[Cite as State v. Johnson, 195 Ohio App.3d 59, 2011-Ohio-3143.]




                   IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                    HAMILTON COUNTY, OHIO


THE STATE OF OHIO,                               :         APPEAL NO. C-090620
                                                           TRIAL NO. B-0809899-A
        Appellee,                                :
                                                           O P I N I O N.
v.                                               :

JOHNSON,                                         :

        Appellant.                               :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part,
and Cause Remanded


Date of Judgment Entry on Appeal: June 29, 2011


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip Cummings,
Assistant Prosecuting Attorney, for appellee.

Bruce Hust, for appellant.
                       OHIO FIRST DISTRICT COURT OF APPEALS



        J. H OWARD S UNDERMANN , Judge.

        {¶1}     Following a jury trial, defendant-appellant, Sontez Johnson, was convicted

of murder, felonious assault, and having weapons while under a disability in connection with

the shooting death of Swede Moorman.

        {¶2}     Johnson raises three assignments of error on appeal: (1) the trial court erred

in imposing separate sentences for the felony murder and felonious assault of Moorman

because they were allied offenses of similar import under R.C. 2941.25, (2) the trial court

violated his right to confrontation under both the Ohio and United States Constitutions when

it permitted three of the state’s witnesses to testify at trial by two-way video, and (3) his

convictions were against the manifest weight of the evidence.

        {¶3}     Finding merit in only his first assignment of error, we vacate the sentences

for the murder and felonious assault involving Moorman and remand this case for

resentencing on only one of those two offenses. We otherwise affirm the trial court’s

judgment and sentences.

                                 I. The State’s Case Against Johnson

        {¶4}     In the early morning hours of July 8, 2008, Cincinnati police officer David

Sprague was on uniformed patrol in Evanston, a high-crime area, when he heard five or six

gunshots in the area of the St. Leger Apartments. As he responded to the area, a Dodge Ram

truck came speeding toward his cruiser. The truck went through some landscaping, severed a

street sign, and sideswiped a cement pole before coming to rest in the parking lot of a local

business, Jack’s Carryout.

        {¶5}     Sprague called for additional police units and approached the vehicle. When

he saw the driver slumped over the steering wheel with a gunshot wound to his left shoulder,

he immediately called for emergency assistance. The paramedics arrived minutes later,

rendering aid to the victim, but he died at the scene.



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        {¶6}     In the meantime, the police had begun cordoning off a two-block area, so

they could secure the scene for the collection of evidence. Criminalists recovered three bullet

fragments, five .45-caliber shell casings, and two .40-caliber shell casings near a group of

cars on the street in front of the St. Leger Apartments. Inside the victim’s vehicle, they

recovered a .45-caliber bullet from the headrest of the driver’s seat, a credit card, and a small

bag of marijuana. They also found five separate bullet holes in the victim’s vehicle: one

bullet hole was in the window frame of the driver’s door; a second bullet hole was in the back

of the driver’s seat headrest; a third bullet hole was in the headliner of the vehicle; a fourth

bullet hole was located between the bed and cab of the truck; and a fifth bullet hole was in the

rear lower portion of the driver’s seat. Despite the large crowd of people who were out that

night, the police were unable to locate any witnesses to the shooting.

                       A. Police Interviews with Leaks, James, and Higgins

        {¶7}     The police subsequently identified the victim as Swede Moorman. Two

days later, they got a break in their investigation when Kenneth “Tom Tom” Leaks came to

the police station at the insistence of his aunt. Leaks met with Detective Jenny Luke and her

partner, Terry McGuffey, who were in charge of investigating Moorman’s death. Leaks told

police that he had heard that they were looking for him; that he had not been involved in the

shooting; and that two men he knew only as “Lil LA” and “T-Red” had been shooting at the

truck. Leaks provided police with phone numbers for T-Red and Lil LA from his cellular

phone, and he then left town.

        {¶8}     In an effort to learn the two men’s identities, the police subpoenaed the

phone records for the two numbers. The records showed that the phone number for T-Red

was listed to a Rico Johnson living on Gilbert Avenue, with a date of birth of February 15,

1988. The phone number for “Lil LA” matched the date of birth and known address for Leal

Higgins.



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       {¶9}     The police subsequently received information that another man, David

James, who lived in the St. Leger Apartments, had knowledge of the shooting. Detective

Luke went to his residence multiple times, but was unable to locate him. As a result, she

flagged James’s name in the police computer and entered a notation asking her fellow

officers to notify her if James was stopped or arrested, so she could question him about the

shooting.

       {¶10}    On November 1, 2008, uniformed officers came into contact with James,

saw Detective Luke’s notation, and brought James in for questioning. James was upset that

he had been brought in for questioning and did not want to talk to police. When James was

asked about the shooting, he told police that he had been standing outside when he saw a

group of young girls get out of a black pickup truck. The driver of the vehicle was swearing

at the girls. James also said that two men were walking down the street, but that he did not

know who they were. He said, “I got to live over there, and I got kids.” Detective Luke then

attempted to persuade him to talk further based on what she knew about Moorman’s family.

James was unwilling to say the name of the perpetrator, but he told Luke that he would agree

with Luke if she provided him with the correct name. He then told police that he was

standing in front of his house. James did not know if both men had guns. He said that there

were two. Detective Luke showed James a photograph of Kenneth “Tom Tom” Leaks, and

he acknowledged that he knew him, but he insisted that Leaks was not at the scene of the

shootings.

       {¶11}    When Detective Luke mentioned the name T-Red to James, he got very

quiet. He said, “You don’t understand.” And then he finally said that T-Red was one of the

men at the scene, indicating that he was familiarly known by that name and that he used to

live down the street on Gilbert Avenue. He said that T-Red was one of the men arguing with

Swede Moorman. Detective Luke then showed him two or three photographs that she



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thought might be T-Red, but James said that none of them was T-Red. She then showed him

a photograph of Leal Higgins, whom he identified as “Lil LA.”

       {¶12}     Luke’s partner, Terry McGuffey, then asked James if those were the two

men who had fired the weapons. James told police that he did not know if both of them had

fired. They were together. James told police that he did not know which one shot; he just

knew that both men were there.

       {¶13}     Several days later, Detective Luke used the police computer to check the

address connected with the phone records for T-Red, and she came across the name Sontez

Johnson. She then placed Sontez Johnson’s photograph into an array and contacted James.

       {¶14}     James was scared and upset that Detective Luke had contacted him, but he

nonetheless agreed to meet her on November 4, 2008, two streets from his home, to look at

the array. When he saw Detective Luke, he quickly got into her vehicle and looked at the

photo array that contained Sontez Johnson’s photograph. He immediately identified Johnson

from the array. James was then shown a second photo array, which included a photograph of

Leal Higgins, and he identified Higgins from that array.

       {¶15}     On December 26, 2008, Detective Luke interviewed Leal Higgins, who was

in the London Correctional Facility for an unrelated probation violation. Higgins confessed

to his involvement in the crime, identifying himself and Johnson as the shooters. Higgins told

police that Johnson carried a .45-caliber handgun. Higgins added that Leaks had also been

carrying a gun that night, but that Leaks had only fired the gun in the air. Higgins told police

that he had shot his weapon, a .40-caliber Glock pistol, two or three times that night at the

bed of Moorman’s vehicle. He further told police that he had hidden the gun in the apartment

of Chanel Bassett.    Police subsequently recovered Higgins’s pistol exactly where Higgins

had claimed it was in Bassett’s apartment.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



        {¶16}    In January 2009, Detective Luke traveled to Georgia to interview Leaks. She

showed him two separate photo arrays. Leaks identified Johnson from one array and Higgins

from the other. Detective Luke interviewed Leaks a third time in Cincinnati. She testified

that she had coaxed Leaks into returning to Cincinnati by telling him that he could receive

money from Crime Stoppers. During the interview, she confronted Leaks with Higgins’s

statement that Leaks had been shooting a gun that night. Leaks admitted that he had been

carrying a gun that night, but he claimed that it had been inoperable.

                B. The Intimidation of James, Leaks, and Higgins at Johnson’s Trial

        {¶17}    Johnson was subsequently charged in connection with Moorman’s death,

and his case proceeded to trial before the jury.    On the second day of trial, the assistant

prosecuting attorney informed the court that David James had failed to appear in court,

and the prosecutor asked the court to issue a warrant for James’s arrest so that he could

be brought forward to testify. Defense counsel raised no objection to the state’s request,

and the trial court issued the arrest warrant. The court then took a lunch recess.

        {¶18}    Following that recess, the court held an in-chambers discussion with

defense counsel, the assistant prosecuting attorney, and the state’s designated

representative, Detective Luke.      Defense counsel waived Johnson’s presence.          The

assistant prosecuting attorney informed the court that following the lunch recess, 15

young black men had walked into the courtroom and had sat down behind him and

Detective Luke so that they could see the witnesses and that they were all still sitting in

the courtroom in an effort to intimidate the state’s witnesses from testifying.

        {¶19}    Detective Luke explained to the court that when the police had arrived to

arrest David James, there were numerous young black men congregated in front of

James’s apartment. When one of the officers had asked the young men to leave, one

young man had told the officers that they would see them in court.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶20}    When the officers knocked on James’s apartment door, they were met by

James’s wife and son. James’s wife told police that following James’s appearance in

court the previous day, “there were carloads of boys that were driving by with their

fingers and/or guns or both out of the window saying, ‘David James, you show up to

court, pow pow. David James, you show up to court, pow pow.’ ” James was so

“spooked” that he told his wife, “I don’t care what happens, this is a death wish, I’m just

not going, I can’t go.” As a result, the police had been unable to locate James.

       {¶21}    The prosecuting attorney then told the court that two other state’s

witnesses, Kenneth Leaks and Leal Higgins, had also indicated that they were terrified of

testifying because of all the tough young men that Detective Luke had just described.

Detective Luke told the court that she had witnessed some intimidation from these young

men the previous day, when she was with another state’s witness, Kenneth Leaks, in the

hallway outside the courtroom. The young men were all tapping their feet, looking at

Leaks, and making gestures with their hands. She told the court that she had not been

aware of everything because she was not paying close attention, but that Leaks had

known what it meant and that he was so intimidated by the young men that he had asked

her to place him in handcuffs. For the remainder of the day, she and Leaks had acted as

though Leaks had been handcuffed, just to get through the situation.

       {¶22}    The assistant prosecuting attorney then asked the court for a recess so that

he could investigate the possibility of presenting these three witnesses’ testimony by two-

way closed-circuit television.     The trial court expressed some concern about the

procedure, stating that if it permitted the televised testimony, the witnesses would have to

testify in the presence of their attorneys to ensure that they were not being pressured

during their testimony. Defense counsel objected to the state’s presenting the witnesses’




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testimony by two-way closed-circuit television, arguing that it would violate Johnson’s Sixth

Amendment right to confrontation.

        {¶23}    When the trial resumed, the assistant prosecuting attorney stated in open

court in the presence of Johnson’s friends and family, but out of the presence of the jury, that

he was asking the court for a recess for the remainder of the afternoon so he could explore the

possibility of presenting some of the state’s witnesses’ testimony by two-way video. The

assistant prosecuting attorney stated that there were people present in the courtroom who

were attempting to intimidate the state’s witnesses from testifying. He argued that the state

had information in regard to David James, who was a witness called before the lunch recess

and who now had a warrant issued for his arrest, that there was a group of young black males

with guns in vehicles at James’s residence the previous night, driving up and down the

streets, and making gestures as though they were going to shoot him. The police had been

unable to locate James because he was afraid that testifying in the case would jeopardize his

life.

        {¶24}    Defense counsel objected, arguing that many of Johnson’s friends and

family were present in court to support Johnson─not to intimidate the state’s witnesses—and

that permitting these witnesses to testify by two-way closed-circuit television would not only

violate Johnson’s right to face-to-face confrontation, but would also impede counsel’s ability

to effectively cross-examine the witnesses.

        {¶25}    The trial court granted the state’s motion to recess the trial for the day, but

told the parties that it was withholding a ruling on the state’s motion to utilize the two-way

closed-circuit television to present testimony until the state had had an opportunity to address

the feasibility of such a procedure and defense counsel had had an opportunity to provide the

court with any case law on the matter.




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                       OHIO FIRST DISTRICT COURT OF APPEALS



        {¶26}    The following day, the assistant prosecuting attorney told the court that

arrangements had been made for the witnesses to testify live from a room in the Hamilton

County Justice Center. He argued that when Kenneth Leaks had been in the courtroom, he

had been very intimidated by the people there. He had subsequently informed his counsel

that he was terrified to testify and that he would not testify if all these people remained in the

courtroom.

        {¶27}    The assistant prosecuting attorney told the court that David James was in a

similar situation. James had come to court the first day of the trial and had seen all the

individuals that were present. After court that day, those individuals had appeared outside

his home and threatened him, and he was terrified of testifying. The assistant prosecutor

argued that a number of young men had positioned themselves outside James’s apartment the

following day, had come into contact with the police, and had told the police they would see

them in court. Shortly thereafter, a group of 15 to 20 young men had, in fact, come into the

courtroom. The prosecuting attorney stated that because of this witness intimidation, he was

asking that these witnesses be permitted to testify by using the two-way closed-circuit

television.

        {¶28}    Defense counsel objected, arguing that the procedure was not

constitutionally permissible because it would limit her ability to cross-examine the witnesses

with an aerial view of the crime scene. Counsel also indicated that she had spoken with the

defendant’s friends and family the previous day, explaining to them that their presence could

be construed as intimidating. She argued that the televised testimony was unnecessary

because she had not seen any young people in the hallway and because none of Johnson’s

family and friends were presently in the courtroom.

        {¶29}    After hearing the arguments of counsel, the trial court denied the

prosecution’s motion, expressing concern about defense counsel’s ability to fully cross-



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                      OHIO FIRST DISTRICT COURT OF APPEALS



examine the witnesses and to make use of the exhibits she had intended to use. The trial

court stated, however, that it would keep that procedure in mind should it become

necessary during the trial.

       {¶30}    The state then called Leal Higgins to testify. As soon as Higgins was

brought into the courtroom, 15 to 20 young individuals walked into the courtroom. The

assistant prosecuting attorney immediately brought the matter to the court’s attention at a

sidebar conference, renewing his motion that the witnesses be permitted to testify by two-

way closed-circuit television due to the continued attempts to intimidate the state’s

witnesses from testifying.

       {¶31}    The trial court granted defense counsel’s request for a brief recess to

provide counsel with the opportunity to persuade some of the young people to leave the

courtroom. After that recess, defense counsel represented at a sidebar hearing that she

was still working on getting the people to leave. The prosecuting attorney renewed his

motion to present the witnesses’ testimony by two-way closed-circuit television. He told

the court that Higgins’s counsel had just informed him that when Higgins had seen these

individuals in the courtroom, he had immediately turned to his counsel and told him that

he would be invoking the Fifth Amendment and would not testify.

       {¶32}    The trial court then ruled that the state could present the testimony of David

James, Kenneth Leaks, and Leal Higgins by two-way closed-circuit television. The court

stated that the procedure was necessary to prevent what was an obvious attempt by the

defendant’s friends and family to intimidate the witnesses in the case:

       {¶33}    “Your client’s family and friends have in the Court’s observation

orchestrated a dance in which they were going to appear to cooperate when you had

suggested that they limit their presence and it was not helping him at this point. It’s

evident from the march into the courtroom immediately upon the witnesses being brought



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                        OHIO FIRST DISTRICT COURT OF APPEALS



in that there is an effort by his family and friends to intimidate the witnesses in this case

and accordingly we are going to grant the prosecution’s motion that the witnesses be

permitted to testify by video.”

           {¶34}   The court then asked Higgins’s counsel in open court if Higgins would

testify.    Higgins’s counsel informed the court that Higgins was invoking the Fifth

Amendment and would not testify. The trial court then informed the parties that it was

taking a brief recess, and that the trial would resume in another courtroom.

           {¶35}   Once the trial had resumed, the trial court stated the following concerning

how the closed-circuit equipment would be utilized to obtain the witnesses’ testimony:

“We are in the magistrate’s courtroom using the video equipment for arraignments and

extradition hearings. There is a video monitor on the defense counsel table and on the

prosecutor’s table. They’re able to see the witness who will be present in the room. At

the other end of the system, there is a television set, available for the jury’s viewing.

There is a camera positioned in front of defense counsel in the event she wants to display

any exhibit to the witnesses.”

                    C. Two-Way Video Testimony of James, Leaks, and Higgins

           {¶36}   Defense counsel maintained her objection, arguing that the procedure

violated Johnson’s right to confrontation. The state then called David James to testify.

Although James had previously told police that he had seen Higgins and Johnson shoot

Moorman, James repeatedly testified that he had not seen anyone shooting that night. James

testified that he was outside that night, when he saw a man pull up and five or six girls get out

of the vehicle. Everyone was yelling and asking about the identity of the person driving the

truck, but James went on about his business. When he heard gunshots shortly thereafter, he

ran into his apartment. He came back outside 30 minutes later. When he was later

questioned by the police, he told them that he had not seen anything.



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                        OHIO FIRST DISTRICT COURT OF APPEALS



        {¶37}    James further testified that he was afraid for his life, that he had come to

court the first day of the trial, but that he had not come the following day because he had

gotten the word in the community that if he appeared at the trial, he was a dead man. He

acknowledged that the police had to arrest him to get him to come to court. He stated that he

did not want to testify because he felt that his life was in danger, adding that he did not want

anything whatsoever to do with the case.

        {¶38}    Kenneth Leaks next testified by two-way video. Leaks testified that he was

being held in the Hamilton County Justice Center on an obstruction charge and that he was

testifying in the presence of his attorney, who had informed him that as long as he testified

truthfully in the case, the obstruction charge would be reduced from a felony charge to a

misdemeanor charge.

        {¶39}    Leaks testified that he was standing by himself when two young boys came

and got him. They told him that some girls were getting hit by a truck. As he walked across

the street to see what was happening, Higgins and Johnson came up next to him and started

shooting. He testified that Johnson had a black gun. Higgins also had a gun and fired some

shots at the truck. The truck rolled on before hitting a pole. He testified that he felt that by

his mere presence at the scene, he was also going to be shot. So he walked off towards his

aunt’s house. Leaks testified that he had had a gun, a small .25-caliber weapon, that night but

that he did not attempt to pull it out. He kept it in his hand in his pocket.

        {¶40}    Two days after the shooting, his aunt had made him go to the police

department. He gave a statement to Detective Luke and let her see his cellular phone. He

had then left the state because he was worried that something was going to happen to him–

“like getting killed or something.” He admitted that he had been interviewed a second time

by Luke, but testified that he could not recall their conversation. He further admitted telling




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Detective Luke in a third interview that he had been carrying a .25-caliber gun on the night of

the murder.

        {¶41}    He testified that he knew Johnson only as T-Red and Higgins as Lil LA. He

denied giving Detective Luke T-Red’s or Lil LA’s phone number. He further testified that he

had come to court with Detective Luke on Monday and that he did not want to testify in the

case. Leaks admitted that he had been drinking alcohol and taking drugs the day of the

shooting, but he testified that it had not impaired his ability to see the shooting.

        {¶42}    Higgins next testified by two-way video. He acknowledged that in exchange

for his truthful testimony, the state was permitting him to plead guilty to a reduced charge of

manslaughter and to receive a four-year prison sentence. Higgins testified that his street

name was Lil LA and that he was with Johnson, whose street name was T-Red, on the

evening of July 7, 2007, in the back of the St. Leger Apartments, when he saw a truck pull

into the driveway and turn around. He heard some girls arguing with the driver of the truck.

He saw one of the girls spit on the back of the driver’s head and another girl snatch the

driver’s cellular phone, so he went to see what was going on. As he was walking out from

the apartment building, the driver, who was drunk, almost hit him with his truck. The driver

then turned around and was “talking stuff” to him, so Higgins pulled out his .40-caliber

Glock. When he heard David James yell that the driver had pulled out a gun, Higgins started

shooting at the back of the bed of the truck as it was pulling away. Kenneth “Tom Tom”

Leaks and Johnson then started shooting. Johnson had a .45-caliber weapon, while Leaks

had a chrome revolver.

        {¶43}    Higgins testified that he had been standing next to a group of parked cars

when he fired three or four shots at the back of the bed of the truck. Johnson, who had been

standing next to him, was shooting at the driver’s-side window of the truck. One of

Johnson’s shots had hit a window, and it had shattered. The truck kept moving before it



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crashed. He and Johnson then ran from the scene. Higgins ran to Dixmont Avenue and left

his gun in Chanel Bassett’s apartment. He acknowledged that the police had recovered the

gun from Basset’s apartment, test-fired it, and determined that it was one of the guns used in

the shooting.

        {¶44}    He further testified that he had been approached in December 2008 by police

officers while he was in the London Correctional Facility and that he had told them that

Johnson was the other shooter. He testified that he had not spoken with Johnson since the

shooting. Higgins testified that he was confident that Johnson had a .45-caliber gun because

Johnson had shown him the gun not long before the incident.

                        D. The State’s Remaining Evidence Against Johnson

        {¶45}    Detective Jenny Luke testified that she had investigated the death of

Moorman. She testified that when she had initially arrived on the scene, there were no

witnesses for her to interview and that she had returned to the crime scene the following day,

going door to door, handing out business cards, and trying to talk to anyone who might have

seen what had happened, but that no one had had any information. She testified about her

investigation, including her interviews with Leaks, James, and Higgins. She testified that

James’s testimony was inconsistent with his prior statement. At defense counsel’s request,

James’s entire statement to police was played for the jury.

        {¶46}    Paul Glindemeyer, a criminalist who had processed the crime scene and the

victim’s vehicle, testified that in his opinion, the shooters had been standing in between two

cars in a group of four vehicles parked on the street or on the sidewalk next to the vehicles.

He further testified that in his opinion, the lack of glass in the drivers’ side of the vehicle and

in the street meant that the driver’s side window had been down at the time of the shooting,

while the shattered glass in the back seat indicated that the rear driver’s side window had

been up at the time of the shooting.



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                       OHIO FIRST DISTRICT COURT OF APPEALS



        {¶47}    Glindemeyer testified that he could not determine the sequence of the shots

or what caliber of bullet had made the five bullet holes in the victim’s vehicle, but that the

varying sizes of the bullet holes was consistent with the testimony that both a .40-caliber

pistol and a .45-caliber pistol had been fired at the vehicle. He further testified that the bullet

hole in the door frame of the driver’s side of the vehicle was consistent with the bullet that

had caused Moorman’s death.

        {¶48}    Dr. Gretel Stephens, a forensic pathologist and deputy coroner in the

Hamilton County Coroner’s office, testified that Moorman had died from a single gunshot

wound to the torso, which had perforated his heart, lungs, aorta, and pulmonary artery. She

told the jury that his injuries were so extensive that he would have lived only a few minutes

after being shot. She further testified that from the position of the wound, she could tell that

Moorman had been shot from a distance greater than two feet and that his arm had been

forward as if his hand had been on the steering wheel when he had been shot. Stephens

testified that she had recovered a bullet from Moorman’s right armpit during the autopsy and

had forwarded it to John Heile, a firearms examiner for the Hamilton County Coroner’s

office, for examination.

        {¶49}    John Heile testified that he had examined a .40-caliber Glock handgun that

police had retrieved from Bassett’s apartment, the autopsy bullet, and three sets of

ammunition that police had recovered from the crime scene.

        {¶50}    Heile was able to conclude that one set, which consisted of two .40-caliber

cartridge casings, had been fired from the .40-caliber Glock pistol that police had recovered

from Bassett’s apartment. A second set, consisting of five Independence-brand .45-caliber

automatic cartridge casings, had each been fired from the same .45-caliber weapon. Heile

also examined a third set, which consisted of three bullet fragments, but he testified that the

fragments were too small for him to determine anything about the type or caliber of the bullet



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or what weapon they had been fired from. Heile testified that based upon the cartridge

casings found at the scene, at least two weapons had been fired.

       {¶51}     Heile further testified that he had also compared the .45-caliber autopsy

bullet and the .45-caliber bullet that had been recovered from the headrest of Moorman’s

vehicle with the five fired .45-caliber-automatic cartridge casings. Heile testified that he

could not link the bullets with the cartridge casings, but that the five fired cartridge casings

and the two bullets were consistent with ones that were fired from a Glock semiautomatic

pistol. Heile admitted on cross-examination that there was a possibility that the bullets and

cartridge casings had come from two different .45-caliber semiautomatic Glock pistols, but

he further testified that in his opinion, the two .45-caliber bullets—the bullet recovered from

Moorman and the bullet found in the driver’s seat headrest of his vehicle—had been fired

from the same gun.

                                   II. Johnson’s Evidence at Trial

       {¶52}     In his defense, Johnson presented testimony from his maternal grandmother,

his mother, his aunt, and three teenage girls from the neighborhood. Johnson’s mother,

maternal grandmother, and aunt testified that he was among a group of 13 or 14 family

members attending a birthday party at his grandmother’s home. Johnson’s grandmother

testified that she lived on Gilbert Avenue, which was about 100 yards from the murder scene.

The women testified that Johnson was upstairs playing video games with his cousins and

came down to the kitchen shortly after hearing the gunshots that night. Johnson’s mother

further testified that Johnson had recently violated his probation for drug possession and that

he had been staying inside his grandmother’s home that night to avoid further trouble. On

cross-examination, Johnson’s mother confirmed that his birth date was the same date listed

on the phone records for the phone number police had recovered for T-Red from Leak’s

phone. She further confirmed that the Gilbert Avenue address listed on the phone records for



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T-Red was the same address for Johnson’s grandmother’s home and that Johnson had been

living with his grandmother at the time of the shooting.

         {¶53}   Kanisha Freeman and Tania Harmon, two 15-year-olds living in Evanston at

the time of the shooting, testified that they had attended school with Leaks and Higgins and

that they knew Johnson because he was the father of Harmon’s sister’s baby. Both girls

testified that they had approached defense counsel in the hallway during the trial and told her

that they wanted to testify because they did not want to see the wrong person accused of the

crime.

         {¶54}   They testified that they were standing on the corner of St. Leger with some

friends in the early morning hours of July 8, 2007, when they saw a black pickup truck pull

up with some of their friends. All the girls exited from the vehicle, except for one, whom the

driver would not let out. The driver pulled forward with the girl still in the rear seat, but she

managed to jump out of the vehicle and run to where Freeman, Harmon, and their friends

were standing.    The driver then rolled the truck up on the sidewalk and tried to hit them.

They then heard somebody yell that the driver had a gun. Leaks then walked to the end of

the driveway and stood near Leal Higgins, who had already started shooting at the truck.

Leaks then started shooting at the truck. Both girls testified that they did not see Sontez

Johnson that night. They further testified that they did not talk to the police on the night of

the shooting.

         {¶55}   On cross-examination, Freeman admitted that she had been interviewed by

the police sometime in 2008. She denied that her trial testimony was inconsistent with her

prior statement to police that she had not witnessed the crime and that she had only heard of

Leaks and Higgins but that she did not recognize either one. When asked whether she had

lied to police, Freeman explained that she had not lied, but had simply not answered their

questions. Freeman and Harmon further admitted that they were best friends, that Harmon’s



                                               17
                       OHIO FIRST DISTRICT COURT OF APPEALS



sister was Johnson’s girlfriend, and that Johnson was the father of Harmon’s sister’s child.

Harmon testified on cross-examination that she was not afraid of testifying in the case. Both

Freeman and Harmon testified that they had come to the courthouse with a large group of

friends from Evanston.

        {¶56}    Iesha Leathers testified that she was 16 years old at the time of the shooting

and that she lived across the hallway from David James in the St. Leger Apartments. She

testified that she knew Johnson from the recreation center; she knew Leaks from spending

time in Evanston; she knew Higgins from school; and she was good friends with Freeman

and Harmon. She testified that she was standing in her kitchen when she heard gunshots and

screaming. When she walked over to her living room and looked out the window, which

faced the St. Leger Apartments, she saw Leaks run up on the porch and start ducking. She

did not see anything in his hand. She spoke to him briefly before he jumped into a car and

left.

                           III. The Jury’s Verdict and Johnson’s Sentence

        {¶57}    The jury acquitted Johnson of purposefully murdering Moorman, but found

him guilty of felony murder and two counts of felonious assault involving Moorman as well

as one count of having a weapon while under a disability. At sentencing, the trial court

merged the two felonious-assault charges. The trial court sentenced Johnson to 15 years to

life for the felony murder, to eight years for felonious assault, to five years for the weapons

offense, and to a three-year term on the merged firearm specifications. It ordered that the

terms be served consecutively, for a total sentence of 31 years to life in prison.

                                IV. Johnson’s Right to Confrontation

        {¶58}    In his second assignment of error, Johnson argues that his right to

confrontation under the Sixth Amendment to the United States Constitution and Section

10, Article I of the Ohio Constitution was violated when the trial court permitted three of



                                               18
                          OHIO FIRST DISTRICT COURT OF APPEALS



the state’s witnesses, David James, Kenneth Leaks, and Leal Higgins, to testify at trial by

two-way closed-circuit television. He further claims that the use of the two-way closed-

circuit television procedure precluded defense counsel from effectively cross-examining

one of the state’s witnesses, Kenneth Leaks, when he admitted having difficulty seeing

some of the demonstrative aids during cross-examination.

          {¶59}     The Sixth Amendment to the United States Constitution provides, “[I]n

all criminal prosecutions the accused shall enjoy the right * * * to be confronted with the

witnesses against him.” Section 10, Article I of the Ohio Constitution, likewise provides,

“[T]he party accused shall be allowed * * * to meet the witnesses face to face * * *.”

Typically, this means that witnesses who testify against a defendant in a criminal

proceeding must personally appear at the defendant’s trial.

          {¶60}     The United States Supreme Court, however, has held that a defendant’s right

to face-to-face confrontation is not absolute and may be appropriately limited under certain

circumstances.1 In Maryland v. Craig, the Supreme Court explained that the Confrontation

Clause reflects a preference for face-to-face confrontation at trial, a preference that must

occasionally give way to considerations of public policy and the necessities of the case.2 The

court further held that a defendant’s right to confront accusatory witnesses may be satisfied

absent a physical, face-to-face confrontation at trial only where (1) the denial of such

confrontation is necessary to further an important public policy and only where (2) the

reliability of the testimony is otherwise assured by the other elements of the confrontation

right, “including testimony under oath, the opportunity for cross-examination, and the




1 See Coy v. Iowa (1988), 487 U.S. 1012, 1021, 108 S.Ct. 2798 (any exception to face-to-face
confrontation “would surely be allowed only when necessary to further an important public
policy”); see also Maryland v. Craig (1990), 497 U.S. 836, 850, 110 S.Ct. 3157; Morales v. Artuz
(C.A.2, 2002), 281 F.3d 55, 58.
2   Craig, 497 U.S. at 849.


                                                19
                           OHIO FIRST DISTRICT COURT OF APPEALS



opportunity for the judge, jury, and the defendant to view the witness’s demeanor as he or she

testifies.”3

          {¶61}       While neither this court nor the Ohio Supreme Court has addressed

whether a defendant’s confrontation right is violated by the presentation of an adult

witness’s testimony by two-way closed-circuit television, multiple state and federal

courts have read Craig’s references to “an important public policy” and “an important

state interest” as suggesting a general rule that is not limited to protecting child victims of

sexual offenses from the trauma of testifying in a defendant’s presence.4 These courts

have likewise concluded that even though Craig concerned a statute that permitted child

witnesses in sexual offenses to testify by one-way closed- circuit television, the state need

not point to a statute that codifies the important policy interest it seeks to further before it

may invoke Craig.5

          {¶62}       In this case, the trial court implemented the two-way closed-circuit

television procedure based on its own observations, as well as the assistant prosecuting

attorney’s observations, that a large number of the defendant’s friends and family had

been intimidating three witnesses.6 The trial court’s comments on the record reveal that

it was not predisposed to permit the state to present the testimony by two-way closed-

circuit television, but that it permitted the testimony only out of necessity.



3   Id. at 850-851.
4 Horn v. Quarterman (C.A.5, 2007), 508 F.3d 306, 319-320; People v. Wrotten (2009), 14
N.Y.3d 33, 39-40, 923 N.E.2d 1099; Harrell v. State (1998), 709 So.2d 1364 (Florida Supreme
Court held that the testimony of two foreign tourists, who had been assaulted and robbed while
visiting Florida, by satellite transmission did not violate a defendant’s right to confrontation);
Harrell v. Butterworth(C.A.11, 2001), 251 F.3d 926; United States v. Abu Ali (C.A. 4, 2008), 528
F.3d 210; United States v. Benson (C.A.6, 2003), 79 Fed.Appx. 813, 820-821.
5   See Quarterman, 508 F.3d at 320; see also Wrotten, 14 N.Y.3d at 39-40.
6See also United States v. Gigante (C.A.2, 1999), 166 F.3d 75 (a defendant’s confrontation rights
were not violated when a district court permitted a witness who was terminally ill and in the
witness-protection program to testify by two-way closed-circuit television).


                                                20
                         OHIO FIRST DISTRICT COURT OF APPEALS



          {¶63}    This court is aware that witness intimidation is a widespread problem in

Hamilton County, and it is disruptive of the administration of criminal justice.7 The

United States Supreme Court itself has recognized, “[W]hen defendants seek to

undermine the judicial process by procuring or coercing silence from witnesses and

victims, the Sixth Amendment does not require courts to acquiesce.”8 Indisputably,

James’s, Leaks’s, and Higgins’s testimony was critical to the state’s case against

Johnson. The trial court was understandably concerned that these witnesses be able to

testify in a neutral setting because witnesses who are intimidated provide less reliable

testimony, which defeats the truth-seeking goals of confrontation. The trial court’s use of

the two-way video procedure was necessary to further the public policy of justly

resolving the criminal case, while at the same time protecting the well-being of the state’s

witnesses.9

          {¶64}    The trial court’s use of the two-way closed-circuit television procedure

additionally preserved the reliability of these witnesses’ testimony. James, Leaks, and

Higgins appeared with their counsel in the Hamilton Justice Center, they were sworn by

the court, they gave testimony, and they were subjected to a rigorous, live cross-



7 See, e.g., State v. Lewis, 1st Dist. Nos. C-050989 and C-060010, 2007-Ohio-1485, at ¶ 15-25;
State v. Grimes, 1st Dist. No. C-030922, 2005-Ohio- 203; see also Goldschneider, “Choose Your
Poison: A Comparative Constitutional Analysis of Criminal Trial Closure v. Witness Disguise in
the Context of Protecting Endangered Witnesses at Trial,” (2004) 15 Geo.Mason U.Civ.Rights L.J.
25, 45 (“Studies have shown that witness intimidation is a widespread problem that is ‘more
disruptive of the administration of criminal justice than had generally been assumed’ ”).
8   Davis v. Washington (2006), 547 U.S. 813, 833, 126 S.Ct. 2266.
9 See Bourjaily v. United States (1987), 483 U.S. 171, 182, 107 S.Ct. 2775 (the Confrontation
Clause must be balanced against the societal interest in accurate fact-finding); Ohio v. Roberts
(1980), 448 U.S. 56, 64, 100 S.Ct. 2531 (where the Supreme Court, in explaining the
circumstances where the Confrontation Clause might need to give way to some extent, stated that
“significantly, every jurisdiction has a strong interest in effective law enforcement”); see also
Rogers v. State (2010), 40 So.2d 888 (a trial court’s finding that the state’s prosecution could not
have gone forward without some acceptable procedure other than face-to-face confrontation was
sufficient to permit a police officer to testify by satellite from China); Wrotten, 14 N.Y.3d, at 40
(New York Court of Appeals held that an elderly witness’s two-way televised testimony did not
violate the defendant’s right to confrontation where the witness was too ill to travel, and where
any impairment of the defendant’s confrontation right was minimal).


                                                 21
                          OHIO FIRST DISTRICT COURT OF APPEALS



examination before the jury, Johnson, defense counsel, and the court. The jury was able

to assess these witnesses’ demeanors while they testified, and Johnson and his counsel

were able to weigh the impact of their testimony on the jury as counsel crafted her cross-

examination.10

           {¶65}    Johnson’s argument that the two-way closed-circuit television procedure

precluded him from effectively cross-examining Leaks is not supported by a full review of

his testimony. Although Leaks initially indicated that he could not see the aerial view of the

crime scene that defense counsel was showing him, he later stated, after some adjustments

had been made, that he had no difficulty viewing this exhibit. And while Leaks later stated

during his testimony that he was having difficulty seeing the same exhibit, our review of the

transcript reveals that Leaks’s statement was made more out of frustration with defense

counsel’s repeated questioning about his location during the shooting than from his inability

to see the exhibit. The record further reveals that Higgins was shown the same aerial view of

the crime scene during cross-examination and that he had no difficulty seeing the exhibit.

           {¶66}    We therefore hold that under the unique circumstances of this case, it was

within the court’s power to use the procedure based upon the information relayed by the

assistant prosecuting attorney in the extensive in-chambers discussions, the sidebar

conferences, and the trial court’s own observations of witness intimidation during the

trial.11 The court’s actions were the equivalent of an evidentiary hearing.

           {¶67}    Moreover, the record reflects that all the discussions regarding the video

procedure occurred in chambers or in open court outside the hearing of the jury and that

the trial court carefully considered and weighed the state’s motion.              The court’s



10 See Abu Ali, 528 F.3d at 242 (where the Fourth Circuit noted that two-way video testimony is
actually more protective of a defendant’s confrontation rights than the one-way video testimony
approved by the Supreme Court in Craig.).
11   See, e.g., In re Howard (1997), 119 Ohio App.3d 33, 40-41, 694 N.E.2d 488.


                                                 22
                       OHIO FIRST DISTRICT COURT OF APPEALS



comments well demonstrated its intent to ensure that Johnson received a trial that not

only was public, but was fair. The trial court’s efforts to preserve those rights by use of

two-way televised testimony should not be lightly discounted where the threat to both of

these constitutional interests stemmed directly from the efforts of the defendant’s friends

and family to undermine the administration of justice.12 Based upon the foregoing, we

cannot conclude that James’s, Leaks’s, and Higgins’s testimony by two-way closed-

circuit television violated Johnson’s Sixth Amendment right to confrontation.

        {¶68}    Having determined that the two-way video procedure did not violate

Johnson’s Sixth Amendment right to confrontation, we must next determine whether the

two-way video procedure violated his right to confrontation as guaranteed by Section 10,

Article I of the Ohio Constitution.       The Ohio Supreme Court has determined that

“Section 10, Article I provides no greater right of confrontation than the Sixth

Amendment.”13 Because we have concluded that the use of the two-way video procedure

did not violate Johnson’s Sixth Amendment right to confrontation, we likewise conclude

that it did not violate Johnson’s right to confrontation under Section 10, Article I of the

Ohio Constitution. We therefore overrule his second assignment of error.

                                 V. Manifest Weight of the Evidence

        {¶69}    In his third assignment of error, Johnson argues that his convictions were

against the manifest weight of the evidence because numerous inconsistencies existed in

James’s, Leaks’s, and Higgins’s testimony, because Higgins’s and Leak’s testimony was

procured by way of a plea bargain, and because Johnson offered credible alibi testimony

that he had not been present at the time of the shooting.


12 See Goldschneider, 15 Geo.Mason U.Civ.Rights L.J. at 47-48 (noting that when witnesses are
threatened in the halls of the courthouse or while testifying, the menacing persons have already
seen the witnesses, and the trial court’s closure of the courtroom is likely moot).

 State v. Self (1990), 56 Ohio St.3d 73, 79, 564 N.E.2d 446 (the Ohio Supreme Court upheld an
13
Ohio statute that permitted the use of a child sexual abuse victim’s videotaped deposition).


                                              23
                           OHIO FIRST DISTRICT COURT OF APPEALS



           {¶70}    When reviewing a defendant’s claim that his convictions are against the

manifest weight of the evidence, this court must review the record, weigh the evidence

and all reasonable inferences, consider the credibility of the witnesses, and determine

whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and

created a manifest miscarriage of justice in finding the defendant guilty.14 We may grant

a new trial only in the exceptional case where the evidence weighs heavily against the

conviction.15

           {¶71}    Here, the jury was presented with varying accounts of what had happened in

the early morning hours of July 8, 2007. Although the state had no physical evidence linking

Johnson to the shooting, it presented eyewitness testimony that Johnson had pulled out a

weapon and fired multiple shots at Moorman. While David James testified at trial that he did

not see who had shot at Moorman’s vehicle, the state impeached James with his prior

statements to police in which he had identified Johnson and Higgins as the individuals who

had shot at Moorman’s truck. Kenneth Leaks likewise testified that he had been outside near

Johnson and Higgins when he had seen the two men pull out their weapons and fire multiple

shots at Moorman’s vehicle.

           {¶72}    Similarly, codefendant Leal Higgins testified that he was with Johnson on

the night of the shooting. He testified that when Moorman almost struck him with his

vehicle, he pulled out his gun, a .40-caliber Glock and started shooting at the back of the

vehicle while standing next to some cars. Johnson had then pulled out a .45-caliber handgun

and started shooting at the driver’s side window of Moorman’s vehicle.




14 State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus; see also
State v. Thompkins (1997), Ohio St.3d 380, 386-387, 1997-Ohio-52, 678 N.E.2d 541.
15   Jenks, 61 Ohio St.3d 259, citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211.



                                                    24
                          OHIO FIRST DISTRICT COURT OF APPEALS



           {¶73}    The record reflects that defense counsel cross-examined Leaks and Higgins

extensively about the inconsistencies in their prior statements to police and in their

testimony on direct examination.             Defense counsel additionally highlighted these

inconsistencies in her closing argument to the jury, as well as the inconsistencies between

James’s prior statement to police and his trial testimony. Defense counsel also pointed

out that Leaks and Higgins had made deals with the state in exchange for their testimony

and that they both had a motive to testify against Johnson.

           {¶74}    Moreover, as the state points out, the eyewitness testimony of Leaks and

Higgins was also corroborated by other evidence in the case. Police officer Sandy Hanes

testified that she had recovered Higgins’s .40-caliber Glock pistol from exactly where

Higgins had claimed it would be–in the apartment of Chanel Bassett. The deputy coroner

testified that Moorman had been killed by a .45-caliber bullet that had gone through the

driver’s side window frame of the truck. A .45-caliber bullet was also recovered from the

back of the driver’s headrest in the vehicle. Moreover, police recovered two sets of shell

casings—five .45-caliber shell casings and two .40-caliber shell casings—from the area

around a group of parked vehicles in the street where the state’s eyewitnesses had claimed

Johnson and Higgins had been standing. Ballistics testing additionally confirmed that the

.40-caliber shell casings had been fired from Higgins’s gun.

           {¶75}    While testimony from Johnson’s grandmother, his mother, his aunt, and

three teenage girls from the neighborhood that Johnson had not been present at the time of

the shooting could have created reasonable doubts in the minds of the jurors, the jury was

charged with the task of deciding the credibility of these witnesses.16 The jury clearly found

the testimony of the state’s eyewitnesses, who placed Johnson at the scene shooting a .45-

caliber weapon at Moorman, to be more credible than the testimony of Johnson’s alibi


16   See State v. DeHass (1967), 10 Ohio St.2d 230, 227 N.E.2d 212, paragraph one of the syllabus.


                                                  25
                          OHIO FIRST DISTRICT COURT OF APPEALS



witnesses. Based upon our review of the record, we cannot conclude that the jury lost its

way in choosing to afford more weight to the testimony of the state’s witnesses than to the

testimony of Johnson’s witnesses. Because the jury’s verdict was not against the manifest

weight of the evidence, we overrule Johnson’s third assignment of error.

                                   VI. Allied Offenses of Similar Import

          {¶76}    In his first assignment of error, Johnson argues that the trial court erred in

imposing separate sentences for the felony murder and felonious assault of Moorman because

they were allied offenses of similar import under R.C. 2941.25. We agree.

          {¶77}    Under R.C. 2941.25, a trial court, in a single proceeding, may convict and

sentence a defendant for two or more offenses “ ‘ having as their genesis the same

criminal conduct or transaction,’ ” if the offenses (1) are not allied offenses of similar

import, (2) were committed separately, or (3) were committed with a separate animus as

to each offense.17

          {¶78}    In State v. Johnson, the Ohio Supreme Court held, “When determining

whether two offenses are allied offenses of similar import subject to merger under R.C.

2941.25, the conduct of the accused must be considered. (State v. Rance (1999), 85 Ohio

St.3d 632, 710 N.E.2d 699, overruled.)”18 While all seven justices concurred in the syllabus

overruling Rance, they could not reach a majority opinion with regard to the analysis that

courts should employ in determining whether two or more offenses are allied offenses of

similar import under R.C. 2941.25(A).19 The justices did, however, uniformly agree that the




17 See State v. Bickerstaff (1984), 10 Ohio St.3d 62, 65-66, 461 N.E.2d 892, quoting State v. Moss
(1982), 69 Ohio St.2d 515, 519, 433 N.E.2d 181; see also State v. Johnson, 128 Ohio St.3d 153,
2010-Ohio-6314, 942 N.E.2d 1061, at ¶ 51.
18   State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus.
19Id. at ¶ 47-52 (Brown, C.J., Pfeifer, J., and Lundberg Stratton, J., concurring); id. at ¶ 59-71
(O’Connor, J., Lanzinger, J., and Cupp, J., concurring in judgment only); id. at ¶ 72-83
(O’Donnell, J., concurring).


                                                 26
                       OHIO FIRST DISTRICT COURT OF APPEALS



conduct of the accused must be considered.20 Consequently, if the evidence adduced at trial

reveals that the state relied upon the same conduct to support the two offenses and that the

offenses were committed neither separately nor with a separate animus as to each, then the

defendant is afforded the protection of R.C. 2941.25, and the trial court errs in imposing

separate sentences for the offenses.21

        {¶79}    In this case, a jury found Johnson guilty of felony murder, under R.C.

2903.02(B), for causing the death of Moorman as a result of committing felonious assault

under R.C. 2903.11(A)(1). The jury also found Johnson guilty of a separate count of

felonious assault under R.C. 2903.11(A)(1) for causing or attempting to cause physical harm

to Moorman. In comparing the elements of Johnson’s offenses in the factual context in

which they arose, we conclude that Johnson committed the felony murder and felonious

assault of Moorman with the same conduct. Here, testimony from the state’s witnesses at

trial revealed that the same shots Johnson fired at Moorman’s vehicle with the purpose to

cause him physical harm also resulted in his death. As a result, the two offenses were allied

offenses of similar import.

        {¶80}    Having determined that the two offenses were allied offenses of similar

import, we must now consider, pursuant to R.C. 2941.25(B), whether the offenses were

committed with a single animus or as part of a single course of conduct. Here, Johnson

pulled out a gun and fired multiple shots in rapid succession at Moorman. Johnson’s motive

was the same and was exhibited in a continuous sequence intended to inflict serious injury

upon Moorman. This single course of conduct embodied both offenses.22 Because the


20 See id. at ¶ 44; see also ¶ 68 (O’Connor, J., concurring); see also ¶ 78 (O’Donnell, J.,
concurring); see also State v. Hopkins, 10th Dist. No. 10AP-11, 2011-Ohio-1591, at ¶ 5.
21 R.C. 2941.25(B); Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, at ¶ 49 and
51; see also State v. Evans, 1st Dist. No. C-100028, 2011-Ohio-2356, at ¶ 6-7; State v. Mackey, 1st
Dist. Nos. C-100311, C-100312, C-100313, and C-100314, 2011-Ohio-2529, at ¶ 15-16.
22See Evans, 2011-Ohio-2356, at ¶ 11; see also State v. Jackson, 1st Dist. No. C-090414, 2010-
Ohio-4312, at ¶ 25, citing State v. Gandy, 1st Dist. No. C-070152, 2010-Ohio-2873, at ¶ 11.


                                                27
                       OHIO FIRST DISTRICT COURT OF APPEALS



felony murder and felonious assault involving Moorman were allied offenses of similar

import, committed in a single course of conduct with a single animus, Johnson was entitled to

the protection of R.C. 2941.25. Accordingly, the trial court erred in sentencing him for both

offenses. We therefore sustain Johnson’s first assignment of error, vacate his sentences for

the felony murder and felonious assault of Moorman, and remand this cause for the

imposition of a single sentence for only one of those two offenses. We affirm the trial court’s

judgment and sentences in all other respects.


                                                                      Judgment accordingly.


       HILDEBRANDT, P.J., and HENDON, J., concur.




                                                28
