[Cite as State v. McClendon,

.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

STATE OF OHIO :

Plaintiff-Appellee : C.A. CASE NO. 23558

vs. : T.C. CASE NO. 09CR446

KYLE MCCLENDON : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :

. . . . . . . . .

O P I N I O N

Rendered on the 30th day of September, 2011.

. . . . . . . . .

Mathias H. Heck, Jr., Pros. Attorney; Carley J. Ingram, Asst. Pros. Attorney, Atty. Reg. No. 0020084, P.O. Box 972, Dayton, OH 45422

Attorney for Plaintiff-Appellee

William O. Cass, Atty. Reg. No. 0034517, 3946 Kettering Blvd, Suite 202, Kettering, OH 45439 Attorney for Defendant-Appellee

. . . . . . . . .

GRADY, P.J.:

{¶ 1} This matter is before the court on remand from the Ohio

Supreme Court.

{¶ 2} In the early morning hours of February 7, 2009, Defendant

shot David Driscoll five times at a Marathon gas station located

at 4351 Riverside Drive in Dayton. Driscoll died at the scene 2

from his multiple gunshot wounds. Following a jury trial,

Defendant was found guilty of purposeful murder, R.C. 2903.02(A),

felony murder, R.C. 2903.02(B), one count of felonious assault

- deadly weapon in violation of R.C. 2903.11(A)(2), one count of

felonious assault - serious physical harm in violation of R.C.

2903.11(A)(1), one count of improper handling of a firearm in a

motor vehicle, R.C. 2923.16(B), and multiple firearm

specifications, R.C. 2941.145.

{¶ 3} At sentencing, the trial court merged the two murder

offenses, the two felonious assault offenses, and all five firearm

specifications, and imposed prison terms totaling twenty-six years

to life. The trial court refused to merge the felony murder, R.C.

2903.02(B), and the felonious assault - deadly weapon, R.C.

2903.11(A)(2), offenses.

{¶ 4} On direct appeal we affirmed in part and reversed in

part the trial court’s judgment. State v. McClendon, Montgomery

App. No. 23558,

. In his second assignment of error,

Defendant argued that the trial court erred by failing to merge

the allied offenses of felony murder, R.C. 2903.02(B), and

felonious assault - deadly weapon, R.C. 2903.11(A)(2), pursuant

to R.C. 2941.25. We agreed and reversed and vacated Defendant’s

sentences for felony murder and felonious assault - deadly weapon,

and remanded the matter to the trial court to merge the felonious 3

assault - deadly weapon offense with the felony murder offense,

and resentence Defendant accordingly.

{¶ 5} The State appealed to the Ohio Supreme Court. On March

29, 2011, the Ohio Supreme Court vacated our judgment with respect

to the second assignment of error only, and remanded the matter

to this court for application of the Supreme Court’s decision in

State v. Johnson,

,

.

{¶ 6} This matter is now before us for a merit decision on

the allied offenses issue in the second assignment of error,

applying State v.

SECOND ASSIGNMENT OF ERROR

{¶ 7} “THE FELONY MURDER COUNT AND THE FELONIOUS ASSAULT COUNT

MERGE UNDER THE HOLDING OF STATE V. JOHNSON.”

{¶ 8} At the sentencing hearing, the trial court merged as

allied offenses of similar import the two counts of murder, R.C.

2903.02(A) and (B), and sentenced Defendant only on the felony

murder count, R.C. 2903.02(B). Likewise, the court merged the

two counts of felonious assault, R.C. 2903.11(A)(1) and (2), and

sentenced Defendant only on the felonious assault-deadly weapon

count, R.C. 2903.11(A)(2).

{¶ 9} Defendant argues that the trial court erred by denying

his request to also merge the felony murder, R.C. 2903.02(B), and

the felonious assault-deadly weapon, R.C. 2903.11(A)(2) 4

convictions, because under the rule of State v. Johnson,

,

, those are allied offenses of similar

import that must be merged pursuant to R.C. 2941.25. We agree,

and therefore sustain this assignment of error.

{¶ 10} R.C. 2903.02(B), provides:

{¶ 11} “No 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

and that is not a violation of section 2903.03 or 2903.04 of the

Revised Code.”

{¶ 12} R.C. 2903.11(A)(2), provides:

{¶ 13} “No person shall knowingly do either of the following:

{¶ 14} “* * *

{¶ 15} “Cause or attempt to cause physical harm to another or

to another’s unborn by means of a deadly weapon or dangerous

ordnance.”

{¶ 16} Ohio’s multiple counts statute, R.C. 2941.25, provides:

{¶ 17} “(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.

{¶ 18} “(B) Where the defendant’s conduct constitutes two or

more offenses of dissimilar import, or where his conduct results 5

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.”

{¶ 19} State v. Johnson,

,

,

the Ohio Supreme Court announced a new test for determining when

offenses are allied offenses of similar import that must be merged

pursuant to R.C. 2941.25. Johnson overruled the previous test

announced in State v. Rance (1999),

, and held:

“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.”

at syllabus. The Supreme

Court explained its holding at ¶47-51, stating:

{¶ 20} “Under R.C. 2941.25, the court must determine prior to

sentencing whether the offenses were committed by the same conduct.

Thus, the court need not perform any hypothetical or abstract

comparison of the offenses at issue in order to conclude that the

offenses are subject to merger.

{¶ 21} “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

(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 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.

{¶ 22} “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,

,

,

(Lanzinger, J.,dissenting).

{¶ 23} “If the answer to both questions is yes, then the offenses

are allied offenses of similar import and will be merged.

{¶ 24} “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.”

{¶ 25} In our prior decision in this case,

,

we noted: 7

{¶ 26} “[I]t is not possible to cause the death of another as

a proximate result of causing physical harm with a deadly weapon

in violation of R.C. 2903.02(B), without also committing a

felonious assault with a deadly weapon in violation of R.C.

2903.11(A)(2). The death would not have occurred without the

felonious assault having been committed, and the felonious assault

is itself a cause which in the natural and continuous sequence

of events involved resulted in the victim’s death.”

{¶ 27} Clearly, under the rule of Johnson, it is possible to

commit a violation of both R.C. 2903.02(B) and 2903.11(A)(2) with

the same conduct. Defendant’s conduct in shooting David Driscoll

five times in rapid succession, which resulted in Driscoll’s death,

violates both R.C. 2903.02(B) and 2903.11(A)(2). Therefore,

because it is possible to commit a violation of both R.C. 2903.02(B)

and 2903.11(A)(2) with the same conduct, they are allied offenses

of similar import for purposes of R.C. 2941.25(A).

. The further issue is whether the felony murder and felonious

assault-deadly weapon offenses in this case were committed by the

same conduct; that is, by a single act committed with a single

state of mind, Johnson, at ¶49, or whether the exception to merger

in R.C. 2941.25(B) applies.

{¶ 28} The State argues that because Defendant had to pull the

trigger five separate times in order to shoot Driscoll five times, 8

which collectively resulted in Driscoll’s death, Defendant engaged

in five separate acts, and the felonious assault and murder offenses

were committed separately and are not subject to merger per R.C.

2941.25(B). This argument lacks merit given the facts of this

case.

{¶ 29} As we noted in our previous opinion in this case,

McClendon at ¶33-34:

{¶ 30} “On this record, the two offenses involved the same

conduct. Because they were not committed separately or with a

separate animus for each, their merger for purposes of R.C. 2941.25

is required.

{¶ 31} “In this case there was but one criminal act/incident

in which Defendant fired five shots at the same victim, David

Driscoll, all at the same time in rapid succession. Defendant’s

animus in firing each shot was the same: to cause serious physical

harm to Driscoll. All five shots struck Driscoll and he died as

a result of multiple gunshot wounds. The offenses of felonious

assault, R.C. 2903.11(A)(2), and felony murder, R.C. 2903.02(B),

were not committed separately or with a separate animus for each,

and accordingly their merger for purposes of R.C. 2941.25 is

required.”

{¶ 32} The offenses of felonious assault-deadly weapon, R.C.

2903.11(A)(2), and felony murder, R.C. 2903.02(B), in this case 9

arise from and were committed by the same conduct, i.e., a single

act committed with a single animus. Johnson. Accordingly, those

offenses are allied offenses of similar import that must be merged,

and Defendant may be convicted of and sentenced for only one.

Johnson.

{¶ 33} Defendant’s second assignment of error is sustained.

We will reverse and vacate Defendant’s sentences for felony murder

and felonious assault (deadly weapon), and the case will be remanded

to the trial court to hold a new sentencing hearing for the offense

that remains after the State selects which allied offense to pursue.

State v. Wilson,

,

. Otherwise,

the judgment of the trial court is affirmed.

FAIN, J. And HALL, J., concur.

Copies mailed to:

Carley Ingram, Esq. William O. Cass, Esq. Hon. Dennis J. Langer