[Cite as State v. Kennedy, 2018-Ohio-4997.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   Appellate Case No. 2017-CA-100
                                                    :
 v.                                                 :   Trial Court Case No. 2015-CR-0643C
                                                    :
 DENNIS H. KENNEDY                                  :   (Criminal Appeal from
                                                    :   Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                         Rendered on the 14th day of December, 2018.

                                               ...........

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

ALEX KOCHANOWSKI, Atty. Reg. No. 0090940, 6302 Kincaid Road, Cincinnati, Ohio
45213
      Attorney for Defendant-Appellant

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




WELBAUM, P.J.
                                                                                          -2-




       {¶ 1} Defendant-appellant, Dennis H. Kennedy, appeals from his conviction in the

Clark County Court of Common Pleas after a jury found him guilty of one count of

improperly handling a firearm in a motor vehicle and two counts of improperly discharging

a firearm at or into a habitation, with two firearm specifications. In support of his appeal,

Kennedy contends there was insufficient evidence to support his conviction and that his

conviction was against the manifest weight of the evidence. Kennedy also contends that

the trial court erred by failing to merge his offenses and firearm specifications at

sentencing. Kennedy further contends the trial court erred by imposing consecutive

sentences and by failing to impose minimum, concurrent sentences. For the reasons

outlined below, the judgment of the trial court will be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On December 8, 2015, the Clark County Grand Jury returned an indictment

charging Kennedy with one count of improperly handling a firearm in a motor vehicle in

violation of R.C. 2923.16(B), a felony of the fourth degree; one count of tampering with

evidence in violation of R.C. 2921.121(A)(1), a felony of the third degree; and two counts

of improperly discharging a firearm at or into a habitation in violation of R.C.

2923.161(A)(1), both felonies of the second degree. Each of the two counts charging

Kennedy with improperly discharging a firearm at or into a habitation included a

mandatory three-year firearm specification.

       {¶ 3} The charges arose from allegations that on the night of September 22, 2015,

Kennedy and Aaron Roberts fired several gunshots at two Springfield, Ohio, residences
                                                                                           -3-


located on Pine Street and on South Center Boulevard. Kennedy and Roberts were

allegedly transported to the residences in a red SUV driven by Krista Jones. Following

the shootings, the red SUV in question engaged in a high-speed chase with several

Springfield police officers, which ended in the town of South Charleston. Roberts and

Jones were apprehended from the red SUV in South Charleston after the chase came to

an end, whereas Kennedy allegedly fled the scene on foot. After investigating the matter

further, law enforcement apprehended Kennedy three months later and charged him with

the aforementioned offenses.

         {¶ 4} Kennedy pled not guilty to the charges and the matter proceeded to a jury

trial.   At trial, the State presented 24 witnesses and submitted over 100 exhibits in

support of the charges against Kennedy.           In his defense, Kennedy presented no

witnesses, but offered five exhibits, two of which were admitted into evidence. After the

State rested its case, Kennedy moved the trial court for a Crim.R. 29 dismissal of all the

charges. The trial court denied Kennedy’s motion. Following closing arguments and

jury instructions, the jury deliberated and found Kennedy guilty of all the charges and

specifications, excluding the charge for tampering with evidence.

         {¶ 5} Prior to sentencing, Kennedy filed a motion requesting the trial court to merge

all of his offenses and firearm specifications or, alternatively, to impose minimum,

concurrent sentences.        The trial court denied Kennedy’s motion and thereafter

sentenced Kennedy to eight years in prison for each count of improperly discharging a

firearm at or into a habitation. The trial court also sentenced Kennedy to 18 months in

prison for improperly handling a firearm in a motor vehicle, and it ordered Kennedy to

serve a mandatory three-year prison term for each of the two firearm specifications. The
                                                                                         -4-


trial court ordered all of Kennedy’s sentences to be served consecutively for a total term

of 23.5 years in prison.

       {¶ 6} Kennedy now appeals from his conviction, raising two assignments of error

for review.



                               First Assignment of Error

       {¶ 7} Under his First Assignment of Error, Kennedy contends there was insufficient

evidence to support his conviction and that his conviction was against the manifest weight

of the evidence. We disagree.

       {¶ 8} “A sufficiency of the evidence argument disputes whether the State has

presented adequate evidence on each element of the offense to allow the case to go to

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678

N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant

inquiry is whether any rational factfinder viewing the evidence in a light most favorable to

the state could have found the essential elements of the crime proven beyond a

reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683

N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds

that reasonable minds could not reach the conclusion reached by the trier-of-fact.”

(Citations omitted.) Id.

       {¶ 9} In contrast, “[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.” (Citation omitted.) Wilson at ¶ 12. When evaluating
                                                                                          -5-


whether a conviction is against 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.’ ” Thompkins at 387, quoting State

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “The fact that the

evidence is subject to different interpretations does not render the conviction against the

manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013 CA 61,

2013 CA 62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14.

       {¶ 10} 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.   State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684, *4 (Aug. 22, 1997). However, we may determine which of several competing

inferences suggested by the evidence should be preferred. A judgment of conviction

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

exceptional circumstances. Martin at 175.

       {¶ 11} As previously noted, Kennedy was convicted of one count of improperly

handling a firearm in a motor vehicle in violation of 2923.16(B). Pursuant to that statute:

“No person shall knowingly transport or have a loaded firearm in a motor vehicle in such

a manner that the firearm is accessible to the operator or any passenger without leaving

the vehicle.” R.C. 2923.16(B).

       {¶ 12} Kennedy was also convicted of two counts of improperly discharging a

firearm at or into a habitation in violation of R.C. 2923.161(A)(1).       Pursuant to that
                                                                                         -6-


statute: “No 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[.]”   R.C. 2923.161(A)(1). These charges included two three-year firearm

specifications which alleged that “the offender had a firearm on or about the offender’s

person or under the offender’s control while committing the offense and displayed the

firearm, brandished the firearm, indicated that the offender possessed the firearm, or used

it to facilitate the offense.” R.C. 2941.145(A).

       {¶ 13} Kennedy contends the State’s evidence was insufficient to support his

conviction for the aforementioned offenses and specifications because the State failed to

prove that he was involved in the shootings on Pine Street and South Center Boulevard

or that he was present inside the get-away vehicle with a loaded firearm. We find no

merit to Kennedy’s claims.

       {¶ 14} At trial, the State presented Aaron Roberts, who testified that he and

Kennedy discharged firearms at the Pine Street and South Center Boulevard residences

on the night in question.    Roberts indicated that he and Kennedy engaged in such

conduct because gunshots were fired at them earlier in the night while they were on

Kenton Street. Roberts testified that he believed Gary Strodes and Michael Johnson

were the individuals who fired shots at him and Kennedy.

       {¶ 15} After the shooting on Kenton Street, Roberts testified that Krista Jones

arrived in a red SUV and transported him and Kennedy to Kennedy’s residence on

Columbus Road, where they loaded two semi-automatic rifles. Once the rifles were

loaded, Roberts testified that he and Kennedy returned to Jones’s SUV to go “shoot up

some houses.” Trial Trans. Vol. II (Oct. 4, 2017), p. 264.
                                                                                           -7-


       {¶ 16} Roberts testified that they first went to the residence of Gary Strodes’s

cousin, Jeff Strodes, located on Pine Street. Roberts testified that Jones drove him and

Kennedy to Lafayette Avenue where they exited the SUV, walked through an alley, and

discharged their firearms at Strodes’s residence until their clips were empty. Roberts

claimed he and Kennedy then ran back to the SUV and that Jones once again drove them

to Kennedy’s residence, where they reloaded their firearms.

       {¶ 17} After reloading their firearms, Roberts testified that Jones drove him and

Kennedy to Woodward Avenue where he and Kennedy exited the SUV and walked to

Michael Johnson’s residence on South Center Boulevard. Roberts testified that he and

Kennedy fired several gunshots at Johnson’s residence and then ran back to the SUV on

Woodward. From there, Roberts testified that Jones drove him and Kennedy to York

Street where Roberts noticed they were being followed. According to Roberts, a police

chase ensued shortly thereafter.

       {¶ 18} Roberts testified that the police chase led them out of Springfield and into

the town of South Charleston. Upon reaching South Charleston, Roberts testified that

their SUV hit stop sticks placed in the road by police. After hitting the stop sticks, Roberts

testified that he threw his firearm out the SUV’s window and that Kennedy did the same.

According to Roberts, Kennedy then said “let me out, let me out, let me out.” Trial Trans.

Vol. II (Oct. 4, 2017), p. 270. In response, Roberts claimed that he leaned forward from

where he was sitting in the front-passenger seat of the SUV and opened the front

passenger door so that Kennedy could jump out of the two-door vehicle. After Kennedy

fled the vehicle, Roberts testified that he and Jones stayed inside the SUV, where they

were arrested.
                                                                                         -8-


       {¶ 19} In addition to the foregoing testimony, Roberts identified the two firearms

that he and Kennedy used during the shootings. The State thereafter called multiple

investigating officers who testified that the firearms identified by Roberts were found in

South Charleston near where Roberts and Jones were apprehended and where officers

observed a third individual, later determined to be Kennedy, flee from the SUV on foot.

       {¶ 20} A firearm examiner from the Ohio Bureau of Criminal Investigation (“BCI”)

testified that both firearms identified by Roberts were operable. A forensic ballistics

expert from BCI also testified that all the shell casings collected near the Pine Street and

South Center Boulevard residences were fired from the two firearms identified by Roberts.

A DNA analyst from BCI further testified that a mixture of Roberts’s and Kennedy’s DNA

was discovered on one of the firearms, and that Kennedy and Roberts were the major

contributors of DNA on that firearm. Although the DNA testing on the second firearm

was inconclusive, the DNA analyst testified that the inconclusive result simply meant that

there was not enough data to include Roberts and Kennedy as DNA contributors. The

analyst, however, testified that he could not rule out the possibility that Roberts’s and

Kennedy’s DNA were present on the firearm.

       {¶ 21} In addition to the testimony concerning the firearms, a criminal intelligence

analyst from BCI testified regarding precision location data obtained from Kennedy’s cell

phone. 1    The analyst testified that the cell phone in question received service from


1Although   the State presented no cell phone carrier records that officially linked Kennedy
to the cell phone in question, the State presented other evidence linking Kennedy to the
cell phone. The State presented Detective Beau Collins who testified that, through his
occupation, he had dealt with Kennedy in the past and that he was aware of Kennedy’s
cell phone number, which was the same number associated with the cell phone for which
the location data was obtained. The State also presented testimony from Detective
Jerrold Mitchell, who extracted data from the cell phone pursuant to a search warrant.
                                                                                       -9-


cellular towers located in the area of the shootings at Kenton Street, Pine Street, and

South Center Boulevard near the time that each of the shootings occurred. The cell

phone data also indicated that Kennedy’s cell phone received service from cellular towers

that were located near South Charleston during the time the police were chasing the SUV

into South Charleston.

      {¶ 22} Kennedy claims the foregoing evidence was insufficient to support his

conviction because the only direct evidence linking him to the offenses was the testimony

of Roberts. Kennedy claims Roberts’s testimony should have been discredited because

it was biased.   Kennedy claims Roberts’s testimony was biased because Roberts

entered a plea agreement with the State that reduced his charges.          According to

Kennedy, the only remaining evidence against him was circumstantial, which Kennedy

claims was insufficient to convict him because it failed to exclude any reasonable theory

of innocence.

      {¶ 23} In crafting this argument, Kennedy relies on State v. Kulig, 37 Ohio St.2d

157, 309 N.E.2d 897 (1974), which was expressly overruled by State v. Jenks, 61 Ohio

St.3d 259, 574 N.E.2d 492 (1991). Accord State v. Winton, 2d Dist. Montgomery No.

27043, 2017-Ohio-6908, ¶ 43. Per Jenks, “[w]hen the state relies on circumstantial



Mitchell testified that after extracting data from the cell phone, he discovered that the
e-mail address associated with the cell phone was “denniskennedy2112@gmail.com.”
Mitchell also testified that the cell phone was associated with a Snapchat user named
“denniskennedy21.” The State also presented Detective Ronald Jordan, who testified that
the cell phone extraction provided several videos that were created by Kennedy. Jordan
testified that the videos showed Kennedy turning the cell phone around to record himself
with other people, and that Kennedy was on almost every video taken. Jordan also
testified that he discovered the cell phone inside a vehicle that was parked outside a
residence where Kennedy was staying. We find this was sufficient evidence linking
Kennedy to the cell phone in question.
                                                                                          -10-

evidence to prove an essential element of the offense charged, there is no need for such

evidence to be irreconcilable with any reasonable theory of innocence in order to support

a conviction.” (Emphasis added.) Jenks at paragraph one of the syllabus, overruling

Kulig. Therefore, contrary to Kennedy’s claim otherwise, “[c]ircumstantial evidence is as

inherently probative as direct evidence.”     Winton at ¶ 23, citing In re A.K., 2d Dist.

Montgomery No. 21504, 2007-Ohio-2095, ¶ 21.

       {¶ 24} That said, it was the province of the jury to determine whether Roberts’s

testimony was credible. The State presented the testimony of several law enforcement

officers, expert witnesses, and other individuals who corroborated Roberts’s testimony

regarding his and Kennedy’s conduct on the night in question.            The DNA evidence

discovered on one of the firearms and the cell phone location data also supported the

finding that Kennedy was present during the offenses in question. Therefore, based on

the facts and circumstances here, we find it was certainly reasonable for the jury to believe

Roberts’s testimony.

       {¶ 25} At this juncture, we note that, as part of this assignment of error, Kennedy

argues in his reply brief that the cell phone location data was inadmissible because it was

obtained without a warrant in violation of his Fourth Amendment rights, pursuant to the

United States Supreme Court’s recent decision in Carpenter v. United States, __ U.S. __,

138 S.Ct. 2206, 201 L.Ed.2d 507 (2018).           The court in Carpenter held that the

government’s acquisition of cell-site records constitutes a Fourth Amendment search.

Id. at paragraph one of the syllabus. The court noted that,      “even      though       the

Government will generally need a warrant to access [cell-site location information], case-

specific exceptions—e.g., exigent circumstances—may support a warrantless search.”
                                                                                          -11-

Id. at paragraph two of the syllabus.

       {¶ 26} The issue of whether the cell phone location data used at Kennedy’s trial

was obtained in violation of Kennedy’s Fourth Amendment rights was never argued

before the trial court, as Kennedy never moved to suppress the data. “It is settled law

that issues raised for the first time on appeal and not having been raised in the trial court

are not properly before this court and will not be addressed.” State v. Schneider, 2d Dist.

Greene No. 95-CA-18, 1995 WL 737910, * 1 (Dec. 13, 1995). While Carpenter was

decided after Kennedy’s conviction, there was nothing prohibiting Kennedy from moving

the trial court to suppress the cell phone location data on Fourth Amendment grounds.

Furthermore, “[a]n appellant may not use a reply brief to raise new issues or assignments

of error.” State v. Murnahan, 117 Ohio App.3d 71, 82, 689 N.E.2d 1021 (2d Dist.1996),

citing App.R. 16(C). Accord State v. McComb, 2d Dist. Montgomery No. 26481, 2015-

Ohio-2556, ¶ 14.

       {¶ 27} Regardless, even if we were to review the issue and conclude that the cell

phone location data was obtained without a warrant in violation of Kennedy’s Fourth

Amendment rights, such an error would be harmless beyond a reasonable doubt

because, even without the cell phone location data, there was overwhelming evidence to

convict Kennedy of the offenses in question. See State v. Williams, 6 Ohio St.3d 281,

290, 452 N.E.2d 1323 (1983), quoting Harrington v. California, 395 U.S. 250, 254, 89

S.Ct. 1726, 23 L.Ed.2d 284 (1969) (“evidence * * * improperly admitted in derogation of a

criminal defendant’s constitutional rights * * * is harmless ‘beyond a reasonable doubt’ if

the remaining evidence alone comprises ‘overwhelming’ proof of defendant’s guilt”).

Accord State v. Jenkins, 2d Dist. Montgomery No. 27701, 2018-Ohio-3697, ¶ 16.
                                                                                           -12-


       {¶ 28} When viewing all the other evidence in the light most favorable to the State,

we find there was sufficient evidence indicating that Kennedy had a loaded firearm

accessible to him while he was riding as a passenger in a motor vehicle, and that he was

one of the individuals who discharged a firearm on Pine Street and on South Center

Boulevard.    Such evidence includes Roberts’s testimony, the testimony of all the

investigating officers, the expert witness testimony, and the DNA evidence. Therefore,

we find that Kennedy’s conviction for one count of improperly handling a firearm in a motor

vehicle and two counts of improperly discharging a firearm at or into a habitation was

supported by sufficient evidence. Because those offenses were supported by sufficient

evidence, we also necessarily find there was sufficient evidence that Kennedy used a

firearm while committing the two counts of improperly discharging a firearm at or into a

habitation, thus supporting the two three-year firearm specifications.

       {¶ 29} We further find that Kennedy’s conviction was not against the manifest

weight of the evidence. At trial, the State presented testimony from 24 witnesses and

introduced over 100 exhibits, all of which the jury could have reasonably credited to

conclude that Kennedy was guilty of the offenses and specifications at issue. Therefore,

due to the abundance of evidence implicating Kennedy in the alleged offenses, the jury

did not clearly lose its way or create a manifest miscarriage of justice in finding him guilty.

       {¶ 30} Kennedy’s First Assignment of Error is overruled.



                              Second Assignment of Error

       {¶ 31} Under his Second Assignment of Error, Kennedy contends the trial court

erred by failing to merge his offenses and firearm specifications at sentencing. Kennedy
                                                                                      -13-


also contends the trial court erred by imposing consecutive sentences and by failing to

impose minimum, concurrent sentences. We disagree with Kennedy’s claims.



                                         Merger

      {¶ 32} As previously noted, Kennedy contends the trial court should have merged

his offenses and firearm specifications at sentencing.        With regard to Kennedy’s

offenses, Ohio’s allied offense statute, 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.

      {¶ 33} “ ‘[W]hen determining whether offenses are allied offenses of similar import

within the meaning of R.C. 2941.25, courts must ask three questions when defendant’s

conduct supports multiple offenses: (1) Were the offenses dissimilar in import or

significance? (2) Were they committed separately? and (3) Were they committed with

separate animus or motivation? An affirmative answer to any of the above will permit

separate convictions. The conduct, the animus, and the import must all be considered.’ ”

State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, quoting State
                                                                                       -14-

v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.

      {¶ 34} As to the question of import and significance, “two or more offenses of

dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s

conduct constitutes offenses involving separate victims or if the harm that results from

each offense is separate and identifiable.”    Ruff at ¶ 23.   In regard to the animus,

“ ‘[w]here 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.’ ”

State v. Ramey, 2015-Ohio-5389, 55 N.E.3d 542, ¶ 70 (2d Dist.), quoting State v. Logan,

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

      {¶ 35} We review allied-offense determinations de novo. State v. Harmon, 2017-

Ohio-8106, 98 N.E.3d 1238, ¶ 59 (2d Dist.), citing State v. Williams, 134 Ohio St.3d 482,

2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. De novo appellate review means that this court

independently reviews the record and affords no deference to a trial court’s decision.

State v. Walker, 10th Dist. Franklin No. 06AP-810, 2007-Ohio-4666, ¶ 10.

      {¶ 36} As previously discussed, Kennedy was convicted of two separate counts of

improperly discharging a firearm at or into a habitation with a firearm specification

attached to each count. One of the counts was for gunshots fired at a residence on Pine

Street and the other count was for gunshots fired at a residence on South Center

Boulevard.   The offenses were dissimilar in import and significance because each

shooting produced separate victims that suffered separate, identifiable damage to their

respective homes. The record also indicates that the shootings occurred separately in

time and distance. The record further indicates that the motivation behind the shootings
                                                                                         -15-


was to exact revenge on two separate individuals, meaning the shootings did not arise

from a single animus. Therefore, the two counts for improperly discharging a firearm at

or into a habitation were not allied offenses subject to merger.

       {¶ 37} The improper discharge counts and the count for improperly handling a

firearm in a motor vehicle were also not allied offenses subject to merger.         This is

because the harm or danger that arose from carrying a loaded firearm in a motor vehicle

was separate and distinct from the harm or danger that arose from discharging a firearm

at or into a habitation. See State v. Pope, 2017-Ohio-1308, 88 N.E.3d 584, ¶ 34-35 (2d

Dist.) (holding that OVI and improper handling offenses were not allied offenses subject

to merger because the offenses involved separate harm).

       {¶ 38} In State v. Johnson, 10th Dist. Franklin Nos. 16AP-860, 16AP-868, and

16AP-869, 2017-Ohio-9286, the trial court declined to merge certain offenses at

sentencing, including two counts of improperly discharging a firearm at or into a habitation

and one count of improperly handling a firearm in a motor vehicle. Id. at ¶ 15-16. The

offenses stemmed from the defendant’s driving to an individual’s house, getting out of his

vehicle, firing shots into the house, and then driving to another individual’s house, where

the defendant once again got out of his vehicle and fired shots into that house. Id. at ¶ 2.

The Tenth District held that, because the defendant’s improper handling offense occurred

both before and after the defendant discharged his firearm at the residences, the improper

handling offense and improper discharge offenses were “ ‘not alike in their significance

and their resulting harm.’ ” Id. at ¶ 21, quoting Ruff, 143 Ohio St.3d 114, 2015-Ohio-995,

34 N.E.3d 892, at ¶ 21. We agree.

       {¶ 39} With regard to Kennedy’s two firearm specifications, the Supreme Court of
                                                                                         -16-


Ohio has made clear that “[t]he criminal offense of discharging a firearm at or into a

habitation as defined in R.C. 2923.161 and a firearm specification as defined in R.C.

2941.145 are not allied offenses of similar import as defined in R.C. 2941.25, because a

firearm specification is a penalty enhancement, not a criminal offense.” State v. Ford,

128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, paragraph one of the syllabus.

       {¶ 40} As to the question of whether Kennedy’s two firearm specifications should

have merged with each other, we look to R.C. 2929.14(B)(1)(b), not R.C. 2941.25. R.C.

2929.14(B)(1)(b) provides that: “Except as provided in division (B)(1)(g) of this section, a

court shall not impose more than one prison term on an offender under division (B)(1)(a)

of this section for felonies committed as part of the same act or transaction.”        The

exception under division (B)(1)(g) of the statute does not apply to this case; therefore,

whether Kennedy’s firearm specifications should have merged depends on whether the

improper discharge offenses were committed as part of the “same act or transaction.”

       {¶ 41} “ ‘Same act or transaction’ means a series of continuous acts bound

together by time, space and purpose, and directed toward a single objective.” State v.

Nowden, 2d Dist. Clark No. 07CA0120, 2008-Ohio-5383, ¶ 77, citing State v. Wills, 69

Ohio St.3d 690, 635 N.E.2d 370 (1994). 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 appropriate 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.)
                                                                                        -17-


      {¶ 42} In this case, the improper discharge offenses to which the firearm

specifications applied were not committed as part of the same act or transaction. As

previously noted, the shootings occurred at different times and at separate locations.

After Kennedy finished discharging his firearm at the residence on Pine Street, he left the

scene and went back to his house to reload his firearm. Once his firearm was reloaded,

Kennedy then went on to discharge his firearm at the residence on South Center

Boulevard. These are two separate “criminal adventures” which Kennedy committed for

purposes of exacting revenge on two separate individuals. The trial court therefore

properly declined to merge Kennedy’s two firearm specifications.

      {¶ 43} For the foregoing reasons, Kennedy’s merger argument lacks merit.



                         Consecutive and Minimum Sentences

      {¶ 44} Kennedy also contends that the trial court erred by imposing consecutive

sentences and by failing to impose minimum, concurrent sentences. We review felony

sentences in accordance with the standard set forth in R.C. 2953.08(G)(2). State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10, 16. Accord State

v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069 (2d Dist.).

      {¶ 45} R.C. 2953.08(G)(2) provides that:

      The appellate court may increase, reduce, or otherwise modify a sentence

      that is appealed under this section or may vacate the sentence and remand

      the matter to the sentencing court for resentencing. The appellate court’s

      standard for review is not whether the sentencing court abused its

      discretion. The appellate court may take any action authorized by this
                                                                                          -18-


       division if it clearly and convincingly finds either of the following:

       (a) That the record does not support the sentencing court’s findings under

       division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section

       2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,

       if any, is relevant;

       (b) That the sentence is otherwise contrary to law.

       {¶ 46} Pursuant to the plain language of R.C. 2953.08(G)(2), this court may vacate

or modify Kennedy’s sentence only if it “determines by clear and convincing evidence that

the record does not support the trial court’s findings under relevant statutes or that the

sentence is otherwise contrary to law.”       Marcum at ¶ 1.       This is a very deferential

standard of review, as the question is not whether the trial court had clear and convincing

evidence to support its findings, but rather, whether we clearly and convincingly find that

the record fails to support the trial court’s findings. Rodeffer at ¶ 31, citing State v.

Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.).

       {¶ 47} In this case, the trial court made findings under one of the relevant statutes

referred to in R.C. 2953.08(G)(2), namely, R.C. 2929.14(C)(4).              Pursuant to R.C.

2929.14(C)(4), a trial court may impose consecutive sentences if it determines that: (1)

consecutive service is necessary to protect the public from future crime or to punish the

offender; (2) consecutive sentences are not disproportionate to the seriousness of the

offender’s conduct and to the danger the offender poses to the public; and (3) one or

more of the following three findings are satisfied.

       (a) The offender committed one or more of the multiple offenses while the

       offender was awaiting trial or sentencing, was under a sanction imposed
                                                                                           -19-


       pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or

       was under post-release control for a prior offense.

       (b) At least two of the multiple offenses were committed as part of one or

       more courses of conduct, and the harm caused by two or more of the

       multiple offenses so committed was so great or unusual that no single

       prison term for any of the offenses committed as part of any of the courses

       of conduct adequately reflects the seriousness of the offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates that consecutive

       sentences are necessary to protect the public from future crime by the

       offender.

R.C. 2929.14(C)(4)(a)-(c).

       {¶ 48} “ ‘[A] trial court is required to make the findings mandated by R.C.

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing

entry, but it has no obligation to state reasons to support its findings.’ ” State v. Bittner,

2d Dist. Clark No. 2013-CA-116, 2014-Ohio-3433, ¶ 11, quoting State v. Bonnell, 140

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. “[W]here a trial court properly

makes the findings mandated by R.C. 2929.14(C)(4), an appellate court may not reverse

the trial court’s imposition of consecutive sentences unless it first clearly and convincingly

finds that the record does not support the trial court’s findings.” State v. Withrow, 2016-

Ohio-2884, 64 N.E.3d 553, ¶ 38 (2d Dist.). Again, “the question is not whether the trial

court had clear and convincing evidence to support its findings, but rather, whether we

clearly and convincingly find that the record fails to support the trial court’s findings.” Id.

In applying that standard of review, “the consecutive nature of the trial court’s sentencing
                                                                                        -20-


should stand unless the record overwhelmingly supports a contrary result.” (Citation

omitted.) Id. at ¶ 39.

      {¶ 49} The record in this case establishes that the trial court made all the required

consecutive-sentence findings at the sentencing hearing and in the sentencing entry.

See Sentencing Trans. (Oct. 31, 2017), p. 18; Judgment Entry of Conviction (Nov. 27,

2017), Docket No. 57, p. 3.     Specifically, the trial court stated the following at the

sentencing hearing:

             The Court finds that consecutive sentences [are] necessary to

      protect the public from future crime and to punish the Defendant and that

      the consecutive sentences are not disproportionate to the seriousness [of]

      his conduct and to the danger he poses to the public. The Court also finds

      that the Defendant committed one or more multiple acts while he was

      awaiting trial or sentencing. As indicated, he was under bond for two cases

      at the time.

             The Court further finds that at least two of the multiple offenses were

      committed as part of the normal courses of conduct and the harm caused

      by the two or more multiple offenses so committed was so great or unusual

      that no single prison term for any of the offenses committed as part of the

      course of conduct or courses of conduct adequately reflects the seriousness

      of the Defendant’s conduct.      And the Defendant’s history of criminal

      conduct demonstrates consecutive sentences are necessary to protect the

      public from future crime by the defendant.

Sentencing Trans., p. 18.
                                                                                             -21-


       {¶ 50} As previously noted, when a trial court makes the required consecutive-

sentence findings under R.C. 2929.14(C)(4), an appellate court may not reverse the trial

court’s imposition of consecutive sentences unless it first clearly and convincingly finds

that the record does not support the trial court’s findings. Withrow at ¶ 38. After a

thorough review of the record, we do not clearly and convincingly find that the record does

not support the trial court’s consecutive-sentence findings. The record indicates that

Kennedy’s shooting spree placed several people in severe danger and caused property

damage to multiple homes.        The record also indicates that Kennedy committed the

offenses while he was out on bond for two separate cases, one of which involved another

charge of improperly handling a firearm in a motor vehicle. The record further indicates

that Kennedy had a history of criminal convictions for aggravated menacing, obstruction

of official business, fleeing and eluding, improper handling of a firearm in a motor vehicle,

possession of heroin, driving under suspension, failure to appear, and a juvenile

adjudication for receiving stolen property. Because we do not clearly and convincingly

find that the record does not support the trial court’s consecutive-sentence findings, we

must conclude that the trial court did not err in imposing consecutive sentences.

       {¶ 51} We also do not find that the trial court erred in failing to impose minimum,

concurrent sentences. “The trial court has full discretion to impose any sentence within

the authorized statutory range, and the court is not required to make any findings or give

reasons for imposing maximum or more than minimum sentences.” (Citation omitted.)

State v. Nelson, 2d Dist. Montgomery No. 25026, 2012-Ohio-5797, ¶ 62. Accord State

v. Terrel, 2d Dist. Miami No. 2014-CA-24, 2015-Ohio-4201, ¶ 14. A sentence “is not

contrary to law [if it falls] within the statutory range [and the trial court] expressly state[s]
                                                                                         -22-


that it * * * considered the purposes and principles of sentencing [under] R.C. 2929.11

[and] 2929.12.” Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, at ¶ 32.

          {¶ 52} Here, the trial court expressly stated at the sentencing hearing and in its

sentencing entry that it considered the purposes and principles of sentencing in R.C.

2929.11 and the seriousness and recidivism factors in R.C. 2929.12. Additionally, the 8-

year prison sentences imposed for each of the two charges for improperly discharging a

firearm at or into a habitation and the 18-month prison term imposed for the charge of

improperly handling a firearm in a motor vehicle were within the authorized statutory

range. See R.C. 2929.14(A)(2),(A)(4). Kennedy’s sentence was therefore not contrary

to law.

          {¶ 53} An appellate court may vacate or modify any sentence that is not clearly

and convincingly contrary to law only if the appellate court finds by clear and convincing

evidence that the record does not support the sentence. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23.           We find no such evidence here.        As

previously noted, the record indicates that Kennedy’s conduct placed several people in

severe danger and caused extensive property damage. Kennedy also committed the

offenses in question while he was out on bond for a charge that involved the same type

of conduct, i.e., improperly handling a firearm in a motor vehicle.        The record also

indicates that Kennedy had a fairly extensive criminal record and that he had not

responded favorably to prior sanctions. Because we do not find by clear and convincing

evidence that the record does not support Kennedy’s sentence, his sentence will not be

disturbed by this court on appeal.

          {¶ 54} For the foregoing reasons, Kennedy’s arguments concerning his sentences
                                                                                   -23-


lack merit.

       {¶ 55} Kennedy’s Second Assignment of Error is overruled.



                                     Conclusion

       {¶ 56} Having overruled both of Kennedy’s assignments of error, the judgment of

the trial court is affirmed.



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



HALL, J. and TUCKER, J., concur.



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Andrew P. Pickering
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Hon. Richard J. O’Neill
