State v. Williams , 2019 Ohio 794 ( 2019 )

[Cite as State v. Williams, 2019-Ohio-794.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 107221
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
AHRON M. WILLIAMS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-611731-A
BEFORE: Sheehan, J., E.T. Gallagher, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: March 7, 2019
ATTORNEY FOR APPELLANT
Patrick S. Lavelle
Van Sweringen Arcade, Suite 250
123 West Prospect Avenue
Cleveland, OH 44115
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Daniel A. Cleary
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
MICHELLE J. SHEEHAN, J.:
{¶1} Appellant Ahron Williams appeals from a judgment of the trial court convicting
him of murder, felonious assault, and discharge of firearm on or near prohibited premises. He
claims his convictions were against the manifest weight of the evidence. He also argues there
was insufficient evidence to support his murder and felonious assault convictions based on the
alternative theory of complicity. In addition, he claims the trial court should have merged his
murder offense and discharge of firearm on or near prohibited premises for sentencing. Finding
no merit to his claims, we affirm the trial court’s judgment.
{¶2} Appellant was indicted for aggravated murder, two counts of murder,1 two counts
of felonious assault, and discharge of firearm on or near prohibited premises. These charges
1
Appellant was convicted of two counts of murder, in violation of R.C. 2903.02(A) and 2903.02(B). R.C.
2903.02(A) states that “[n]o person shall purposely cause the death of another * * *.” R.C. 2903.02(B) states that
stemmed from a fatal shooting on the night of November 18, 2016, in which Demetrius Paul
(“victim”) was shot to death.
{¶3} After a jury trial, the jury convicted appellant of all counts except for aggravated
murder.
Testimony of Witnesses at Trial
{¶4} The shooting occurred on Rugby Avenue, in front of a residential house where
Devon Davis and his parents resided. Devon, a friend of the victim, did not witness the
shooting but his parents did. Although Devon was not present on the day of the incident and
not an eyewitness to the shooting, he testified regarding the hostile encounters between appellant
and the victim leading up to the shooting.
1. Devon Davis
{¶5} Davis described the victim as his best friend, with whom he would hang out daily.
He testified the victim and appellant were friends until an altercation at Rugby Avenue between
the victim and appellant’s little brother (Ahmere Cottingham) two months before the shooting.
During that encounter, Cottingham and his friends had asked the victim for marijuana and the
victim responded that “he don’t deal around like that.” This infuriated Cottingham and his
friends because they did not like the victim’s attitude. Cottingham pulled a gun out.
“Smiley,” who was friends with Devon and the victim, pulled his gun out too. Cottingham and
“Smiley” shot at each other.
“[n]o person shall cause the death of another as a proximate result of the offender’s committing or attempting to
commit an offense of violence that is a felony of the first or second degree.” The felony murder charge against
appellant was predicated on the underlying offense of felonious assault.
{¶6} A day after that incident, Devon ran into appellant at a restaurant. Appellant
asked him if he knew anything about the incident at Rugby Avenue the day before and warned
Devon to stay away from Rugby Avenue.
{¶7} A day later, Devon was in his driveway with the victim when he saw appellant
driving a blue Impala down Rugby Avenue with his brother Cottingham and another person by
the name of “Tashawn” in the vehicle. The vehicle pulled over and appellant and the victim
started to argue. Appellant was upset that his little brother was shot at. He threatened that
“someone is going to die” over “the situation.”
{¶8} Days later, Devon was outside his house retrieving mail and witnessed a
commotion at a gas station near his house. Appellant, his brother Cottingham, “Tashawn,” and
a fourth man were yelling at the victim. The victim started to retreat to Devon’s house.
Appellant and his brother were inside the Impala while “Tashawn” followed the victim on foot.
“Tashawn” then fired shots at the victim and Devon.
{¶9} Devon described yet another incident in front of his house where appellant, his
brother, and “Tashawn” pulled up in the same vehicle and appellant and his brother fired shots at
Devon’s house. Two bullets hit the house.
{¶10} Devon acknowledged that he had served time in prison for felonious assault with a
gun specification. He was not present when the victim was killed because he was in prison for
violating his community control sanctions.
2. Eyewitnesses
{¶11} There were three eyewitnesses to the shooting on November 18, 2016: the victim’s
friend Antonio McCain and Devon Davis’s parents, Dwayne Davis and Larissa Davis. They
testified that on the day of the shooting, appellant was first seen talking to the victim. Then
appellant’s brother Cottingham and “Tashawn” arrived in the blue Impala. Appellant’s brother
— the driver — got out of the vehicle, and after exchanging some words with the victim, he
returned to the vehicle as if to retrieve something. A shooting then erupted. McCain testified
he saw appellant shooting at the victim and saw no one else shooting. Dwayne Davis also saw
appellant shooting at the victim, but testified the driver — appellant’s brother — also had a gun.
Larissa Davis saw the driver shooting at the victim. Although no one witnessed the victim
shooting, his hands tested positive for gunshot residue. The witnesses specifically testified to
the following.
a. Antonio McCain
{¶12} McCain also described himself as “best friends” with the victim. He lived on
Rugby Avenue near Devon Davis’s parents. On the day of the incident, McCain came home after
work around 5:30 p.m. He spent some time with the victim and then left to give someone a
ride home. When McCain returned, he saw appellant and the victim talking to each other in
Devon Davis’s parents’ driveway.
{¶13} Soon, a blue vehicle, which McCain described as either a Malibu or Impala, pulled
up. Two men — appellant’s brother and “Tashawn” — hopped out of the vehicle. There was
some verbal altercation between them and the victim. “Tashawn” said to the victim “what are
you moving for?” Appellant then pulled out his gun — a chrome handgun — and said to the
victim “bitch-ass nigger, don’t move” before shooting at him. Everyone was a foot away from
each other at that point. The first shot went directly to the victim’s left leg. McCain
immediately took off running. After the first shot, appellant continued to shoot while
“back-pedaling” away running. The victim was running with McCain, into the Davises’
driveway. McCain heard 15 or 16 more gunshots. The victim fell twice while running and
ended up behind a truck. McCain called 911 for an ambulance. He testified that he did not
see the victim shooting or anyone else holding a gun that night.
b. Dwayne Davis
{¶14} Dwayne Davis, Devon’s father, lived in the Rugby Avenue house in front of which
the shooting occurred. Dwayne considered the victim “like a son” to him; the victim was his
son Devon’s best friend, and Dwayne would see him everyday. Antonio McCain also visited
his house frequently. On the night of the shooting, Dwayne was on his second-floor porch
when he first heard noises outside his house. Dwayne saw the victim and McCain talking in an
unfriendly manner with appellant, whom Dwayne described as someone in a hoodie with a tattoo
on his neck.
{¶15} Dwayne went outside to tell McCain to leave. Just then a blue vehicle came down
the street. The driver (later identified as appellant’s brother) exited the vehicle and went up to
the victim. After he said something to the victim, he went back to the vehicle as if to retrieve
something. The shooting then erupted — the guy with the tattoo on his neck who was talking
to McCain moments ago started shooting with an automatic handgun. Dwayne, McCain, and
the victim all ran. While Dwayne was running toward his house, he heard 10 to 12 more
gunshots. Both McCain and the victim were running up the driveway as well. The victim
was limping with blood coming down his leg.
{¶16} When asked if he saw anyone else with a gun that night, Dwayne answered: “the
guy that was looking like he could been his [appellant’s] little brother or whatever, he had a gun
too.”
{¶17} During cross-examination, Dwayne testified as follows when he was asked if he
saw the man who shot at the victim:
Q. Did you see who did the shooting?
A. Yeah, I saw the guy who did the shooting. Why? Do you want me to
point him out?
Q. No. I’m asking you * * *
A. Look, man, that man right there shot him. (Indicating) okay? I seen him do
it.
Q. Okay.
A. Now, I don’t know what happened to his little brother, why he started
shooting, but I seen him. (Indicating.)
Q. You have never identified him before.
A. No, I never identified him. I’m looking up. I see him now. I seen his
face plain as day.
c. Larissa Davis
{¶18} Larissa, Dwayne Davis’s wife, also witnessed the shooting that night, but gave a
somewhat different account. She saw the entire event from the upstairs porch. McCain and
the victim were outside her house, talking to a man she did not know. A blue vehicle pulled up.
Sensing trouble, Larissa started to call 911. The driver exited the vehicle, and the men
exchanged words. The driver then returned to the vehicle but came back with his hand down on
his side, and started “blasting,” shooting in the direction of the victim and McCain. On
cross-examination, when asked if it was the driver who shot the victim, she answered
affirmatively. She also stated she heard three shots fired by that man. She did not hear other
shots.
3. Other Witnesses for the State
{¶19} Det. Gregory Cook, who responded to the shooting scene, testified appellant, his
brother Ahmere Cottingham, and Tashawn McLemore were found that night in a location near
Rugby Avenue. The blue Impala was also found there. Ahmere Cottingham and Tashawn
McLemore were detained. Appellant himself had sustained gunshot wounds and was taken to
the hospital in an ambulance.
{¶20} Det. Cook also testified that four shell casings were recovered at the scene, and that
although he believed he recovered all the shell casings fired that night, there could have been
other casings. His investigation revealed there may be between 10 to 20 shots fired. Based on
the police investigation, he believed the victim was shooting as well that night.
{¶21} Curtiss Jones, a supervisor in the Cuyahoga County Forensic Science Laboratory,
testified that the hands of the victim and appellant’s brother Cottingham both tested positive for
gunshot residue. No testimony was provided as to whether appellant was also tested for
gunshot wounds.
{¶22} James Kooser, a forensic scientist also from the Forensic Science Laboratory,
testified that he examined four casings collected from the scene, and determined that two were
fired from one gun and the other two from a different gun. Three spent pellets were also
recovered — one was the morgue bullet removed from the victim and the other two were found
at the scene. One of the two found at the scene was too damaged to be analyzed. The other
two undamaged pellets came from different guns. Because it was impossible to match a spent
pellet and a cartridge casing, Kooser calculated as few as two guns and as many as five guns
could be involved.
{¶23} Dr. Elizabeth Armstrong, a forensic pathologist with the Cuyahoga County
Medical Examiner’s Office, conducted the autopsy of the victim. She determined the victim’s
death was caused by two gunshot wounds to his left leg. One of the two shots was fatal as it
perforated a major artery.
4. Defense Witness
{¶24} The defense called one witness, a manager in a used car dealership. He testified
that he sold the blue Impala involved in this case to an individual by the name of Daniel Austin
on September 26, 2016.
Sentence
{¶25} After trial, the jury convicted appellant of all counts except for aggravated murder.
The trial court merged the murder and felonious assault counts for sentencing and sentenced him
to life in prison with eligibility for parol after 15 years, and also a three-year term on the firearm
specification, to be served prior and consecutive to the 15-year term. Appellant was in addition
sentenced to 11 years for the discharge of firearm on or near prohibited premises and a three-year
term on the firearm specification for that count. These two terms are to be served
consecutively, for an aggregate sentence of 32 years to life.
Assignments of Error
{¶26} On appeal, appellant raises three assignments of error for our review. They state:
1. The jury determination in the lower court was against the manifest weight of
the evidence.
2. There was not sufficient evidence presented to the jury in the lower court
proceeding to convict the appellant on an accomplice liability theory.
3. The lower court erred when it sentenced appellant to consecutive sentences
under counts two (murder) and six (discharge of firearm on or near a prohibited
premises).
Standard of Review for Sufficiency-of-Evidence and Manifest-Weight Claims
{¶27} When reviewing a challenge of the sufficiency of the evidence, we review the
evidence admitted at trial and determine whether such evidence, if believed, would convince the
average mind of the defendant’s guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. “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.” Id.
A reviewing court is not to assess “whether the state’s evidence is to be believed, but whether, if
believed, the evidence against a defendant would support a conviction.” State v. Thompkins, 78
Ohio St. 3d 380, 390, 678 N.E.2d 541 (1997).
{¶28} While the test for sufficiency requires a determination of whether the state has met
its burden of production at trial, a manifest weight challenge questions whether the state has met
its burden of persuasion. Thompkins at 390. Unlike a claim that the evidence is insufficient to
support a conviction, which raise a question of law, manifest-weight challenges raise factual
issues. When a defendant argues his conviction is against the manifest weight of the evidence,
the court,
“reviewing the entire record, weighs the evidence and all reasonable inferences,
considers the credibility of witnesses and determines whether 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.
The discretionary power to grant a new trial should be exercised only in the
exceptional case in which the evidence weighs heavily against the conviction.”
Thompkins at 387, quoting State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983). When we examine witness credibility, we must be mindful that “the choice
between credible witnesses and their conflicting testimony rests solely with the finder of fact and
an appellate court may not substitute its own judgment for that of the finder of fact.” State v.
Awan, 22 Ohio St. 3d 120, 123, 489 N.E.2d 277 (1986). The trier of fact “is in the best position to
observe the witnesses’ demeanor, voice inflection, and mannerisms in determining each
witness’s credibility.” State v. Hughes, 8th Dist. Cuyahoga No. 81768, 2003-Ohio-2307, ¶ 26.
Furthermore, a trier of fact is free to believe all, some, or none of the testimony of each witness
appearing before it. State v. Wright, 8th Dist. Cuyahoga No. 80555, 2002-Ohio-4279, ¶ 25.
{¶29} In evaluating a manifest-weight claim, “the weight to be given the evidence and the
credibility of the witnesses are primarily for the trier of the facts.” State v. DeHass, 10 Ohio
St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. The assessment of their
credibility is a matter for the trier of fact, and we will not substitute our judgment for that of the
finder of fact. Having reviewed the record, we cannot say the trial court, as the trier of fact, lost
its way.
Murder
{¶30} Under the first assignment of error, appellant argues his murder conviction was
against the manifest weight of the evidence because there was conflicting testimony as to who
shot and killed the victim. He points out the discrepancies in the evidence: while two
eyewitnesses (Antonio McCain and Dwayne Davis) testified appellant shot the victim, the third
witness Larissa Davis testified it was the driver of the Impala who shot the victim. In addition,
the forensic evidence shows both the victim and appellant’s brother tested positive for gunshot
residue, which called into doubt the credibility of McCain, because he testified he did not see
anyone else with a gun that night.
{¶31} While there was conflicting testimony, “‘an accused is not entitled to a reversal on
manifest weight grounds merely because inconsistent evidence was presented at trial.’” State v.
Taylor, 10th Dist. Franklin No. 14AP-254, 2015-Ohio-2490, ¶ 34, quoting State v. Rankin, 10th
Dist. Franklin No. 10AP-1118, 2011-Ohio-5131, ¶ 29. “The jury, as trier of fact, may take into
consideration a witness’s conflicting testimony in determining her credibility and the
persuasiveness of her account by either discounting or resolving the discrepancies.” Id.
{¶32} Here, the jury could have chosen to resolve the conflict in the state’s favor: in
addition to McCain’s account, Dawyne Davis also testified appellant shot the victim. Although
there were indeed discrepancies in the eyewitnesses’ testimony and the forensic evidence, we
note that the shooting happened suddenly and quickly, and each eyewitness saw the event from a
different vantage point. The two witnesses (McCain and Dawyne Davis) identifying appellant
as the shooter were outside the house and in closer proximity to where the shooting occurred,
whereas Larissa Davis was observing the event from a second-floor porch and calling 911 as the
event unfolded. The weight to be given to the evidence and the credibility of the witnesses are
primarily for the trier of the facts. Having reviewed the evidence, we cannot say the jury lost its
way in resolving the conflict in the evidence by finding the two eyewitnesses closer to the
shooting scene more credible. The first assignment of error lacks merit.
Murder on a Complicity Theory
{¶33} Regarding appellant’s murder offense, the trial court instructed the jury on
complicity as an alternative theory of his criminal liability. Under the second assignment of
error, appellant argues there is insufficient evidence to convict him on an accomplice liability
theory.
{¶34} R.C. 2903.03, Ohio’s complicity statute, provides that “[n]o person, acting with the
kind of culpability required for the commission of an offense, shall * * * [a]id or abet another in
committing the offense.” R.C. 2923.03(A)(2). A person who is guilty of complicity in the
commission of an offense “shall be prosecuted and punished as if he were a principal offender. A
charge of complicity may be stated * * * in terms of the principal offense.” R.C. 2923.03(F).
{¶35} The statute does not define aiding and abetting, but the Supreme Court of Ohio has
held that, to support a conviction for complicity by aiding and abetting, the evidence must show
that the defendant “supported, assisted, encouraged, cooperated with, advised, or incited the
principal in the commission of the crime, and that the defendant shared the criminal intent of the
principal.” State v. Johnson, 93 Ohio St. 3d 240, 2001-Ohio-1336, 754 N.E.2d 796, syllabus.
Furthermore, “[s]uch intent may be inferred from the circumstances surrounding the crime.” Id.
at 246.
{¶36} “‘The mere presence of an accused at the scene of the crime is not sufficient to
prove, in and of itself, that the accused was an aider and abettor.’” State v. Langford, 8th Dist.
Cuyahoga No. 83301, 2004-Ohio-3733, ¶ 20, quoting State v. Widner, 69 Ohio St. 2d 267, 269,
431 N.E.2d 1025 (1982). Instead, “[a]iding and abetting may be shown by both direct and
circumstantial evidence, and participation may be inferred from presence, companionship, and
conduct before and after the offense is committed.” Id. at ¶ 21, citing State v. Cartellone, 3
Ohio App. 3d 145, 150, 444 N.E.2d 68 (8th Dist.1981).
{¶37} Our review of the record shows that the state produced sufficient evidence to
convict appellant not only of murder but also murder on a complicity theory. Devon Davis
testified to the events precipitating the fatal shooting. Appellant’s hostility toward the victim
began after an altercation between his brother and the victim, in which appellant’s brother and
the victim’s friend shot at each other. Appellant was upset that someone shot at his brother.
He was seen days later driving with his brother and “Tashawn” on Rugby Avenue and
threatening the victim with death in retaliation. Subsequently, appellant, his brother, and
“Tashawn” were seen following the victim and “Tashawn” fired shots at the victim.
{¶38} On the night of the shooting, appellant and the victim were seen talking to each
other. Gunshots erupted only after appellant’s brother arrived with “Tashawn” in the Impala.
After the shooting, appellant, his brother, and “Tashawn” fled in the Impala. The testimony,
viewed in a light most favorable to the prosecution, could support appellant’s conviction of
murder based on his supporting, assisting, encouraging, or inciting the principal in the
commission of murder and his sharing of criminal intent with the principal. Stated differently, the
state produced sufficient evidence for the jury to infer appellant’s participation in the crime from
“presence, companionship, and conduct” before and after the fatal shooting. Although the
evidence is circumstantial, circumstantial evidence is not less probative than direct evidence and
in some instances even more reliable. State v. Nicely, 39 Ohio St. 3d 147, 151, 529 N.E.2d 1236
(1988). For these reasons, the second assignment of error is without merit.
Allied Offenses
{¶39} Appellant was also convicted of discharging a firearm upon or over a public road
or highway in violation of R.C. 2923.162(A)(3) 2 because the evidence showed he fired
numerous gunshots while backing into the street. He does not challenge his conviction pursuant
2
R.C. 2923.162 (“Discharge of firearm on or near prohibited premises”) prohibits discharging a firearm
within a hundred yards of a cemetery (R.C. 2923.162(A)(1)); on grounds of a school or church (R.C.
2923.162(A)(2)); or on a public road or highway (R.C. 2923.162(A)(3)).
to R.C. 2923.162(A)(3), but, in the third assignment of error he argues that conviction should
be merged with his murder conviction under R.C. 2941.25.3
{¶40} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution,
prohibiting multiple punishments for the same offense.” State v. Johnson, 2018-Ohio-1387, 110
N.E.3d 863, ¶ 28 (8th Dist.). R.C. 2941.25 states:
(A) Where the same conduct by defendant can be construed to constitute two or
more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar
import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus as to each, the
indictment or information may contain counts for all such offenses, and the
defendant may be convicted of all of them.
{¶41} In State v Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the
Supreme Court of Ohio set forth a conduct-based analysis for allied offenses. First, the court
determines whether it is possible to commit one offense and commit the other with the same
conduct. Johnson at ¶ 48. If that is possible, then the court determines whether the two
offenses were in fact committed by the same conduct — a single act, committed with a single
state of mind. Id. at ¶ 49.
3
We note that pursuant to R.C. 2923.162(C), discharging a firearm on prohibited premises such as a
roadway is a misdemeanor of the first degree, but a felony of the first degree if it causes serious physical harm to a
person. R.C. 2923.162(C)(1) and (C)(4). The indictment charged appellant with discharge of firearm on or near
prohibited premises, a first-degree felony, and identified Demetrius Paul as the person who sustained serious
physical harm.
{¶42} The analysis from Johnson has been supplanted by State v. Ruff, 143 Ohio St. 3d
114, 2015-Ohio-995, 34 N.E.3d 892, however. See State v. Dennis, 2017-Ohio-4437, 93 N.E.3d
277, ¶ 22 (8th Dist.). The defendant’s conduct is now only part of a proper allied-offense
analysis. “Under R.C. 2941.25(B), a defendant whose conduct supports multiple offenses may
be convicted of all the offenses if any one of the following is true: (1) the conduct constitutes
offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately,
or (3) the conduct shows that the offenses were committed with separate animus.” (Emphasis
added.) Ruff at paragraph three of syllabus. Because this is a disjunctive test, an affirmative
answer to any of the questions will permit separate convictions. Id. at ¶ 31.
{¶43} Regarding what constitutes dissimilar import, “[t]wo or more offenses of dissimilar
import exist within the meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes
offenses involving separate victims or if the harm that results from each offense is separate and
identifiable.” Ruff at paragraph two of the syllabus. “[W]hen the defendant’s conduct put
more than one individual at risk, that conduct could support multiple convictions because the
offenses were of dissimilar import.” Id. at ¶ 23. “[O]ffenses are not allied offenses of similar
import if they are not alike in their significance and their resulting harm.” Id. at ¶ 21.
{¶44} We review an allied-offense claim de novo. State v. Webb, 8th Dist. Cuyahoga
No. 98628, 2013-Ohio-699, ¶ 4.
{¶45} In State v. James, 2015-Ohio-4987, 53 N.E.3d 770, ¶ 33 (8th Dist.), this court held
that the offense of discharging a firearm on a public road or highway is a strict liability offense
and the victim is the public. Id. at ¶ 33-34.
{¶46} Applying James, this court subsequently held that discharging a firearm on or near
prohibited premises and felonious assault should not merge. Johnson, 2018-Ohio-1387, 110
N.E.3d 863, at ¶ 32-33. See also State v. Carzelle, 8th Dist. Cuyahoga No. 105425,
2018-Ohio-92; and State v. Hardnett, 8th Dist. Cuyahoga No. 107038, 2019-Ohio-105; State v.
Wright, 7th Dist. Mahoning No. 15 MA 0092, 2017-Ohio-1211, ¶ 24 (felonious assault and
improper discharge counts should not merge because the crimes involved separate victims and
separate identifiable harms).
{¶47} The instant case is similar to State v. Williams, 2d Dist. Montgomery No. 27663,
2018-Ohio-1647. The appellant in that case fired multiple shots in rapid succession across the
road with the singular motivation of killing a targeted victim. He was convicted of a murder
and discharging a firearm on or near prohibited premises. On appeal, he argued these offenses
should be merged because the two offenses caused the same harm, namely, the life of the victim,
and they constituted one action and were committed with the same animus. The Second District
rejected his claim. Citing James, the court found the two offenses to be of dissimilar import.
It reasoned that the appellant’s act of firing a gun across the roadway placed numerous people at
risk and harmed the public at large, while his murder conviction involved harm to a particular
victim and therefore the offenses differed in significance and the nature of the harm caused. Id.
at ¶ 23-24.
{¶48} In support of his claim, appellant cites State v. Melton, 2013-Ohio-257, 984 N.E.2d
1112 (8th Dist.), and State v. Robinson, 8th Dist. Cuyahoga No. 99290, 2013-Ohio-4375. In
both cases, the defendant shot at the victim upon a roadway and this court concluded felonious
assault and discharging a firearm upon or over a public road or highway should have been
merged by the trial court. Both cases were analyzed under the old Johnson test, however. In
both cases, this court applied the two-prong Johnson test and found the offenses should be
merged. Johnson, 128 Ohio St. 3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, however, was
supplanted by Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892. Under Ruff, the court
is to analyze not only the defendant’s conduct but also whether the offenses are of dissimilar
import, i.e., whether the defendant’s conduct involves separate victims or if the harm resulting
from each offense is separate and identifiable.
{¶49} Pursuant to Ruff and James, the two offenses committed by appellant involved
different victims, the victim of the murder offense was Demetrius Paul while the victim of the
discharging a firearm upon or over a public road or highway was the public at large, including
the witnesses in the vicinity; the latter offense posed a great risk of harm to the public and that
harm was separate and differed in its significance from harm to a specific victim. In other
words, the two offenses were of dissimilar import. Williams. Under Ruff, the trial court here
did not err in not merging the two offenses. The third assignment of error is without merit.
{¶50} Judgment affirmed.
It is ordered that appellee recover of 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. 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.
__________________________________________
MICHELLE J. SHEEHAN, JUDGE
EILEEN T. GALLAGHER, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR