4, citing State v. Williams, 134 Ohio St.3d 482,
2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.
{¶54} 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). However,
[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).
{¶55} 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, 710 N.E.2d 699 (1999), 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 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.
{¶56} 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.
{¶57} The term “animus,” as defined by the Ohio Supreme Court in State v. Logan, 60
Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979), means “purpose or, more properly, immediate
motive.”
{¶58} First, Cannon contends that having a weapon while under disability is an allied
offense of similar import to a firearm specification. This exact argument has been previously
considered and rejected by this court. See State v. Shepherd, 8th Dist. Cuyahoga No. 99503,
2013-Ohio-4912, ¶ 8; State v. Majid, 8th Dist. Cuyahoga No. 96855, 2012-Ohio-1192, ¶ 94;
State v. Williams, 8th Dist. Cuyahoga No. 81949, 2003-Ohio-3950, ¶ 19-21; State v. Whittsette,
8th Dist. Cuyahoga No. 70091, 1997 Ohio App. LEXIS 500, *6 (Feb. 13, 1997), citing State v.
Blankenship, 102 Ohio App.3d 534, 547, 657 N.E.2d 559 (12th Dist.1995).
{¶59} Cannon also argues that his conviction for murder should have merged with his
having a weapon while under disability charge. We disagree. Cannon testified that he was in
possession of his firearm well before he used it to shoot Steel. This court has previously
rejected merger of murder and having a weapon while under disability offenses under similar
circumstances due to the separate animuses involved. State v. Hodges, 8th Dist. Cuyahoga No.
99511, 2013-Ohio-5025, ¶ 20; see also State v. Conner, 8th Dist. Cuyahoga No. 99557,
2014-Ohio-601, ¶ 126 (holding that the animus for possessing a weapon while under disability is
different from the animus for felonious assault and the discharge of a firearm because the animus
of having a weapon while under disability is making a conscious choice to possess a weapon and
the fact that a defendant then uses the weapon to commit other crimes does not absolve the
criminal liability that arises solely from his decision to illegally possess the weapon).
{¶60} Therefore, because these offenses each involved a separate animus, the offenses do
not merge.
{¶61} Cannon’s seventh assignment of error is overruled.
{¶62} The judgment of the trial court is affirmed in part and reversed in part, and
remanded for the trial court to issue nunc pro tunc entries to correct the clerical errors in the
journal entry dated October 25, 2013, and the sentencing entry and to bring the sentencing entry
into compliance with the requirements of Bonnell by incorporating its consecutive-sentencing
findings into its sentence entry.
It is ordered that appellee and appellant share the 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. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY J. BOYLE, A.J., and
LARRY A. JONES, SR., J., CONCUR