[Cite as State v. Hudson, 2013-Ohio-2351.]




                  IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO                                        :

        Plaintiff-Appellee                           :            C.A. CASE NO.    2011 CA 100

v.                                                   :            T.C. NO.   07CR926

RAYSHAUN HUDSON                                      :            (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                          :

                                                     :

                                              ..........

                                             OPINION

                         Rendered on the       7th       day of       June     , 2013.

                                              ..........



LISA M. FANNIN, Atty. Reg. No. 0082337, Assistant Prosecuting Attorney, 50 E. Columbia St.,
4th Floor, P.O. Box 1608, Springfield, OH 45501
        Attorney for Plaintiff-Appellee

ADAM JAMES STOUT, Atty. Reg. No. 0080334, 2600 Far Hills Ave., Suite 315, Dayton, OH
45419
      Attorney for Defendant-Appellant

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

FROELICH, J.

        {¶ 1}      Rayshaun Hudson was convicted after a jury trial in the Clark County Court of
                                                                                               2


Common Pleas of two counts of felonious assault, two counts of tampering with evidence, one

count of possession of drugs, one count of possession of criminal tools, one count of harassment

with a bodily substance, and one count of failure to comply with an order or signal of a police

officer. The trial court sentenced Hudson to an aggregate term of 42 years in prison.

       {¶ 2}     Hudson contends that he was denied due process when the trial court refused to

continue the trial in order to await a pending competency examination. Hudson also contends

that the trial court erred in sentencing him on two firearm specifications and to consecutive terms

for the two felonious assault charges.       Finally, Hudson maintains that his conviction for

tampering with evidence (a weapon) was against the manifest weight of the evidence. For the

following reasons, the trial court’s judgment will be affirmed.

                                                 I.

       {¶ 3}    At around 9:00 a.m. on September 14, 2007, Rayshaun Hudson picked up Stacey

Delaney at Delaney’s home in Trotwood, Ohio. Hudson and Delaney were business and social

acquaintances, and Hudson sometimes asked Delaney to ride around with him. Delaney was

home quite a bit at that point because he had hurt his back. On this particular day, Hudson

intended to drive to Indianapolis to look for his girlfriend, who was pregnant.

       {¶ 4}     On the way to Indianapolis, Hudson was driving erratically and very fast, despite

Delaney’s request that he slow down. Once they reached Indianapolis, Hudson could not find his

girlfriend, so the two men began to drive back home at around 2:00 or 2:30 p.m. On the way

back, Hudson continued to drive erratically. Hudson was snorting cocaine and was drinking beer

and Wild Irish Rose. When the two men arrived back in Ohio, they ran out of gas. They were

assisted by the Clay Township police, who drove Delaney to a gas station. Delaney knew that
                                                                                              3


Hudson carried a pistol, so he rode with the police to get the gas while Hudson remained with his

vehicle.

       {¶ 5}     When Hudson and Delaney finally arrived back in the Dayton area, they rode

around some more while Hudson did his “little transactions.” By this time, it was around 4:00 or

5:00 p.m., but Hudson would not take Delaney home. Consequently, Delaney got out of the truck

at a gas station and began walking home. Delaney eventually got back in the truck after Hudson

promised to take him home. However, instead of doing so, Hudson drove to Springfield, Ohio.

       {¶ 6}     When they arrived in Springfield, Hudson stopped in a large parking lot, and the

two men got in a dispute. According to Delaney, Hudson was trying to give him money, but

Delaney refused it. Apparently, some money blew out of the window. Hudson was also upset

because he thought that Delaney had taken his gun. Before they left the parking lot, Hudson shot

Delaney in the knee. Hudson was looking at Delaney like he didn’t recognize him. When

Delaney asked Hudson why he had shot him, Hudson would not say why. Hudson said, “I feel

like murder.” Hudson then continued to drive around Springfield, pulling into alleys, putting the

gun to Delaney’s side, and talking about the fact that he felt “like murder.” Eventually, Hudson

drove the wrong way down a one-way street with a car coming toward them. Delaney reached

over for the steering wheel because he thought they were going to collide with the car. After they

passed the car, Hudson shot Delaney again, this time in the calf.

       {¶ 7}     After additionally shooting at a pedestrian, Hudson stopped at an Advance Auto

parking lot. By that point, Delaney had lost a lot of blood. When Hudson pulled up to the back

of the parking lot, he took his hand off the pistol and Delaney grabbed the pistol. When Hudson

attempted to get the pistol back, it went off. Hudson and Delaney struggled over the pistol, went
                                                                                                4


out the passenger door of the truck, and ended up on the ground, in the parking lot, fighting over

the gun. Four or five men who were standing in the parking lot came over during the struggle,

and heard one of the struggling men calling for help. They heard one of the two men yell out,

“He shot me, he’s got a gun.”

       {¶ 8}     The men in the parking lot called 911, and after a few minutes, Springfield Police

Officer Joseph Lewis responded. Delaney had heard the men say that they had called the police.

Delaney heard sirens, and when he saw a police car come skidding to a stop about ten to fifteen

feet away, he let go of the gun. Delaney then saw that a policeman had his gun out and was

yelling, “Halt, halt.” At that point, Hudson stood up with the gun and got back in the truck.

       {¶ 9}     Officer Lewis testified that as he pulled into the lot, he could see Hudson

standing over Delaney. Lewis also saw that Hudson’s arm was extended, but he could not see

what was in his hand. Lewis then observed Hudson running to a truck while putting something in

his waistband. Although Lewis ran up and tried to smash out the driver’s side window to extract

Hudson, Hudson was able to escape. Hudson backed up and sped off through an apartment

complex located next to the Advance Auto parking lot. Hudson then proceeded eastbound on

High Street at a very high rate of speed.

       {¶ 10}    By that point, Springfield Police Officer Gregory Garman had arrived in his

cruiser. Officers Garman and Lewis pursued Hudson through town while he drove at very high

rates of speed, turning his lights off and going left of center several times. At one point, Hudson

crossed the median, went westbound in the eastbound lane, turned around, and went through a

Wal-Mart parking lot. Although the police used stop sticks, they were not successful, because

Hudson drove over the curb to evade them. The officers then lost sight of Hudson for a time.
                                                                                                5


Eventually, however, Springfield Police Officer Jeffrey Williams was flagged down by several

people who said that the fleeing person was in the area of East Pleasant Street. Officer Williams

drove down that block and saw a man standing at the corner. When Williams exited from his

cruiser, Hudson started running eastbound down the sidewalk along a fence line.

       {¶ 11} Officer Williams saw Hudson throw something over the fence while he was

running.   Eventually, after Hudson slowed down, Williams and another officer tackled and

handcuffed him. No firearm was found either in the truck or on Hudson’s person. When

Williams went back to where Hudson had thrown something over the fence, he found a plastic bag

containing a substance that was later identified as crack cocaine.

       {¶ 12}    Hudson was taken to the hospital because he was very intoxicated or under the

influence of some substance and needed medical treatment. When Hudson refused to allow

medical staff to pump his stomach, Springfield Police Officer Kevin Hoying assisted the medical

staff by holding Hudson’s head. Hudson eventually slipped free and spit at Hoying.

       {¶ 13}    In the meantime, Delaney had been transported to the hospital, where he received

surgery for his gunshot wounds, including reconstruction of a bone that supported the inside of his

knee. Delaney identified Hudson as his assailant, and Hudson’s hands also tested positive for

gunshot residue. No gun was found in the area where Hudson and Delaney had been struggling.

       {¶ 14}    Hudson was charged with various crimes, including the two felonious assault

charges, two counts of tampering with evidence, possession of drugs, possession of criminal tools,

harassment with a bodily substance, and failure to comply with a signal or order of a police

officer. Firearm specifications were also included. After a jury trial, Hudson was found guilty

on all charges, and he was sentenced to a total of 42 years in prison. Hudson appeals from his
                                                                                                                                    6


conviction and sentence.

                                                                  II.

         {¶ 15}        Hudson’s First Assignment of Error states that:

         APPELLANT WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL

         COURT DENIED MR. HUDSON A CONTINUANCE OF THE TRIAL IN

         ORDER TO AWAIT A PENDING COMPETENCY EVALUATION.

         {¶ 16} In his first assignment of error, Hudson contends that the trial court abused its

discretion by denying his request for a continuance of the trial in order to await a second pending

competency evaluation that was ordered in a contemporaneous case in Montgomery County,

Ohio.1

         {¶ 17}        “The grant or denial of a continuance is a matter which is entrusted to the broad,

sound discretion of the trial judge.                    An appellate court must not reverse the denial of a

continuance unless there has been an abuse of discretion.” (Citations omitted.) State v. Unger,

67 Ohio St.2d 65, 67, 423 N.E.2d 1078 (1981). In Unger, the Supreme Court of Ohio noted that

when evaluating requests for continuances, courts should consider the following factors:

         [T]he length of the delay requested; whether other continuances have been

         requested and received; the inconvenience to litigants, witnesses, opposing counsel

         and the court; whether the requested delay is for legitimate reasons or whether it is

           1
              Hudson had been charged with a number of serious felonies in Montgomery County, based on a high-speed chase that occurred
 in June 2008, after Hudson was released on bond by Clark County. Hudson was later found guilty of these crimes and was sentenced to 85
 years in prison. See State v. Hudson, 2d Dist. Montgomery No. 23328, 2010-Ohio-1622, ¶ 1-3. In April 2010, we affirmed Hudson’s
 convictions for the high-speed chase, during which a police officer had been seriously injured. We also affirmed Hudson’s convictions on
 charges in two other Montgomery County cases. One case involved a robbery, and the other involved Hudson’s failure to comply with an
 officer’s order to stop. In the latter case, Hudson had allegedly discharged a gun into a home. Id.
                                                                                                7


       dilatory, purposeful, or contrived; whether the defendant contributed to the

       circumstance which gives rise to the request for a continuance; and other relevant

       factors, depending on the unique facts of each case.

(Citation omitted.) Id. at 67-68.

       {¶ 18}    In the case before us, Hudson was indicted in September 2007, and trial was

originally set for November 2007. The trial was continued at the request of the State and was

rescheduled for January 2008. It was then continued several times at the request of the defense,

including one continuance that was based on the court’s having granted defense counsel’s motion

to withdraw.

       {¶ 19}    In April 2008, the trial court appointed new counsel for Hudson and set a trial

date of June 4, 2008. That trial date was also continued, because Hudson failed to appear. The

court learned at that time that Hudson was in the hospital after having crashed his vehicle while

fleeing from authorities in Montgomery County. At that point, the court ordered Hudson’s bond

forfeited and issued a warrant for his arrest.

       {¶ 20}    The case was subsequently set for a jury trial on September 9, 2008. However,

on August 29, 2008, Hudson’s counsel filed a motion asking the court to order a competency

evaluation and examination.       Defense counsel expressed concern that Hudson might be of

diminished mental capacity and could also have mental health issues that would affect his ability

to assist in his own defense. The trial court ordered a competency examination by the Forensic

Psychiatry Center for Western Ohio, and scheduled a competency hearing for late October 2008.

       {¶ 21}    At the competency hearing, the State stipulated to the findings in the report, and

the defense stipulated only to the fact that if Dr. Thomas Martin appeared, he would testify as to
                                                                                                  8


what was in the report.    Defense counsel again expressed the concerns he had originally posed

about Hudson’s competency. The trial court noted, however, that Dr. Martin had prepared an

eight-page report and had found Hudson competent to stand trial. The court stated that it had no

reason to doubt the accuracy of Dr. Martin’s findings, and it held that Hudson was competent to

stand trial.

        {¶ 22}    On October 27, 2008, the court filed an entry reflecting its findings about

Hudson’s competency. The court also set a trial date of December 15, 2008. Subsequently, on

December 9, 2008, Hudson filed a motion to continue the trial. Hudson noted that he had made a

request in Montgomery County for a second competency evaluation and had been granted

permission for a second opinion on the condition that he pay for it. Hudson further stated that his

family had provided money for the evaluation, which had been scheduled with a doctor from

Forensic Psychiatry of Southwestern Ohio.         The trial court overruled Hudson’s motion on

December 11, 2008, and the trial went forward as scheduled.

        {¶ 23}    Hudson’s counsel also raised the competency issue on the first day of trial.

Defense counsel noted that Hudson had been examined on the preceding Saturday (December 13,

2008), and that the second competency report would be forthcoming. Defense counsel once more

expressed concern about Hudson’s competency. However, the trial court again overruled the

motion.     In particular, the court stressed the history of the case, which included Hudson’s

continued problems with any attorneys who represented him, as well as a suggestion in the

original competency report that Hudson was malingering or purposely trying to cause problems in

the case.

        {¶ 24}    The above facts indicate that the trial court did not act unreasonably, arbitrarily,
                                                                                                                                        9


or unconscionably in refusing to continue the December 15, 2008 trial. As a preliminary matter,

we note that the case had been pending for more than a year and had been continued several times,

primarily at the request of the defense. Hudson was at fault in at least two situations, by failing to

keep in contact with his attorney, and by failing to appear for trial because he had gotten injured

while committing crimes in another county.

          {¶ 25}       Furthermore, the trial court did allow a competency evaluation, and Hudson

failed to challenge either the examiner’s neutrality or the specific content of the report.2 Hudson

also did not argue that the examination failed to comply with requirements for competency

evaluations found in R.C. 2945.37 or R.C. 2945.371. Finally, Hudson waited until less than a

week before trial to ask for a continuance, when the trial date had been set for about six weeks.

At that point, the State had already issued subpoenas for its witnesses.

          {¶ 26} The trial court did not abuse its discretion in refusing to grant a continuance.

Hudson’s first assignment of error is overruled.

                                                                    III.

          {¶ 27}       Hudson’s second assignment of error states:

          THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO TWO

          FIREARM SPECIFICATIONS.

          {¶ 28} In his second assignment of error, Hudson contends that the trial court erred in

sentencing him for firearm specifications in connection with each felonious assault charge.

Hudson argues that both charges arose from the same transaction, i.e., Hudson’s restraint of

           2
              The competency report was not filed with the trial court and is not in the record. However, the record reflects that the report
 was eight pages long and, as we noted, Hudson did not raise an objection to any specific content in the report. Hudson may have disagreed
 with the result, but there was no suggestion that the examination was flawed or incomplete in some way.
                                                                                                     10


Delaney and driving Delaney in the truck.

        {¶ 29}         At sentencing, the trial court imposed a sentence of eight years for each felonious

assault charge, plus three years for the firearm specification on each charge, with the sentences to

run consecutively. Thus, the sentences for the felonious assaults totaled 16 years, plus six years

total for the firearm specifications, resulting in a sentence of 22 years for these charges.

        {¶ 30}         When the trial court imposed separate sentences for the firearm specifications, it

stated that:

                    Before I proceed with the disposition, I do want the record to be clear that

        the Court, in hearing the testimony of the victim, Mr. Delaney, the Court is of the

        impression, based upon the evidence that was presented, that the felonious assault

        occurred at separate times. Or at least there was a significant period of time in

        between those two felonious assaults. And, therefore, the Court’s position, based

        on the evidence, is that the firearm specifications for those two felonious assaults

        would not merge.

        {¶ 31}         At the time Hudson was sentenced in December 2008, R.C. 2929.14(D)(1)(a)(ii)

provided for a prison term of three years for firearm specifications, if the specification charged the

offender with “having a firearm on or about the offender’s person or under the offender’s control

while committing the offense and displaying the firearm, brandishing the firearm, indicating that

the offender possessed the firearm, or using it to facilitate the offense[.]”3 R.C. 2929.14(D)(1)(b)

further provided that “[a] court shall not impose more than one prison term on an offender under

division (D)(1)(a) of this section for felonies committed as part of the same act or transaction.”

         3
             This provision is now codified as R.C. 2929.14(B)(1)(a)(ii).
                                                                                                                                      11


         {¶ 32}         “Transaction” has been defined as “‘a series of continuous acts bound together by

time, space and purpose, and directed toward a single objective.’” State v. Wills, 69 Ohio St.3d

690, 691, 635 N.E.2d 370 (1994), quoting State v. Caldwell, 9th Dist. Summit No. 14720, 1991

WL 259529, *12 (Dec. 4, 1991).4 In determining whether felonies are committed as part of the

same act or transaction, “[t]he test is not whether there was a separate animus for each offense; the

appro[p]riate consideration is whether the defendant ‘had a common purpose in committing

multiple crimes’ and engaged in a ‘single criminal adventure.’”                                         State v. Like, 2d Dist.

Montgomery No. 21991, 2008-Ohio-1873, ¶ 40, quoting State v. Adams, 7th Dist. Mahoning No.

00 CA 211, 2006-Ohio-1761, ¶ 54, 57. (Other citation omitted.)

         {¶ 33}         In State v. Walker, 2d Dist. Montgomery No. 17678, 2000 WL 873222 (June 30,

2000), we concluded that even though the defendant’s actions shared a common objective of

escaping the police, they were not part of the same act or transaction, because they “clearly

occurred at different times and in different places.” Id. at *13. The defendant in Walker had a

firearm in his possession while fleeing from police who were pursing him on Interstate 75 from

Dayton toward Cincinnati. After the defendant arrived in downtown Cincinnati, he caused a

traffic accident and seriously injured another motorist, while still in possession of the firearm.

We concluded that the trial court had correctly refused to merge the firearm specifications for

these charges against the defendant. Id.                       In this regard, we observed that “[t]he mere fact that

[the offenses] share a common objective, escape from the police, is not sufficient to classify them

as part of the same act or transaction.” Id.

           4
               Wills and Caldwell involved former R.C. 2929.71, a predecessor statute to R.C. 2929.14. R.C. 2929.71 was repealed by S.B.2 in
 1996, and R.C. 2929.14 contains analogous provisions. The wording requiring the “same act or transaction” for purposes of merger has
 remained the same.
                                                                                                12


       {¶ 34}    We reached a similar conclusion in State v. Twitty, 2d Dist. Montgomery No.

18749, 2002-Ohio-5595. In Twitty, we noted that the defendant’s conduct in attempting to flee

from police in his vehicle was completed before he confronted, attempted to disarm, and assaulted

two police officers. Thus, although the events may have been directed toward the same objective

of evading capture, they “occurred at different times and in different locations” and “were not part

of the same act or transaction for purposes of R.C. 2929.14(D)(1)(b) * * *.” Id. at ¶ 130.

Accordingly, the sentences should not be merged.

       {¶ 35}    In contrast, in State v. Young, 2d Dist. Montgomery No. 23642, 2011-Ohio-747,

multiple gunshots were fired inside a bar in rapid succession. The case also involved multiple

victims and resulted in felonious assault and murder convictions. We concluded that these

actions were part of a single transaction for purposes of R.C. 2929.14(D)(1)(b). Id. at ¶ 55. As a

result, we held that the trial court erred in imposing separate sentences for each firearm

specification that accompanied the defendant’s felonious assault and murder convictions. Id.

       {¶ 36}    In the present case, Hudson shot Delaney in the knee when he (Hudson) appeared

to be upset over the possibility that Delaney had taken his pistol and had refused money. Hudson

then drove around Springfield for quite some time before shooting Delaney a second time. The

latter shooting appears to have been motivated by Hudson’s anger over the fact that Delaney

grabbed the steering wheel when it looked as if they were going to collide with another car.

These two incidents did not involve the same objective, and they occurred at different times and in

different locations, as with the incidents in Walker and Twitty. Accordingly, the trial court did

not err by refusing to merge the firearm specifications for the two assault charges.

       {¶ 37}    Hudson’s second assignment of error is overruled.
                                                                                                 13


                                                IV.

       {¶ 38}     Hudson’s third assignment of error states:

       THE CONVICTION OF TAMPERING WITH EVIDENCE, NAMELY A

       FIREARM[,] WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

       {¶ 39} In his third assignment of error, Hudson contends that his conviction for

tampering with evidence (a weapon) was against the manifest weight of the evidence, because the

gun was never found and one cannot infer, based on the facts, that Hudson intentionally threw it

away during the chase.

       {¶ 40}    “[A] weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶

12.   See Eastley v. Volkman, 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 19

(“‘manifest weight of the evidence’ refers to a greater amount of credible evidence and relates to

persuasion”). When evaluating whether a conviction is contrary to the manifest weight of the

evidence, the appellate court must review the entire record, weigh the evidence and all reasonable

inferences, consider witness credibility, and determine whether, in resolving conflicts in the

evidence, the trier of fact “clearly lost its way and created such a manifest miscarriage of justice

that the conviction must be reversed and a new trial ordered.” State v. Thompkins, 78 Ohio St.3d

380, 387, 678 N.E.2d 541 (1997), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d

717 (1st Dist.1983).

       {¶ 41}    Because the trier of fact sees and hears the witnesses at trial, we must defer to the

factfinder’s decisions whether, and to what extent, to credit the testimony of particular witnesses.
                                                                                                14


State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684 (Aug. 22, 1997). However,

we may determine which of several competing inferences suggested by the evidence should be

preferred. Id. The fact that the evidence is subject to different interpretations does not render

the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A judgment of

conviction should be reversed as being against the manifest weight of the evidence only in

exceptional circumstances. Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717.

       {¶ 42}    Hudson was charged in Count Three with tampering with evidence (a weapon),

in violation of R.C. 2921.12(A)(1), which provides that “[n]o person, knowing that an official

proceeding or investigation is in progress, or is about to be or likely to be instituted, shall . . .

[a]lter, destroy, conceal, or remove any record, document, or thing, with purpose to impair its

value or availability as evidence in such proceeding or investigation[.]”

       {¶ 43} Delaney was shot twice, and he identified Hudson as the shooter.              Delaney

testified that when the police arrived at the Advance Auto parking lot, Hudson took the gun and

got into his truck. Officer Lewis, who had arrived on the scene, also observed Hudson with his

arm extended. The officer then saw Hudson putting something in his waistband. The police did

not recover a weapon from the parking lot where Delaney and Hudson struggled over the gun.

During the pursuit, the police lost sight of Hudson and the vehicle for a time, and later found him

standing on a street corner. The police did not recover a weapon from Hudson, the truck, or

anywhere. There is no question that the Appellant used a firearm in these felonies and that he

apparently possessed it when he drove away from the parking lot; further, he did not have the

weapon when he was arrested later after a foot chase.

       {¶ 44} However, the “inability of law enforcement to find the gun used in a shooting by
                                                                                                15


itself does not show that the defendant ‘altered, destroyed, concealed or removed’ it.” State v.

Beard, 6th Dist. Wood No. WD-08-037, 2009-Ohio-4412, ¶ 18, citing State v. Wooden, 86 Ohio

App.3d 23, 27, 619 N.E.2d 1132 (9th Dist. 1993). In Beard, the “state relied on a faulty

syllogism: Witness saw [defendant] fire a gun.          The gun was never found.         Therefore,

[defendant] must have tampered with the gun to make it unavailable as evidence against him.”

Id., ¶ 20. See also, e.g., State v. Sims, 2d Dist. Clark No. 2008 CA 92, 2009-Ohio-5875, ¶ 18-29;

State v. Spears, 178 Ohio App.3d 580, 2008-Ohio-5181, 899 N.E.2d 188, ¶ 23-24 (2d Dist.); Like,

2d Dist. Montgomery No. 21991, 2008-Ohio-1873, at ¶ 24.

       {¶ 45} In the view of a majority of this court, Hudson’s conviction for tampering with

evidence (weapon) was against the manifest weight of the evidence. The jury may well have

concluded that the defendant disposed of the gun, but the manifest weight of the evidence did not

support a finding that Hudson was guilty of tampering with evidence (weapon).

       {¶ 46} Nevertheless, given that Hudson was convicted by a jury, we cannot reverse his

conviction for tampering with evidence (weapon).        Section 3(B)(3), Article IV of the Ohio

Constitution provides, in part, that “[n]o judgment resulting from a trial by jury shall be reversed

on the weight of the evidence except by the concurrence of all three judges hearing the cause.”

This court is not unanimous regarding whether the manifest weight of the evidence supports or

does not support Hudson’s conviction for tampering with evidence (weapon). Accordingly,

Hudson’s conviction must stand.

       {¶ 47}    Hudson’s third assignment of error is overruled.

                                                V.

       {¶ 48}    Hudson’s fourth assignment of error states:
                                                                                             16


       THE TRIAL COURT ERRONEOUSLY SENTENCED APPELLANT TO

       CONSECUTIVE SENTENCES FOR TWO COUNTS OF FELONIOUS

       ASSAULT.

       {¶ 49} In his fourth assignment of error, Hudson contends that the trial court erred in

sentencing him to consecutive sentences for the two counts of felonious assault. In this regard,

Hudson contends that the two offenses are allied offenses of similar import and were committed

with the same animus.

       {¶ 50}    R.C. 2941.25 provides that:

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

       {¶ 51}    “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, at syllabus.             The Ohio

Supreme Court explained:

                Under R.C. 2941.25, the court must determine prior to sentencing whether
                                                                                                17


       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.

                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. * * * 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.

                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.” * * *

                If the answer to both questions is yes, then the offenses are allied offenses

       of similar import and will be merged.

                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.

(Citations and quotations omitted.) Johnson at ¶ 47–51.

       {¶ 52}     A defendant who argues on appeal that the trial court erred by not merging

multiple offenses bears the burden to show that the offenses are allied pursuant to R.C. 2941.25.

State v. Hale, 2d Dist. Clark No. 11 CA 33, 2012-Ohio-2662, ¶ 24.
                                                                                              18


       {¶ 53} Here, Hudson shot Delaney in the leg on two occasions while the two were

driving together on September 14, 2007. Both actions by Hudson constituted felonious assault,

and it is possible for these two identical offenses to have been committed by the same conduct.

       {¶ 54} We therefore focus on whether the two shootings by Hudson constituted a single

act with a single animus. The Ohio Supreme Court has interpreted the term “animus” to mean

“purpose or, more properly, immediate motive.” State v. Logan, 60 Ohio St.2d 126, 131, 397

N.E.2d 1345 (1979); see also, e.g., State v. Beverly, 2d Dist. Clark No. 2011 CA 64,

2013-Ohio-1365, ¶ 42.

       “Like all mental states, animus is often difficult to prove directly, but must be

       inferred from the surrounding circumstances. * * * Where an individual’s

       immediate motive involves the commission of one offense, but in the course of

       committing that crime he must, A priori, commit another, then he may well possess

       but a single animus, and in that event may be convicted of only one crime.”

       Logan at 131, 397 N.E.2d 1345. “If the defendant acted with the same purpose,

       intent, or motive in both instances, the animus is identical for both offenses.”

       State v. Lewis, 12th Dist. Clinton No. CA2008-10-045, 2012-Ohio-885, ¶ 13.

Beverly at ¶ 42.

       {¶ 55}      Under the facts of this case, Hudson’s two felonious assaults were committed

separately and he had a separate animus for each shooting. Although both shootings occurred

while Hudson and Delaney were together in a vehicle, there was a significant delay between the

first and second shooting. The record reflects that Hudson’s “immediate motive” for the first

shooting was anger over his belief that Delaney may have taken his gun and refused money.
                                                                                             19


After Hudson drove toward oncoming traffic, Hudson shot Delaney a second time in response to

the fact that Delaney attempted to grab the steering wheel. Thus, the record demonstrates that

Hudson’s actions were committed separately and that he had a separate animus for each felonious

assault. Accordingly, the two counts of felonious assault were not subject to merger under R.C.

2941.25.

       {¶ 56}   Hudson’s fourth assignment of error is overruled.

                                        VI. Conclusion

       {¶ 57} The trial court’s judgment will be affirmed.

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

DONOVAN, J., concurs.

WELBAUM, J., concurring:

       {¶ 58}   I concur with most of the majority opinion and affirmance, but very respectfully

disagree with its conclusion that Hudson’s Third Assignment of Error, but for a provision of the

Ohio Constitution, should otherwise be sustained. I believe Hudson’s conviction for Tampering

With Evidence was not against the manifest weight of the evidence. As noted by the majority, a

split decision by a court of appeals reversing a conviction resulting from a jury trial on the

manifest weight of the evidence is unconstitutional pursuant to Section 3(B)(3), Article IV, Ohio

Constitution. State v. Miller, 96 Ohio St.3d 384, 2002-Ohio-493, 775 N.E.2d 498, ¶ 39; State v.

Broyles, 5th Dist. Richland No. 2009CA0072, 2010-Ohio-1837. Therefore, Hudson’s conviction

for the same must be affirmed.

       {¶ 59}   I very respectfully disagree with the majority on this issue for the following

reasons. As we stated in State v. Arthur Hill, 2d Dist. Montgomery No. 25274, 2013-Ohio-2016,
                                                                                                    20


¶ 16, the standard for review of Hudson’s claim gives substantial deference to the trier of fact:

                 “When a conviction is challenged on appeal as being against the

                 weight of the evidence, an appellate court must review the entire

                 record, weigh the evidence and all reasonable inferences, consider

                 witness credibility, and determine whether, in resolving conflicts in

                 the evidence, the trier of fact ‘clearly lost its way and created such a

                 manifest miscarriage of justice that the conviction must be reversed

                 and a new trial ordered.’” State v. Hill, 2d Dist. Montgomery No.

                 25172, 2013-Ohio-717, ¶ 8, quoting State v. Thompkins, 78 Ohio

                 St.3d 380, 387, 678 N.E.2d 541 (1997). “A judgment should be

                 reversed as being against the manifest weight of the evidence ‘only

                 in the exceptional case in which the evidence weighs heavily against

                 the conviction.’ ” Id., quoting State v. Martin, 20 Ohio App.3d

                 172, 175, 485 N.E.2d 717 (1st Dist.1983).

        {¶ 60}     The evidence shows that Hudson disposed of the firearm as he fled during a high

speed chase from police after he had twice shot and threatened Delaney. The pistol was never

found. Nonetheless, the jury may have reasonably inferred that Hudson intentionally threw it

away during his flight in violation of the statute, to wit:

                 No person, knowing that an official proceeding or investigation is in

        progress, or is about to be or likely to be instituted, shall do any of the following:

                 (1) Alter, destroy, conceal, or remove any record, document, or thing, with

        purpose to impair its value or availability as evidence in such proceeding or
                                                                                               21


       investigation[.] R.C. 2921.12(A)(1).

       {¶ 61}    The record contains no basis upon which to conclude that the jury clearly lost its

way and created a manifest miscarriage of justice. Instead, the evidence in the record indicates

that Hudson possessed and disposed of the firearm in violation of the statute.

       {¶ 62}    According to Delaney, when the police arrived, he (Delaney) let go of the gun,

and Hudson took it. The police officer who arrived on the scene also observed Hudson with his

arm extended. The officer then saw Hudson putting something in his waistband. In addition,

the police did not recover a weapon from the parking lot where Delaney and Hudson struggled

over the gun.

       {¶ 63}    During the pursuit, the police lost sight of Hudson’s vehicle for a time, and then

later found him standing on a street corner. The police did not recover a weapon from Hudson or

from the truck. A reasonable inference from the facts is that Hudson disposed of the weapon at

some point during the chase for the purpose prohibited by the statute, probably when the police

lost sight of the vehicle. As a result, I believe the conviction for Tampering with Evidence is not

against the manifest weight of the evidence.

       {¶ 64}    I would overrule Hudson’s Third Assignment of Error on its merits. For these

reasons, I very respectfully disagree with the majority. As a result of the reasoning expressed in

this opinion, the Ohio Constitution requires that this conviction be affirmed.



                                            ..........

Copies mailed to:

Lisa M. Fannin
Adam James Stout
                            22


Hon. Douglas M. Rastatter
