[Cite as State v. Carner, 2012-Ohio-1190.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 96766



                                      STATE OF OHIO
                                             PLAINTIFF-APPELLEE

                                              vs.

                                      BYRON CARNER
                                             DEFENDANT-APPELLANT




                        JUDGMENT:
          CONVICTIONS AFFIRMED; SENTENCE VACATED
          IN PART AND REMANDED FOR RESENTENCING


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-541812

        BEFORE: Kilbane, J., Stewart, P.J., and Cooney, J.

        RELEASED AND JOURNALIZED:                   March 22, 2012
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Chief Public Defender
Nathaniel McDonald
Assistant Public Defender
310 Lakeside Avenue
Suite 400
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
Brian D. Kraft
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} Defendant-appellant, Byron Carner (“Carner”), appeals his convictions and

sentence. Finding merit to the appeal, we affirm Carner’s convictions, but vacate his

sentence in part and remand the matter for resentencing.

      {¶2} In September 2010, Carner was charged in a 12-count indictment. Count 1

charged him with felonious assault of Cleveland police officer Christopher Holstein

(“Holstein”). Counts 2 and 3 charged him with the felonious assault of his nephew,

Tyrone Banks (“Banks”). Count 4 charged him with carrying a concealed weapon.

Counts 5–9 charged him with aggravated menacing. Counts 10–12 charged him with

domestic violence.

      {¶3} The matter proceeded to a jury trial, at which the following evidence was

adduced.

      {¶4} On the evening of September 2, 2010, Banks had an argument with his uncle,

Byron Carner, regarding Carner’s use of drugs in the home they shared at 853 Whitcomb

Road in Cleveland, Ohio. Banks and Carner shared the home with Banks’s mother,

sisters, and grandmother. The next morning, as Banks passed Carner on the stairs, Carner

muttered something to Banks relating to an argument the day before. Banks followed

Carner downstairs and into the living room, where Carner hit Banks on the head with a
glass vase. The two then began to fight. Banks’s sister called the police, and Banks’s

friends, who came over to visit, separated Banks and Carner.

       {¶5} Carner attempted to leave through the front door, but was blocked by Banks,

his sister, and his friends. They wanted Carner to be present when the police arrived.

Carner then went through the kitchen to the back door. In the kitchen, Carner picked up a

knife, waved it in the direction of Banks, his sister, and his friends and told them he would

kill them if they did not let him leave. Carner then exited through the back door.

       {¶6} At approximately the same time, Cleveland police arrived at the scene.

Holstein and his partner, Cleveland police officer Andrew Papaleo (“Papaleo”), learned

from Carner’s family members that Carner was running through the yards near their home.

Holstein then walked up the driveway of a neighbor’s house. When he reached the back

of this house, he encountered Carner. Carner was standing approximately eight feet from

Holstein and was holding a large knife in an overhead fashion. Holstein had his gun

drawn and pointed at Carner. He ordered Carner to “drop the knife, drop the knife, drop

the knife.” Holstein testified that Carner then lunged at him while bringing the knife

downward in an aggressive manner. Holstein, who feared for his safety, responded by

firing his gun three times at Carner. Carner was approximately four feet away when

Holstein fired his gun. Holstein testified Carner fell to the ground after being shot and

dropped the knife. Holstein kept his gun on Carner until Papaleo and Cleveland Police

Detective Theodore Perez (“Perez”) arrived.
       {¶7} Perez testified that he arrived on the scene after Holstein and walked up the

driveway. He observed Holstein with his gun drawn. He heard Holstein say “drop the

knife, drop the knife, drop the knife.” Then, he heard three gunshots. He stopped for a

second and then continued up the driveway. He observed Carner lying on the ground,

with the knife also on the ground. Holstein had his gun pointed at Carner. Carner said,

“you shot me.” Holstein replied, “you lunged at me. I told you to drop it.” Perez

described Holstein as visibly upset.

       {¶8} Papaleo testified that he arrived on the scene after Perez. He observed Perez

and Holstein standing by Carner, who was lying on the ground. Papaleo further testified

that Carner said to him, “[y]our partner shot me.” Holstein replied, “[Carner] lunged at

me.” Papaleo described Holstein’s emotional state at that time as upset because Holstein

was “pacing back and forth and grabbing his head * * *.”

       {¶9} Collin Gonzalez (“Gonzalez”) testified that he lived a few houses away from

where the incident occurred. He heard three gunshots and, when he looked outside, he

observed Holstein walking around with his hands on his head. He heard Carner yell, “you

shot me, you shot me” and Holstein reply, “you lunged at me.”

       {¶10} At the close of the State’s case, the State moved to dismiss Count 4 (carrying

a concealed weapon), Counts 6–9 (aggravated menacing) and Counts 11 and 12 (domestic

violence). In an unusual trial strategy, defense counsel objected to the dismissal of these

counts, arguing that he intended to argue to the jury that the State over-indicted Carner in a

concerted effort to insulate Holstein from legal responsibility for his mistake in shooting
Carner. The State argued the dismissal of the counts was due to witness noncooperation.

The trial court overruled defense counsel’s objection and dismissed Counts 4, 6–9, 11, and

12. Defense counsel requested that Count 2 be amended to simple assault and Count 3 be

dismissed under Crim.R. 29. The trial court granted the motion with respect to Count 2

and denied the motion with respect to Count 3. As a result, the following charges were

presented to the jury: Count 1 — felonious assault on a police officer, Count 2 — simple

assault on Banks, Count 3 — felonious assault on Banks, Count 5 — aggravated menacing

concerning Banks, and Count 10 — domestic violence concerning Banks.

         {¶11} The jury found Carner guilty of all five counts. The trial court sentenced

Carner to 4 years in prison on Count 1, six months in prison on Count 2, three years in

prison on Count 3, 90 days in prison on Count 5, and six months in prison on Count 10.

The trial court ordered that all prison terms be served concurrently, for an aggregate of four

years in prison. The trial court found Carner indigent and ordered Carner to pay court

costs.

         {¶12} Carner now appeals, raising the following five assignments of error for

review, which shall be discussed together where appropriate.

                              ASSIGNMENT OF ERROR ONE

         When [the trial court] prohibited defense counsel from mentioning the
         dismissed counts of the indictment in closing argument, [it] violated
         [Carner’s] right to present his defense, right to effective assistance of
         counsel, and right to a fair trial pursuant to the Fifth, Sixth, and Fourteenth
         Amendments to the United States Constitution.

                              ASSIGNMENT OF ERROR TWO
       [Carner] was denied his Sixth Amendment right to effective assistance of
       counsel because his counsel failed to object to hearsay statements that he
       “lunged” at officer Holstein.

                           ASSIGNMENT OF ERROR THREE

       [Carner’s] conviction for felonious assault on a [police] officer was against
       the manifest weight of the evidence.

                            ASSIGNMENT OF ERROR FOUR

       The trial court failed to treat the assault, felonious assault, and domestic
       violence convictions as allied offenses of similar import and merge them at
       the sentencing hearing.




                            ASSIGNMENT OF ERROR FIVE

       Ineffective assistance of counsel due to failure to request waiver of, or object
       to, court costs for an indigent defendant.

                         Dismissed Counts and Closing Argument

       {¶13} In the first assignment of error, Carner argues the trial court violated his

constitutional rights to present his defense, effective assistance of counsel, and a fair trial

when it precluded him from arguing that the dismissed counts indicate an overreaching by

the State to insulate Holstein from the consequences of mistakenly shooting Carner.

       {¶14} We recognize that counsel is afforded great latitude in the presentation of

closing argument to the jury. Pang v. Minch, 53 Ohio St.3d 186, 559 N.E.2d 1313 (1990),

at paragraph two of the syllabus. However, “[t]he assessment of whether the permissible

bounds of closing argument have been exceeded is, in the first instance, a discretionary
function to be performed by the trial court. Such determination will not be reversed on

appeal absent an abuse of discretion.” Id. at paragraph three of the syllabus. An abuse of

discretion “‘implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’”

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v.

Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

       {¶15} Here, the State moved to dismiss Counts 4, 6, 7, 8, 9, 11, and 12, which was

more than half of the counts against Carner. Defense counsel opposed the State’s motion,

arguing that part of his defense was that the State over-indicted Carner in an effort to obtain

a conviction and insulate Holstein from legal accountability for his mistake in shooting

Carner. The following exchange took place:

       [DEFENSE COUNSEL]: You know, part of my argument is that when
       there is a police shooting, the police go over board a little bit and they might
       cover for one another, and I intend to argue to the jury that these indictments
       prove this. * * * [The number of charges] just proves the [onslaught] that
       [the State will] put against a defendant when they need to protect someone
       that’s on their side of the fence. So really, I have to object to the dismissal,
       Judge.

       ***

       THE COURT: Well, by that argument you would object to a dismissal of
       the indictment in its entirety, wouldn’t you?

       [DEFENSE COUNSEL]: Of all counts?

       THE COURT: Yes.

       [DEFENSE COUNSEL]: I would probably let that go by, Judge.

       THE COURT: Oh, okay. I’m sorry counsel, I deny your request. The
       State can dismiss.
      [DEFENSE COUNSEL]: Okay. Then let me ask you this. * * * By
      dismissing these counts, am I going to be prohibited from arguing that they
      were there, that they’re not there, and this is what this man faced. This is
      what this man had to defend. And they brought these charges knowing that
      they had no evidence. I presume I can still argue it.

      [THE STATE]: I’d like to be heard on that matter, if necessary, your
      Honor.

      THE COURT: Go ahead.

      [THE STATE]: Okay. That just simply isn’t the case. Every count that
      I’ve just dismissed besides the carrying concealed weapon count, there was
      evidence of. It was just the State’s inability to call some of these witnesses
      due to their noncooperation with the State of Ohio. I mean, [Banks]
      testified that all those people were present and all were present during the
      situation with the defendant waiving [sic] the knife. It has no connection to
      the law enforcement end of this case.

      ***

      THE COURT: I was prepared to grant a Rule 29 request for most of these
      counts that the State is dismissing, precisely because these witnesses didn’t
      come forward. As I recall the testimony[, there] was a scene described
      where the defendant had a knife and others are surrounding him and he’s
      allegedly making a statement that he’s going to cause harm to anyone who
      approaches, or confronts, or tries to keep him from leaving the premises. So
      I don’t know that those counts really suggest a policy of over-indicting
      because the officer happened to shoot [Carner]. I would have granted a
      motion Rule 29 on the basis that no one came forward and said, yeah, I felt
      threatened. I was menaced, I was in fear. * * * So I guess I’m not going to
      let you make that sort of ominous argument that we had all these other
      charges and my goodness * * * we took care of them. That shows the
      unfairness of the injustice of the process. So we will go forward with the
      counts that are left.

      {¶16} Based on the above exchange, we do not find that the trial court’s attitude was

unreasonable, arbitrary, or unconscionable. The trial court indicated that it was prepared

to grant a Crim.R. 29 request to dismiss most of the counts because the witnesses did not
come forward. The trial court considered defense counsel’s creative argument, but did not

find that the State over-indicted Carner because Holstein shot Carner. As a result, the trial

court exercised its discretion and determined that defense counsel cannot make that

“ominous argument.”

       {¶17} Accordingly, the first assignment of error is overruled.

                             Ineffective Assistance of Counsel

       {¶18} In the second and fifth assignments of error, Carner challenges the

effectiveness of defense counsel. Carner argues defense counsel was ineffective for

failing to object to the hearsay statements suggesting that Carner lunged at Holstein.

Carner further argues that defense counsel was ineffective for failing to request a waiver of

court costs because Carner was declared indigent.

       {¶19} In order to substantiate a claim for ineffective assistance of counsel, Carner

must demonstrate

       (a) deficient performance (“errors so serious that counsel was not
       functioning as the ‘counsel’ guaranteed the defendant by the Sixth
       Amendment”) and (b) prejudice (‘errors * * * so serious as to deprive the
       defendant of a fair trial, a trial whose result is reliable’). Strickland v.
       Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.
       Accord State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.

State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 30.
       {¶20} In Ohio, a properly licensed attorney is presumed competent. Vaughn v.

Maxwell, 2 Ohio St.2d 299, 209 N.E.2d 164 (1965). In evaluating whether a petitioner

has been denied the effective assistance of counsel, the Ohio Supreme Court held that the

test is “whether the accused, under all the circumstances, * * * had a fair trial and
substantial justice was done.” State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976),

paragraph four of the syllabus. When making that evaluation, a court must determine

“whether there has been a substantial violation of any of defense counsel’s essential duties

to his client” and “whether the defense was prejudiced by counsel’s ineffectiveness.”

State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623 (1976); State v. Calhoun, 86 Ohio St.3d

279, 1999-Ohio-102, 714 N.E.2d 905.         To demonstrate that a defendant has been

prejudiced, the defendant must prove “that there exists a reasonable probability that, were

it not for counsel’s errors, the result of the trial would have been different.” Bradley at

paragraph three of the syllabus.

                                   Hearsay Statements

       {¶21} Carner argues that defense counsel was ineffective for failing to object to

hearsay statements by witnesses who essentially testified that Holstein shot Carner after he

lunged at Holstein. Specifically, Papaleo testified that after the shooting, Carner said to

him, “your partner shot me.” To which Holstein replied, “why did you lung[e] at me.” A

neighbor, Collin Gonzalez, testified that he heard Carner say, “you shot me” and Holstein

reply, “you lunged at me.” Lastly, Perez testified that Carner said, “you shot me” and

Holstein replied, “I told you to drop it.” This exchange occurred within seconds after the

shooting.   The witnesses described Holstein as upset.     He spoke with his voice raised

and was pacing back and forth.     Carner contends that without these hearsay statements,

the only evidence that he lunged at Holstein would be Holstein’s testimony.
       {¶22}    At oral argument, however, appellate counsel conceded that these

statements qualify under the excited utterance hearsay exception.       We note that excited

utterances are excepted from the hearsay rule under Evid.R. 803(2) as long as the

statement relates to a startling event or condition made while the declarant was under the

stress of excitement caused by the event or condition.

       {¶23}    Thus, the second assignment of error is overruled.

                                         Court Costs

       {¶24} Carner next argues that defense counsel was ineffective for failing to request

a waiver of court costs because Carner was declared indigent and assigned counsel.

Carner claims there is a reasonable probability that the court would have granted the

motion if it was requested by defense counsel.

       {¶25} R.C. 2947.23 governs the imposition of court costs and provides in pertinent

part that: “In all criminal cases * * * the judge * * * shall include in the sentence the costs

of prosecution * * * and render a judgment against the defendant for such costs.” The

Ohio Supreme Court has stated that R.C. 2947.23 requires a court to assess costs against

all convicted defendants.”      (Emphasis sic.)     State v. White, 103 Ohio St.3d 580,

2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. Court costs may, however, be waived in the

discretion of the court if the court first determines that the defendant is indigent. Id. at ¶

14. The “indigent defendant must move a trial court to waive payment of costs at the time

of sentencing. If the defendant makes such a motion, then the issue is preserved for appeal

and will be reviewed under an abuse-of-discretion standard. Otherwise, the issue is
waived and costs are res judicata.” State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905,

843 N.E.2d 164, ¶ 23.

          {¶26} In the instant case, the trial court appointed counsel because it declared

Carner indigent in September 2010. At the sentencing hearing, the trial court advised

Carner that it was imposing court costs. The sentencing entry indicates that “defendant is

indigent.     The court appoints the public defenders[’] office for purposes of appeal.

Defendant is to pay court costs.” From this record, we can reasonably determine that

when the trial court sentenced Carner, including ordering him to pay costs, it took into

account his indigent status. As such, we cannot say that there is a reasonable probability

that, but for defense counsel’s errors, the result of the proceeding would have been

different. See State v. Bagwell, 8th Dist. No. 96419, 2011-Ohio-5841 (where this court

found that defense counsel was not ineffective for failing to request a waiver of court

costs).

          {¶27} Thus, the fifth assignment of error is overruled.

                                         Manifest Weight

          {¶28} In the third assignment of error, Carner argues his conviction for felonious

assault on a police officer is against the manifest weight of the evidence.

          {¶29} With regard to a manifest weight challenge, the

          reviewing court asks whose evidence is more persuasive — the state’s or
          the defendant’s? * * * “When a court of appeals reverses a judgment of a
          trial court on the basis that the verdict is against the weight of the evidence,
          the appellate court sits as a ‘thirteenth juror’ and disagrees with the
          factfinder’s resolution of the conflicting testimony. [State v. Thompkins,
       78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997)], citing [Tibbs v. Florida,
       457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)].

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25.

       {¶30} Moreover, an appellate court may not merely substitute its view for that of

the jury, but must find that “‘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.’”     Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 485 N.E.2d 717 (1st Dist.1983).        Accordingly, reversal on manifest weight

grounds is reserved for “‘the exceptional case in which the evidence weighs heavily

against the conviction.’” Id., quoting Martin.

       {¶31} In the instant case, Carner was convicted of felonious assault of a police

officer under R.C. 2903.11(A)(2), which provides in pertinent part: “[n]o person shall

knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a

deadly weapon or dangerous ordnance.”         Furthermore, “[i]f the victim of a violation of

division (A) of this section is a peace officer * * *, felonious assault is a felony of the

first degree.” Id. at (D)(1)(a).

       {¶32} Carner argues that his conviction is against the manifest weight of the

evidence because the testimony of the other officers indicates a concerted effort to

insulate Holstein from responsibility by convicting Carner of felonious assault. He

refers to the fact that no one, other than Holstein, observed Carner’s response to

Holstein’s orders to drop the knife and Perez’s and Papaleo’s testimony about the knife.
          {¶33} In the instant case, Perez testified that when he arrived on the scene, the

knife was within inches of Carner, so Perez kicked it approximately two feet away from

Carner. Papaleo testified that the knife was on the ground and within approximately two

feet of Carner, so he kicked it away from Carner. Papaleo further testified that he kicked it

approximately eight to ten feet away, ending up about a foot from where the grass meets

the driveway. Perez testified, however, that he did not observe Papaleo kick the knife

approximately eight to ten feet.

          {¶34} In State v. Montgomery, 8th Dist. No. 95700, 2011-Ohio-3259, ¶ 10, we

stated:

          A defendant is not entitled to a reversal on manifest weight grounds merely
          because inconsistent evidence was presented at trial. The determination of
          weight and credibility of the evidence is for the trier of fact. The rationale
          is that the trier of fact is in the best position to take into account
          inconsistencies, along with the witnesses’ manner and demeanor, and
          determine whether the witnesses’ testimony is credible. As such, the trier
          of fact is free to believe or disbelieve all or any of the testimony.
          Consequently, although an appellate court must act as a “thirteenth juror”
          when considering whether the manifest weight of the evidence requires
          reversal, it must give great deference to the fact finder’s determination of
          the witnesses’ credibility. (Citations omitted.) Id., quoting State v.
          Blackman, 8th Dist. No. 95168, 2011-Ohio-2262.

          {¶35} While there may have been inconsistencies as to what happened with the

knife, the jury was in the best position to take into account any inconsistencies and

believed Holstein’s testimony that Carner lunged at him with a knife.               Perez and

Papaleo both testified that Holstein said Carner lunged at him.       Moreover, Gonzalez, an

independent witness, testified that he heard three gunshots, and when he looked outside, he

observed Holstein walking around with his hands on his head. He heard Carner yell, “you
shot me, you shot me” and Holstein reply, “you lunged at me.” Accordingly, we cannot

say that 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.”     Martin, 20 Ohio App.3d

at 175, 485 N.E.2d 717.

      {¶36} Thus, Carner’s felonious assault on a peace officer conviction is not against

the manifest weight of the evidence.

      {¶37} Therefore, the third assignment of error is overruled.

                                Merger of Allied Offenses

      {¶38} In the fourth assignment of error, Carner argues the trial court erred by failing

to merge the assault (Count 2), felonious assault (Count 3), and domestic violence (Count

10) counts.

      {¶39} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061,

the Ohio Supreme Court redefined the test for determining whether two offenses are allied

offenses of similar import subject to merger under R.C. 2941.25.1 The Johnson court


      1R.C.   2941.25 governs allied offenses and 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.
expressly overruled State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d 699,

which required a “comparison of the statutory elements in the abstract” to determine

whether the statutory elements of the crimes correspond to such a degree that the

commission of one crime will result in the commission of the other.

         {¶40} The Johnson court held that rather than compare the elements of the crimes

in the abstract, courts must consider the defendant’s conduct. Id. at syllabus. The court

found:

         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. * * *

         If 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.” [State v.] 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. Id. at ¶ 48-50.

         {¶41} In the instant case, a review of the record reveals that there was no discussion

of the merger of allied offenses at sentencing. The Ohio Supreme Court has found that the

failure to merge allied offenses of similar import constitutes plain error.            State v.

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31, citing State v.

Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845. Under Crim.R. 52(B),
“[p]lain errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the court.”

       {¶42} Felonious assault is defined in R.C. 2903.11(A)(1) as follows: “[n]o person

shall knowingly * * * [c]ause serious physical harm to another * * *.” Assault is defined

in R.C. 2903.13(A) as follows: “[n]o person shall knowingly cause or attempt to cause

physical harm to another * * *.” Domestic violence is defined in R.C. 2919.25(A) as

follows: “[n]o person shall knowingly cause or attempt to cause physical harm to a family

or household member.”

       {¶43} In analyzing these three offenses under Johnson, we find that they could be

committed by the same conduct. Simple assault is a lesser included offense of felonious

assault. State v. Tolbert, 60 Ohio St.3d 89, 92, 573 N.E.2d 617 (1991). It follows then

that both offenses could be committed with the same conduct. Similarly, “it is possible to

commit the offenses of felonious assault and domestic violence with the same conduct.”

State v. Sutphin, 8th Dist. No. 96015, 2011-Ohio-5157, ¶ 59, citing Johnson, 128 Ohio

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061.

       {¶44} At oral argument, the State conceded that the assault and domestic violence

counts merge, but not the felonious assault count. The State contends that Carner’s

gestures towards Banks with the knife constitutes a separate act. However, that was not

the State’s theory below. When discussing the dismissal of the felonious assault count at

trial, the State argued that Count 3 “should certainly stay. The jury will be able to touch

and feel the vase. It’s a heavy object that was used as a bludgeon.” Furthermore, in
closing argument, the State relied on the same conduct (Carner fighting with his nephew,

Banks, and hitting Banks in the head with the vase) to support Carner’s convictions for

assault, felonious assault, and domestic violence. “We therefore are ‘compelled to view

the record as it stands in revisiting the issue.’ See State v. Craycraft, 12th Dist. Nos.

CA2009-02-013 and CA2009-02-014, 2011-Ohio-413, ¶ 19.” Sutphin at ¶ 61 (where the

State relied on the same conduct in opening statement and closing argument to prove both

offenses at trial, it cannot then change its theory on appeal).

       {¶45} Based on the record before us, we find that the charges arose from the same

conduct and Carner committed these offenses with a single animus. As a result, the trial

court committed plain error by not merging the assault (Count 2), felonious assault (Count

3), and domestic violence (Count 10) counts for sentencing.

       {¶46} Accordingly, the fourth assignment of error is sustained.            We vacate

Carner’s sentences on Counts 2, 3, and 10, and remand the matter for a sentencing hearing,

at which the State will elect which allied offense it will pursue against Carner. See State v.

Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at paragraphs one and two of

the syllabus.

       {¶47} Accordingly, Carner’s convictions are affirmed, his sentence is vacated in

part, and the matter is remanded for further proceedings on the resentencing of allied

offenses.

       It is ordered that appellant and appellee share the costs herein taxed.

       The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated.

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

Rules of Appellate Procedure.



MARY EILEEN KILBANE, JUDGE

MELODY J. STEWART, P.J., and
COLLEEN CONWAY COONEY, J., CONCUR
