[Cite as State v. Long, 2013-Ohio-251.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                        C.A. No.      26441

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
DONANTONIO K. LONG                                   COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 11 12 3389 (A)

                                 DECISION AND JOURNAL ENTRY

Dated: January 30, 2013



        MOORE, Judge.

        {¶1}     DonAntonio K. Long appeals from the April 27, 2012 judgment of conviction of

the Summit County Court of Common Pleas. We reverse.

                                                I.

        {¶2}     This matter stems from a shooting that took place in the early morning hours of

November 27, 2011. Antonio Grimes was shot in his right arm by an individual riding in the

passenger seat of a car outside of his sister’s apartment. Mr. Grimes’ sister, Dream Williams,

identified Mr. Long as the shooter. The Akron police arrested Mr. Long and searched his home

for evidence of the crime. During their search, the police found a blue tote in Mr. Long’s

bedroom closet containing a .22 caliber revolver and a .22 caliber pistol, with corresponding

ammunition, along with a box of ammunition for a .38 caliber handgun on the top shelf.

        {¶3}     The Summit County Grand Jury indicted Mr. Long on one count of felonious

assault in violation of R.C. 2903.11(A)(1)/(2), with two firearm specifications, and one count of
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having weapons while under disability in violation of R.C. 2923.13(A)(2)/(3). The State later

supplemented its indictment to include another count of having weapons while under disability,

in violation of R.C. 2923.13(A)(2)/(3). Mr. Long pleaded not guilty and the matter proceeded to

a jury trial.    The jury found Mr. Long not guilty of felonious assault and the firearm

specifications, but found him guilty of two counts of having weapons while under disability.

The trial court sentenced Mr. Long to two years of incarceration on each count of having

weapons while under disability, to run consecutively, for a total of 4 years of incarceration.

       {¶4}      Mr. Long timely appealed, and raises one assignment of error for our

consideration.

                                                  II.

                                     ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN DETERMINING THAT [MR. LONG’S] TWO
       CONVICTIONS FOR HAVING WEAPONS WHILE UNDER DISABILITY
       WERE NOT ALLIED OFFENSES OF SIMILAR IMPORT FOR THE
       PURPOSES OF SENTENCING.

       {¶5}      In his sole assignment of error, Mr. Long argues that the trial court erred in failing

to merge his two convictions for having weapons while under disability, as these offenses are

allied offenses of similar import. Specifically, Mr. Long argues that (1) he acquired the two guns

while under disability by the same conduct, and (2) he obtained the guns with a single state of

mind; to protect himself and his girlfriend from future harm.

       {¶6}      In response, the State argues that it was not possible for Mr. Long to commit both

offenses with the same conduct because he had two handguns in his possession; a revolver and a

pistol. Further, the State contends that Mr. Long could not possess the revolver by possessing

the pistol and vice-versa.
                                                 3


       {¶7}    In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, ¶ 44, the Supreme

Court of Ohio held that, in determining whether two offenses are allied offenses of similar

import, “the conduct of the accused must be considered.” The court must first determine

“whether it is possible to commit one offense and commit the other with the same conduct,” and,

if so, 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.’” (Emphasis sic.) Id. at ¶ 48, 49,

quoting State v. Brown, 119 Ohio St. 447, 2008-Ohio-4569, ¶ 50 (Lanzinger, J., concurring). If

the same conduct constituted both offenses, then they must be merged. Johnson at ¶ 50. Failure

to merge allied offenses of similar import constitutes plain error, and prejudice exists even where

a defendant's sentences are to run concurrently because “a defendant is prejudiced by having

more convictions than are authorized by law.” State v. Underwood, 124 Ohio St.3d 365, 2010-

Ohio-1, ¶ 31. In this case, the trial court ran Mr. Long’s sentences consecutively.

       {¶8}    Mr. Long testified regarding his acquisition of the two guns as follows:

       ***

       Q. Okay. You told Detective Mara you didn’t own any guns but you had two
       guns?

       A. Yeah.

       Q. What did you mean by that?

       A. Because I didn’t actually purchase those guns. I had called a friend and asked
       him, you know, to be able to keep them there just in case, you know, if they’re
       accusing me of shooting this guy, I don’t really know—they know where I stay at.
       I can’t go nowhere [sic]. I’m on house arrest. I might sneak out an hour or two,
       but I can’t literally stay over at my friend’s or sister’s or something.

       I was like, “This is going on, you know. I need a little help. Can you help?”

       And he like, “Yeah, I got you.”

       He brought over this bag. That stuff that you found in my room was in there. I
       was kind of preparing myself not to be killed.
                                                4


        ***

However, at sentencing, the trial court determined that Mr. Long’s convictions for having

weapons while under disability were not allied offenses of similar import and should not merge.

The trial court stated:

        I, on review, having heard the evidence find that the offenses are not of similar
        import. They were not, as your attorney argues, committed by the same act. You
        owned each or had in your possession each gun separately. Therefore, I think that
        each offense merits a separate sentence.

        {¶9}    As stated above, in determining whether two offenses are allied offenses of

similar import, “the conduct of the accused must be considered.” Johnson at ¶ 44. We note that,

post-Johnson, there has been an absence of case law analyzing whether multiple counts of

having weapons while under disability are allied offenses. However, pre-Johnson, this Court,

along with other Ohio Courts of Appeal, considered these offenses to be allied. In State v.

Thompson, 46 Ohio App.3d 157, 159 (9th Dist.1988), this Court stated:

        In State v. Sharpe, we addressed this precise point of law. In Sharpe we held that
        the simultaneous possession of weapons by one under disability is but one
        offense. Also, we held that, assuming arguendo that possession of each weapon
        constituted a separate offense, the offenses would be allied offenses of similar
        import pursuant to R.C. 2941.25(A) and as such the defendant could be convicted
        of but one offense.

(Internal citations omitted.) Additionally, in State v. Creech, 188 Ohio App.3d 513, 2010-Ohio-

2553, ¶ 24, quoting State v. Pitts, 4th Dist. No. 99CA2675, 2000 WL 1678020, *13 (Nov. 6,

2000), the Fourth District Court of Appeals stated that “‘a defendant’s simultaneous possession

of several weapons in one location at one time is a continuous, indivisible act. Thus, the

simultaneous, undifferentiated possession of weapons by a person under a disability constitutes

only one offense and not separate offenses for each weapon.’” Although Johnson mandates that

this Court consider Mr. Long’s conduct in determining whether his offenses are allied, as we so

do, we also find guidance in Thompson and Creech.
                                                 5


       {¶10} Here, in considering the first prong of Johnson and whether it was possible for

Mr. Long to commit both offenses with the same conduct, we look to Mr. Long’s testimony for

guidance. Mr. Long testified that, upon learning of the Grimes shooting and the speculation that

he was involved, he called a friend and asked him to bring over some guns so that he would have

them for his protection. Additionally, Mr. Long testified that his friend delivered the guns in a

bag, which the police later found in his bedroom closet. The bag contained a revolver, pistol,

and ammunition.

       {¶11} Based upon the record before us, and the pre-Johnson case law holding that the

possession of multiple weapons can constitute one continuous, indivisible act, we conclude that

it was possible for Mr. Long to commit both crimes, i.e. possession of two handguns, with the

same conduct; simultaneously taking possession of the two guns while under disability. See Pitt

at *13. As such, the first prong of Johnson is satisfied.

       {¶12} Next, in considering the second prong of Johnson, whether Mr. Long actually

committed both offenses with a single state of mind, we again look to his testimony. The record

indicates that Mr. Long took possession of both guns in order to protect himself and his

girlfriend from any future retaliation associated with the Grimes shooting. He testified that both

he and his girlfriend had been shot in the past, and, in possessing the guns, he “was kind of

preparing [himself] not to be killed.” Also, the record indicates that both guns were found in the

same location: a bag inside of Mr. Long’s closet.

       {¶13} Based upon the record before us, we conclude that Mr. Long actually committed

both offenses of having weapons while under disability with a single state of mind: self-

protection. Creech at ¶ 24. As such, the second prong of Johnson is satisfied.
                                                 6


       {¶14} Therefore, because these offenses should have merged pursuant to Johnson, the

trial court erred in sentencing Mr. Long to four years of imprisonment on both of his convictions

for having weapons while under disability. This matter must be remanded to the trial court for

the State to elect which offense it wishes to proceed with at sentencing. See State v. Ziemba, 9th

Dist. No. 25886, 2012-Ohio-1717, ¶ 23.

       {¶15} Mr. Long’s sole assignment of error is sustained.

                                                     III.

       {¶16} The judgment of the Summit County Court of Common Pleas is reversed and this

matter is remanded for further proceedings consistent with this decision.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
                                               7


       Costs taxed to Appellee.




                                                   CARLA MOORE
                                                   FOR THE COURT



BELFANCE, J.
BROGAN, J.
CONCUR.

(Brogan, J., retired, of the Second District Court of Appeals, sitting by assignment pursuant to
§6(C), Article IV, Constitution.)

APPEARANCES:

THOMAS M. DICAUDO, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
