[Cite as State v. Elder, 2011-Ohio-4438.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO

                          Plaintiff-Appellee

-vs-

TRAEVON B. ELDER

                     Defendant-Appellant
       JUDGES:
:      Hon. W. Scott Gwin, P.J.
:      Hon. William B. Hoffman, J.
:      Hon. Sheila G. Farmer, J.
:
:
:      Case No. 2011-CA-00058
:
:
:      OPINION




CHARACTER OF PROCEEDING:                       Criminal appeal from the Richland County
                                               Court of Common Pleas, Case No.
                                               20009CR577H


JUDGMENT:                                      Affirmed


DATE OF JUDGMENT ENTRY:                         September 1, 2011

APPEARANCES:

For Plaintiff-Appellee                         For Defendant-Appellant

JAMES J. MAYER, JR.                            TRAEVON B. ELDER PRO SE
Richland County Prosecutor                     #580-693
By: DANIEL J. BENOIT                           Richland Correctional Institute
30 South Park, 2nd Floor                       Box 8107
Mansfield, OH 44902                            Mansfield, OH 44901-8107

Gwin, P.J.

       {¶1}   Defendant-appellant Traevon B. Elder appeals a judgment of the Court of

Common Pleas of Richland County, Ohio, which overruled his motion for re-sentencing.

Appellant assigns a single error to the trial court:

       {¶2}   “I. TRIAL COURT (sic) ABUSED ITS DISCRETION IN ADOPTING A

CONCLUSION WHICH AFFRONTS STATE V. JOHNSON (2010), 128 OHIO ST. 3d

153’S PROPHYLACTIC PURPOSE.”

       {¶3}   Appellant pled guilty to one count of felonious assault with a firearm

specification and one count of having weapons under disability on December 7, 2009.

The court sentenced him to two years on count one, one year on count two, and three

years on the firearm specification to run concurrently for a total of six years of

incarceration. In April 2011, appellant filed a pro se petition for re-sentencing, arguing

that the offenses of felonious assault and having weapons under disability are allied

offenses and should have been merged for purposes of sentencing. The trial court

denied the petition for resentencing, and this appeal ensued.

       {¶4}   In 2010, the Ohio Supreme Court decided State v. Johnson, 128 Ohio St.

3d 153, 2010-Ohio-6314, 942 N.E. 2d 1061. As appellant asserts, the court found the

purpose of R.C. 2941.25 is to prevent “shotgun convictions”, that is, multiple findings of

guilt and corresponding punishments heaped on a defendant for closely related

offenses arising from the same occurrence. Id at paragraph 43, citation deleted.
       {¶5}     In Johnson, the Ohio Supreme Court crafted a new analysis for courts to

use in determining when two offenses are allied and subject to merger for sentencing.

The court found the statute emphasizes the importance of the defendant’s conduct,

while in the past, the analysis used an abstract comparison of offenses without first

considering the defendant’s actual conduct as established by the evidence.         Id. at

paragraph 42, citation deleted. Under Johnson, if it is possible for multiple offenses to

be committed by the same conduct, then the trial court must determine whether the

offenses in the case before it were committed as part of a single act committed with a

single state of mind. Id. at paragraph 49, citation deleted. Conversely, if the court

determines that the commission of one offense will never result in the commission of the

other, or if the offenses were committed separately, or if the defendant has a separate

animus for each offense, then pursuant to statute, the offenses will not merge. Id.,

paragraph 59.

       {¶6}   Appellant’s argument is that the basis of his conviction for having weapons

under disability was his use of a firearm to commit the felonious assault. He suggests

the two offenses were committed simultaneously with the same animus of causing

physical harm.

       {¶7}   The trial court found the animus of having weapons under disability is

making a conscious choice to possess a weapon. Felonious assault requires a

conscious choice to attack someone using a weapon. The court found the commission

of the two offenses involves separate animi, and the fact a defendant chooses to

assault a victim with a firearm should not and cannot absolve the defendant of the

criminal liability which arises solely from his illegal possession of a weapon.
       {¶8}   We agree with the trial court that the animus for possessing a weapon

under disability is different from the animus for felonious assault. We find the trial court

did not err in rejecting appellant’s argument his convictions for felonious assault and for

weapons under disability should be merged.

       {¶9}   The assignment of error is overruled.

       {¶10} For the foregoing reasons, the judgment of the Court of Common Pleas of

Richland County, Ohio, is affirmed.

By Gwin, P.J., and

Farmer, J., concur

Hoffman, J., concurs

separately

                                              _________________________________
                                              HON. W. SCOTT GWIN

                                              _________________________________
                                              HON. WILLIAM B. HOFFMAN

                                              _________________________________
                                              HON. SHEILA G. FARMER
WSG:clw 0824
Hoffman, J., concurring

       {¶11} I concur in the majority’s analysis and disposition of Appellant’s sole

assignment of error.

       {¶12} I write separately to note I also find Appellant’s alleged error barred by res

judicata because this issue was capable of being raised on direct appeal of the original

sentencing entry.



                                                 ________________________________
                                                 HON. WILLIAM B. HOFFMAN

           IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO

                             FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :
                                             :
                       Plaintiff-Appellee    :
                                             :
                                             :
-vs-                                         :      JUDGMENT ENTRY
                                             :
TRAEVON B. ELDER                             :
                                             :
                                             :
                    Defendant-Appellant      :      CASE NO. 2011-CA-00058




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

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

to appellant.
_________________________________
HON. W. SCOTT GWIN

_________________________________
HON. WILLIAM B. HOFFMAN

_________________________________
HON. SHEILA G. FARMER
