State v. Kelly

[Cite as State v. Kelly, 2012-Ohio-5875.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Sheila G. Farmer, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Julie A. Edwards, J.
-vs-
STEPHEN F. KELLY Case No. 2012CA00067
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2011CR1546
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 10, 2012
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO GEORGE URBAN
PROSECUTING ATTORNEY 116 Cleveland Avenue, NW
Suite 808
BY: RENEE M. WATSON Canton, OH 44702
110 Central Plaza South
Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2012CA00067 2
Farmer, P.J.
{¶1} On December 13, 2011, the Stark County Grand Jury indicted appellant,
Stephen Kelly, on two counts of felonious assault with firearm specifications in violation
of R.C. 2903.11 and 2941.145 and one count of improperly discharging a firearm into a
habitation in violation of R.C. 2921.161. Said charges arose from an incident wherein
appellant fired shots into a home and injured two people. One of the felonious assault
counts was later dismissed due to an uncooperative victim. The remaining felonious
assault count involved the shooting of an eight year old boy.
{¶2} A jury trial commenced on February 21, 2012. The jury found appellant
guilty as charged. By judgment entry filed March 5, 2012, the trial court sentenced
appellant to eight years on the felonious assault count, three years on the firearm
specification, and four years on the improperly discharging a firearm into a habitation
count, all to be served consecutively for a total aggregate term of fifteen years in prison.
{¶3} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶4} "THE DEFENDANT'S CONVICTIONS FOR ONE COUNT OF
FELONIOUS ASSAULT IN VIOLATION OF R.C. 2903.11 AND ONE COUNT OF
IMPROPERLY DISCHARGING A FIREARM INTO A HABITATION IN VIOLATION OF
2923.161 WERE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE
EVIDENCE."
Stark County, Case No. 2012CA00067 3
II
{¶5} "THE TRIAL COURT ERRED IN FAILING TO MERGE THE TWO
CONVICTIONS FOR SENTENCING PURPOSES."
I
{¶6} Appellant claims his convictions were against the sufficiency and manifest
weight of the evidence. We disagree.
{¶7} On review for sufficiency, a reviewing court is to examine the evidence at
trial to determine whether such evidence, if believed, would support a conviction. State
v. Jenks, 61 Ohio St.3d 259 (1991). "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." Jenks,
at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On
review for manifest weight, a reviewing court is to examine the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of witnesses and
determine "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." State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). See
also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial
"should be exercised only in the exceptional case in which the evidence weighs heavily
against the conviction." Martin, at 175.
{¶8} We note circumstantial evidence is that which can be "inferred from
reasonably and justifiably connected facts." State v. Fairbanks, 32 Ohio St.2d 34(1972), paragraph five of the syllabus. "[C]ircumstantial evidence may be more certain,
Stark County, Case No. 2012CA00067 4
satisfying and persuasive than direct evidence." State v. Richey, 64 Ohio St.3d 353,
1992-Ohio-44. It is to be given the same weight and deference as direct evidence.
Jenks, supra.
{¶9} Appellant was convicted of felonious assault in violation of R.C.
2903.11(A)(2) which states "[n]o person shall knowingly***[c]ause or attempt to cause
physical harm to another or to another's unborn by means of a deadly weapon or
dangerous ordnance." He was also convicted of improperly discharging a firearm into a
habitation in violation of R.C. 2923.161(A)(1) which states "[n]o person, without privilege
to do so, shall knowingly***[d]ischarge a firearm at or into an occupied structure that is a
permanent or temporary habitation of any individual."
{¶10} Appellant argues the state failed to establish beyond a reasonable doubt
that he was the shooter as there was no eyewitness testimony identifying the shooter
and no firearm or shell casings were found.
{¶11} On the day and evening of the incident, appellant spent his time with
several friends, Rapheem Gordon, Ian Robinson, and Chad McLeod. During the day,
appellant, Mr. Gordon, and Mr. Robinson got into a verbal altercation with some
neighbors. Vol. 2-B T. at 20. Mr. Gordon testified to hearing two gunshots from behind
him. Vol. 2-B T. at 23. When he turned around, he observed appellant behind him
putting a gun into his waistband. Vol. 2-B T. at 26. Mr. Robinson testified to seeing
appellant with a gun. Vol. 2-B T. at 77. Later in the evening, appellant was driving the
group around and ended up near the Wallace residence where the incident sub judice
occurred. Vol. 2-B T. at 30. Mr. Gordon testified to appellant and Antonio Wallace
disliking each other. Vol. 2-B T. at 29. Several people were gathered on the Wallace
Stark County, Case No. 2012CA00067 5
porch. Vol. 2-B T. at 31-32. Appellant stopped the vehicle and said something about
shooting "that bitch up," (Antonio Wallace's residence). Vol. 2-B T. at 33, 83.
Appellant's friends told him not to do it. Vol. 2-B T. at 33, 78. Appellant exited the
vehicle and Mr. Gordon observed the handle of a gun in appellant's waistband. Vol. 2-B
T. at 36. Mr. Gordon got behind the wheel and drove away. Vol. 2-B T. at 35, 81.
Thereafter, the group in the vehicle heard from four to eight gunshots. Vol. 2-B T. at 37,
80. Mr. Gordon admitted to just shaking his head and thinking that appellant was
stupid. Vol. 2-B T. at 37. None of appellant's friends in the vehicle had a gun. Vol. 2-B
T. at 41-42, 76-77. When Mr. McLeod took the stand, he claimed to not remember
anything that was in his transcribed statement to police or his grand jury testimony. Vol.
2-B T. at 98-113. Both his statements to police and his grand jury testimony
corroborated the testimony of Mr. Gordon and Mr. Robinson. Id.
{¶12} When police officers arrived at the Wallace residence, they found a
chaotic scene with approximately twenty people outside screaming and yelling. T. at
150. An eight year old child, Shaun Wallace, had been shot. Id.
{¶13} Ronada Wallace, Shaun's mother, testified to living in the residence in
question with her ten children. T. at 163. Some ten people were outside on her porch
when she heard approximately twelve gunshots. T. at 167, 170. Thereafter, she
discovered her son, who was inside the house, had been shot. T. at 166, 168-169.
{¶14} Isaiah Bush testified when he was in the attention center, he spoke with
appellant and appellant told him about the incident and admitted to rolling by the house
and "busting," which means "shooting more than once like." T. at 256-257, 259, 261.
Mr. Bush testified that appellant told him his buddies would not be going to court to
Stark County, Case No. 2012CA00067 6
testify against him because they were "his boys." T. at 263. Mr. Bush admitted to
receiving a deal from the state in exchange for his testimony. T. at 266.
{¶15} Canton Police Sergeant Victor George testified about his interview with
appellant following his arrest. Appellant described his three friends as "associates," and
denied being in the vehicle. T. at 288-289. He then admitted to being in the vehicle
earlier in the day, but was not in the vehicle when it was at the Wallace residence. T. at
289. Appellant also denied having a gun. T. at 292.
{¶16} The weight to be given to the evidence and the credibility of the witnesses
are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990). The trier of
fact "has the best opportunity to view the demeanor, attitude, and credibility of each
witness, something that does not translate well on the written page." Davis v.
Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.
{¶17} Upon review, we find sufficient evidence, if believed, to support the
convictions, and no manifest miscarriage of justice.
{¶18} Assignment of Error I is denied.
II
{¶19} Appellant claims the trial court erred in failing to merge the two convictions
for sentencing purposes as they were allied offenses of similar import. We disagree.
{¶20} R.C. 2941.25 governs multiple counts and states the following:
(A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information
Stark County, Case No. 2012CA00067 7
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.
{¶21} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, syllabus, the
Supreme Court of Ohio held "[w]hen determining whether two offenses are allied
offenses of similar import subject to merger under R.C. 2941.25, the conduct of the
accused must be considered. (State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d
699, overruled.)"
{¶22} The Johnson court explained the following at ¶ 48–51:
In determining whether offenses are allied offenses of similar import
under R.C. 2941.25(A), the question is whether it is possible to commit
one offense and commit the other with the same conduct, not whether it is
possible to commit one without committing the other. Blankenship, 38
Ohio St.3d at 119, 526 N.E.2d 816 (Whiteside, J., concurring) ("It is not
necessary that both crimes are always committed by the same conduct
but, rather, it is sufficient if both offenses can be committed by the same
conduct. It is a matter of possibility, rather than certainty, that the same
Stark County, Case No. 2012CA00067 8
conduct will constitute commission of both offenses." [Emphasis sic]). If
the offenses correspond to such a degree that the conduct of the
defendant constituting commission of one offense constitutes commission
of the other, then the offenses are of similar import.
If the multiple offenses can be committed by the same conduct,
then the court must determine whether the offenses were committed by
the same conduct, i.e., "a single act, committed with a single state of
mind." Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶
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.
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.
{¶23} Appellant was convicted of felonious assault and improperly discharging a
firearm into a habitation. He argues these two offenses stemmed from the exact same
act: shooting a firearm into a residence. The state agrees the first question of the
Johnson test can be answered in the affirmative. Appellee's Brief at 16. The second
question to be determined is whether the offenses were committed by the same
conduct.
Stark County, Case No. 2012CA00067 9
{¶24} In State v. Walton, 5th Dist. No. 2011 CA 00214, 2012-Ohio-2597, this
court reviewed the merger issue involving murder and the predicate offense of
improperly discharging a firearm into a habitation. The defendant had shot five rounds
into an occupied structure and struck and killed a sixteen year old girl therein. This
court concluded the following at ¶ 56:
The count of murder was expressly based on the theory that
Singleton's death was the proximate result of appellant's underlying
unlawful act of firing a gun into a habitation. While our conclusions would
not necessarily apply to every conceivable scenario of a killing from a
drive-by shooting into a house, under the circumstances of the case sub
judice, we are persuaded that the act and animus of murder as charged
herein under R.C. 2903.02(B) are inextricably part of the same conduct as
the count of improper discharge of a weapon into a habitation under R.C.
2923.161(A)(1).
{¶25} In State v. Whipple, 1st Dist. No. C-110184, 2012-Ohio-2938, our brethren
from Hamilton County determined felonious assault and improperly discharging a
firearm into a habitation did not merge for sentencing purposes. In Whipple, two victims
were struck while inside a residence from shots fired outside the residence. The police
recovered twenty-eight shell casings from the scene, and the testimony and
photographic evidence demonstrated that the defendant and others "had gone on a
shooting rampage at this Lincoln Heights home, shooting through vehicles, doors,
Stark County, Case No. 2012CA00067 10
windows, and walls." Whipple, at ¶ 40. The Whipple court at ¶ 41-42 distinguished this
court's decision in Walton as follows:
In this way, this case is distinguishable from cases like State v.
Walton, 5th Dist. No. 2011 CA 00214, 2012-Ohio-2597, 2012 WL
2115517. 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.
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.
{¶26} We find the Whipple case to be analogous to the case sub judice. In the
instant case, appellant fired four to twelve rounds at the Wallace residence while
approximately ten people were on the front porch and others were inside. Appellant
struck two people, one who would not cooperate and one being Shaun Wallace. That
left two to ten rounds, "any one of which would support a conviction of R.C.
Stark County, Case No. 2012CA00067 11
2923.161(A)(1)." Walton, at ¶ 75. Appellant's course of conduct indicated the distinct
purpose to shoot up the Wallace residence, with numerous individuals inside and clearly
standing outside. We find firing the additional rounds constituted separate acts
committed with a separate animus.
{¶27} Assignment of Error II is denied.
{¶28} The judgment of the Court of Common Pleas of Stark County, Ohio is
hereby affirmed.
By Farmer, P.J.
«Panel_2», J. concur and
Wise, J. concurs separately.
s/ Judge Sheila G. Farmer
s/ Judge Julie A. Edwards
JUDGES
SGF/db 1119
Stark County, Case No. 2012CA00067 12
Wise, J., concurring
{¶29} I concur with the decision of the majority. I write separately only as
a means of articulating my reasoning on the issue of merger.
{¶30} In Walton, a decision I authored, the defendant’s murder charge
was predicated on the underlying offense of improperly discharging a firearm at
or into a habitation under R.C. 2923.161(A)(1), which charge was also the basis
for the additional count at issue, i.e., improperly discharging a weapon at or into a
habitation, likewise under R.C. 2923.161(A)(1). See Walton at ¶ 53. In other
words, “[t]he count of murder was expressly based on the theory that [the
victim’s] death was the proximate result of [Walton’s] underlying unlawful act of
firing a gun into a habitation.” Id. at ¶ 56.
{¶31} In the case sub judice, the felonious assault charge at issue indeed
includes the element of “by means of a deadly weapon,” but I find this clearly
distinguishable from a murder charge based on the act of improperly discharging
a weapon specifically at or into a habitation. As such, I am not inclined to rely on
the rationale of Walton under the present facts and circumstances.
________________________________
JUDGE JOHN W. WISE
[Cite as State v. Kelly, 2012-Ohio-5875.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
STEPHEN F. KELLY :
:
Defendant-Appellant : Case No. 2012CA00067
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to
appellant.
s/ Judge Sheila G. Farmer
s/ Judge John W. Wise
s/ Judge Julie A. Edwards
JUDGES