         [Cite as State v. Lavender, 2013-Ohio-2508.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :     APPEAL NO. C-120508
                                                        TRIAL NO. B-1106802A
        Plaintiff-Appellee,                       :

  vs.                                             :         O P I N I O N.

MICHAEL LAVENDER,                                 :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

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

Date of Judgment Entry on Appeal: June 19, 2013


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Bruce K. Hust, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                      OHIO FIRST DISTRICT COURT OF APPEALS




F ISCHER , Judge.

       {¶1}     For his role in two shootings, defendant-appellant Michael Lavender

pleaded guilty to felonious assault, improper discharge of a firearm at or into a

habitation with a firearm specification, and voluntary manslaughter with a firearm

specification. The trial court imposed an aggregate prison term of 28 years, and this

appeal followed.

       {¶2}     Lavender assigns two errors, both concerning his sentence.          He

respectively argues that the trial court erred in sentencing him (1) excessively for the

firearm specification to the improper-discharge offense, and (2) separately for

improper discharge and felonious assault.        Because we find his second argument

meritorious and dispositive of this appeal, we address it first.

       {¶3}     “Under R.C. 2941.25, Ohio’s multiple-count statute, a trial court, in a

single proceeding, may convict a defendant for two or more offenses having as their

genesis the same criminal conduct or transaction if the offenses (1) were not allied

offenses of similar import, (2) were committed separately, or (3) were committed

with a separate animus as to each offense.” State v. Anderson, 2012-Ohio-3347, 974

N.E.2d 1236, ¶ 15 (1st Dist.); see State v. Bickerstaff, 10 Ohio St.3d 62, 65-66, 461

N.E.2d 892 (1984). We review whether a trial court erred in imposing multiple

sentences for multiple offenses under this statute de novo. State v. Williams, 134

Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

       {¶4}     Applying this three-part test, we first consider whether Lavender’s

improper-discharge and felonious-assault offenses were allied offenses of similar

import. Since the Ohio Supreme Court’s holding in State v. Johnson, 128 Ohio St.3d

153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus, we have held that two or more




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offenses are allied offenses of similar import if the state relies on the same conduct to

prove each offense. See State v. Adams, 1st Dist. No. C-120059, 2013-Ohio-926, ¶ 21;

State v. Campbell, 2012-Ohio-4231, 978 N.E.2d 970, ¶ 10 (1st Dist.); State v. Cooper,

1st Dist. Nos. C-110027 and C-110028, 2012-Ohio-555, ¶ 13; State v. Johnson, 195

Ohio App.3d 59, 2011-Ohio-3143, 958 N.E.2d 977, ¶ 78 (1st Dist.). We therefore

examine “the statutory elements of each offense in the context of the defendant’s

conduct.” Williams at ¶ 20.

       {¶5}    Lavender was convicted of felonious assault, as defined by R.C.

2903.11(A)(2), and improper discharge, as defined by R.C. 2923.161(A)(1). Under the

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

another * * * by means of a deadly weapon or dangerous ordnance,” and under the

latter, “[n]o person, without privilege to do so, shall knowingly * * * [d]ischarge a

firearm at or into an occupied structure that is a permanent or temporary habitation of

any individual[.]”

       {¶6}    With these statutes in mind, we turn to the record to identify the

conduct that the state relied upon to prove these offenses. According to the bill of

particulars,

               [A]t approximately 1900 hours, Lavender and Thomas

               conspired to shoot the victim. After visiting J.T. at his

               residence and then leaving, A. Thomas dropped Lavender

               back off at the residence with instructions to shoot J.T.

               Lavender knocked on the door and, after J.T. opened the

               door, fired 3 rounds into the home at J.T. A. Thomas

               picked up Lavender and they left in a car driven by A.

               Thomas.



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          {¶7}   Thus, the state clearly relied on a single series of three gunshots to

support both offenses. The issue, however, is whether this constitutes the “same

conduct” for purposes of R.C. 2941.25.

          {¶8}   We are guided in this inquiry by three post-Johnson cases. First, in

State v. Walton, 5th Dist. No. 2011 CA 00214, 2012-Ohio-2597, the Fifth Appellate

District determined that a defendant had committed both improper discharge and

felony murder predicated on the improper discharge with the “same conduct” by

shooting several rounds into the “front door area” of an occupied apartment, fatally

wounding a girl inside. More recently, the Tenth Appellate District found that a

defendant had committed discharge of a firearm on or near a prohibited premises, in

violation of R.C. 2923.162(A)(3) (that is, “upon or over a public road or highway”), and

felonious assault with the “same conduct” by shooting occupants of a moving vehicle.

State v. Carson, 2012-Ohio-4501, 978 N.E.2d 621 (10th Dist.). And finally, in State

v. Melton, 8th Dist. No. 97675, 2013-Ohio-257, the Eighth Appellate District held

that the same offenses at issue in Carson were committed with the same conduct

where the defendant had shot two individuals while standing in the middle of a

street.

          {¶9}   These cases certainly suggest that where a defendant discharges a

firearm at, into, on, or over a prohibited space, and thereby injures another, the

defendant has committed both a firearm-discharge offense and either homicide or

assault with the same conduct under R.C. 2941.25. Accordingly, because the state

relied on Lavender shooting a single series of three bullets into J.T.’s residence and at

J.T. at the same time, we hold that Lavender committed improper discharge and

felonious assault with the “same conduct.”




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶10}   We next turn to whether these offenses were committed separately. We

recently held in Anderson, 2012-Ohio-3347, 974 N.E.2d 1236, that the defendant had

not separately committed aggravated robbery of a bank and kidnapping of a bank

employee to facilitate that robbery because the offenses occurred during one sustained,

continuous act that began and ended within 90 seconds. Id. at ¶ 24. Likewise, in State

v. Hodges, 1st Dist. No. C-110630, 2013-Ohio-1195, we concluded that the defendant

had not separately committed one count of attempt to commit felonious assault and

two counts of attempt to commit improper discharge of a firearm at or into a habitation

where he had quickly fired multiple shots towards an individual and two apartments.

Hodges at ¶ 12. In this case, given the temporal and spatial proximity of the improper

discharge and the felonious assault, we reach the same conclusion. Id.

       {¶11}   We, therefore, finally consider whether Lavender committed these

offenses with a separate animus.      “The Ohio Supreme Court interprets the term

‘animus’ to mean ‘purpose or, more properly, immediate motive,’ and infers animus

from the surrounding circumstances.” State v. Shields, 1st Dist. No. C-100362, 2011-

Ohio-1912, ¶ 16, quoting State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345

(1975). “Although animus is often difficult to prove directly, ‘the manner in which a

defendant engages in a course of conduct may indicate distinct purposes.’ ” Hodges at ¶

13, citing State v. Whipple, 2012-Ohio-2938, 972 N.E.12d 1141, ¶ 38 (1st Dist.).

       {¶12}   In Whipple, we found a separate animus as to three counts of felonious

assault and one count of improper discharge where the evidence adduced at trial

indicated that the defendant and his accomplices had peppered a house with bullets

mere moments after three people had run inside.

               Police recovered 28 shell casings from the crime scene.

               The casings were found in the street spread across the



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                     OHIO FIRST DISTRICT COURT OF APPEALS



               length of the property, on the sidewalk, in the driveway,

               in the yard, on the porch, and three were found actually

               inside the home. Most of the windows of the van the

               victims had been riding in, which was parked on the

               street, had also been shot out. The investigating officer

               testified that “there were casings everywhere. The house

               had been shot up.” Based on where the casings were

               found, the shooters had been in the street and had

               advanced through the yard and onto the porch.

Id. at ¶ 40.

       {¶13}    On those facts, we held that the “level of destruction unleashed by

Whipple upon the home demonstrated that he sought to do more than commit

felonious assault,” and that he had, therefore, committed the felonious assaults and

improper discharge with a separate animus as to each offense. Id. at ¶ 37. See State v.

Kelly, 5th Dist. No. 2012CA00067, 2012-Ohio-5875, ¶ 26 (holding that a defendant had

committed the same offenses with a separate animus where his conduct “indicated the

distinct purpose to shoot up the [victim’s] residence”).

       {¶14}    In Hodges, however, we held that the defendant had committed the

three attempt offenses with the same animus where he had fired several gunshots at his

victim in the direction of an apartment building. Despite bullets having been recovered

from two different apartments, we determined that the defendant’s immediate motive

had been to injure his victim, and not to “shoot up” the nearby apartments. Id. at ¶ 17.

       {¶15}    We find this case to be more similar to Hodges. The record reflects that

Lavender had conspired to shoot J.T., approached J.T.’s residence, and, after J.T.

opened the front door, shot into the home at J.T. Thus, there is no indication that



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                      OHIO FIRST DISTRICT COURT OF APPEALS



Lavender had any motive other than to shoot J.T.            We, therefore, conclude that

Lavender committed improper discharge and felonious assault with the same animus.

Having also determined that the offenses were committed with the same conduct, and

that they were not committed separately, we hold that the trial court erred in imposing

separate sentences for the offenses under R.C. 2941.25.

       {¶16}    The second assignment of error is sustained. Lavender’s sentences

for improper discharge and felonious assault are vacated, and this cause is remanded

for resentencing in accordance with the state’s election. See State v. Whitfield, 124

Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraphs one and two of the syllabus.

Consequently, Lavender’s first assignment of error—which concerns only his sentence

for the firearm specification to his improper-discharge offense—is overruled as not ripe

for review. In all other respects, the judgment of the trial court is affirmed.

                                                                   Judgment accordingly.


H ENDON , P.J., and H ILDEBRANDT , J., concur.


Please note:
       The court has recorded its own entry this date.




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