[Cite as State v. Johnson, 2019-Ohio-4265.]

                             IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                       :

                 Plaintiff-Appellee,                 :              No. 18AP-889
                                                                  (C.P.C. No. 17CR-2457)
v.                                                   :
                                                                (REGULAR CALENDAR)
Mershaun M. Johnson,                                 :

                 Defendant-Appellant.                :



                                              D E C I S I O N

                                    Rendered on October 17, 2019


                 On brief: Ron O'Brien, Prosecuting Attorney, and
                 Barbara A. Farnbacher, for appellee. Argued: Barbara A.
                 Farnbacher.

                 On brief: Yeura R. Venters, Public Defender, and Ian J.
                 Jones, for appellant. Argued: Ian J. Jones.

                  APPEAL from the Franklin County Court of Common Pleas

LUPER SCHUSTER, J.
        {¶ 1} Defendant-appellant, Mershaun M. Johnson, appeals from a judgment entry
of the Franklin County Court of Common Pleas finding him guilty, pursuant to guilty plea,
of one count of voluntary manslaughter and one count of discharge of a firearm on
prohibited premises. For the following reasons, we affirm.
I. Facts and Procedural History
        {¶ 2} By indictment filed May 4, 2017, plaintiff-appellee, State of Ohio, charged
Johnson with two counts of murder in violation of R.C. 2903.02, unclassified felonies, both
with accompanying firearm and repeat violent offender specifications; one count of
discharge of firearm on or near prohibited premises in violation of R.C. 2923.162, a first-
degree felony, along with an accompanying firearm specification; one count of escape in
No. 18AP-889                                                                               2


violation of R.C. 2921.34, a second-degree felony, along with an accompanying repeat
violent offender specification; one count of improperly handling firearms in a motor vehicle
in violation of R.C. 2923.16, a fourth-degree felony; and one count of having weapons while
under disability in violation of R.C. 2923.13, a third-degree felony, along with an
accompanying firearm specification. The charges related to the shooting death of Charles
Staten on April 7, 2017.
       {¶ 3} After initially entering a plea of not guilty, Johnson subsequently entered a
guilty plea to one count of the stipulated lesser-included offense of voluntary manslaughter
in violation of R.C. 2903.03, with a three-year firearm specification, and one count of
discharge of a firearm on prohibited premises with a three-year firearm specification.
Pursuant to the offenses included in the guilty plea and accompanying firearm
specification, Johnson faced a maximum possible sentence of 28 years in prison. The
parties jointly recommended a sentence of 22 years, with 14 total years on the voluntary
manslaughter conviction to run consecutive to 8 total years on the discharging a firearm on
a prohibited premises conviction, including the accompanying firearm specifications.
       {¶ 4} At the October 23, 2018 combined guilty plea and sentencing hearing, the
state discussed the parties' jointly recommended sentence by stating:
              The maximum potential penalty in this case is 28 years in the
              ODRC. It's the joint recommendation of the parties that the
              defendant be sentenced to 22 mandatory ODRC, 22 years
              mandatory ODRC. The breakdown of the sentence is indicated
              on the plea form. That's suggested from all the parties. All of
              the sentence in this case is mandatory due to the defendant's
              prior conviction as to the two counts and the firearm specs are
              also mandatory. I believe the Court has a signed Entry of Guilty
              Plea form in this matter.

              The State would additionally request that Counts Two, Four,
              Five and Six be nolled should the Court accept the guilty plea.

(Sentencing Tr. at 46-47.)
       {¶ 5} The trial court then asked for the facts, and the state submitted the following:
              Your Honor, this occurred April 7 of 2016. The defendant,
              Mershaun Johnson, fired a revolver out of his car at least six
              times. One bullet struck the victim in the torso ripping through
              his organs. He died in the hospital later that night from that
No. 18AP-889                                                                                3


              gunshot wound. This occurred at 1776 Parsons Avenue in
              Franklin County, Ohio.

              A CPD officer happened to be nearby. He was alerted to the
              shooting. He stopped the defendant almost immediately after
              in his vehicle. Once the defendant was in his vehicle, the
              defendant feigned a medical emergency. He had slipped out of
              - - out of his handcuffs and took off running. He was captured
              - - that was the basis of the escape charge. He was apprehended
              shortly thereafter. Later a firearm was recovered in his car that
              had six spent rounds. The revolver matched the spent bullet
              and jacket that was found at the murder scene. The defendant's
              DNA was on the revolver.

              As was discussed earlier, the defendant did give a statement
              where he put himself at the scene but said that he was running
              and the reason for his escape was because of his - - he was afraid
              of being sent back to jail for his parole on the aggravated
              robbery.

              Those offenses all occurred in Franklin County, Ohio.

(Sentencing Tr. at 47-48.) Additionally, the state informed the trial court that Johnson had
previous convictions of aggravated robbery and having a weapon under disability. The trial
court asked defense counsel whether he had any exceptions to the facts, and defense
counsel replied "[n]ot for the purposes of the plea, Your Honor." (Sentencing Tr. at 48.)
       {¶ 6} After the state submitted the facts, the trial court accepted Johnson's guilty
plea and proceeded directly to sentencing. Rather than imposing the jointly recommended
sentence of 22 years, the trial court instead imposed an aggregate sentence of 25 years in
prison. The trial court ordered the sentences to run consecutive to each other, but the trial
court noted the gun specifications merged for purposes of sentencing. The trial court
journalized Johnson's convictions and sentence in an October 23, 2018 judgment entry.
Johnson timely appeals.
II. Assignment of Error
       {¶ 7} Johnson assigns the following error for our review:
              The trial court erred by not merging appellant's convictions for
              voluntary manslaughter and discharging a firearm on or near a
              prohibited premises for purposes of sentencing pursuant to the
              Fifth and Fourteenth Amendments to The United States
No. 18AP-889                                                                                4


                Constitution, R.C. 2941.25, and Article I, Sections 10 and 16 of
                the Ohio Constitution.

III. Analysis
        {¶ 8}   In his sole assignment of error, Johnson argues the trial court erred when it
imposed consecutive sentences for his voluntary manslaughter and discharging a firearm
on or near a prohibited premises convictions. Johnson argues those offenses should have
merged for purposes of sentencing.
        {¶ 9} At the outset, we note that Johnson did not object to the trial court's failure
to merge his convictions at the trial court, and thus our review is limited to plain error.
State v. Adams, 10th Dist. No. 13AP-783, 2014-Ohio-1809, ¶ 6, citing State v. Taylor, 10th
Dist. No. 10AP-939, 2011-Ohio-3162, ¶ 34. A trial court's failure to merge convictions on
allied offenses constitutes plain error. State v. Underwood, 124 Ohio St.3d 365, 2010-
Ohio-1, ¶ 31.
        {¶ 10} In reviewing a trial court's determination of whether a defendant's offenses
should merge for purposes of conviction, an appellate court reviews the trial court's
determination de novo. State v. Flood, 10th Dist. No. 18AP-206, 2019-Ohio-2524, ¶ 25,
citing State v. S.S., 10th Dist. No. 13AP-1060, 2014-Ohio-5352, ¶ 28, citing State v.
Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, ¶ 1. " 'Appellate courts apply the law to the
facts of individual cases to make a legal determination as to whether R.C. 2941.25 allows
multiple convictions. That facts are involved in the analysis does not make the issue a
question of fact deserving of deference to a trial court.' " S.S. at ¶ 28, quoting Williams at
¶ 25.
        {¶ 11} R.C. 2941.25 provides:
                (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.
No. 18AP-889                                                                              5



       {¶ 12} Johnson argues the trial court erred when it failed to merge the offenses of
voluntary manslaughter and discharging a firearm on or near a prohibited premises for
purposes of sentencing. "When the defendant's conduct constitutes a single offense, the
defendant may be convicted and punished only for that offense. When the conduct
supports more than one offense, however, a court must conduct an analysis of allied
offenses of similar import to determine whether the offenses merge or whether the
defendant may be convicted of separate offenses." State v. Ruff, 143 Ohio St.3d 114, 2015-
Ohio-995, ¶ 24.
       {¶ 13} "To determine whether two offenses are allied offenses that merge into a
single conviction, a court must evaluate three separate factors: the conduct, the animus,
and the import." State v. Harris, 10th Dist. No. 15AP-683, 2016-Ohio-3424, ¶ 42, citing
Ruff at paragraph one of the syllabus. "If any of the following is true, the offenses cannot
merge and the defendant may be convicted and sentenced for multiple offenses: (1) the
offenses are dissimilar in import or significance—in other words, each offense caused
separate, identifiable harm, (2) the offenses were committed separately, and (3) the
offenses were committed with separate animus or motivation." Ruff at ¶ 25. Ultimately, if
the harm resulting from each offense is separate and identifiable, the offenses are of
dissimilar import and do not merge. Harris at ¶ 42, citing Ruff at ¶ 25.
       {¶ 14} In conducting an analysis of whether two offenses are allied offenses of
similar import, the Supreme Court of Ohio directs an appellate court to look beyond the
statutory elements and to consider the defendant's conduct.        "A trial court and the
reviewing court on appeal when considering whether there are allied offenses that merge
into a single conviction under R.C. 2941.25(A) must first take into account the conduct of
the defendant. In other words, how were the offenses committed?" Ruff at ¶ 25.
       {¶ 15} The offense of voluntary manslaughter provides "[n]o person, while under
the influence of sudden passion or in a sudden fit of rage, either of which is brought on by
serious provocation occasioned by the victim that is reasonably sufficient to incite the
person into using deadly force, shall knowingly cause the death of another."           R.C.
2903.03(A). The offense of discharge of a firearm on or near prohibited premises, on the
No. 18AP-889                                                                                6


other hand, provides in relevant part "[n]o person shall * * * [d]ischarge a firearm upon or
over a public road or highway." R.C. 2923.162(A)(3).
       {¶ 16} Here, Johnson argues the state relied on the same conduct to support his
guilty plea for voluntary manslaughter and discharge of a firearm on or near prohibited
premises. He additionally asserts both offenses had the same resultant harm: the death of
Staten. The facts submitted to the trial court during the plea hearing indicated that
Johnson fired his weapon at least six times while inside a vehicle on a public road. One of
those gunshots hit Staten and killed him. Johnson submits that the firing of his weapon
was one distinct act even though he fired it six times.
       {¶ 17} There are not sufficient facts in the record to discern whether all of Johnson's
gunshots were fired in the same general direction and whether all of the gunshots were
intended to hit Staten. However, even if we were to agree with Johnson, arguendo, that the
facts specific to his plea hearing supported a conclusion that he committed the offenses of
voluntary manslaughter and discharge of a firearm on or near prohibited premises with the
same conduct and the same animus, we nonetheless conclude that the trial court did not
err in failing to merge these two offenses here because there was no reasonable probability
that the offenses were of similar import or significance. State v. Williams, 2d Dist. No.
27663, 2018-Ohio-1647, ¶ 23 (trial court did not err in failing to merge the offenses of
murder and discharge of a firearm on or near prohibited premises because the offenses
were not alike in their resulting harm). As the Supreme Court of Ohio has recognized,
merger is not required when the offenses "are not alike in their significance and their
resulting harm." Ruff at ¶ 21. Based on these facts, we conclude the harm caused by
Johnson's commission of the offense of voluntary manslaughter was Staten's death, while
the harm caused by Johnson's commission of the offense of discharge of a firearm on or
near a prohibited premises was to the public.
       {¶ 18} Other appellate districts have recently considered the issue of the harm
caused by the offense of discharge of a firearm on or near prohibited premises, and we find
their reasoning persuasive. Specifically, the Second District Court of Appeals in Williams
quoted and followed a decision of the Eighth District Court of Appeals when it stated " '[t]he
victim of the offense of discharging a firearm upon or over a public road or highway is the
public. This is because it is the act itself that is prohibited. The offense can be completed
No. 18AP-889                                                                               7


with no one remotely near the location where the firearm is discharged upon or over the
public road or highway. R.C. 2923.162(A)(3) is a statute intended to benefit the public
good.' " Williams, 2018-Ohio-1647, at ¶ 24, quoting State v. James, 8th Dist. No. 102604,
2015-Ohio-4987, ¶ 33. We agree with the Second District and the Eighth District that the
language of R.C. 2923.162(A)(3) evinces an intent by the legislature that the discharge of a
firearm on or near a public roadway causes resultant harm to the public even if no person
or no structure is hit by the gunshots. Williams, 2018-Ohio-1647, at ¶ 24; James at ¶ 33.
See also In re T.P-.A., 2d Dist. No 28196, 2019-Ohio-2038, ¶ 17-18 (the offenses of felonious
assault and discharge of a firearm on or near a prohibited premises do not merge because
the two offenses result in different harm, even where the defendant only fired his weapon
one time); State v. Shoecraft, 2d Dist. No. 27860, 2018-Ohio-3920, ¶ 58 (the victim of
discharge of a firearm on or near prohibited premises in violation of R.C. 2923.162(A)(3) is
the public); State v. Blanton, 8th Dist. No. 107237, 2019-Ohio-1523, ¶ 13 (offense of
attempted felonious assault and discharging a firearm on or near prohibited premises do
not merge because the victim of R.C. 2923.162(A)(3) is the public at large).
       {¶ 19} Although Johnson actually shot and killed Staten, his act of firing a revolver
on the public road itself violated R.C. 2923.162(A)(3) and harmed the public at large.
Conversely, Johnson's conviction of voluntary manslaughter required harm to a particular
victim and differed in the significance and nature of the harm it addressed. Williams, 2018-
Ohio-1647, at ¶ 24. Though we are mindful that Johnson's act of shooting Staten elevated
the degree of the offense of discharging a firearm on or near prohibited premises to a first-
degree felony pursuant to R.C. 2923.162(C)(4), we nonetheless still find the offense of
discharge of a firearm on or near prohibited premises, under these specific facts, to cause
separate and distinct harm to the public. Id. at ¶ 24, fn. 4.
       {¶ 20} Having concluded, based on the limited facts presented at the plea hearing,
that the offenses of voluntary manslaughter and discharge of a firearm on or near
prohibited premises are not of similar import or significance because they each caused
separate harm, we find the trial court did not plainly err in failing to merge Johnson's
convictions for purposes of sentencing.         Accordingly, we overrule Johnson's sole
assignment of error.
No. 18AP-889                                                                                 8


IV. Disposition
         {¶ 21} Based on the foregoing reasons, the trial court did not err in failing to merge
Johnson's convictions of voluntary manslaughter and discharge of a firearm on or near
prohibited premises for purposes of sentencing.           Having overruled Johnson's sole
assignment of error, we affirm the judgment of the Franklin County Court of Common
Pleas.
                                                                         Judgment affirmed.

                            KLATT, P.J., and NELSON, J., concur.
