[Cite as State v. Daniel, 2014-Ohio-4274.]


                                        COURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

STATE OF OHIO                                     JUDGES:
                                                  Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                        Hon. Patricia A. Delaney, J.
                                                  Hon. Craig R. Baldwin, J.
-vs-
                                                  Case No. CT2014-0018
TIMOTHY DANIEL

        Defendant-Appellant                       OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Muskingum County
                                               Common Pleas Court, Case No.
                                               CR2013-0251


JUDGMENT:                                      Affirmed in part; Reversed in part and
                                               Remanded


DATE OF JUDGMENT ENTRY:                         September 25, 2014


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


ROBERT L. SMITH                                DAVID A. SAMS
Assistant Prosecuting Attorney                 Box 40
27 North Fifth Street                          W. Jefferson, Ohio 43162
Zanesville, Ohio 43701
Muskingum County, Case No. CT2014-0018                                                 2

Hoffman, P.J.


       {¶1}      Defendant-appellant Timothy Daniel appeals his conviction and sentence

entered by the Muskingum County Court of Common Pleas. Plaintiff-appellee is the

state of Ohio.

                            STATEMENT OF THE FACTS AND CASE

       {¶2}      In the morning hours of October 31, 2013, Charles Hooper stopped at

Burger King on Maysville Avenue in Zanesville after his evening shift as a security

guard. Mr. Hooper was a regular patron of the restaurant, affectionately referred to as

“The Tender Grill Guy.”

       {¶3}      Darlene Bender was also in the restaurant during the morning hours of

October 31, 2013 at the time Mr. Hooper arrived. Ms. Bender sought refuge in the

restaurant from Appellant, her boyfriend whom had been on a two-day binge of

substance abuse and violence.

       {¶4}      Upon learning Darlene Bender was at the Burger King restaurant,

Appellant immediately proceeded to the restaurant to retrieve car and house keys

Bender had in her possession. Neither Appellant, nor Darlene Bender, knew Charles

Hooper.

       {¶5}      Upon his arrival at the restaurant, Appellant proceeded directly to Ms.

Bender, who was seated in a booth near Mr. Hooper. Appellant asked Ms. Bender for

the keys, which she eventually turned over. Appellant started to leave the restaurant,

but as he approached the door, Appellant realized he did not have all of the keys, made

a vile gesture to Ms. Bender and returned to confront her in an agitated state. Appellant

stood at the end of the booth, and profanely berated Ms. Bender with increasing
Muskingum County, Case No. CT2014-0018                                                  3


volume.        Upon hearing Appellant’s statements, Mr. Hooper rebuked Appellant.

Appellant then mocked Mr. Hooper, stating, “Who’s this dude, he ain’t going to do shit.”

Appellant then slammed his fist onto the table hard enough for a store employee in the

rear of the restaurant to hear. Mr. Hooper then said, “Hey, that’s enough.” Appellant

responded, “What are you going to do about it, old man?” Mr. Hooper proceeded to get

out of his booth, approaching Appellant with both hands at his sides.

       {¶6}     Appellant, a small time drug dealer, carried a laser-sighted .40 caliber

pistol on his person. Appellant pulled the firearm from his pocket with his right hand.

Appellant hit Mr. Hooper across the right side of his face with the firearm in a

backhanded motion. Appellant then brought the gun in front of Mr. Hooper’s forehead,

above his right eyebrow, pulling the trigger and shooting him point blank in the head,

killing him.

       {¶7}     Appellant took a step back, pulled his hooded sweatshirt over his head

and walked out of the restaurant.

       {¶8}     Appellant was apprehended in in Muskingum County and indicted on one

count of aggravated murder, having a weapon while under disability, felonious assault,

carrying a concealed weapon, and improper handling of firearm.

       {¶9}     Appellant waived counsel, and elected to represent himself pro se.

Following a jury trial, Appellant was convicted of all of the charges except having

weapons while under disability, having waived his right to a jury on the charge. The trial

court then found Appellant guilty of having weapons while under disability. The trial

court sentenced Appellant to a stated prison term of life in prison on the aggravated

murder, without the possibility of parole; a mandatory term of three years on the firearm
Muskingum County, Case No. CT2014-0018                                                  4


specification; a stated prison term of three years on the having weapons while under

disability charge; a stated prison term of eight years for the felonious assault charge; a

mandatory three year term for the firearm specification; a stated prison term of eighteen

months on the carrying a concealed weapon; and eighteen months on the improper

handling of a firearm charge. The trial court ordered the firearm charges in counts two,

four and five to run concurrently. The court further ordered the felonious assault charge

with the firearm specifications, run consecutively to the lifetime sentence on the

aggravated murder charge.

      {¶10} Appellant appeals, assigning as error:

      {¶11} “I. THE DEFENDANT-APPELLANT’S CONVICTION FOR AGGRAVATED

MURDER IS BASED ON INSUFFICIENT EVIDENCE CONTRARY TO OHIO LAW AND

THE STATE AND FEDERAL CONSTITUTIONS (id).

      {¶12} “II.    THE     DEFENDANT-APPELLANT             WAS      SENTENCED        TO

CONSECUTIVE TERMS FOR AGGRAVATED MURDER AND FELONIOUS ASSAULT,

WITH ACCOMPANYING GUN SPECIFICATIONS, CONTRARY TO OHIO LAW AND

THE STATE AND FEDERAL CONSTITUTIONS.

      {¶13} “III. THE DEFENDANT-APPELLANT’S WAIVER OF COUNSEL WAS

UNKNOWING AND UNINTELLIGENT, AND THUS INVOLUNTARY, CONTRARY TO

THE STATE AND FEDERAL CONSTITUTIONS (id).”

      {¶14} Appellant maintains his conviction for aggravated murder is against the

sufficiency of the evidence as the State failed to prove prior calculation and design in

causing the death of Charles Hooper.
Muskingum County, Case No. CT2014-0018                                                5


      {¶15} In analyzing whether a conviction is supported by sufficient evidence, the

reviewing court must view the evidence “in the light most favorable to the prosecution”

and ask whether “any rational trier of fact could have found the essential elements of

the crime proven beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319,

99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d

492 (1991), paragraph two of the syllabus; State v. Carter, 72 Ohio St.3d 545, 1995–

Ohio–104, 651 N.E.2d 965.

      {¶16} Ohio Revised Code Section 2903.01 states,

      {¶17} “(A) No person shall purposely, and with prior calculation and design,

cause the death of another or the unlawful termination of another's pregnancy.”

      {¶18} The Ohio Supreme Court has provided the following factors to consider in

determining whether prior calculation and design were proven:

      {¶19} “(1) Did the accused and the victim know each other, and if so, was that

relationship strained? (2) Did the accused give thought or preparation to choosing the

murder weapon or murder site? and (3) Was the act drawn out or “an almost

spontaneous eruption of events?”

      {¶20} State v. Taylor, 78 Ohio St.3d 15, 19, 1997–Ohio–243, 676 N.E.2d 82.

      {¶21} We find the State did not set forth sufficient evidence of prior calculation

and design. The parties concede Appellant and Mr. Hooper did not know each other.

Rather, Appellant was involved in an argument with Ms. Bender, and Mr. Hooper, a

stranger, attempted to intervene. There was no prior animosity between Appellant and

Mr. Hooper. Further, there is no evidence Appellant gave thought or preparation to

choosing the murder weapon or the site.       Appellant came to the restaurant solely
Muskingum County, Case No. CT2014-0018                                                 6


because Ms. Bender was at the restaurant. Further, Appellant had the gun on his

person on a regular basis incidental to his involvement in the selling of drugs. The mere

fact Appellant had a gun on his person does not indicate a calculated scheme to kill

Hooper. Finally, the evidence demonstrates the act was a spontaneous eruption of

events occurring over a very short time period; rather than a drawn out act. We find,

insufficient evidence was presented to support Appellant’s conviction for aggravated

murder.

      {¶22} The first assignment of error is sustained, and we hereby rendered

judgment of conviction as to murder, in violation of R.C. 2903.02(A).

                                               II.

      {¶23} In the second assignment of error, Appellant maintains the trial court erred

in imposing a sentence for aggravated murder and felonious assault, under R.C.

2903.11(A)(2) as the charges are allied offenses of similar import.

      {¶24} In light of our analysis and disposition of Appellant’s first assigned error,

we find Appellant’s second assignment of error should be analyzed relative to R.C.

2903.02(A), murder, a lesser included offense of aggravated murder. The statute reads,

      {¶25} "(A) No person shall purposely cause the death of another or the unlawful

termination of another's pregnancy."

      {¶26} R.C. 2903.11(A)(2) defines felonious assault,

      {¶27} "(A) No person shall knowingly do either of the following:

      {¶28} "(1) Cause serious physical harm to another or to another's unborn;"
Muskingum County, Case No. CT2014-0018                                                  7

       {¶29} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, the Ohio

Supreme Court set forth the factors to consider in determining whether offenses are

allied offenses of similar import,

       {¶30} "Under R.C. 2941.25, the court must determine prior to sentencing

whether the offenses were committed by the same conduct. Thus, the court need not

perform any hypothetical or abstract comparison of the offenses at issue in order to

conclude that the offenses are subject to merger.

       {¶31} "In determining whether offenses are allied offenses of similar import

under R.C. 2941.25(A), the question is whether it is possible to commit one offense and

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

without committing the other. Blankenship, 38 Ohio St.3d at 119, 526 N.E.2d 816

(Whiteside, J., concurring) ('It is not necessary that both crimes are always committed

by the same conduct but, rather, it is sufficient if both offenses can be committed by the

same conduct. It is a matter of possibility, rather than certainty, that the same conduct

will constitute commission of both offenses.' [Emphasis sic]). If the offenses correspond

to such a degree that the conduct of the defendant constituting commission of one

offense constitutes commission of the other, then the offenses are of similar import.

       {¶32} "If the multiple offenses can be committed by the same conduct, then the

court must determine whether the offenses were committed by the same conduct, i.e., 'a

single act, committed with a single state of mind.' Brown, 119 Ohio St.3d 447, 2008-

Ohio-4569, 895 N.E.2d 149, at ¶ 50 (Lanzinger, J., dissenting).

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

offenses of similar import and will be merged.
Muskingum County, Case No. CT2014-0018                                                  8


       {¶34} "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."

       {¶35} Here, Appellant was charged with felonious assault for striking Mr. Hooper

with his gun in a backhanded fashion.        The murder charge relates to Appellant's

separately bringing the gun to Hooper's forehead and pulling the trigger, shooting him,

point blank in the head. Accordingly, we find the charges arise from separate conduct,

and also demonstrate a separate animus. The trial court did not err in finding, under the

facts as they arise in this case, the charges of felonious assault and murder, are not

allied offenses of similar import.

       {¶36} The second assignment of error is overruled.

                                                 III.

       {¶37} In the third assigned error, Appellant argues his waiver of counsel was

unknowing and unintelligent; thus, involuntary. However, Appellant merely restates his

arguments relative to the State’s failure to demonstrate prior calculation and design, and

the trial court’s err in sentencing him to consecutive sentences.

       {¶38} Initially, we note, the trial court appointed counsel to represent Appellant

at trial. Attorney Jerry McHenry appeared at trial on behalf of Appellant. The record

indicates he advised Appellant as to his waiver of a jury trial on the weapons charge. In

addition, the record also indicates Appellant had previously represented himself on a

murder charge, and was successful. Tr. at p. 10. Appellant agreed Attorney McHenry

would conduct the voir dire and he would "do the rest of the trial." Tr. at p. 10-11.
Muskingum County, Case No. CT2014-0018                                                    9


Appellant indicated an understanding with the trial court, Attorney McHenry would assist

Appellant in the trial. The following exchange occurred on the record,

        {¶39} "THE COURT: Now, I will have him there at the table the whole time. If

there's any questions you need to have answered, he can answer that for you. But

normally he would not be able to participate in any part of the trial, but the State of Ohio

does not oppose, and I would not oppose it if you wanted him to do the voir dire part of

the trial.

        {¶40} "MR. DANIEL: Yeah. I mean, as long as he does what I say, yeah.

        {¶41} "THE COURT: Well, he'll do what he's allowed to do and follow your

instructions, but he will not break his rules that he can't break if you ask if you

understand what I'm trying to say. If you ask him to do something that he feels he's not

allowed to do, he will indicate that to you.

        {¶42} "MR. MCHENRY: Your Honor, if we might have just a minute to confer.

        {¶43} "THE COURT: Yes.

        {¶44} "MR. DANIEL: Your Honor, I think I'll do voir dire, but I would like to have

him as assistant counsel.

        {¶45} "THE COURT: He will still be there to assist you. I still have other things I

need to go over with you in representing yourself.

        {¶46} "MR. DANIEL: Okay.

        {¶47} "THE COURT: First of all, it's told to all attorneys that those that represent

themselves, they have a fool for a client.

        {¶48} "MR. DANIEL: I've heard that before.
Muskingum County, Case No. CT2014-0018                                                   10


       {¶49} "THE COURT: I would assume you probably have.              But you've got to

understand, you obviously have been successful at this before, but that still doesn't

mean you wouldn't necessarily do so in this case. It also means that any mistakes that

you might make are not appealable issues because you're waiving your right to have an

attorney, but you could appeal if he or she made mistakes.

       {¶50} "MR. DANIEL: I understand that my right to effective assistance of counsel

has been waived.

       {¶51} "THE COURT: I'm just required to go over it on the record to make sure

that you understand all these things that you are giving up.

       {¶52} "MR. DANIEL: Yes, sir.

       {¶53} "THE COURT: Because no matter what happens, if there's an appeal on

the case, it's the record that the court of appeals will look at, and they need to know that

you do you understand. I'm pretty sure that you do, and it's been indicated by Mr.

McHenry that you do, but I just want to make sure that you state the same on the

record.

       {¶54} "MR. DANIEL: Yes, sir."

       {¶55} Tr. at 11-13.

       {¶56} The trial court engaged in a lengthy colloquy with Appellant relative to the

waiver of counsel. In addition, the court appointed counsel to assist Appellant in his

own defense. Accordingly, Appellant's waiver of counsel was knowing, voluntary and

intelligent.

       {¶57} Accordingly, Appellant’s third assigned error is overruled.
Muskingum County, Case No. CT2014-0018                                              11


       {¶58} Appellant’s conviction in the Muskingum County Court of Common Pleas

on one count of aggravated murder is reversed, and judgment of conviction is entered

as to murder, in violation of R.C. 2903.02(A). The matter is remanded for resentencing.

The trial court's decision aggravated murder [murder] and felonious assault are not

allied offenses of similar import is affirmed.

By: Hoffman, P.J.

Delaney, J. and

Baldwin, J. concur
