[Cite as State v. Montanez, 2014-Ohio-1723.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 100013




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                JOSE L. MONTANEZ II
                                                     DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED



                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-12-569439-A


        BEFORE: Celebrezze, J., Boyle, A.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: April 24, 2014
ATTORNEY FOR APPELLANT

Rick L. Ferrara
Rick L. Ferrara, Esq.
2077 East 4th Street
Second Floor
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Scott Zarzycki
       Mary Weston
Assistant Prosecuting Attorneys
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Defendant-appellant, Jose L. Montanez II, appeals the judgment of the

Cuyahoga County Court of Common Pleas following a bench trial, wherein the trial court

found appellant guilty of felony murder, attempted murder, grand theft, and three counts

of felonious assault. After a careful review of the record and relevant case law, we

affirm appellant’s convictions.

                                  I. Procedural History

       {¶2} On December 4, 2012, the state indicted appellant on 15 counts in Cuyahoga

C.P. No. CR-12-569439-A. The indictment alleged seven counts as to victim Jamelro

Hicks: aggravated murder in violation of R.C. 2903.01(A), with one- and three-year

firearm specifications (Count 1); murder in violation of R.C. 2903.02(B), with one- and

three-year firearm specifications (Count 2); involuntary manslaughter in violation of R.C.

2903.04(A), with one- and three-year firearm specifications (Count 3); felonious assault

in violation of R.C. 2903.11(A)(1), with one- and three-year firearm specifications (Count

4); felonious assault in violation of R.C. 2903.11(A)(2), with one- and three-year firearm

specifications (Count 5); kidnapping in violation of R.C. 2905.01(A)(3), with one- and

three-year firearm specifications (Count 6); and grand theft in violation of R.C.

2913.02(A)(1), with one- and three-year firearm specifications (Count 7).

       {¶3} The state also alleged offenses as to victim Shannon Hinton, including:

attempted murder in violation of R.C. 2923.02 and 2903.02(A), with one- and three-year

firearm specifications (Count 8); felonious assault in violation of R.C. 2903.11(A)(1),
with one- and three-year firearm specifications (Count 9); felonious assault in violation of

R.C. 2903.11(A)(2), with one- and three-year firearm specifications (Count 10);

kidnapping in violation of R.C. 2905.01(A)(3), with one- and three-year firearm

specifications (Count 11).

       {¶4} Finally, the state alleged offenses as to victim Maurice Kimmie, including:

attempted murder in violation of R.C. 2923.02 and 2903.02(A), with one- and three-year

firearm specifications (Count 12); felonious assault in violation of R.C. 2903.11(A)(2),

with one- and three-year firearm specifications (Count 13); kidnapping in violation of

R.C. 2905.01(A)(3), with one- and three-year firearm specifications (Count 14); and

having a weapon while under disability in violation of 2923.13 (Count 15).

       {¶5} Appellant waived his right to a jury trial and tried his case to the bench. At

the conclusion of the state’s case-in-chief, the trial court dismissed Counts 11, 14, and 15.

 At the conclusion of trial, the court found appellant guilty of murder (Count 2), felonious

assault (Count 4), felonious assault (Count 5), grand theft (Count 7), attempted murder

(Count 12), and felonious assault (Count 13). The trial court further found appellant

guilty of the attendant one- and three-year firearm specifications.

       {¶6} Appellant was found not guilty of Count 1, aggravated murder; Count 3,

involuntary manslaughter; Count 6, kidnapping; Count 8, attempted murder; Count 9,

felonious assault; and Count 10, felonious assault.

       {¶7} At sentencing, the trial court made certain findings on the record on the issue

of merger. The court found that Count 2, murder, involved the shooting death of the
victim Jamelro Hicks, and Count 4, felonious assault, involved appellant beating, kicking,

stomping, and pistol whipping Hicks after he had been shot.                   Thus, the trial court

determined that Counts 2 and 4 involved two separate incidents and therefore did not

merge. 1     However, the trial court held that Count 5, felonious assault, which was

premised on the shooting of Hicks, merged with appellant’s murder conviction.

         {¶8} With respect to the offenses involving victim Maurice Kimmie, the trial court

merged Count 12, attempted murder, with Count 13, felonious assault.2

         {¶9} Subsequently, the trial court imposed an aggregate sentence of 31 years to

life.3

                                        II. Factual History

         {¶10} On December 2, 2011, Shannon Hinton was picked up by his lifelong friend,

Jamelro Hicks, in Hicks’s white van, and they went out for the evening. At approximately

4:00 a.m., they picked up Maurice Kimmie, who was just getting off work at the


         1The trial court merged the gun specifications attached to Count 4 with the gun specifications
attached to Count 2.

        The trial court merged the gun specifications attached to Count 12 with the
         2

gun specifications attached to Count 13.

         The trial court sentenced appellant to 15 years to life on Count 2, murder,
         3

and a consecutive sentence of 3 years for the attached firearm specifications, for a
total of 18 years to life. On Count 4, felonious assault, the court sentenced
appellant to 5 years, which was to be served consecutively to the murder charge.
On Count 7, grand theft, appellant was sentenced to 18 months, which was to be
served concurrently with Counts 2 and 4. As to Count 12, attempted murder, the
trial court imposed a sentence of 5 years and a consecutive sentence of 3 years for
the attached firearm specifications, for a total of 8 years. The court further ordered
the sentence imposed for Count 12 to be served consecutively to Count 2.
Marathon gas station on East 55th Street. Hicks drove the three of them around to

various places as they smoked marijuana during the early morning hours. At some point,

Hicks arranged to meet appellant on Apple Avenue in Cleveland, Ohio. Hinton testified

that he did not know appellant, nor did he know the purpose of the meeting at the time it

was arranged, although there was a discussion in the van about needing more marijuana.

Kimmie testified that he heard Hicks on the phone calling someone to arrange a meeting

on Apple Avenue to buy a stronger form of marijuana referred to as “kush.”

      {¶11} When they arrived at Apple Avenue, Hicks, Hinton, and Kimmie waited in

the van for a short time until appellant pulled up behind them in a small dark vehicle.

According to Hinton and Kimmie, appellant exited his vehicle and immediately

proceeded to the driver’s side of the van to speak with Hicks. Hinton and Kimmie

testified that they heard a dispute over the quality of the “kush” appellant was selling.

After just a few words, appellant opened up the driver’s side door, pulled Hicks from the

van, and pointed a gun at him. Once Hicks was outside the van, a struggle over the gun

ensued. Hinton and Kimmie testified that Hicks managed to knock the gun out of

appellant’s hand, and the gun hit and slid down the van’s windshield.

      {¶12} Hinton testified that, believing appellant was now disarmed, he felt it was

safe to exit the van. Once outside the van, Hinton attempted to locate the firearm while

Hicks continued to struggle with appellant in the street. When Hinton was unable to find

the firearm, he began to run toward appellant and Hicks. However, Hinton testified that

as soon as he turned toward them, appellant shot him in the upper chest. Despite being
shot, Hinton was able to run to safety. As he ran, Hinton heard additional shots being

fired.

         {¶13} Hinton testified that he did not witness anyone else get shot, and he believed

the gun appellant used to shoot him was the same gun appellant originally pointed at

Hicks when he removed Hicks from the van. After the shooting, Hinton was taken to the

hospital where he remained for three to four days.

         {¶14} Kimmie testified that he also exited the van to help Hicks once he saw the

gun leave appellant’s hands. However, Kimmie testified that by the time he managed to

get out of the van, the gun was no longer on the windshield. According to Kimmie,

appellant then “pistol whipped” Hicks, causing him to fall to the ground. Kimmie

testified that appellant then shot Hicks approximately three times while he was lying on

the ground. Contrary to Hinton’s testimony, Kimmie testified that appellant shot Hicks

before he turned and shot Hinton.

         {¶15} Kimmie further testified that once appellant shot Hicks and Hinton, he

walked toward Kimmie and pulled the trigger approximately five times, but the gun had

no more bullets. At that time, appellant stopped to look for his car keys and money,

which had fallen out of his pockets during the “tussle” with Hicks. Kimmie testified that

he tried to help Hicks get back into the van so that they could drive to a nearby hospital.

However, appellant forced them to exit the van before Kimmie managed to get Hicks

inside, and appellant fled the scene in Hicks’s van.
      {¶16} On the day of the incident, construction worker Chris Shumney and his crew

were installing a roof on a home near Apple Avenue. At some point, members of the

construction crew heard what they believed were gun shots. Based on the statements of

his crew, Shumney walked down the fence line of the job site and looked down a side

street where he saw a man, later identified as appellant, wearing a Michigan jacket.

Shumney indicated that the man in the Michigan jacket was with two other males near a

white van.

      {¶17} Shumney testified that he witnessed the man in the Michigan jacket engage

in a scuffle with one of the other men in the middle of the street. According to Shumney,

the man in the Michigan jacket was more aggressive and had the upper hand in the

scuffle. During the altercation, Shumney witnessed the man in the Michigan jacket shoot

the other man once while both men were standing and again when the injured man was on

the ground. Although uncertain, Shumney believed he counted two or three gunshots

during the scuffle. Shumney further stated that he did not see anyone other than the man

with the Michigan jacket holding a gun.

      {¶18} Shumney testified that the man in the Michigan jacket then opened the

driver’s door of a “dark colored” vehicle parked behind the white van.         The man

appeared to be looking for something inside the vehicle and then quickly exited the

vehicle with the firearm still in his possession. He then walked back over to the man

lying on the ground and kicked him in the head. At that point, the man in the Michigan

jacket approached the second man, who was standing on the tree lawn near the parked
van. Shumney stated that the man in the Michigan jacket pointed the weapon directly at

the second man and exchanged words, but he did not shoot. Thereafter, the man in the

Michigan jacket got in the white van and drove away. Shumney stated that the only

words he heard spoken during the entire incident were, “he tried to rob me,” however, he

did not know which of the men said those words.

       {¶19} Shumney recalled that, in the midst of the incident, the man in the Michigan

jacket stopped to pick up what appeared to be shell casings or money from the ground.

After the man left in the van, Shumney and his crew pulled the victim of the shooting out

of the street and waited for paramedics to arrive.

       {¶20} On December 2, 2011, Curtis Lovell was visiting his sister at her home on

Apple Avenue when he heard “popping noises.” Lovell testified that he immediately

looked out the front window and observed a tall man beating another man on the ground.

He described it as “pounding” and “kicking,” and “making sure he didn’t get up.” Lovell

stated that the altercation took place on the tree lawn near a white van.

       {¶21} Danny Ray lived on Apple Avenue and also heard what he believed to be

gunshots. Ray testified that when he looked out his window, he observed a Hispanic

man with a ponytail attempting to shoot another man with a gun. According to Ray, the

man being shot at tried to get into the passenger side of a white van while the shooter was

attempting to prevent him from entering the van by stomping and kicking him. Ray

stated that the Hispanic man was the only person he witnessed holding a gun.
       {¶22} Crystal Doss lived on Apple Avenue. On the day of the incident, she heard

two or three gunshots. She looked outside and saw three men facing each other arguing.

She turned to tell her mother what was happening and, when she looked back, she saw

one man trying to get into the passenger side of a white van. She witnessed a man with a

ponytail repeatedly kicking the man who was trying to get into the van.

       {¶23} Johanna Herandez testified that at approximately 3:30 p.m. on December 2,

2011, she heard popping sounds that could have been gunshots. She looked outside and

saw a white van parked on the street. She saw a man dragging another man on the

ground and stomping him vigorously in the chest area. She described the assailant as a

tall man with frizzy hair and a ponytail. Hernandez testified that the assailant then got into

the van and drove away.

       {¶24} Officer James Thomas of the Cleveland Police Department responded to

West 44th Street and Lorain Avenue, where he observed Shannon Hinton with a gunshot

wound to the chest. Hinton told the officers another person was shot around the corner

on Apple Avenue. Officer Thomas left Hinton with other officers and went to Apple

Avenue where he observed Hicks lying on the tree lawn. Officer Thomas secured the

scene and checked Kimmie and Hicks for weapons. Officer Thomas testified that he was

unable to locate any weapons on their persons. Furthermore, Officer Thomas was unable

to locate any weapons in the general area of the shooting.

       {¶25} Officer Joseph Bovenzi of the Cleveland Police Department testified that

he responded to Apple Avenue after hearing a dispatch for two males shot. On arrival, he
assisted in the interview of Kimmie. Officer Bovenzi learned that the suspect had

arrived in the black Honda that was still on the scene and fled in Hicks’s white van.

With that information, Officer Bovenzi looked inside the Honda and discovered an

envelope with a return address of 6818 Claasen Avenue, Cleveland, Ohio. As a result,

Officer Bovenzi requested and was granted permission to check the address displayed on

the envelope. When he arrived at the residence at issue, he located Hicks’s white van

parked in the driveway behind the house. Officer Bovenzi testified that, on inspecting

the van, he discovered an unloaded .38-caliber revolver positioned on the outside of the

van between the hood area and the windshield. Additionally, Officer Bovenzi spoke to

Amber Riley, a resident of the downstairs unit of the house.

      {¶26} Detective Dale Moran responded to the Claasen Avenue home to assist

Officer Bovenzi. Inside the upstairs unit, Det. Moran noticed a garbage can containing a

blue Michigan jacket and some boots. The area was secured to await the arrival of a

crime scene detective.

      {¶27} Detective John Reidthaler testified that he processed the Apple Avenue

crime scene. He took photos and collected evidence. He processed the black Honda for

prints and collected money from the street. Det. Reidthaler further discovered eyeglasses

underneath a nearby truck, a black hat, a GM car key, a Honda car key, and a pile of the

victim’s clothing that had been removed from Hicks by EMTs. Det. Reidthaler went to

the Claasen Avenue address where appellant lived. He photographed the van in the

driveway and the location of the firearm on the windshield. Inside appellant’s apartment,
Det. Reidthaler collected bullets, syringes, and drug paraphernalia. He also collected and

photographed the clothing in the trash can, specifically a gray hoodie, brown boots, and a

blue Michigan jacket.    The clothing found in appellant’s residence contained blood

matching the DNA profile for Hicks.

      {¶28} Detective James Kooser conducted a forensic comparison of the .38-caliber

revolver discovered on the white van and the morgue bullet and hospital bullet removed

from Hicks. Det. Kooser determined that the bullets retrieved from Hicks could not have

been fired from the recovered firearm.

      {¶29} Amber Riley testified that she was living in the downstairs unit at 6818

Claasen Avenue. She knew appellant because he lived in the upstairs unit. Riley further

stated that she frequently purchased heroin from appellant.        On the afternoon of

December 2, 2011, appellant came home in a white van Riley had never seen before. He

sped into the backyard, jumped out of the van, and walked upstairs.          Riley heard

appellant on the phone saying, “Help a brother out, I just shot somebody. I think he’s

dead. They tried to rob me.” Later, appellant came downstairs with two plastic bags

containing drug scales. Appellant gave Riley the drug scales to hold and told her that the

police were looking for him.

      {¶30} Dr. Thomas Gilson performed Hicks’s autopsy on December 3, 2011. In the

course of establishing the cause and manner of Hicks’s death, Dr. Gilson discovered three

gunshot wounds. He identified gunshot wound A in the armpit area and discussed the

black discoloration around the wound. The area was singed or burned, indicating the
gun was pressed against Hicks’s body when it was fired. Dr. Gilson testified that the

bullet went through the victim’s lung and ribs before exiting the body. Gunshot wound

B was in the right shoulder. Dr. Gilson testified that no burning was present in gunshot

wound B. The bullet entered into the chest cavity in a downward direction and did not

exit the body. Gunshot wound C was in the victim’s back. That bullet traveled in a

downward direction striking the spine and lodging in the pelvic area. The surface of the

wound had abrading and scraping from unburned fragments of gunpowder hitting the

skin. That indicated a close muzzle-to-target distance of, at the most, 24 inches. In

addition to the gunshot wounds, Dr. Gilson testified that he also found at least five areas

of blunt force injury to Hicks’s head. He testified that the cause of death was the three

gunshot wounds.

       {¶31} Lisa Przepszny examined the jacket worn by Hicks during the homicide and

found defects or holes in the jacket that corresponded with the victim’s gunshot wounds.

She found a fourth defect from an additional gunshot that grazed through two parts of the

jacket without hitting the victim.

       {¶32} Detective Arthur Echols testified to his investigation in the case.        He

introduced a video that was turned over to Detective Dale Moran from a witness named

Lee Moore. Both parties stipulated to the authenticity of the video. The video was

taken from 4300 Apple Avenue and captured a portion of the incident.

       {¶33} Appellant testified on his own behalf and maintained that he acted in

self-defense during the altercation with Hicks, Hinton, and Kimmie. Appellant testified
that on December 2, 2011, he arranged to buy heroin from Hicks on Apple Avenue. In

preparation for the purchase, appellant brought $1,200 with him to the scene. When the

heroin deal fell through due to its low quality, appellant returned to his vehicle to retrieve

a sample of “kush” to give to Hicks without charge. Appellant testified that when he

exited his vehicle, Hicks and Kimmie approached him and Hicks put a gun to his chest

stating, “I need that. I need that [$1,200].” According to appellant, Hicks then reached

into appellant’s pocket to remove his money.          At that time, Hicks discovered that

appellant had a firearm in his possession.4

       {¶34} Appellant testified that while Hicks’s left hand was still inside his coat

pocket, he attempted to grab the gun from Hicks’s right hand. Appellant and Hicks

struggled over control of the weapon. Appellant stated that, during the struggle, he

managed to turn Hicks’s wrist and fire two shots, one of which struck Hicks near his right

armpit.    Once shot, Hicks pushed appellant away, and appellant fell to the ground.

According to appellant, Hicks dropped his gun during the struggle, and it landed on the

tree lawn near the passenger’s side of the van. Appellant stated that Hicks attempted to

dive toward the gun, but he managed to “put his left leg out and push [Hicks],” causing

Hicks to “flip over” into the street. Appellant then picked up the gun and shot Hicks two

times while Hicks was lying on the ground. Appellant stated that he shot Hicks two




       4 Appellant testified that the weapon in his possession had been purchased
earlier that day and was unloaded.
additional times because he “did not want [Hicks] to regain control of the weapon and

shoot [him].”

       {¶35} Appellant stated that, after seeing movement to his right, he turned and shot

Shannon Hinton, who was running toward him. Appellant testified that he did not know

if Hinton had a weapon but “was not taking any chances.” Appellant stated that he then

turned back to Hicks and, after exchanging words, kicked him in the head and hit him

with the butt of the gun.

       {¶36} Appellant then walked over to Kimmie, who was standing near the white

van. Appellant admitted to pointing the gun at Kimmie and depressing the trigger six

times; however, the gun had no more bullets. Appellant briefly looked for his keys and

money that had fallen to the ground. When he was unable to find his keys, he walked to

the white van, removed Hicks, who was also trying to get into the van, and drove off in

the van.

       {¶37} Appellant identified the unloaded firearm found on the windshield of the

white van as the firearm that was in his pocket at the time of the incident. He admitted

that he did not know how the gun ended up on the windshield of the van, but believed it

may have fallen out during the struggle with Hicks. Finally, appellant admitted that he

was wearing a blue Michigan jacket and had his hair in a ponytail during the incident.

       {¶38} Appellant brings this timely appeal, raising four assignments of error for

review:

       I. The trial court erred in failing to merge all allied offenses of similar
       import at sentencing.
         II. The manifest weight of the evidence did not support appellant’s
         conviction for murder, attempted murder, or felonious assault.

         III. Insufficient evidence supported appellant’s convictions.

         IV. The trial court committed plain error in applying the self-defense
         theory and felony murder charge.

For the purposes of judicial clarity, we consider appellant’s assignments of error out of

order.

                                  III. Law and Analysis

                            A. Manifest Weight of the Evidence

         {¶39} In his second assignment of error, appellant argues that his felony murder,

attempted murder, and felonious assault convictions are against the manifest weight of the

evidence.

         {¶40} “A manifest weight challenge * * * questions whether the prosecution met

its burden of persuasion.”         State v. Ponce, 8th Dist. Cuyahoga No. 91329,

2010-Ohio-1741, ¶ 17, quoting State v. Thomas, 70 Ohio St.2d 79, 80, 434 N.E.2d 1356

(1982). The manifest-weight-of-the-evidence standard of review requires us to review

the entire 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 such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered. State v. Penque, 8th Dist.

Cuyahoga No. 99209, 2013-Ohio-4696, ¶ 49. Reversing a conviction as being against

the manifest weight of the evidence and ordering a new trial is reserved for only those
“exceptional cases in which the evidence weighs heavily against the conviction.” State

v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).

       {¶41} In challenging the weight of the evidence supporting his felony murder,

attempted murder, and felonious assault convictions, appellant argues that the testimony

presented at trial demonstrated that Hicks, Kimmie, and Hinton were the initial aggressors

and that he acted in self-defense.5

       {¶42} After reviewing the record in its entirety, it is evident that the trial court

gave very little weight to the testimony of Hinton and Kimmie concerning the

circumstances that gave rise to the altercation between Hicks and appellant. In fact, the

trial court found appellant’s testimony regarding who was at fault in creating the situation

to be more credible, stating, “I believe, an altercation actually started by the actions of the

people in the white car, and that to a large extent, [appellant] did operate in self-defense.”

 Nevertheless, the trial court determined that, while appellant may have acted in

self-defense to an extent, he also exceeded the scope of the defense as it related to his

conduct towards Hicks and Kimmie.6



       5 “[W]hen reviewing a claim by a defendant that evidence supports his claim
of self-defense, the manifest-weight standard is the proper standard of review
because a defendant claiming self-defense does not seek to negate an element of the
offense charged but rather seeks to relieve himself from culpability.” State v.
Wilson, 8th Dist. Cuyahoga No. 97350, 2012-Ohio-1952, ¶ 39, citing State v. Dykas,
185 Ohio App.3d 763, 2010-Ohio-359, 925 N.E.2d 685, ¶ 18 (8th Dist.).
       6 The trial court’s partial acceptance of appellant’s testimony and claim of
self-defense is evidenced by its decision to find him not guilty of attempted murder
or felonious assault with respect to the shooting of Shannon Hinton.
       {¶43} Self-defense is an affirmative defense, and thus the accused has the burden

to prove it by a preponderance of the evidence. State v. Tabasso, 8th Dist. Cuyahoga No.

98248, 2012-Ohio-5747, ¶ 21, citing State v. Smith, 10th Dist. Franklin No. 04AP-189,

2004-Ohio-6608, ¶ 16.

       {¶44} To establish self-defense through the use of deadly force, defendants must

prove (1) they were not at fault in creating the situation giving rise to the affray, (2) they

had a bona fide belief that they were in imminent danger of death or great bodily harm

and their only means of escape from such danger was the use of such force, and (3) they

must not have violated any duty to retreat or avoid the danger. State v. Owens, 8th Dist.

Cuyahoga No. 98165, 2012-Ohio-5887, ¶ 12, citing State v. Williford, 49 Ohio St.3d 247,

551 N.E.2d 1279 (1990). Further, the elements of self-defense are cumulative and, if the

defendant failed to prove any one of the elements by a preponderance of the evidence, he

failed to demonstrate that he acted in self-defense. Id.

       {¶45} After a careful consideration of the record in its entirety, we find that the

trier of fact reasonably could have concluded that appellant exceeded the scope of any

self-defense privilege he may have had in this matter.

       {¶46} Assuming, as the trial court ultimately determined, that appellant was not at

fault in creating the situation giving rise to the affray, whether appellant had a bona fide

belief that he was in imminent danger of death or great bodily harm and that his only

means of escape from such danger was the use of force, remained as questions for the

trier of fact to consider. As trier of fact, the trial court was free to believe or disbelieve
all or any of the testimony presented on these remaining issues. State v. Matthews, 10th

Dist. Franklin No. 11AP-532, 2012-Ohio-1154, ¶ 46, citing State v. Jackson, 10th Dist.

Franklin No. 01AP-973, 2002-Ohio-1257.

       {¶47} Under the totality of the circumstances presented herein, we are unable to

conclude that the trial court lost its way in rejecting appellant’s bona fide belief that he

was in imminent danger of death or great bodily harm at the time he fired the second and

third shots into Hicks and when he attempted to shoot an unarmed Kimmie. While

appellant may have presented credible evidence that he was in imminent danger of death

or great bodily harm at the time he and Hicks struggled over the firearm, he was unable to

sufficiently demonstrate that Hicks continued to pose such a danger at the time he fired

the second and third shots into Hicks. Appellant’s own testimony established that, at the

moment he fired those shots, Hicks was lying on the ground unarmed and badly injured.

Similarly, there is no basis in the record for appellant to argue that he was in fear of

imminent harm at the time he approached Kimmie and pulled the trigger.              In fact,

appellant described Kimmie as “cowering” behind the van at the time he approached him.

 Such a statement evidences Kimmie’s intent to avoid any further interaction with

appellant, while simultaneously evidencing appellant’s vengeful state of mind once he

gained the upper hand in the altercation.

       {¶48} Moreover, the testimony presented at trial reasonably established that

appellant had other means of escape besides the use of deadly force, particularly where

appellant gained control over the weapon and had the apparent ability to flee the scene at
that point.   We are mindful that “[i]n most circumstances, a person may not kill in

self-defense if he has available a reasonable means of retreat from the confrontation.”

Williford, 49 Ohio St.3d at 250, 551 N.E.2d 1279 (1990).

       {¶49} In our view, the trial court reasonably determined that the death of Hicks

and the attempted murder of Kimmie were not created by appellant’s inability to escape

without using deadly force, but instead were created by appellant’s admitted anger over

their unsuccessful attempt to rob him. Thus, the record contains credible evidence that

appellant had the means to safely retreat once he successfully retrieved the gun from

Hicks’s possession.

       {¶50} Because the trial court was in the best position to determine the credibility

of each witness by taking into account inconsistencies, as well as the manner and

demeanor of the witnesses, we cannot conclude that this record presents a scenario where

the trier of fact clearly lost its way in rejecting appellant’s claim of self-defense.

Accordingly, appellant’s convictions are not against the manifest weight of the evidence.

       {¶51} Appellant’s second assignment of error is overruled.

                             B. Sufficiency of the Evidence

       {¶52} In his third assignment of error, appellant argues that his murder conviction

was not supported by sufficient evidence.

       {¶53} When reviewing a challenge of the sufficiency of the evidence, a reviewing

court examines the evidence admitted at trial and determines whether such evidence, if

believed, would convince the average mind of the defendant’s guilt beyond a reasonable
doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus. “The relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.”       Id. A sufficiency challenge

requires us to review the record to determine whether the state presented evidence on

each of the elements of the offense. State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983). A reviewing court is not to assess “whether the state’s

evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d

541 (1997).

       {¶54} Under R.C. 2903.02(B), “[n]o person shall cause the death of another as a

proximate result of the offender’s committing or attempting to commit an offense of

violence that is a felony of the first or second degree.” In this case, the underlying felony

giving rise to the felony murder is the felonious assault against Hicks, as charged in

Count 3 of the indictment.

       {¶55} Under R.C. 2903.11(A)(2), “[n]o person shall knowingly * * * [c]ause or

attempt to cause physical harm to another * * * by means of a deadly weapon or

dangerous ordnance.” An individual “acts knowingly, regardless of his purpose, when

he is aware that his conduct will probably cause a certain result or will probably be of a

certain nature. A person has knowledge of circumstances when he is aware that such

circumstances probably exist.” R.C. 2901.22(B).
       {¶56} It is common knowledge that a firearm is an inherently dangerous

instrumentality, the use of which is reasonably likely to produce serious injury or death.

State v. Willis, 8th Dist. Cuyahoga No. 99735, 2014-Ohio-114, ¶ 25, citing State v.

Widner, 69 Ohio St.2d 267, 270, 431 N.E.2d 1025 (1982). Moreover, “shooting a gun in

a place where there is risk of injury to one or more persons supports the inference that the

offender acted knowingly.”         State v. Hunt, 8th Dist. Cuyahoga No. 93080,

2010-Ohio-1419, ¶ 19, citing State v. Brooks, 44 Ohio St.3d 185, 192, 542 N.E.2d 636

(1989).

       {¶57} Here, there is no dispute that appellant fired the shots that struck and

ultimately killed Hicks. However, appellant argues that because he acted in self-defense,

there can be no murder or underlying felonious assault conviction. We disagree.

       {¶58} As discussed, the trial court ultimately did not accept appellant’s position

that he acted in self-defense with respect to the shooting death of Hicks. While the court

acknowledged that the incident was likely created by Hicks’s attempt to rob appellant and

that the first gunshot may have been made during the struggle over the weapon, the court

clearly indicated that the second and third shots fired into Hicks exceeded the scope of

self-defense.

       {¶59} In light of the above, after viewing the evidence in a light most favorable to

the prosecution, we conclude that any rational trier of fact could have found the essential

elements of murder and felonious assault proven beyond a reasonable doubt.

       {¶60} Appellant’s third assignment of error is overruled.
                                     C. Self-Defense

       {¶61} In his fourth assignment of error, appellant argues that the trial court

committed plain error in misapplying the self-defense doctrine.          Because appellant

merely incorporates the arguments previously raised in his sufficiency and manifest

weight assignments of error, we find no merit to appellant’s position that the trial court

misapplied the self-defense doctrine. As discussed, the trial court properly considered

the actions of Hicks, Hinton, and Kimmie in reaching its verdict and determined that, in

some instances, appellant’s conduct went well beyond the scope of self-defense.

       {¶62} Appellant’s fourth assignment of error is overruled.

                                   D. Allied Offenses

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

failing to merge all allied offenses of similar import at sentencing. Specifically, appellant

contends that the trial court committed plain error in failing to merge Count 4, felonious

assault, with Count 2, felony murder. We disagree.

       {¶64} As stated, the trial court found appellant guilty of four counts involving

Jamelro Hicks: felony murder in violation of R.C. 2903.02(B) (Count 2); felonious

assault by causing serious physical harm in violation of R.C. 2903.11(A)(1) (Count 4);

felonious assault with a deadly weapon in violation of R.C. 2903.11(A)(2) (Count 5); and

grand theft in violation of R.C. 2913.02(A)(1) (Count 7).

       {¶65} At appellant’s sentencing hearing, the trial court addressed the issue of

merger and determined that Count 5, felonious assault, and Count 2, felony murder, were
allied offenses of similar import subject to merger for the purposes of sentencing.

However, the court refused the defense’s request to merge Count 4, felonious assault,

with the felony murder count. The court explained:

      Now, by the Court’s analysis here, the court believes that Count 4, felonious
      assault, the court found the defendant guilty for the acts involving the
      physical beating that was rendered to the victim Mr. Hicks after the time
      that he was shot and that he was either near or in the vehicle or on the tree
      lawn. The court finds that that’s a separate animus and the court will
      sentence that count separately.

      ***

      T]he court’s analysis is this, is that Count 4 is being considered separate
      because the defendant had already committed acts that would result in —
      end in the result of the murder of the [victim] as to Count 2. The fight had
      stopped. The defendant is then trying to flee the area. The defendant
      loses his keys in the fight, cannot find access to his car, and then takes the
      car that belonged to Mr. Hicks and Mr. Hicks was near — or on the vehicle,
      there is a resulting continuation of the fight once it had stopped. And that
      at that time he was severely kicked and beaten. The parties, witnesses
      described that act by the defendant as to this victim.

      The Court believes that there is a separate animus as to Count 4.

      {¶66} In challenging the trial court’s finding, appellant argues that all of his crimes

were committed during a continuous course of conduct. Thus, appellant argues that his

convictions for murder and felonious assault must merge.             While we agree that

appellant’s conviction for felonious assault pursuant to R.C. 2903.11(A)(2) was required

to merge with his murder conviction, we are unable to reach the same conclusion with

respect to his R.C. 2903.11(A)(1) felonious assault conviction, as set forth in Count 4 of

the indictment.
      {¶67} Where the same conduct by the 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. R.C.

2941.25(A). 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 defendant may

be convicted of all of them. R.C. 2941.25(B).

      {¶68} Thus, there is a two-part test to determine if offenses should be merged.

First, the elements of the two crimes are compared. State v. Williams, 134 Ohio St.3d

482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 17, citing State v. Blankenship, 38 Ohio St.3d

116, 117, 526 N.E.2d 816 (1988). The elements of the two offenses were previously

considered only in the abstract but are now compared in the factual context of the

defendant’s conduct. Id. at ¶ 20; State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314,

942 N.E.2d 1061, syllabus, where a majority overruled State v. Rance, 85 Ohio St.3d 632,

1999-Ohio-291, 710 N.E.2d 699. If the crimes correspond to a sufficient degree, then

crimes are allied offenses of similar import, and the court must proceed to the second

step. See Williams at ¶ 17.

      {¶69} In the second step, the defendant’s conduct is also reviewed, and only if the

crimes were committed separately or there was a separate animus for each crime (or they

are of dissimilar import under the first prong) can the defendant be sentenced for both.
Id. In reviewing a trial court’s merger decision, the appellate court conducts a de novo

review of the trial court’s application of the law to the facts. Id. at ¶ 27-29.

       {¶70} Thus, as the reviewing court, we first determine “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.” Johnson at ¶ 48 (Brown, J.,

plurality). “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.’” Id. (Brown, J., plurality), quoting

State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149. Due to the

subjective nature of the analysis based on the facts of each case, some crimes may be

allied offenses in certain cases, but not in another case under a different set of facts. Id.

at ¶ 52.

       {¶71} Here, the parties concede that felony murder and felonious assault in

violation of R.C. 2903.11(A)(1) can be committed with the same conduct under the first

prong of the merger test. Thus, the sole issue here is whether the two offenses were

committed separately or with separate animus. Animus means “purpose, or more properly,

immediate motive” and can be inferred from the surrounding circumstances. State v.

Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979).

       {¶72} In the instant case, the conduct supporting appellant’s convictions for felony

murder and the felonious assault as indicted in Count 4 were separated by time and

motive. Collectively, the testimony at trial established that once appellant completed the
act of shooting Hicks and Hinton, his focus turned to fleeing the scene. Appellant

testified that when he attempted to flee in his own vehicle, he was unable to locate his car

keys. Panicked, appellant decided to steal Hicks’s van. The record reflects that in order

to complete this act, appellant removed Hicks from the van and “kicked,” “stomped,” and

“pistol whipped” Hicks in the process. Specifically, Chris Shumney, Curtis Lovell,

Danny Ray, Crystal Doss, and Johanna Herandez each testified that, following the sounds

of gunshots, they observed appellant vigorously and repeatedly kicking Hicks in the head

and chest area near the white van. Moreover, appellant himself admitted to kicking Hicks

in the head and hitting him with the butt of the gun after the shooting was completed.

       {¶73} Thus, the facts set forth at trial support the trial court’s determination that

the physical force used against Hicks following the actual shooting was separated in time

and was committed with a separate state of mind, i.e., to flee the scene in the stolen van.

As a result, the offenses do not merge for the purposes of sentencing. Accordingly, the

trial court did not err in failing to merge these offenses at sentencing.

       {¶74} Appellant’s first assignment of error is overruled.

       {¶75} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

MARY J. BOYLE, A.J., and
EILEEN T. GALLAGHER, J., CONCUR
