[Cite as State v. Helms, 2013-Ohio-5530.]




                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT


STATE OF OHIO                                 )    CASE NO. 08 MA 199
                                              )
        PLAINTIFF-APPELLEE                    )
                                              )
VS.                                           )    OPINION
                                              )
TARAN HELMS                                   )
                                              )
        DEFENDANT-APPELLANT                   )


CHARACTER OF PROCEEDINGS:                          Appellant’s Application for
                                                   Reconsideration.

JUDGMENT:                                          Application Denied.

APPEARANCES:

For Plaintiff-Appellee:                            Atty. Paul J. Gains
                                                   Mahoning County Prosecutor
                                                   Atty. Ralph M. Rivera
                                                   Assistant Prosecuting Attorney
                                                   21 West Boardman Street, 6th Floor
                                                   Youngstown, Ohio 44503

For Defendant-Appellant:                           Atty. Gary Van Brocklin
                                                   P.O. Box 3537
                                                   Youngstown, Ohio 44513-3537


JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
                                                   Dated: December 12, 2013
[Cite as State v. Helms, 2013-Ohio-5530.]
WAITE, J.:


        {¶1}     Appellant Taran Helms requests reconsideration of our Opinion in State

v. Helms, 7th Dist. No. 08 MA 199, 2012-Ohio-1147 (“Helms II”), pursuant to App.R.

26(A). Appellant contends that we incorrectly held that his convictions for attempted

murder and felonious assault were not allied offenses.          Appellant misstates our

holding in Helms II. While we did determine in his case that the two crimes were

allied offenses, we also held that they should not merge at sentencing, because they

were committed separately with separate animus. Id. at ¶44-47. As Appellant has

not cited any obvious errors or raised any issues that were not considered in his

direct appeal, the application for reconsideration is denied.

        {¶2}     This case arose from the robbery and shooting of Joseph Kaluza as he

was driving to a bank to make a deposit as part of his regular duties as manager of a

Kentucky Fried Chicken restaurant in Youngstown.           Co-defendant Hattie Gilbert

deliberately caused a traffic accident with Kaluza's vehicle. Appellant then walked up

and shot Kaluza in the neck. Kaluza was alive but paralyzed after the shooting.

Appellant pushed Kaluza's vehicle to a more secluded spot, where he threatened to

shoot Kaluza in the head. He then took the deposit bag and fled. Appellant and

Gilbert were later apprehended and charged with several crimes stemming from the

shooting and robbery.

        {¶3}     The test generally applied in reviewing an App.R. 26(A) motion for

reconsideration, “is whether the motion calls to the attention of the court an obvious

error in its decision or raises an issue for the court's consideration that was either not

considered at all or was not fully considered by the court when it should have been.”
                                                                                 -2-

State v. Wong, 97 Ohio App.3d 244, 246, 646 N.E.2d 538 (4th Dist.1994). The

underlying appeal is Appellant’s second in this matter, owing to an Ohio Supreme

Court remand. Appellant argues that we should have relied solely on the limited

factual summary addressed in our last Opinion on the issue of merger as it appeared

in State v. Helms, 7th Dist. No. 08 MA 199, 2010-Ohio-4872 (“Helms I”). Appellant

contends that, if we had limited our analysis to the factual analysis conducted in

Helms I, we should have found that the crimes were allied offenses and that they

merged at sentencing.

      {¶4}   Appellant is aware that Helms I was overturned by the Ohio Supreme

Court and remanded for us to once again review and determine whether his crimes

were allied offenses.    State v. Helms, 128 Ohio St.3d 352, 2011-Ohio-738, 944

N.E.2d   233, ¶3.       The Ohio Supreme Court specifically stated that the first

assignment of error in Helms I, dealing with allied offenses, was vacated. The Court

specifically then remanded the matter for review in light of State v. Johnson, 128

Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. Id. Johnson significantly altered

Ohio law regarding allied offenses as it had previously been interpreted under State

v. Rance, 85 Ohio St.3d 632, 636, 710 N.E.2d 699 (1999). It is abundantly clear in

Helms II that the section of Helms I dealing with allied offenses was vacated and

remanded. Helms II at ¶1, 16. Therefore we conducted an entirely new review of the

issue. This was considered and addressed in our Opinion.

      {¶5}   Since Appellant's application for reconsideration was filed, the Ohio

Supreme Court has reviewed the crucial question as to what standard of review an
                                                                                    -3-

appellate court should use when dealing with the issue of allied offenses in light of

Johnson. Obviously, the standard of review can significantly affect the outcome of an

appeal. Although not expressly stated in Helms II, our normal standard of review for

errors relating to allied offenses had always been de novo. State v. Ryan, 7th Dist.

No. 10-MA-173, 2012-Ohio-1265; State v. Taylor, 7th Dist. No. 07 MA 115, 2009-

Ohio-3334. We conducted such a review in Helms II. The Ohio Supreme Court has

now confirmed that the correct standard for reviewing an issue regarding allied

offenses is indeed de novo. Since we applied the correct standard of review in

Helms II, there is no reason for us to reconsider our review. See State v. Williams,

134 Ohio St.3d 482, 2012-Ohio-5699, ¶1. Although Appellant urges that we should

have reviewed the issue under some lesser or more restrictive standard, it is

apparent that we properly conducted a de novo review on this issue. We determined

that the record revealed the crimes of attempted murder and felonious assault,

although allied offenses, were committed separately and with separate animus, and

therefore, should not merge.

      {¶6}   The Ohio Supreme Court has also recently held that an allied offense

analysis requires a “review [of] the entire record, including arguments and information

presented at the sentencing hearing, to determine whether the offenses were

committed separately or with separate animus.” State v. Washington, Slip Opinion

No. 2013-Ohio-4982, syllabus. This again confirms that we conducted the proper

allied offense review, because we reviewed the entire record instead of focusing only

on those sections of the record that Appellant believes were relevant.
                                                                     -4-

      {¶7}   The application for reconsideration is hereby denied.


Vukovich, J., concurs; see concurring opinion.

DeGenaro, P.J., dissents; see dissenting opinion.
                                                                                      -5-

VUKOVICH, J., concurs with Opinion, but writes separately to address the Dissent:


          {¶8}   While I concur with the decision to deny the motion for reconsideration,
I write separately to address the dissent. There are three points of the dissent that I
will be addressing: 1) its application of State v. Washington, Slip Opinion No. 2013-
Ohio-4982; 2) its position that there is no evidence to support merger in the record;
and 3) its reiteration that our decision in Helms II violates appellant’s due process
rights.
          {¶9}   In Washington, the Ohio Supreme Court held that “when deciding
whether to merge multiple offenses at sentencing pursuant to R.C. 2941.25, a court
must review the entire record, including arguments and information presented at the
sentencing hearing, to determine whether the offenses were committed separately or
with a separate animus.” Washington at ¶ 24.
          {¶10} The dissent appears to conclude that this holding means if the evidence
at trial supports the conclusion that the offenses were committed with separate
conduct or a separate animus, but that the state never argued the exact theory that
leads to that conclusion at either trial or sentencing, neither the trial court nor the
appellate court could use such theory to find that the offenses do not merge. Dissent
¶ 24-29, 32. However, Washington does not confine the trial court to the arguments
presented at trial and at the sentencing hearing. Rather, it states the entire record
must be reviewed. As the reviewing court, we review merger decisions under a de
novo standard of review, which means we also review the entire record. Under such
review, we will affirm “a trial court's decision that is legally correct even if the
appellate court uses grounds other than those set forth by the trial court.” State v.
Garrett, 7th Dist. No. 06BE67, 2007-Ohio-7212, ¶ 15 citing State v. Peagler (1996),
76 Ohio St.3d 496, 501, 668 N.E.2d 489 (1996) and Cook Family Invests. v. Billings,
9th Dist. Nos. 05CA008689, 05CA008691, 2006-Ohio-764, at ¶ 19. In fact, the Ninth
Appellate District has stated that an appellate court is bound to affirm a trial court’s
judgment that is legally correct on other grounds regardless of the arguments raised
                                                                                       -6-

or not raised by the parties.” State v. Ingram, 9th Dist. No. 25843, 2012-Ohio-333, ¶
7.
       {¶11} The opinion in Washington also reiterates the long standing rule that
the defendant bears the burden of establishing his entitlement to merger under R.C.
2941.25. Washington at ¶ 18, quoting State v. Mughni, 33 Ohio St.3d 65, 67, 514
N.E.2d 870 (1987). Thus, it is not the burden of the state to show that merger is
required.   Although inadvisable, the state may choose to stand silent (which is
practically what the prosecutor did in this case, since it did not respond to or rebut the
defense’s merger argument). Such inaction by the state does not mean that the trial
court, after reviewing all of the evidence, is required to merge the offenses merely
because the state did not present any argument as to why the offenses should not
merge. That would lead to an illogical result when the evidence applied to the law
supports the conclusion that the offenses are not required to merge. The dissent’s
position is placing a reciprocal burden on the state to rebut the defendant’s position
and to argue each and every theory of why the offenses should not be merged.
       {¶12} I do not believe Washington stands for this position because it
specifically mandates the trial court, and this court by extension through its de novo
review, to consider the entire record. Under a de novo standard of review, we are
permitted to find a basis for not merging the offenses regardless of the state’s
inability or desire to set forth, at trial or on appeal, every possible theory of why the
offenses should not merge. If the Washington Court wanted to constrain a trial court
and reviewing court to only the arguments presented at trial and sentencing, the
language that the Court used would have been limited to the arguments presented by
the parties at trial and sentencing.      It would not have the broad language that
additionally requires the trial court to review the entire record.
       {¶13} Therefore, for those reasons, Washington does not support the
conclusion that our decision in Helms II was incorrect. On the contrary, that case
indicates we were bound to consider the entire record.
       {¶14} When a review of the entire record is considered, merger is not
warranted. The dissent contends that the state conceded in its motion in opposition
                                                                                   -7-

to reconsideration that there was no evidence in the record that appellant pointed the
gun at the victim while uttering the threat. Dissent ¶ 31. This is a misstatement of
the concession. What the state conceded was that there was no “direct evidence”
that appellant pointed his firearm while uttering the subsequent threat – ‘Where’s the
rest of the money, or I’m gonna shoot you in the head.’”        State’s Response to
Appellant’s Application for Reconsideration page 7. The state further indicated that
there was circumstantial evidence that when the threat was uttered appellant, at
minimum, had the firearm on his person and ready at hand. It is a well-established
point of law that circumstantial evidence has the same probative value as direct
evidence. State v. Marsh, 7th Dist. No. 12MA40, 2013-Ohio-2949, ¶ 11, citing State
v. Jenks, 61 Ohio St.3d 259, 272–273, 574 N.E.2d 492 (1991). In Helms II, we found
that the circumstantial evidence was sufficient evidence of felonious assault. Helms
II at ¶ 30-31. There are no obvious errors with that conclusion thus it will not be
reconsidered.
       {¶15} In addition to relying on the Washington holding and its belief that the
evidence does support merger of the felonious assault and attempted murder
convictions to support its conclusion that reconsideration should be granted, the
dissent once again asserts appellant’s due process rights were violated by our
decision in Helms II. The basis of alleged due process rights violation is that our
decision that those offenses do not merge was based on our own findings from an
independent review of the record as opposed to arguments presented by the state.
This due process argument was raised by the dissent in Helms II and addressed by
the majority opinion. Helms II at ¶ 32 (addressing dissents position that there is a
due process violation). Since that reasoning was already addressed and considered,
it does not provide a basis for reconsideration.
                                                                                      -8-

DeGenaro, P.J., dissents.
       {¶16} Pursuant to the recent Ohio Supreme Court decision in State v.
Washington, Slip Opinion No. 2013-Ohio-4982 (Nov. 14, 2013) and for the reasons
articulated more thoroughly in the majority opinion in State v. Helms, 7th Dist. No. 08
MA 199, 2010-Ohio-4872, ¶36-73 (Helms I), and the minority opinion in State v.
Helms, 7th Dist. No. 08 MA 199, 2012-Ohio-1147, ¶95-117 (DeGenaro, J. concurring
in part and dissenting in part) (Helms II), as well as those additionally discussed here,
Appellant's motion for reconsideration should be granted. The majority analysis in
Helms II is erroneous, especially in light of Washington. The record at trial and at
sentencing demonstrates that the State relied upon the same conduct to prove the
two offenses, and that the offenses were neither committed separately nor with a
separate animus. Thus, Appellant is afforded the protections of R.C. 2941.25 and
the attempted murder and felonious assault convictions must merge for sentencing
purposes.   Accordingly, I would grant reconsideration, affirm Helms' convictions,
vacate his sentence, and remand to the trial court for resentencing where the State
would elect which offense to pursue pursuant to State v. Whitfield, 124 Ohio St.3d
319, 2010-Ohio-2, 922 N.E.2d 182, ¶20-22.
       {¶17} As a threshold matter, it is important to place Helms II in its proper
context. The character of the Ohio Supreme Court's decision to remand Helms I was
procedural, not on the merits. Both parties appealed Helms I, and through sheer
happenstance the case was pending appeal to the Ohio Supreme Court when the
Court released Johnson. Accordingly, the Court ruled: "The portion of the judgment
of the court of appeals addressing appellant's first assignment of error below is
vacated on the authority of State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314,
942 N.E.2d 1061, and the cause is remanded to the court of appeals for application
of our decision in State v. Johnson." State v. Helms, 128 Ohio St.3d 352, 2011-Ohio-
738, 944 N.E.2d 233, ¶3.
       {¶18} The Ohio Supreme Court did not review the substance of our decision
in Helms I or determine whether we had correctly resolved the merger issue. Helms I
was treated similarly to appeals which were pending when State v. Foster, 109 Ohio
                                                                                                -9-

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470 was released. Compare In re Ohio Criminal
Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109, 847 N.E.2d 1174
(remanding for application of Foster), with State v. McClendon, 128 Ohio St.3d 354,
2011-Ohio-954, 944 N.E.2d 235 (summarily vacating portion of the judgment of the
court of appeals addressing merger on the authority of Johnson, and remanding to
the court of appeals for application of Johnson); State v. Stall, 128 Ohio St.3d 501,
2011-Ohio-1960, 946 N.E.2d 756 (same); State v. Brenson, 128 Ohio St.3d 396, 944
N.E.2d 1172, 2011-Ohio-1425 (same); State v. Cherif, 128 Ohio St.3d 356, 2011-
Ohio-956, 944 N.E.2d 236 (same); State v. Humphrey, 128 Ohio St.3d 397, 2011-
Ohio-1426, 944 N.E.2d 1172 (same).
       {¶19} And although the case was remanded for this court to apply the "new"
Johnson analysis; as a practical matter the majority in Helms I had applied the same
conduct-based merger analysis adopted by the Court in Johnson when it determined
the attempted murder and felonious assault convictions must merge. Helms II at ¶61
(DeGenaro, J. concurring in part and dissenting in part). In fact, during oral argument
in Helms II, "both counsel conceded that given the conduct-based merger analysis
applied by this court in Helms I, Johnson [did] not have a legal effect upon the
analysis on remand."         Helms II at ¶51 (DeGenaro, J. concurring in part and
dissenting in part).
       {¶20} However, the majority in Helms II erroneously agreed with the State's
contention that the remand provided an opportunity for the court to completely re-
evaluate its decision in Helms I. Thus, the State got a proverbial "second bite at the
apple" and was able to persuade a panel member to change their mind and adopt a
theory posited for the first time by the dissent in Helms I. As a result, the dissent's
analysis in Helms I was reborn as the majority in Helms II.
       {¶21} Notwithstanding the de novo standard of review that continues to
remain in effect for merger decisions, see State v. Williams 134 Ohio St.3d 482,
2012-Ohio-5699, 983 N.E.2d 1245,1 it was improper for this court to use the Johnson

1
  As an aside, there was no reason to withhold resolution of this reconsideration motion—which was
fully briefed in April, 2012—until Williams was decided in December, 2012, especially considering no
                                                                                                    -10-

remand as an opportunity to completely reconsider the merits of this case since, as a
practical matter, this court had already applied a proper conduct-based merger
analysis in Helms I. The merger issue was resolved in Helms I by comparing the
elements of attempted murder and felonious assault based upon the facts in the
case, rather than in the abstract. Helms I at ¶51-53. This part of the merger analysis
remained unchanged by Johnson. Washington at ¶9 ("We hold that while Johnson
abandoned a portion of the test for determining whether offenses share a 'similar
import,' it did not change the test for determining whether those offenses resulted
from the 'same conduct.' ").
        {¶22} Thus, despite the fact that the Helms I merger analysis was vacated
and remanded to "apply Johnson" the principle of law of the case should have
dictated that the merger decision in Helms I be reaffirmed, and the majority's
conclusion to the contrary in Helms II was therefore erroneous.
        {¶23} As explained in the minority opinion in Helms II, the cases upon which
the majority relied in support of its argument that Helms' subsequent threat
constitutes a distinct felonious assault are not only distinguishable, but misinterpreted
by the majority:

                In State v. Green, 58 Ohio St.3d 239, 569 N.E.2d 1038 (1991),
        the Ohio Supreme Court held: "The act of pointing a deadly weapon at
        another coupled with a threat, which indicates an intention to use such
        weapon, is sufficient evidence to convict a defendant of the offense of
        'felonious assault' as defined by R.C. 2903.11(A)(2). (State v. Brooks,
        44 Ohio St.3d 185, 542 N.E.2d 636 [1989], syllabus, explained and
        followed.)" Id. at syllabus. In Green, the defendant held a rifle aimed at
        a police officer's head, and at the instant he positioned his weapon in


notice was given to the parties of this court's intent to do so. Having remained pending, after Williams,
the State filed supplemental authority in March, 2013 notifying this court that Washington was before
the Ohio Supreme Court; now it is fortuitous for Appellant that his reconsideration motion was still
pending when Washington was released.
                                                                                   -11-

      the direction of the officers, shouted, "If you don't have a warrant get
      the f*ck out of my house." The Ohio Supreme Court held that under
      those facts there was sufficient evidence of a felonious assault. Green
      at 241, 569 N.E.2d 1038.
             In Brooks, the Court reached the same conclusion where the
      defendant pointed a handgun at a woman's face during an argument
      and stated that he would kill her. Brooks at 187, 542 N.E.2d 636.
      Similarly, in State v. Battle, 5th Dist. No. 09 AP 0001, 2010–Ohio–4327,
      the Fifth District concluded there was sufficient evidence supporting a
      felonious assault conviction where the deputy testified that the
      defendant pointed a gun about two feet from the deputy's face and
      yelled "get out of my house." Id. at ¶ 99.
             The present case is factually distinguishable from Brooks, Green
      and Battle. In all three cases the pointing of a firearm at the victim
      occurred contemporaneously with the defendant's threat, not a few
      minutes before the threat was uttered. Here, as conceded by the
      majority at ¶ 35, the State failed to provide any evidence that Helms
      used the firearm contemporaneously with uttering his threat. These
      facts are insufficient to establish felonious assault. The State failed to
      meet its burden of proving that Helms had the criminal intent to
      physically harm Kaluza with his firearm, and that Helms' conduct
      constituted a substantial step in carrying out that intent. R.C. 2923.02;
      State v. Group, 98 Ohio St.3d 248, 2002–Ohio–7247, 781 N.E.2d 980,
      ¶ 95; Green at 240–241, 569 N.E.2d 1038.

Helms II at ¶106-108 (DeGenaro, J. concurring in part and dissenting in part).
      {¶24} However, this reconsideration motion must now be viewed through the
analytical prism set forth by the Ohio Supreme Court recently in Washington. The
confusion regarding the merger analysis created by the Johnson plurality opinions
was clarified in Washington, which holds in the syllabus:
                                                                                      -12-


              When deciding whether to merge multiple offenses at sentencing
       pursuant to R.C. 2941.25, a court must review the entire record,
       including arguments and information presented at the sentencing
       hearing, to determine whether the offenses were committed separately
       or with a separate animus.

       {¶25} The Court elaborated:

              Nothing in Ohio's felony-sentencing statutes prohibits the
       litigation of merger at sentencing. To the contrary, R.C. 2929.19(B)(1)
       states that the trial court "shall consider * * * any information presented"
       by the defense or the prosecution at the sentencing hearing. (Emphasis
       added.) Further, R.C. 2929.19(A) allows the state and the defendant to
       "present information relevant to the imposition of sentence in the case."
       On appeal from a felony sentence, the reviewing court "shall review the
       record," R.C. 2953.08(G)(2), which includes more than the evidence
       and arguments presented at trial. R.C. 2953.08(F)(3) provides that the
       record to be reviewed shall include "[a]ny oral or written statements
       made to or by the court at the sentencing hearing." See also App.R.
       9(A) (defining what constitutes the "record on appeal in all cases").


Washington at ¶20.
       {¶26} Pursuant to Washington, in order to properly resolve Appellant's
reconsideration motion, we must not only review and consider the trial court record
which includes evidence regarding Appellant's conduct, but additionally the parties'
arguments made during trial and during sentencing. Id. at ¶20; see also Johnson at
¶70 (O'Connor, J., concurring in judgment) ("we are constrained by the record before
us and the legal arguments raised in the briefs."); Helms II at ¶103 (DeGenaro, J.
concurring in part and dissenting in part).
                                                                                    -13-

       {¶27} At trial, the evidence regarding Appellant's conduct is that "Helms first
shot Kaluza in the neck, immediately paralyzing him. Helms then walked away from
Kaluza, spoke briefly with Gilbert, returned to Kaluza's car, briefly 'fumbled around' in
the car, and moved the car from the busier street to the residential street * * *
approximately 300 feet. After the car had been moved, Helms continued to search in
the car, and threatened to shoot Kaluza a second time. Helms ran away with the
deposit bag once tow trucks arrived at the scene." Helms I at ¶39. During opening
statements, the State argued that Helms attempted to murder the victim during a
robbery and kidnapping at gunpoint, shooting Kaluza "at point blank range, one
round, through his neck, causing instant paralysis," arguing these facts were the
basis for the attempted murder and felonious assault charges. (Trial Tr., pp. 1546-
1548, 1552). In its closing statement, the State argued:

              I want to touch briefly, ladies and gentlemen, on the elements of
       the charges. The first charge, attempted murder. Defendant, Taran
       Helms * * * purposely attempted to cause the death of Joseph Kaluza *
       * *.
              You take a gun with a live round, and you walk next to
       someone's car and in point blank range you shoot that round into his
       neck, is there any question in your mind what the intent is? You've got
       to eliminate the only witness. That witness that could place you there;
       the witness that's already seen your accomplice.           You've got to
       eliminate him. And he thought he did when he kept walking across –
       never broke his stride, remember that.
       ***
              Felonious assault. Defendants Taran Helms and Hattie Gilbert
       knowingly caused or attempted to cause physical harm to Joseph
       Kaluza by means of a deadly weapon. Again, we know that a gun was
       used. We know that it was shot that caused his injury, that caused
                                                                                    -14-

       instant paralysis, and we know that that gun was found near the crime
       scene.
                Physical harm? He's in a wheelchair. He's paralyzed from the
       neck down by means of a deadly weapon.            It's a gun, ladies and
       gentlemen. It's used to kill.

(Trial Tr., pp. 2220-2221)
       {¶28} Finally, at the sentencing hearing, the State made no specific argument
regarding merger. The prosecutor stated he "wasn't going to go into the facts and
the evidence" merely making a boilerplate statement that the charges are not allied
offenses of similar import; failing even to make a minimal argument regarding
separate animus, other than for the gun specifications.          (Sent. Tr., pp. 2-3).
Conversely, Appellant filed a brief with respect to merger, and at the sentencing
hearing defense counsel argued:

             In particular, the felonious and attempted murder counts, I think if
     you – I sort of ran through the history of how the Ohio Supreme Court
     has dealt with that issue. I think they have come back to where they
     were in the Logan case. And I think if you look at the quotations from
     some of the appellate courts that were struggling with the application
     under Rance, I think it's pretty clear when there is, as there is here, one
     assault, one shooting, there can be only one sentence as between those
     two offenses.

(Sent. Tr., pp. 8-9)
       {¶29} Pursuant to Washington, a review of the entire record before the trial
court supports merger of the attempted murder and felonious assault convictions
here. The State's theory of the case at trial was that the single gunshot satisfied the
elements for both convictions. That apparently was the State's theory at sentencing,
because the prosecutor told the trial court, in effect, that he was standing on the
                                                                                  -15-

evidence presented and arguments made during trial for sentencing purposes. Nor
did the prosecutor respond to or rebut defense counsel's merger argument.
      {¶30} Importantly, Appellant has met his burden of proof that he is entitled to
have the attempted murder and felonious assault convictions merge, as outlined in
Washington. Defense counsel articulated factual and legal arguments demonstrating
that the State relied upon the same conduct to prove both offenses: a single gunshot
paralyzed the victim, almost proving to be fatal. See Washington at ¶18.
      {¶31} This conclusion is buttressed by two significant concessions made by
the State on reconsideration, and during the merit determination of Helms II: 1) that
Appellant fired a single shot which permanently wounded the victim; and, 2) that
there is no evidence in the record that Appellant pointed the gun at the victim while
uttering the threat. Although the State argues that at a minimum Appellant had the
weapon on his person and ready at hand, this is insufficient to prove felonious
assault under Ohio law as quoted above from the minority opinion in Helms II.
      {¶32} Rationales or theories set forth in any appellate decision, majority or
minority, are not a part of "the record" of a case for merger evaluation purposes. The
scope of the record for merger review purposes has been defined by the Court in
Washington to consist of: the evidence admitted at trial, the parties' arguments or
case theory at trial, and the parties' arguments at the sentencing hearing. Id. at ¶20.
A court of appeals is not a court of record. See Witkowski v. Arditi, 123 Ohio App.3d
26, 28, 702 N.E.2d 1231 (7th Dist.1997) ("The court of appeals is a court of review
that bases its decisions upon a review of the record below."); Burley v. Bibbo, 135
Ohio App.3d 527, 529, 734 N.E.2d 880 (7th Dist.1999) ("This court does not serve as
a factfinding body. Only the lower court may serve as a factfinder.") Anything not
made a part of the record in the trial court cannot be considered on appeal. See,
e.g., State v. Coleman, 85 Ohio St.3d 129, 133-134, 707 N.E.2d 476; see also
App.R. 9. Merger is a sentencing issue; the burden of proof lies not with the State
but with the defendant. Washington at ¶18. That being said, it is not the role of the
appellate court to rebut the defendant's merger argument with a novel argument
never made by the State.
                                                                                    -16-

       {¶33} Further, Appellant correctly argues that the decision in Helms II
subjects him to double jeopardy, and denies him his rights to a jury trial and to due
process, all as guaranteed under the Ohio and United States Constitutions. I am
particularly concerned about the due process implications of the novel "second
felonious assault" theory created by the dissent in Helms I and then adopted by the
court in Helms II, namely, that Helms' subsequent threat towards the victim after he
shot him and pushed the car (around the corner approximately 300 feet) to a side
street, constitutes a separate act of felonious assault that does not merge with the
attempted murder. Helms II at ¶46-47.
       {¶34} Appellant is correct that he never had an opportunity to confront or
defend this theory. Facts to support this "second felonious assault" offense were not
presented to the jury during the guilt phase, during opening and closing statements
by the State, or to the trial court during the sentencing phase. As the United States
Supreme Court noted in Carne v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90
L.Ed.2d 636 (1986), "the Constitution guarantees criminal defendants 'a meaningful
opportunity to present a complete defense.'" Id. (internal citation omitted). In raising
this new theory well after the trial had ended, the Helms II majority has thwarted
Appellant's ability to effectively defend himself. The State's sole theory of the case at
trial with respect to these two charges was that Helms committed attempted murder
by shooting the victim at point-blank range, and that Helms committed felonious
assault by injuring the victim with that same shot. Helms II at ¶98 (DeGenaro, J.
concurring in part and dissenting in part).         The State maintained this theory at
sentencing, and on appeal in Helms I, never arguing that some separate, subsequent
conduct by Helms constituted the felonious assault.
       {¶35} The majority's use of a novel theory on appeal offends principles of due
process as described by the Sixth Circuit in Stumpf v. Robinson, 722 F.3d 739, 748
(6th Cir.2013) (en banc) and is instructive here:

       As applied to a criminal trial, denial of due process is the failure to
       observe that fundamental fairness essential to the very concept of
                                                                                    -17-

      justice. In order to declare a denial of it we must find that the absence
      of that fairness fatally infected the trial; the acts complained of must be
      of such quality as necessarily prevents a fair trial.


      Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166
      (1941).8 "In the field of criminal law, [the Supreme Court has] defined
      the category of infractions that violate 'fundamental fairness' very
      narrowly based on the recognition that, beyond the specific guarantees
      enumerated in the Bill of Rights, the Due Process Clause has limited
      operation." Medina v. California, 505 U.S. 437, 443, 112 S.Ct. 2572,
      120 L.Ed.2d 353 (1992) (internal quotation marks and alterations
      omitted). Thus, state action "is not subject to proscription under the Due
      Process Clause unless 'it offends some principle of justice so rooted in
      the traditions and conscience of our people as to be ranked as
      fundamental.' " Patterson v. New York, 432 U.S. 197, 201–02, 97 S.Ct.
      2319, 53 L.Ed.2d 281 (1977) (quoting Snyder v. Massachusetts, 291
      U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (Cardozo, J.)); see also
      Medina, 505 U.S. at 443, 112 S.Ct. 2572.

Stumpf, at 748.
      {¶36} In a footnote, the Sixth District further noted:

      There are two species of due-process claims in criminal cases. State
      action that "shocks the conscience" violates the Due Process Clause's
      substantive component. Rochin v. California, 342 U.S. 165, 172, 72
      S.Ct. 205, 96 L.Ed. 183 (1952) (Frankfurter, J.). State action that
      deprives a defendant of a fundamentally fair trial violates the Due
      Process Clause's procedural component. Medina v. California, 505 U.S.
      437, 443, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (internal quotation
      marks and alterations omitted).
                                                                                 -18-


Id. at 748, fn. 8.
       {¶37} Here, the majority's decision in Helms II and its refusal to grant
reconsideration violates Appellant's right to procedural due process as contemplated
in Stumpf.      Refusing to merge the attempted murder and felonious assault
convictions based upon a post-trial theory first formulated in a dissent, and later
transformed into a majority opinion due to procedural happenstance, violates due
process. Further, pursuant to the merger analysis in Washington recently articulated
by the Ohio Supreme Court, the attempted murder and felonious assault convictions
must merge for sentencing in this case, because they arose from a single transaction
and have a single animus; despite the majority's factual contortions.       The facts
supporting these two convictions are that Appellant paralyzed the victim with a single
shot. Accordingly, I would grant reconsideration.
