[Cite as State v. Banks,

.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, : CASE NO. 2012-L-110 - vs - :

RAYMONE D. BANKS, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas, Case No. 12 CR 000307.

Judgment: Affirmed as modified and affirmed.

Charles E. Coulson, Lake County Prosecutor, Karen A. Sheppert, Assistant Prosecutor, and Jenny B. Azouri, Assistant Prosecutor, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).

Matthew C. Bangerter, 1360 West 9th Street, Suite 200, Cleveland, OH 44113 (For Defendant-Appellant).

DIANE V. GRENDELL, J.

{¶1} Defendant-appellant, Raymone D. Banks, appeals his convictions,

following a jury trial in the Lake County Court of Common Pleas, for Aggravated

Robbery, Felonious Assault, two counts of Having Weapons While Under Disability, and

Discharge of a Firearm on or near a Prohibited Premises, as well as his sentence of 27

years in prison. The issues to be determined by this court are whether convictions for

the foregoing charges are supported by the weight and sufficiency of the evidence when there is testimony that the defendant pointed a gun at the victim, asked for his money,

and the defendant ultimately shot the victim; whether Felonious Assault and Aggravated

Robbery are allied offenses when the robbery occurred prior to the shooting; whether

Felonious Assault and Discharge of a Firearm on or near a Prohibited Premises are

allied offenses when a gun is fired at the victim and the bullet travels into the roadway;

and whether a sentence was proper when the judge considered the seriousness and

recidivism factors. For the following reasons, we affirm the trial court’s judgment, as

modified herein.

{¶2} On July 5, 2012, the Lake County Grand Jury issued an Indictment,

charging Banks with the following: one count of Aggravated Robbery (Count One), a

felony of the first degree, in violation of R.C. 2911.01(A)(1); one count of Felonious

Assault (Count Two), a felony of the second degree, in violation of R.C. 2903.11(A)(2);

two counts of Having Weapons While Under Disability (Counts Three and Four),

felonies of the third degree, in violation of R.C. 2923.13(A)(2) and (A)(3); and one count

of Discharge of a Firearm on or near a Prohibited Premises (Count Five), a felony of the

third degree, in violation of R.C. 2923.162(A)(3). Each count had a firearm

specification, pursuant to R.C. 2941.145. Counts One and Two also had repeat violent

offender specifications, pursuant to R.C. 2941.149.

{¶3} A jury trial was held in this matter on July 17-18, 2012. The following

pertinent testimony and evidence were presented.

{¶4} Reginald Hall described the April 27, 2012 incident giving rise to the

charges against Banks, in which Hall was shot and robbed by Banks. Hall explained

that he had known Banks since around 2006 and that they had been friends who had

2 also spent time together while in prison. The day before the shooting, he saw Banks’

friend, who stated that Banks was looking for him. On April 27, Banks called Hall

several times. Hall explained that the two planned on meeting to “chill out” and smoke

marijuana.

{¶5} According to Hall, he drove up to South Saint Clair Street, in Painesville,

Ohio, near some apartment buildings, where Banks entered his car. As soon as Banks

got in the car, he turned around and pulled out a gun, which Hall described as a black

Glock. Banks told Hall to give him his money and started going through the car’s glove

compartment and center console. Hall testified that Banks stated, “give me everything,

I’m gonna shoot you.” Hall gave him everything he had, including $500, but Banks still

stated, “I’m going to shoot you.” Hall grabbed the gun, tried to move it away, and was

shot in the leg. Hall explained that after the first shot, Banks pulled the gun back up,

Hall grabbed it again, and Banks shot again, missing him and hitting the driver’s side

window. Banks shot at him a third time and hit him in the forearm. Hall stated that the

last shot went off while he was still reaching for the gun.

{¶6} Hall described some of the money later recovered from Banks as his, and

stated that he recognized it because he had a “colorful $50,” as well as an “old” $10,

which he kept because it brought him luck.

{¶7} Hall admitted during cross-examination that he had sold drugs in the past,

but he was not doing so on the date of the shooting. He denied meeting Banks for the

purpose of selling him marijuana on that date.

3 {¶8} Annie Lerman, a dispatcher at the Lake County Sheriff’s Office, testified

regarding a 911 call she received from Hall on April 27. A tape of that call was played

for the jury, in which Hall stated that he had just been shot “by a dude named Ray.”

{¶9} Sergeant Toby Burgett testified that on the date of the shooting, he

responded to a call at an Arby’s parking lot, where Hall had parked his car after being

shot. Burgett saw Hall was inside of his vehicle, “screaming in pain.”

{¶10} Sergeant Burgett then went to the scene of the shooting, located around

224 South Saint Clair Street, and saw broken glass on the roadway. After being

provided information from witnesses, he and other officers discovered the location of

Banks, in an apartment located near the shooting. Banks had removed his clothing and

was sleeping. After being asked to dress, he put on a dark pair of jeans and a black

hoodie. $600 was found in his jeans pocket. A subsequent search of the apartment

revealed a Glock firearm, located in a laundry basket.

{¶11} Burgett said Hall described the denominations of money that were taken

from him by Banks and that they were similar to the denominations found in Banks’

jeans. Hall was able to identify Banks in a lineup as well.

{¶12} Upon searching Hall’s car, a phone was discovered, which matched the

number that Hall said Banks had used to call him. A small bag of marijuana was also

found inside of the car. A spent bullet was located on the floor of the driver’s side, as

well as a shell casing on the driver’s seat. The driver’s side window was shattered,

there was a hole in the driver’s side door, a hole in the driver’s seat, and a mark on the

driver’s side door jam, which appeared to be a bullet deflection. Sergeant Burgett

4 explained that no gunshot residue exam was performed on Hall or on his clothing, which

had been returned to his family at the hospital.

{¶13} Detective Michael Bailey stated that upon responding to the 911 call, Hall

stated that “Ray” had robbed and shot him. Upon arrest, Banks identified the black

clothing, which was ultimately tested for gunshot residue, and where the money was

located, as belonging to him. The phone used by Banks to call Hall was located inside

of Hall’s car, under the passenger seat. That phone showed a series of calls to Hall’s

phone.

{¶14} Martin Lewis, a forensic scientist at the Ohio Bureau of Criminal

Identification and Investigation, testified regarding the gunshot residue test he

performed in this matter. He explained that gunshot residue was found on Banks’

clothing, including near the cuffs of his sweatshirt, but not on the samples taken from his

hands.

{¶15} Raymond Jorz, a fingerprint and firearms examiner for the Lake County

Crime Laboratory, testified that no fingerprints were found on the Glock firearm

submitted for testing. Jorz explained that there were two safeties on the Glock pistol

and that it is “not very difficult” to depress the trigger, although it was not a “hair trigger,”

and a shooter would have to pull the trigger to fire the gun with three and a quarter

pounds of pressure.

{¶16} Banks testified on his own behalf. He stated that he knew Hall from

purchasing marijuana from him on approximately thirty occasions in the past. On the

day prior to the incident, he purchased marijuana from Hall at a gas station. On April

27, he called Hall using a borrowed cell phone to buy more marijuana.

5 {¶17} On April 27, the two men met. According to Banks, when he got inside of

Hall’s car, Hall brought up a female that they had been talking about the previous day.

Banks stated that Hall “was try[ing] to get aggressive” and he believed Hall was trying to

fight. Banks then saw Hall grab a gun and point it at his face. Banks grabbed the gun

and the two men began “tussling for the gun,” with Banks trying to gain control so that

he would not be shot. In the struggle, he pointed the gun down, toward Hall, and Hall

was shot. Banks explained that the second shot, which broke the driver’s side window,

and the third shot, which hit Hall’s arm, also occurred during the struggle for the gun.

According to Banks, after the third shot, he finally obtained control of the gun and tried

to exit the car, while Hall began to drive away. Hall then let Banks out of the car and

Banks took the gun with him, since he was afraid of being shot in the back. Banks

admitted to putting the gun in the clothes hamper in the apartment where he was found

by police.

{¶18} Banks stated that he did not tell police during subsequent interviews that

Hall tried to shoot him because he felt that they would “try to turn the situation around

on” him. He explained that during the struggle, Hall was the one with his finger on the

trigger and Banks did not gain control of the gun until all of the shots had been fired.

{¶19} On July 19, 2012, the jury found Banks guilty of each of the counts as

contained in the Indictment. This verdict was memorialized in the trial court’s July 20,

2012 Judgment Entry.

{¶20} A sentencing hearing was held in this matter on August 27, 2012. The

court found Banks to be a repeat violent offender, pursuant to a stipulation regarding

Banks’ prior crimes. Banks’ counsel argued that Hall facilitated the offense through his

6 participating in using or selling marijuana and by grabbing the gun and allowing Banks

no opportunity to withdraw. The court sentenced Banks to eleven years in prison on

Count One, six years on Count Two, two years on Count Three, and two years on

Count Five. The court also found that Count Three merged with Count Four. The

sentences on Counts One and Two were ordered to be served consecutively. The

sentences on Counts Three and Five were ordered to be concurrent with each other

and the other charges. Banks was also ordered to serve three years on each of the

firearm specifications, two of which were ordered to be served concurrently. An

additional four-year consecutive term was imposed for the repeat violent offender

specification, for a total term of 27 years imprisonment. This sentence was

memorialized in an August 29, 2012 Judgment Entry of Sentence.

{¶21} Banks timely appeals and raises the following assignments of error:

{¶22} “[1.] The trial court erred to the prejudice of the defendant-appellant when

it returned a verdict of guilty against the manifest weight of the evidence.

{¶23} “[2.] The trial court erred to the prejudice of the defendant-appellant in

denying his motion for acquittal made pursuant to Crim.R. 29(A).

{¶24} “[3.] The trial court erred to the prejudice of the defendant-appellant by

failing to merge allied offenses of similar import.

{¶25} “[4.] The trial court erred by sentencing the defendant-appellant to a term

of imprisonment where its findings were not supported by the record.”

{¶26} Since Banks’ first and second assignments of error address the sufficiency

and manifest weight of the evidence, we will address them jointly.

7 {¶27} A trial court shall grant a motion for acquittal when there is insufficient

evidence to sustain a conviction. Crim.R. 29(A). “‘[S]ufficiency’ is a term of art meaning

that legal standard which is applied to determine whether the case may go to the jury,”

i.e., “whether the evidence is legally sufficient to support the jury verdict as a matter of

law.” State v. Thompkins,

,

(1997), quoting

Black’s Law Dictionary (6 Ed. 1990), 1433. In reviewing the sufficiency of the evidence

to support a criminal conviction, “[t]he 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.” State v.

Jenks,

,

(1991), paragraph two of the syllabus.

{¶28} Weight of the evidence, in contrast to its sufficiency, involves “the

inclination of the greater amount of credible evidence.” (Citation omitted.) (Emphasis

deleted.)

. Whereas the “sufficiency of the evidence is a test of

adequacy as to whether the evidence is legally sufficient to support a verdict as a matter

of law, * * * weight of the evidence addresses the evidence’s effect of inducing belief.”

(Citation omitted). State v. Wilson,

,

,

, ¶ 25. “In other words, a reviewing court asks whose evidence is more persuasive

-- the state’s or the defendant’s?”

The reviewing court must consider all the

evidence in the record, the reasonable inferences, and the credibility of the witnesses,

to determine whether, “in resolving conflicts in the evidence, 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.” (Citation omitted.)

.

8 {¶29} “Since there must be sufficient evidence to take a case to the jury, it

follows that ‘a finding that a conviction is supported by the weight of the evidence

necessarily must include a finding of sufficiency.’” (Citation omitted.) (Emphasis sic.)

Willoughby v. Wutchiett, 11th Dist. Lake No. 2002-L-165,

.

{¶30} In order to convict Banks of Aggravated Robbery, the State was required

to prove, beyond a reasonable doubt, that, “in attempting or committing a theft offense,”

he had “a deadly weapon on or about [his] person or under [his] control” and that he

“either display[ed] the weapon, brandish[ed] it, * * * or use[d] it.” R.C. 2911.01(A)(1).

To convict Banks of Felonious Assault, the State was required to prove, beyond a

reasonable doubt, that he did “knowingly * * * [c]ause or attempt to cause physical harm

to another * * * by means of a deadly weapon.” R.C. 2903.11(A)(2).

{¶31} Banks argues generally that his convictions were against the manifest

weight and sufficiency of the evidence and raises several specific arguments regarding

the weight of certain pieces of evidence. First, he argues that Hall was not a credible

witness, emphasizing that he changed his story and lied to the police. Hall’s credibility

relates to each of the charges, since he was the only witness to the shooting and the

events that occurred inside of the vehicle.

{¶32} Banks points out that Hall lied about selling marijuana to Banks both

previously and at the time of the shooting. Hall did admit to using marijuana, which was

consistent with the fact that some was found in his vehicle. However, there was no

evidence to show that Hall was selling marijuana on the date of the shooting, other than

Banks’ testimony. Banks also fails to explain how these facts are relevant to establish

how the shooting occurred and whether Banks was responsible.

9 {¶33} While Banks also asserts that Hall was not credible because he did not

initially mention to police that he had been robbed, the recording of the 911 call clearly

includes the statement of Hall that “he shot me [and] he robbed me.” Detective Michael

Bailey also testified that upon responding to Hall’s location after the shooting, Hall made

such a statement.

{¶34} Finally, while Banks argues that Hall also changed his story about why he

had $500 on the date of the shooting, this minor difference in his testimony regarding

what he was using the money for does not invalidate his testimony. The jury could still

determine that he was credible, especially given that this detail bears little relation to the

facts of the crimes that were committed.

{¶35} It must also be emphasized that the issue of credibility of witnesses is for

the trier of fact to determine. State v. Awan,

,

(1986) (the determination of a witness’ credibility lies “with the finder of fact and an

appellate court may not substitute its own judgment”). “[T]he factfinder is free to believe

all, part, or none of the testimony of each witness appearing before it.” Warren v.

Simpson, 11th Dist. Trumbull No. 98-T-0183,

, 8 (Mar. 17,

2000). The jury was in the best position to consider the testimony of both Banks and

Hall to determine how the shooting occurred and whether Banks robbed Hall.

{¶36} As to the Felonious Assault, Hall knew Banks and was able to identify him

as the shooter. There is no question that the shots fired hit Hall and that he was injured.

Further, the record contains evidence and testimony that corroborated Hall’s version of

events, that Banks threatened him with a gun, robbed him, and shot him. This includes

testimony that no bullets or evidence of shots fired were found on the passenger side of

10 the vehicle, where Banks was sitting, or anywhere in the vehicle other than the driver’s

side, where Hall was sitting. This lends credibility to Hall’s version that Banks

possessed the gun and was firing at him. The jury’s decision to give greater weight to

Banks’ testimony is also supported by Banks’ testimony that he never told the police

after the shooting that Hall had pulled the gun on him. Testimony of the officers and the

statements of Banks himself also confirmed that he took the firearm with him after the

shooting, even though he claimed it did not belong to him.

{¶37} As to the Aggravated Robbery, Hall testified that Banks took $500, while

pointing the gun at him. A large sum of money was found in the jeans Banks admitted

were his. Hall was able to describe the denominations that were taken from him.

Detective Bailey also described that the center console of Hall’s car was open, which

was consistent with Hall’s testimony that Banks was looking through the car for items to

take. While Banks argues that there was no proof that the console was not always

open, the testimony was still consistent with Hall’s version of the events. Based on the

foregoing, the manifest weight and sufficiency of the evidence support convictions for

Aggravated Robbery and Felonious Assault. See State v. Anderson, 11th Dist. Portage

No. 2008-P-0002,

(upholding conviction for Felonious Assault

when the defendants and victims gave conflicting stories of the events surrounding the

crimes).

{¶38} Banks also argues that there was inconsistent evidence regarding the

gunshot residue test because it does not show who actually fired the gunshots, residue

was found on Banks’ clothing but not his hands, and Hall’s clothing was never tested.

Lewis, the forensic scientist, explained that the gunshot residue was found on the

11 sleeves of Banks’ sweatshirt, near where his hands would be, and explained that

gunshot residue can be removed by washing a person’s hands and that it usually is lost

in four to six hours, while such residue stays on clothing for a longer period of time. It

was also explained through the officers’ testimony that Hall’s clothing could not be

tested, since it was given to his family by the hospital and later thrown away. Finally,

Lewis explained that gunshot residue could be found on people inside of a car where a

gun had been fired, regardless of whether they were the shooter. All of these facts

were clearly presented to the jury, which could decide what weight to give the testimony

regarding the gunshot residue, especially given that there was other sufficient evidence

to support the convictions.

{¶39} Finally, Banks argues that the State implied that he made several calls to

Hall on the date of the shooting, but there is no record of who made these calls, since

the phone alleged to have been used by Banks belonged to another individual. Hall,

however, testified that he talked to Banks on that phone number and that he received

several calls from the number. Phone records of the calls were presented to the jury.

Again, it is for the jury to decide how much weight to give this evidence, especially given

that it bears little relation to the events surrounding the charges in the present case.

Banks fails to explain how the number of phone calls made by him to Hall affects

whether a shooting and robbery occurred.

{¶40} Regarding the firearm related offenses, to convict Banks of Discharge of a

Firearm on or near a Prohibited Premises, the State was required to prove that he

“[d]ischarge[d] a firearm upon or over a public road or highway.” R.C. 2923.162(A)(3).

Based on the evidence outlined above, there was sufficient evidence that Banks fired

12 the gun at Hall. Hall testified that he was parked in the public street when Banks fired

the shots. Police also found glass in the roadway, where a shot went through the

driver’s side window of Hall’s vehicle. Based on these facts, it was not against the

weight and sufficiency of the evidence to find that the shot fired by Banks was

discharged over a public road.

{¶41} As to Having Weapons While Under Disability, the State was required to

prove that Banks did “knowingly acquire, have, carry, or use any firearm or dangerous

ordnance,” and that he was convicted of “any felony offense of violence” or felonies

involving the “illegal possession, use, sale, administration, distribution, or trafficking in

any drug of abuse.” R.C. 2923.13(A)(2) and (3). The parties stipulated that Banks was

under a firearm disability, based on his prior convictions. Since there was evidence to

support a finding that Banks used a firearm, as discussed above, and the parties

stipulated as to the disability element, we find that the convictions for these charges

were supported by the weight and sufficiency of the evidence.

{¶42} The first and second assignments of error are without merit.

{¶43} In his third assignment of error, Banks argues that the trial court erred in

failing to merge the Felonious Assault charge with the Discharge of a Firearm charge,

since they were allied offenses. He also argues that the trial court erred by failing to

merge the Aggravated Robbery and Felonious Assault charges.

{¶44} The State “concedes that Count 5, discharge of a firearm on or near a

prohibited premises merges with felonious assault.” It argues, however, that

Aggravated Robbery and Felonious Assault do not merge because the conduct and

animus for each charge was different.

13 {¶45} “An appellate court should apply a de novo standard of review in reviewing

a trial court’s R.C. 2941.25 merger determination.” State v. Williams,

,

,

.

{¶46} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of

the Fifth Amendment to the United States Constitution and Section 10, Article I of the

Ohio Constitution, which prohibits multiple punishments for the same offense.” State v.

Underwood,

,

,

, ¶ 23. It provides that

“[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).

{¶47} “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.” State v. Johnson,

,

,

,

syllabus. The Ohio Supreme Court has described the application of R.C. 2941.25 as

follows:

{¶48} 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

14 possible to commit one without committing the other. * * * 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.

{¶49} 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).

{¶50} If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

{¶51} 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.

{¶52} Johnson at ¶ 48-51.

{¶53} We first point out that Banks did not object to the trial court’s failure to

merge the counts in question. The Supreme Court of Ohio, however, has held that the

“imposition of multiple sentences for allied offenses of similar import is plain error.”

(Citation omitted.) Underwood at ¶ 31.

{¶54} As to the Felonious Assault and Discharge of a Firearm on or near a

Prohibited Premises, the State concedes that these charges should have been merged.

15 Various courts have found that these charges can be committed with the same conduct

in similar circumstances to the present case, where a defendant fired a shot at a victim

while on a public roadway. See State v. Melton, 8th Dist. Cuyahoga No. 97675, 2013-

Ohio-257, ¶ 54 (“under the first prong of the Johnson inquiry, it is possible to commit

felonious assault * * * and discharge of a firearm on or near prohibited premises” with

the same conduct, where a shooting takes place in the middle of the street); State v.

Carson,

,

, ¶ 18 (10th Dist.) (where the defendant fired

at an occupant of a car while it was being driven away, the defendant “could have

committed * * * the felonious assaults and the firearm discharge offense through the

same conduct”).

{¶55} In addition, in the present matter, the two offenses were committed with

the same act and a single animus and should have merged. Banks fired the gun at Hall

while in the car, which resulted in at least one bullet exiting the car, while the car was on

the roadway. The bullet was discharged as a part of the assault on Hall. State v.

Hodges, 1st Dist. Hamilton No. C-110630,

(where the record did

not reflect a separate intent to fire into a home, but the defendant’s “immediate motive

was clearly to injure [the victim] after their verbal altercation had escalated,” there was

no separate animus and the crimes should merge). Therefore, the trial court erred in

failing to merge the two charges.

{¶56} In light of the foregoing error, modification of Banks’ sentence by this court

is proper. “Section 3(B)(2), Article IV of the Ohio Constitution establishes that courts of

appeals ‘shall have such jurisdiction as may be provided by law to review and affirm,

modify, or reverse judgments or final orders of the courts of record inferior to the court

16 of appeals within the district.’” State ex rel. Bates v. Court of Appeals for the Sixth

Appellate Dist.,

,

,

, ¶ 14. In the

context of certain sentencing errors, the Ohio Supreme Court has noted that correcting

a defect in a sentence without remanding to the lower court for resentencing can

provide “an equitable, economical, and efficiency remedy.” State v. Fischer,

,

,

, ¶ 30. This matter can be remedied by

modifying the trial court’s judgment to merge the charges and vacate the improper

sentence, which this court has done in the past. State v. Day, 11th Dist. Geauga No.

1440,

, 6 (Nov. 10, 1988) (since the offenses were allied

offenses, the court erred in sentencing appellant for both and the appellate court

modified the trial court’s judgment by vacating the improper sentence).

{¶57} Based on the foregoing, we modify the trial court’s judgment, merging the

Discharge of a Firearm on or near a Prohibited Premises conviction into the Felonious

Assault conviction for the purposes of sentencing, since the State indicated to this court

that it would elect such a merger. We also modify the trial court’s judgment by vacating

Banks’ sentence for Discharge of a Firearm on or near a Prohibited Premises, which

was two years in prison. This does not alter Banks’ total term to be served, since the

sentence was ordered to be served concurrently with other sentences.

{¶58} Regarding the Felonious Assault and the Aggravated Robbery charges,

merger was not warranted and no error was made by the trial court, since there was a

separate animus for each of the crimes. Banks entered Hall’s vehicle with a gun and

told Hall to give him everything that he had. After Hall had done so, Banks then stated

he was going to shoot Hall. After Hall tried to get the gun away from Banks, he was

17 shot. As Hall explained, even after he tried to drive away, Banks fired a third shot and

hit him in the arm. There is no indication that Banks fired the shots in order to obtain

the money from Hall, since Hall’s testimony was that it was handed over voluntarily.

Moreover, pursuant to Hall’s testimony, the shots were purposeful, as he explained that

Banks “shot at” him, even after all property had been turned over. This provides

support for the conclusion that there was a separate animus for the two crimes and

merger was unwarranted. State v. Shields, 1st Dist. Hamilton No. C-100362, 2011-

Ohio-1912, ¶ 19 (merger was proper where the victim had already dropped his property,

the defendant could have simply taken the property “without resorting to any separate

and distinct physical violence,” and the “assault was so unnecessary for the robbery

itself that it demonstrated a significance independent of that robbery”).

{¶59} The third assignment of error is with merit, only with respect to the trial

court’s failure to merge the Felonious Assault and Discharge of a Firearm on or near a

Prohibited Premises charges. It is without merit as to the remaining merger issue.

{¶60} In his fourth assignment of error, Banks argues that the court failed to give

careful and substantial deliberation to the relevant statutory considerations related to his

sentencing and failed to give him the minimum sanction without imposing a burden on

government resources under R.C. 2929.11(A).

{¶61} Subsequent to State v. Foster,

,

,

, appellate courts have applied a two step approach in reviewing felony

sentences. First, courts “examine the sentencing court’s compliance with all applicable

rules and statutes in imposing the sentence to determine whether the sentence is

clearly and convincingly contrary to law. If this first prong is satisfied, the trial court’s

18 decision in imposing the term of imprisonment is reviewed under the abuse-of-discretion

standard.” State v. Kalish,

,

,

.

{¶62} A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing, which are “to protect the public from future

crime by the offender and others and to punish the offender using the minimum

sanctions that the court determines accomplish those purposes without imposing an

unnecessary burden on state or local government resources.” R.C. 2929.11(A). A

court imposing a sentence for a felony “has discretion to determine the most effective

way to comply with the purposes and principles of sentencing set forth in section

2929.11 of the Revised Code.” R.C. 2929.12(A). “In the exercise of this discretion, a

court ‘shall consider’ the non-exclusive list of seriousness and recidivism factors set

forth in R.C. 2929.12(B), (C), (D), and (E).” (Citation omitted.) State v. Putnam, 11th

Dist. Lake No. 2012-L-026,

, ¶ 8; R.C. 2929.12(A).

{¶63} There is no “mandate” for the sentencing court to engage in any factual

finding under these statutes. Rather, “[t]he court is merely to ‘consider’ the statutory

factors.” Foster at ¶ 42.

{¶64} In the present matter, the court explicitly stated in its judgment that it

considered the requisite factors under R.C. 2929.11 and 2929.12. Further, the court

emphasized that its sentence was based on Banks’ extensive criminal record, which

was well- documented in the presentence investigation report, that he did not respond

well to sanctions in the past, and his relationship with the victim facilitated the offense.

Each of these are factors that were properly considered by the court in reaching its

sentence.

19 {¶65} Banks argues that his relationship with the victim did not facilitate the

offense. However, the court made it clear that it believed a friendship between Banks

and Hall existed, based on Hall’s testimony, and that it could have made the crime

easier to commit. Further, this is only one factor of many that the court considered.

{¶66} Although Banks also points out that his remorse should have been taken

into consideration by the court, the trial court stated that it weighed this factor. It did not

find Banks remorseful and that he did not accept responsibility for the crime. “[A]

reviewing court must defer to the trial court as to whether a defendant’s remarks are

indicative of genuine remorse because it is in the best position to make that

determination.” (Citation omitted.) State v. Davis, 11th Dist. Lake No. 2010-L-148,

, ¶ 15.

{¶67} Finally, Banks emphasizes that the court must use the “minimum

sanctions” that the court determines accomplishes the purposes of sentencing “without

imposing an unnecessary burden on state or local government resources.” R.C.

2929.11(A). This court has noted that this provision “embodies the principle referred to

as the ‘resources conservation’ principle found in former R.C. 2929.13.” State v.

Anderson, 11th Dist. Geauga No. 2011-G-3044,

, ¶ 35. Further, in

applying this principle, courts have determined that “while resource and burdens to the

government may be a relevant sentencing criterion, the statute ‘does not require trial

courts to elevate resource conservation above the seriousness and recidivism factors.’”

(Citation omitted.) Id. at ¶ 36. As noted in the present matter, the court emphasized

that there were several seriousness and recidivism factors that weighed heavily in this

case. It follows that these justified the sentence that was given to Banks.

20 {¶68} The concurring/dissenting judge argues that the Kalish test outlined above

is no longer applicable following the passage of H.B. 86, apparently asserting that this

court should not review the sentence for an abuse of discretion. This court, as well as

other districts, however, have consistently applied this two-step Kalish test following the

enactment of H.B. 86. State v. Beville, 11th Dist. Ashtabula No. 2012-A-0057, 2013-

Ohio-2139, ¶ 9; State v. Tyler, 11th Dist. Portage No. 2012-P-0041,

; State v. Forney, 2nd Dist. Champaign No. 2012-CA-36,

;

State v. Bratton, 6th Dist. Lucas Nos. L-12-1219 and L-12-1220,

, ¶ 10-

11. The dissenting/concurring judge would have us now abandon this precedent, but

we find no basis to do so. In Kalish, the Ohio Supreme Court emphasized that “R.C.

2929.12 explicitly permits a trial court to exercise its discretion in considering whether its

sentence complies with the purposes of sentencing. It naturally follows, then, to review

the actual term of imprisonment for an abuse of discretion.” Kalish,

,

,

. H.B. 86 did not amend this language in R.C.

2929.12, and it follows that an abuse of discretion standard must still be applied when

evaluating whether the court considered the R.C. 2929.12 factors, as was at issue in

this case.1

{¶69} The fourth assignment of error is without merit.

{¶70} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas, sentencing Banks for Aggravated Robbery and Discharge of a Firearm

on or near a Prohibited Premises, is affirmed as modified. In all other respects, the

judgment is affirmed. Costs to be taxed against the parties equally.

1. We recognize that the law regarding consecutive sentencing changed following H.B. 86. However, Banks raises no error related to the court’s consideration of the appropriate factors in ordering him to serve consecutive sentences.

21 TIMOTHY P. CANNON, P.J., concurs,

COLLEEN MARY O’TOOLE, J., concurs in part, dissents in part with a concurring/dissenting opinion.

_________________________

COLLEEN MARY O’TOOLE, J., concurs in part, dissents in part, with a Concurring/Dissenting Opinion.

{¶71} I concur with the majority’s well-reasoned opinion regarding assignments

of error one and two. However, I respectfully dissent on assignments of error three and

four.

{¶72} With regard to the aggravated robbery and felonious assault charges, the

majority contends under the third assignment of error that merger was not warranted

and no error was made by the trial court because a separate animus existed for each of

the crimes. Based on the facts presented, I disagree.

{¶73} This writer wishes to expand on the majority’s citations regarding allied

offenses and the judicial doctrine of merger by providing the following background:

{¶74} Our review of an allied offenses question is de novo. State v. Williams,

,

. “R.C. 2941.25 ‘codifies the protections of

the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution

and Section 10, Article I of the Ohio Constitution, which prohibits multiple punishments

for the same offense.’ State v. Underwood,

,

, * * * ¶23.

At the heart of R.C. 2941.25 is the judicial doctrine of merger; merger is ‘the penal

philosophy that a major crime often includes as inherent therein the component

22 elements of other crimes and that these component elements, in legal effect, are

merged in the major crime.’ State v. Botta,

, 201 * * * (1971).”

(Parallel citations omitted.)

.

{¶75} R.C. 2941.25 states:

{¶76} “(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.

{¶77} “(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.”

{¶78} “R.C. 2941.25(A) clearly provides that there may be only one conviction

for allied offenses of similar import. Because a defendant may be convicted of only one

offense for such conduct, the defendant may be sentenced for only one offense. * * *

[A]llied offenses of similar import are to be merged at sentencing. See State v. Brown,

,

, * * * ¶43; State v. McGuire (1997),

, 399 * * *. Thus, a trial court is prohibited from imposing individual sentences for

counts that constitute allied offenses of similar import. * * * Both R.C. 2941.25 and the

Double Jeopardy Clause prohibit multiple convictions for the same conduct. For this

reason, a trial court is required to merge allied offenses of similar import at sentencing.”

. (Emphasis sic.) (Parallel citations omitted.)

23 {¶79} “Under Crim.R. 52(B), ‘(p)lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.’ * * *

[I]mposition of multiple sentences for allied offenses of similar import is plain error.

State v. Yarbrough,

,

, * * *, ¶96-102.”

. (Parallel citation omitted.)

{¶80} By way of background, the method employed by courts in determining

whether two crimes constitute allied offenses of similar import has evolved. In State v.

Rance,

(1999), the Supreme Court of Ohio held that “[u]nder an R.C.

2941.25(A) analysis, the statutorily defined elements of offenses that are claimed to be

of similar import are compared in the abstract.”

paragraph one of the syllabus.

(Emphasis sic.) Since its release, Rance has gone through various modifications and

revisions. See State v. Cabrales,

,

; State v. Brown,

,

; State v. Winn,

, 2009-Ohio-

1059.

{¶81} The Supreme Court of Ohio revisited the allied offenses analysis again in

2010 and overruled Rance in State v. Johnson,

,

.

Under the new analysis, which this court later relied upon and embraced in State v.

May, 11th Dist. No. 2010-L-131,

, “[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.” Johnson, at the syllabus. The Johnson

court provided the new analysis as follows:

{¶82} “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

24 commit the other with the same conduct, not whether it is possible to commit one

without committing the other. * * * 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.

{¶83} “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.’ * * *.

{¶84} “If the answer to both questions is yes, then the offenses are allied

offenses of similar import and will be merged.

{¶85} “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 [a] separate animus for each offense, then,

according to R.C. 2941.25(B), the offenses will not merge.” Id. at ¶48-51. (Citations

omitted.) (Emphasis sic.)

{¶86} This court went on to state in May, supra, at ¶50-51:

{¶87} “‘In departing from the former test, the court developed a new, more

context-based test for analyzing whether two offenses are allied thereby necessitating a

merger. In doing so, the court focused upon the unambiguous language of R.C.

2941.25, requiring the allied-offense analysis to center upon the defendant’s conduct,

rather than the elements of the crimes which are charged as a result of the defendant’s

conduct.’” [State v.] Miller[,11th Dist. No. 2009-P-0090,

,] at ¶47, citing

Johnson at ¶48-52.

25 {¶88} “‘The (Johnson) court acknowledged the results of the above analysis will

vary on a case-by-case basis. Hence, while two crimes in one case may merge, the

same crimes in another may not. Given the statutory language, however, this is not a

problem. The court observed that inconsistencies in outcome are both necessary and

permissible “* * * given that the statute instructs courts to examine a defendant’s

conduct - an inherently subjective determination.”’ Miller at ¶52, quoting Johnson at

¶52.

{¶89} In this case, the issue is whether aggravated robbery and felonious

assault are allied offenses of similar import subject to merger for purposes of

sentencing, which we review de novo.

.

{¶90} Aggravated robbery, under R.C. 2911.01(A)(1), states in part: “[n]o

person, in attempting or committing a theft offense, as defined in section 2913.01 of the

Revised Code, or in fleeing immediately after the attempt or offense, shall * * * [h]ave a

deadly weapon on or about the offender’s person or under the offender’s control and

either display the weapon, brandish it, indicate that the offender possesses it, or use

it[.]”

{¶91} Felonious assault, under R.C. 2903.11(A)(2), provides in part: “[n]o person

shall knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means

of a deadly weapon or dangerous ordnance.”

{¶92} Applying Johnson, aggravated robbery and felonious assault are allied

offenses of similar import, as it is possible to commit one offense and commit the other

with the same conduct. See State v. Sanders, 8th Dist. No. 97383,

. Again, under R.C. 2941.25, Ohio’s multiple-count statute, if a defendant’s conduct

26 results in allied offenses of similar import, the defendant may ordinarily be convicted of

only one of the offenses. R.C. 2941.25(A). However, if the defendant commits each

offense separately or with a separate animus, then convictions may be entered for both

offenses. R.C. 2941.25(B).

{¶93} Thus, although aggravated robbery and felonious assault are allied

offenses, the specific facts of this case must be reviewed to determine whether

appellant committed the charged offenses separately or with a separate animus so as to

permit multiple punishments. Although the majority finds that the facts do not support

merger, I find the opposite.

{¶94} In this case, the record establishes that appellant evidenced the same

animus in committing these offenses. Looking to the conduct of the accused, this was a

single act with a single state of mind. The test under Johnson is not whether the

elements line up, which is the essence of the Rance analysis. Rather, the test is

whether the crimes were committed by the same conduct.

{¶95} There is no separate animus or conduct separating the harm to Mr. Hall

from the robbery. The offenses were committed in the same course of conduct, i.e.,

appellant’s plan to rob Mr. Hall. In the course of the robbery and without any separate

intent, Mr. Hall was shot and a stray bullet flew over the road. It is nonsensical to

believe that appellant committed a robbery, then decided separately to shoot Mr. Hall,

then decided separately to shoot across the road. Thus, under Johnson, the offenses

should merge.

{¶96} “‘[T]he purpose of R.C. 2941.25 is to prevent shotgun convictions, that is,

multiple findings of guilt and corresponding punishments heaped on a defendant for

27 closely related offenses arising from the same occurrence.’” State v. Helms, 7th Dist.

No. 08 MA 199,

, quoting

, citing Maumee

v. Geiger,

(1976). In this case, multiple sentences have been

improperly “heaped” on appellant, amounting to an undue burden on our already

overcrowded prison system pursuant to the principles and purposes of sentencing

under R.C. 2929.11.

{¶97} Based on the facts of this case, the offenses of aggravated robbery and

felonious assault are allied offenses of similar import, were committed with the same

animus, and should have merged. Therefore, I believe the trial court erred in stacking

those offenses along with the firearm and RVO specifications. Appellant’s sentence

was excessive as he should not have been sentenced separately for each offense.

{¶98} In addition, regarding appellant’s sentence, the majority under the fourth

assignment of error improperly applies State v. Kalish,

, 2008-Ohio-

4912, in light of H.B. 86.

{¶99} Prior to 2006, Ohio sentencing law created presumptions that offenders be

given minimum, concurrent terms of incarceration. See former R.C. 2929.14(B),

2929.14(E)(4), 2919.19(B)(2), and 2929.41. These presumptions could be overcome if

the court made specific factual findings regarding the nature of the offense and the need

to protect the public. This judicial fact-finding was later called into question by Apprendi

v. New Jersey,

(2000), and Blakely v. Washington,

(2004),

where the United States Supreme Court held that judicial fact-finding could infringe

upon a defendant’s Sixth Amendment right to a jury trial because it invaded the

factfinding function of the jury.

28 {¶100} In 2006, the Ohio Supreme Court held that under Apprendi and Blakely,

Ohio’s sentencing statutes that required a judge to make factual findings in order to

increase a sentence beyond presumptive minimum or concurrent terms

unconstitutionally infringed on the jury’s function in violation of the Sixth Amendment.

State v. Foster,

,

. As a result, the Court severed those

sections and held that courts have full discretion to sentence within the applicable

statutory range and to order sentences to be served consecutively. Id. at ¶99-100.

{¶101} In applying Foster, the Ohio Supreme Court later held in 2008 that

appellate courts must apply a two-step procedure for review of a felony sentence.

In the first step, the Kalish Court held that appellate courts shall examine

the sentencing court’s compliance with “all applicable rules and statutes in imposing the

sentence” to determine whether the sentence is clearly and convincingly contrary to law,

the standard found in R.C. 2953.08(G). Id. at ¶26. If this first step is satisfied, the Court

held that the trial court’s decision shall be reviewed under an abuse-of-discretion

standard. Id.

{¶102} This writer notes that Kalish, an appeal from this court, State v. Kalish,

11th Dist. No. 2006-L-093,

(O’Toole, J., concurring in part, dissenting

in part) is a plurality opinion. Therefore, it is merely persuasive. See State v. Azbill,

11th Dist. No. 2007-L-092,

, citing State v. Bassett, 8th Dist. No. 90887,

. Although the plurality in Kalish indicated that this court did

not review the sentence to ensure that the trial court clearly and convincingly complied

with the pertinent laws, it nevertheless affirmed this court’s judgment, albeit on different

grounds.

29 {¶103} Thereafter, in 2009, the reasoning in Foster was partially called into

question by Oregon v. Ice,

(2009), where the United States Supreme

Court held that a state could require judicial findings of fact to impose consecutive

rather than concurrent sentences without infringing on a defendant’s Sixth Amendment

rights. In 2010, the Ohio Supreme Court subsequently determined that Foster remained

valid after Ice and the judiciary was not required to make findings of fact prior to

imposing maximum or consecutive sentences in State v. Hodge,

,

. However, a trial court was still required to consider the sentencing

purposes in R.C. 2929.11 and the guidelines contained in R.C. 2929.12. See

.

{¶104} On September 30, 2011, Ohio’s sentencing statutes were revised

pursuant to H.B. 86. The Ohio General Assembly enacted a new, but slightly different,

requirement of judicial fact-finding under H.B. 86, containing many amendments to

criminal sentencing provisions. For example, H.B. 86 revived the language provided in

former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4), requiring a trial court to

make specific findings when imposing consecutive sentences. In addition, H.B. 86

reduced the maximum prison term for many third-degree felonies from five years to 36

months. As a result, we no longer apply the two-step analysis contained in the 2008

Kalish case to defendants sentenced after H.B. 86’s enactment. Rather, we apply R.C.

2953.08(G) and the clear and convincing standard to determine whether the sentence is

contrary to law. See e.g. State v. Venes, 8th Dist. No. 98682,

;

State v. Drobny, 8th Dist. No. 98404,

; State v. Kinstle, 3rd Dist.

30 No. 1-11-45,

; State v. Cochran, 10th Dist. No. 11AP-408, 2012-

Ohio-5899, ¶52.

{¶105} In reviewing a felony sentence, R.C. 2953.08(G) provides:

{¶106} “(2) 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.

{¶107} “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:

{¶108} “(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;

{¶109} “(b) That the sentence is otherwise contrary to law.”

{¶110} The Eighth District recently stated in

at ¶20-21:

{¶111} “It is important to understand that the ‘clear and convincing’ standard

applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C. 2953.08(G)(2) makes it

clear that ‘(t)he appellate court’s standard for review is not whether the sentencing court

abused its discretion.’ As a practical consideration, this means that appellate courts are

prohibited from substituting their judgment for that of the trial judge.

31 {¶112} “It is also important to understand that the clear and convincing standard

used by R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge

must have clear and convincing evidence to support its findings. Instead, it is the court

of appeals that must clearly and convincingly find that the record does not support the

court’s findings. In other words, the restriction is on the appellate court, not the trial

judge. This is an extremely deferential standard of review.”

{¶113} Although trial courts have full discretion to impose any term of

imprisonment within the statutory range, they must consider the sentencing purposes in

R.C. 2929.11 and the guidelines contained in R.C. 2929.12.

{¶114} The majority correctly points out that H.B. 86 did not amend the language

contained in R.C. 2929.12. However, H.B. 86 did amend R.C. 2929.11, which now

states:

{¶115} “(A) A court that sentences an offender for a felony shall be guided by the

overriding purposes of felony sentencing. The overriding purposes of felony sentencing

are to protect the public from future crime by the offender and others and to punish the

offender using the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local government

resources. To achieve those purposes, the sentencing court shall consider the need for

incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both.”

{¶116} “However, there is still no ‘mandate’ for the sentencing court to engage in

any factual findings under R.C. 2929.11 or R.C. 2929.12.” State v. Jones, 12th Dist.

32 No. CA2012-03-049,

, citing State v. Rose, 12th Dist. No. CA2011-

11-214,

; State v. Putnam, 11th Dist. No. 2012-L-026, 2012-Ohio-

4891, ¶9. “Rather, the trial court still has discretion to determine whether the sentence

satisfies the overriding purpose of Ohio’s sentencing structure.” Jones at ¶49; See R.C.

2929.12 (which provides a nonexhaustive list of factors a trial court must consider when

determining the seriousness of the offense and the likelihood that the offender will

commit future offenses.)

{¶117} In this case, appellant was sentenced after H.B. 86 was enacted. Thus,

H.B. 86 applies here. Therefore, this court should review the trial court’s sentence

under H.B. 86 to determine if it is clearly and convincingly contrary to law. See

;

; Cochran, supra, at ¶52. Thus, in light of H.B. 86, I

believe my colleagues improperly apply Kalish, an outdated plurality opinion. Whether

raised or not, courts shall review the imposition of multiple sentences for plain error,

consistent with the principles and purposes of sentencing under R.C. 2929.11. See

.

{¶118} For the foregoing reasons, I concur in part and dissent in part.

33