[Cite as State v. Kelly, 2012-Ohio-5875.]


                                    COURT OF APPEALS
                                   STARK COUNTY, OHIO
                                FIFTH APPELLATE DISTRICT




STATE OF OHIO                                      JUDGES:
                                                   Hon. Sheila G. Farmer, P.J.
       Plaintiff-Appellee                          Hon. John W. Wise, J.
                                                   Hon. Julie A. Edwards, J.
-vs-

STEPHEN F. KELLY                                   Case No. 2012CA00067

       Defendant-Appellant                         OPINION




CHARACTER OF PROCEEDING:                           Appeal from the Court of Common
                                                   Pleas, Case No. 2011CR1546



JUDGMENT:                                          Affirmed




DATE OF JUDGMENT ENTRY:                            December 10, 2012



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

JOHN D. FERRERO                                    GEORGE URBAN
PROSECUTING ATTORNEY                               116 Cleveland Avenue, NW
                                                   Suite 808
BY: RENEE M. WATSON                                Canton, OH 44702
110 Central Plaza South
Suite 510
Canton, OH 44702-1413
Stark County, Case No. 2012CA00067                                                        2

Farmer, P.J.

       {¶1}    On December 13, 2011, the Stark County Grand Jury indicted appellant,

Stephen Kelly, on two counts of felonious assault with firearm specifications in violation

of R.C. 2903.11 and 2941.145 and one count of improperly discharging a firearm into a

habitation in violation of R.C. 2921.161. Said charges arose from an incident wherein

appellant fired shots into a home and injured two people. One of the felonious assault

counts was later dismissed due to an uncooperative victim. The remaining felonious

assault count involved the shooting of an eight year old boy.

       {¶2}    A jury trial commenced on February 21, 2012. The jury found appellant

guilty as charged. By judgment entry filed March 5, 2012, the trial court sentenced

appellant to eight years on the felonious assault count, three years on the firearm

specification, and four years on the improperly discharging a firearm into a habitation

count, all to be served consecutively for a total aggregate term of fifteen years in prison.

       {¶3}    Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                             I

       {¶4}    "THE   DEFENDANT'S         CONVICTIONS        FOR     ONE     COUNT       OF

FELONIOUS ASSAULT IN VIOLATION OF R.C. 2903.11 AND ONE COUNT OF

IMPROPERLY DISCHARGING A FIREARM INTO A HABITATION IN VIOLATION OF

2923.161 WERE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE

EVIDENCE."
Stark County, Case No. 2012CA00067                                                       3


                                             II

       {¶5}   "THE TRIAL COURT ERRED IN FAILING TO MERGE THE TWO

CONVICTIONS FOR SENTENCING PURPOSES."

                                             I

       {¶6}   Appellant claims his convictions were against the sufficiency and manifest

weight of the evidence. We disagree.

       {¶7}   On review for sufficiency, a reviewing court is to examine the evidence at

trial to determine whether such evidence, if believed, would support a conviction. State

v. Jenks, 61 Ohio St.3d 259 (1991). "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." Jenks,

at paragraph two of the syllabus, following Jackson v. Virginia, 443 U.S. 307 (1979). On

review for manifest weight, a reviewing court is to examine the entire record, weigh the

evidence and all reasonable inferences, consider the credibility of witnesses and

determine "whether in resolving conflicts in the evidence, the jury 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. Martin, 20 Ohio App.3d 172, 175 (1st Dist. 1983). See

also, State v. Thompkins, 78 Ohio St.3d 380, 1997-Ohio-52. The granting of a new trial

"should be exercised only in the exceptional case in which the evidence weighs heavily

against the conviction." Martin, at 175.

       {¶8}   We note circumstantial evidence is that which can be "inferred from

reasonably and justifiably connected facts."      State v. Fairbanks, 32 Ohio St.2d 34

(1972), paragraph five of the syllabus. "[C]ircumstantial evidence may be more certain,
Stark County, Case No. 2012CA00067                                                       4

satisfying and persuasive than direct evidence." State v. Richey, 64 Ohio St.3d 353,

1992-Ohio-44. It is to be given the same weight and deference as direct evidence.

Jenks, supra.

       {¶9}     Appellant was convicted of felonious assault in violation of R.C.

2903.11(A)(2) which states "[n]o person shall knowingly***[c]ause or attempt to cause

physical harm to another or to another's unborn by means of a deadly weapon or

dangerous ordnance." He was also convicted of improperly discharging a firearm into a

habitation in violation of R.C. 2923.161(A)(1) which states "[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."

       {¶10} Appellant argues the state failed to establish beyond a reasonable doubt

that he was the shooter as there was no eyewitness testimony identifying the shooter

and no firearm or shell casings were found.

       {¶11} On the day and evening of the incident, appellant spent his time with

several friends, Rapheem Gordon, Ian Robinson, and Chad McLeod. During the day,

appellant, Mr. Gordon, and Mr. Robinson got into a verbal altercation with some

neighbors. Vol. 2-B T. at 20. Mr. Gordon testified to hearing two gunshots from behind

him. Vol. 2-B T. at 23. When he turned around, he observed appellant behind him

putting a gun into his waistband. Vol. 2-B T. at 26. Mr. Robinson testified to seeing

appellant with a gun. Vol. 2-B T. at 77. Later in the evening, appellant was driving the

group around and ended up near the Wallace residence where the incident sub judice

occurred. Vol. 2-B T. at 30. Mr. Gordon testified to appellant and Antonio Wallace

disliking each other. Vol. 2-B T. at 29. Several people were gathered on the Wallace
Stark County, Case No. 2012CA00067                                                     5


porch. Vol. 2-B T. at 31-32. Appellant stopped the vehicle and said something about

shooting "that bitch up," (Antonio Wallace's residence).        Vol. 2-B T. at 33, 83.

Appellant's friends told him not to do it. Vol. 2-B T. at 33, 78. Appellant exited the

vehicle and Mr. Gordon observed the handle of a gun in appellant's waistband. Vol. 2-B

T. at 36. Mr. Gordon got behind the wheel and drove away. Vol. 2-B T. at 35, 81.

Thereafter, the group in the vehicle heard from four to eight gunshots. Vol. 2-B T. at 37,

80.   Mr. Gordon admitted to just shaking his head and thinking that appellant was

stupid. Vol. 2-B T. at 37. None of appellant's friends in the vehicle had a gun. Vol. 2-B

T. at 41-42, 76-77. When Mr. McLeod took the stand, he claimed to not remember

anything that was in his transcribed statement to police or his grand jury testimony. Vol.

2-B T. at 98-113.      Both his statements to police and his grand jury testimony

corroborated the testimony of Mr. Gordon and Mr. Robinson. Id.

       {¶12} When police officers arrived at the Wallace residence, they found a

chaotic scene with approximately twenty people outside screaming and yelling. T. at

150. An eight year old child, Shaun Wallace, had been shot. Id.

       {¶13} Ronada Wallace, Shaun's mother, testified to living in the residence in

question with her ten children. T. at 163. Some ten people were outside on her porch

when she heard approximately twelve gunshots.         T. at 167, 170.    Thereafter, she

discovered her son, who was inside the house, had been shot. T. at 166, 168-169.

       {¶14} Isaiah Bush testified when he was in the attention center, he spoke with

appellant and appellant told him about the incident and admitted to rolling by the house

and "busting," which means "shooting more than once like." T. at 256-257, 259, 261.

Mr. Bush testified that appellant told him his buddies would not be going to court to
Stark County, Case No. 2012CA00067                                                     6


testify against him because they were "his boys." T. at 263. Mr. Bush admitted to

receiving a deal from the state in exchange for his testimony. T. at 266.

      {¶15} Canton Police Sergeant Victor George testified about his interview with

appellant following his arrest. Appellant described his three friends as "associates," and

denied being in the vehicle. T. at 288-289. He then admitted to being in the vehicle

earlier in the day, but was not in the vehicle when it was at the Wallace residence. T. at

289. Appellant also denied having a gun. T. at 292.

      {¶16} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. Jamison, 49 Ohio St.3d 182 (1990). The trier of

fact "has the best opportunity to view the demeanor, attitude, and credibility of each

witness, something that does not translate well on the written page."           Davis v.

Flickinger, 77 Ohio St.3d 415, 418, 1997-Ohio-260.

      {¶17} Upon review, we find sufficient evidence, if believed, to support the

convictions, and no manifest miscarriage of justice.

      {¶18} Assignment of Error I is denied.

                                            II

      {¶19} Appellant claims the trial court erred in failing to merge the two convictions

for sentencing purposes as they were allied offenses of similar import. We disagree.

      {¶20} R.C. 2941.25 governs multiple counts and states the following:



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

      two or more allied offenses of similar import, the indictment or information
Stark County, Case No. 2012CA00067                                                   7


      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.



      {¶21} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, syllabus, the

Supreme Court of Ohio held "[w]hen determining whether two offenses are allied

offenses of similar import subject to merger under R.C. 2941.25, the conduct of the

accused must be considered. (State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d

699, overruled.)"

      {¶22} The Johnson court explained the following at ¶ 48–51:



             In determining whether offenses are allied offenses of similar import

      under R.C. 2941.25(A), the question is whether it is possible to commit

      one offense and commit the other with the same conduct, not whether it is

      possible to commit one without committing the other. Blankenship, 38

      Ohio St.3d at 119, 526 N.E.2d 816 (Whiteside, J., concurring) ("It is not

      necessary that both crimes are always committed by the same conduct

      but, rather, it is sufficient if both offenses can be committed by the same

      conduct. It is a matter of possibility, rather than certainty, that the same
Stark County, Case No. 2012CA00067                                                   8


      conduct will constitute commission of both offenses." [Emphasis sic]). If

      the offenses correspond to such a degree that the conduct of the

      defendant constituting commission of one offense constitutes commission

      of the other, then the offenses are of similar import.

             If the multiple offenses can be committed by the same conduct,

      then the court must determine whether the offenses were committed by

      the same conduct, i.e., "a single act, committed with a single state of

      mind." Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶

      50 (Lanzinger, J., dissenting).

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

      offenses of similar import and will be merged.

             Conversely, if the court determines that the commission of one

      offense will never result in the commission of the other, or if the offenses

      are committed separately, or if the defendant has separate animus for

      each offense, then, according to R .C. 2941.25(B), the offenses will not

      merge.



      {¶23} Appellant was convicted of felonious assault and improperly discharging a

firearm into a habitation. He argues these two offenses stemmed from the exact same

act: shooting a firearm into a residence. The state agrees the first question of the

Johnson test can be answered in the affirmative. Appellee's Brief at 16. The second

question to be determined is whether the offenses were committed by the same

conduct.
Stark County, Case No. 2012CA00067                                                   9

      {¶24} In State v. Walton, 5th Dist. No. 2011 CA 00214, 2012-Ohio-2597, this

court reviewed the merger issue involving murder and the predicate offense of

improperly discharging a firearm into a habitation. The defendant had shot five rounds

into an occupied structure and struck and killed a sixteen year old girl therein. This

court concluded the following at ¶ 56:



             The count of murder was expressly based on the theory that

      Singleton's death was the proximate result of appellant's underlying

      unlawful act of firing a gun into a habitation. While our conclusions would

      not necessarily apply to every conceivable scenario of a killing from a

      drive-by shooting into a house, under the circumstances of the case sub

      judice, we are persuaded that the act and animus of murder as charged

      herein under R.C. 2903.02(B) are inextricably part of the same conduct as

      the count of improper discharge of a weapon into a habitation under R.C.

      2923.161(A)(1).



      {¶25} In State v. Whipple, 1st Dist. No. C-110184, 2012-Ohio-2938, our brethren

from Hamilton County determined felonious assault and improperly discharging a

firearm into a habitation did not merge for sentencing purposes. In Whipple, two victims

were struck while inside a residence from shots fired outside the residence. The police

recovered twenty-eight shell casings from the scene, and the testimony and

photographic evidence demonstrated that the defendant and others "had gone on a

shooting rampage at this Lincoln Heights home, shooting through vehicles, doors,
Stark County, Case No. 2012CA00067                                                    10

windows, and walls." Whipple, at ¶ 40. The Whipple court at ¶ 41-42 distinguished this

court's decision in Walton as follows:



              In this way, this case is distinguishable from cases like State v.

       Walton, 5th Dist. No. 2011 CA 00214, 2012-Ohio-2597, 2012 WL

       2115517. In that case, the defendant stood outside the front door and

       fired five shots into the door, one of which killed the victim.    He was

       charged with felony murder, with the predicate offense being discharging a

       firearm into a habitation.   The court found that the two offenses were

       subject to merger, concluding that the two charges were "inextricably part

       of the same conduct," but noted that their conclusion "would not

       necessarily apply to every conceivable scenario of a killing from a drive-by

       shooting into a house." Id. at ¶ 56.

              This case presents such a scenario.         The level of destruction

       unleashed by Whipple upon the home demonstrates that he sought to do

       more than commit felonious assault. Whipple has, therefore, not met the

       burden of establishing that he is entitled to merger.



       {¶26} We find the Whipple case to be analogous to the case sub judice. In the

instant case, appellant fired four to twelve rounds at the Wallace residence while

approximately ten people were on the front porch and others were inside. Appellant

struck two people, one who would not cooperate and one being Shaun Wallace. That

left two to ten rounds, "any one of which would support a conviction of R.C.
Stark County, Case No. 2012CA00067                                                 11

2923.161(A)(1)." Walton, at ¶ 75. Appellant's course of conduct indicated the distinct

purpose to shoot up the Wallace residence, with numerous individuals inside and clearly

standing outside.   We find firing the additional rounds constituted separate acts

committed with a separate animus.

      {¶27} Assignment of Error II is denied.

      {¶28} The judgment of the Court of Common Pleas of Stark County, Ohio is

hereby affirmed.

By Farmer, P.J.

«Panel_2», J. concur and

Wise, J. concurs separately.




                                        s/ Judge Sheila G. Farmer




                                        s/ Judge Julie A. Edwards




                                                       JUDGES

SGF/db 1119
Stark County, Case No. 2012CA00067                                                      12

Wise, J., concurring

       {¶29} I concur with the decision of the majority. I write separately only as

a means of articulating my reasoning on the issue of merger.

       {¶30} In Walton, a decision I authored, the defendant’s murder charge

was predicated on the underlying offense of improperly discharging a firearm at

or into a habitation under R.C. 2923.161(A)(1), which charge was also the basis

for the additional count at issue, i.e., improperly discharging a weapon at or into a

habitation, likewise under R.C. 2923.161(A)(1). See Walton at ¶ 53. In other

words, “[t]he count of murder was expressly based on the theory that [the

victim’s] death was the proximate result of [Walton’s] underlying unlawful act of

firing a gun into a habitation.” Id. at ¶ 56.

       {¶31} In the case sub judice, the felonious assault charge at issue indeed

includes the element of “by means of a deadly weapon,” but I find this clearly

distinguishable from a murder charge based on the act of improperly discharging

a weapon specifically at or into a habitation. As such, I am not inclined to rely on

the rationale of Walton under the present facts and circumstances.



                                                ________________________________
                                                     JUDGE JOHN W. WISE
[Cite as State v. Kelly, 2012-Ohio-5875.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT




STATE OF OHIO                                    :
                                                 :
         Plaintiff-Appellee                      :
                                                 :
-vs-                                             :       JUDGMENT ENTRY
                                                 :
STEPHEN F. KELLY                                 :
                                                 :
         Defendant-Appellant                     :       Case No. 2012CA00067




        For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Stark County, Ohio is affirmed. Costs to

appellant.




                                                 s/ Judge Sheila G. Farmer


                                                 s/ Judge John W. Wise



                                                 s/ Judge Julie A. Edwards
                                                                JUDGES
