[Cite as State v. Weaver, 2016-Ohio-7984.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                     :
                                                   :   Appellate Case No. 26591
         Plaintiff-Appellee                        :
                                                   :   Trial Court Case No. 2014-CR-1407
 v.                                                :
                                                   :   (Criminal Appeal from
 ALLEN D. WEAVER                                   :    Common Pleas Court)
                                                   :
         Defendant-Appellant                       :
                                                   :

                                              ...........

                                             OPINION

                          Rendered on the 2nd day of December, 2016.

                                              ...........

MATHIAS H. HECK, JR., by CHRISTINA E. MAHY, Atty. Reg. No. 0092671, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45402
      Attorney for Plaintiff-Appellee

VALERIE KUNZE, Atty. Reg. No. 0086927, Office of the Ohio Public Defender, 250 East
Broad Street, Suite 1400, Columbus, Ohio 43215
      Attorney for Defendant-Appellant

                                             .............
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FAIN, J.



       {¶ 1} Defendant-appellant Allen D. Weaver appeals from his conviction and

sentence for Felonious Assault, Discharge of a Firearm Near Prohibited Premises and

Improper Handling of a Firearm in a Motor Vehicle. Weaver contends that the conviction

for Felonious Assault is not supported by sufficient evidence, and that the offenses of

Felonious Assault and Discharge of a Firearm should have merged for sentencing

purposes. The State argues that sufficient evidence was presented to support the

conviction, and that no merger is necessary when the offenses were committed

separately with a separate animus.

       {¶ 2} We conclude that the convictions are supported by sufficient evidence. We

further conclude that the offenses of Felonious Assault and Discharge of a Firearm were

committed separately, and therefore merger was not appropriate. Accordingly, the

judgment of the trial court is Affirmed.



      I. Discharging Firearm while Driving Leads to Three Felony Convictions

       {¶ 3} On April 14, 2014, Dayton Police Officers Christopher Savage and Jacob

Rillo were on routine patrol in West Dayton at approximately 6:10 p.m. As the officers

were traveling north on James H. McGee Boulevard approaching the intersection with

Rosedale Drive, they heard gunshots coming from the East on Rosedale Drive. The

officers began to turn right onto Rosedale Drive, at which time they noticed a Grey Dodge

Charger at the intersection making a left turn onto southbound James H. McGee

Boulevard. They also then observed a Silver Pontiac Grand Prix approaching them from
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the East on Rosedale. The Grand Prix was traveling at a high speed, and the officers

observed the driver shooting out of his window. The officers believed the driver to be

shooting at them. The Grand Prix then arrived at the intersection, where the officers had

stopped their cruiser. As the two vehicles were beside each other, facing opposite

directions, the driver of the Grand Prix stopped his vehicle and began firing his gun over

the trunk of the cruiser at the Grey Dodge Charger that had turned on to James H. McGee.

      {¶ 4} The officers then made a U-turn and initiated a traffic stop of the Grand Prix.

The driver, identified as Weaver, responded to the officer’s directions to pull over. As

Weaver stepped out of the vehicle, the officers observed a black gun fall out of his lap

onto the ground.

      {¶ 5} After he was arrested, Weaver told a detective that he shot at the Charger

after the Charger pulled up beside him, while driving on Rosedale, and someone in the

Charger randomly began shooting at them. He later told the detective, and testified at

trial, that the occupants of the Charger had driven by his home on Superior Avenue, and

shot at him and members of his family. According to Weaver, he and his cousin jumped

in the Grand Prix and chased after the Charger. At trial, Weaver denied shooting his gun

near the intersection of Rosedale Drive and James H. McGee Boulevard. He did admit

shooting toward the Charger as he was coming over a bridge. He testified that he did so

in self-defense because the backseat passenger in the Charger first shot at him. Weaver

testified that he attempted to shoot at the Charger’s tires, so his motive was not to hurt

anyone but just to slow them down.



                            II. The Course of Proceedings
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      {¶ 6} Weaver was indicted on three felony charges; one count of Felonious

Assault (deadly weapon), a felony of the second degree, in violation of R.C.

2903.11(A)(2), one count of Discharge of a Firearm on or Near Prohibited Premises

(substantial risk of physical harm), a felony of the third degree, in violation of R.C.

2923.162(A)(3), and one count of Improper Handling of a Firearm in a Motor Vehicle, a

felony of the fourth degree, in violation of R.C. 2923.16(A). The indictment also included

two firearm specifications pursuant to R.C. 2929.14, R.C. 2941.145, and R.C. 2941.146,

and a gang specification pursuant to R.C. 2929.14 and R.C. 2941.142 for enhancing the

penalty for convictions of the offenses of Felonious Assault and Discharge of a Firearm.

      {¶ 7} After the evidence was presented at a jury trial, the jury returned guilty

verdicts on all three counts and specifications. Prior to sentencing, the State agreed that

the firearm specifications and gang specifications should merge, and elected to proceed

with the five-year firearm specification included in the indictment for the offense of

Felonious Assault. The trial court rejected Weaver’s request to merge the offenses of

Felonious Assault and Discharge of a Firearm. The trial court did merge the offenses of

Discharge of a Firearm on or Near Prohibited Premises and Improper Handling of a

Firearm in a Motor Vehicle, and sentenced Weaver to serve a prison term of 36 months

for the merged firearm offenses. On the Felonious Assault conviction, Weaver was

sentenced to serve an additional seven years of incarceration, plus an additional five

years for the firearm specification. The sentences were ordered to run consecutively, for

a total of 15 years of imprisonment.



      III. Sufficient Evidence Supports the Conviction for Felonious Assault
                                                                                         -5-


        {¶ 8} For his First Assignment of Error, Weaver asserts:

              ALLEN WEAVER’S CONVICTION FOR FELONIOUS ASSAULT

        WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE IN VIOLATION OF

        MR. WEAVER’S RIGHT TO DUE PROCESS OF LAW UNDER THE FIFTH

        AND FOURTEENTH AMENDMENTS TO THE UNITED STATES

        CONSTITUTION, AND SECTION 10, ARTICLE 1 OF THE OHIO

        CONSTITUTION.

        {¶ 9} Weaver argues that the State did not present evidence sufficient to sustain

the conviction for Felonious Assault. Specifically, he contends that the State was unable

to present evidence of any specific victim whom he knowingly attempted to physically

harm.

        {¶ 10} When reviewing whether the State has presented sufficient evidence to

support a conviction, “the relevant inquiry is whether any rational finder of fact, after

viewing the evidence in a light most favorable to the State, could have found the essential

elements of the crime proven beyond a reasonable doubt.” State v. Dennis, 79 Ohio St.3d

421, 430, 683 N.E.2d 1096 (1997), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.

2781, 61 L.Ed.2d 560 (1979). A guilty verdict will not be disturbed on appeal unless

“reasonable minds could not reach the conclusion reached by the trier-of-fact.” Id.

        {¶ 11} Weaver was charged with a violation of R.C. 2903.11(A)(2), which states

that “[n]o person shall knowingly * * * [c]ause or attempt to cause physical harm to another

or to another's unborn by means of a deadly weapon or dangerous ordnance.” “A person

acts knowingly, regardless of purpose, when the person is aware that the person's

conduct will probably cause a certain result or will probably be of a certain nature. A
                                                                                         -6-


person has knowledge of circumstances when the person is aware that such

circumstances probably exist.” R.C. 2901.22(B).

       {¶ 12} In the case before us, the record supports a finding that Weaver knowingly

discharged his firearm in the direction of an occupied moving vehicle.         The officers

testified that they heard at least five gunshots before they turned on to Rosedale.

Weaver admitted to shooting at the Charger as he traveled on Rosedale. Although

Weaver testified that his intent was to shoot at the tires to stop the vehicle, the jury was

not required to credit Weaver’s testimony.       Therefore, we conclude that sufficient

evidence supports the conviction for Felonious Assault. Weaver’s First Assignment of

Error is overruled.



            IV. The Trial Court Was Not Required to Merge the Offenses

                      of Felonious Assault and Discharge of a Firearm

       {¶ 13} For his Second Assignment of Error, Weaver asserts:

              THE TRIAL COURT ERRED IN VIOLATION OF MR. WEAVER’S

       RIGHTS UNDER THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH

       AMENDMENT TO THE UNITED STATES CONSTITUTION, ARTICLE 1,

       SECTION 10 OF THE OHIO CONSTITUTION, AND R.C. 2941.25 WHEN

       IT FAILED TO MERGE FOR SENTENCING OFFENSES OF SIMILAR

       IMPORT, WHICH AROSE FROM THE SAME CONDUCT, AND WERE

       NOT COMMITTED SEPARATELY OR WITH A SEPARATE ANIMUS

       {¶ 14} R.C. 2941.25, Ohio's allied offense statute, provides as follows:

              (A) Where the same conduct by defendant can be construed to
                                                                                       -7-


       constitute two or more allied offenses of similar import, the indictment or

       information may contain counts for all such offenses, but the defendant may

       be convicted of only one.

              (B) Where the defendant's conduct constitutes two or more offenses

       of dissimilar import, or where his conduct results in two or more offenses of

       the same or similar kind committed separately or with a separate animus as

       to each, the indictment or information may contain counts for all such

       offenses, and the defendant may be convicted of all of them.

       {¶ 15} “When determining whether two offenses are allied offenses of similar

import subject to merger under R.C. 2941.25, the conduct of the accused must be

considered.” State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

syllabus. More recently, the Supreme Court of Ohio explained its holding in Johnson by

articulating the following three-part test:

              A trial court and the reviewing court on appeal when considering

       whether there are allied offenses that merge into a single conviction under

       R.C. 2941.25(A) must first take into account the conduct of the defendant.

       In other words, how were the offenses committed? If any of the following is

       true, the offenses cannot merge and the defendant may be convicted and

       sentenced for multiple offenses: (1) the offenses are dissimilar in import or

       significance—in other words, each offense caused separate, identifiable

       harm, (2) the offenses were committed separately, or (3) the offenses were

       committed with separate animus or motivation.

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25.
                                                                                      -8-

      {¶ 16} Applying the second step of the Ruff test, we must determine whether

Weaver’s conduct involved two separate incidents. The State argues that Weaver’s

shooting sequence was separated by time and space, and therefore involved two

separate incidents. We agree.

      {¶ 17} The record supports a finding that Weaver initially discharged a firearm

while driving a vehicle in pursuit of the Charger on Rosedale. He also fired shots at the

intersection of James H. McGee Boulevard and Rosedale Drive. The initial shooting

incident, where Weaver admitted to shooting at the Charger, was sufficient to support a

conviction for Felonious Assault.

      {¶ 18} The record also supports a finding that as Weaver drove toward the police

cruiser he was shooting in its direction. He then came to the intersection, stopped his

vehicle, and began to shoot over the cruiser in the direction of the Charger.        The

evidence demonstrates that the area was busy, and that there were pedestrians and other

vehicles. This was sufficient to result in a conviction for Discharge of a Firearm on or

Near Prohibited Premises as it created a substantial risk of physical harm to anyone in

the vicinity of the shots, including the police officers. Under these circumstances, the

trial court correctly concluded that the offenses were committed separately.     Having

concluded that the second step of the Ruff test provided sufficient grounds not to merge

the two offenses, we need not address the other steps.

      {¶ 19} We note that the trial court, during the sentencing hearing, while

determining the issue of merger, seemed to suggest that the facts supporting the

conviction for Felonious Assault related to Weaver firing his gun in the presence of the

police at, or near, the intersection of James H. McGee and Rosedale. The trial court
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further seemed to describe the facts supporting the conviction for Discharge of a Firearm

as involving Weaver shooting at the Charger while driving on Rosedale near the bridge.

However, in our view the evidence supports the findings as we stated above with regard

to the convictions. But in either description, we conclude that the trial court is correct in

the finding that the convictions should not merge for sentencing purposes.

       {¶ 20} Weaver’s Second Assignment of Error is overruled.



                                       V. Conclusion

       {¶ 21} Both of Weaver’s assignments of error having been overruled, the

judgment of the trial court is Affirmed.


                                      .............

DONOVAN, P.J., and WELBAUM, J., concur.

Copies mailed to:

Mathias H. Heck
Christina E. Mahy
Valerie Kunze
Hon. Mary K. Huffman
