[Cite as State v. Welninski, 2018-Ohio-778.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       WOOD COUNTY


State of Ohio                                           Court of Appeals No.   WD-16-039
                                                                               WD-16-040
        Appellee
                                                        Trial Court No. 15-CR-552
v.                                                                      16-CR-039

Jack Welninski                                          DECISION AND JUDGMENT

        Appellant                                       Decided: March 2, 2018

                                                 *****

        Paul A. Dobson, Wood County Prosecuting Attorney, Thomas Matuszak
        and David T. Harold, Assistant Prosecuting Attorneys, for appellee.

        Mollie B. Hojnicki-Mathieson, for appellant.

                                                 *****

        MAYLE, J.
                                               Introduction

        {¶ 1} In these consolidated appeals, appellant Jack Welninski, appeals a jury

verdict finding him guilty as to two, multiple count indictments. The indictments

describe a course of events that occurred in the early morning hours of December 18,
2015, beginning at a bar in Lucas County, where Welninski pistol-whipped a patron on

the head and then fired his gun, twice. A short time later, Welninski, his wife and his

brother fled from the police into Wood County, where Welninski and his wife engaged in

a gun battle with the police. In the end, Welninski was apprehended, and his wife Erica

Lauro1 committed suicide at the scene.

       {¶ 2} Welninski was found guilty of all charges against him. Many of the charges

carried with it a gun specification and/or a repeat violent offender specification. The

Wood County Court of Common Pleas sentenced him to an aggregate term of 97 years in

prison, 88 years of which are mandatory. Welninski appealed. As set forth below, we

affirm the convictions but we find that the trial court erred when it failed to merge

Welninski’s attempted murder and felonious assault convictions in case No. 15-CR-552

because the two convictions are allied offenses of similar import under R.C. 2941.25.

Accordingly, the judgment of the trial court is reversed, in part, and the matter is

remanded for a limited resentencing in case No. 15-CR-552, where the state will elect

which of these convictions to pursue for sentencing.

                              Facts and Procedural History

       {¶ 3} The following evidence was offered at trial: Welninski, Lauro, and

Welninski’s half-brother, Kenneth (“Kenny”) Maldonado, were traveling from Chicago

to New York on December 17, 2015. After a brief detour to Detroit, they stopped for the



1
  At times during this case, Lauro was also described as Welninski’s “girlfriend.” No
evidence was offered to establish whether the two were married, but Welninski referred
to Lauro as his “wife” throughout this case.
2.
night and rented a room at the Holiday Inn Express in Oregon, Ohio. Once inside the

hotel, Welninski told his brother to go to a nearby restaurant and bring back some food.

When Maldonado returned to report that the restaurant was closed, they decided to eat

out. While Welninski showered, Maldonado looked through his brother’s travel bag and

saw two handguns: a silver one and a black one. While in the room, each consumed one

alcoholic beverage.

       {¶ 4} Around 10:30 p.m., the three left the hotel and walked to a restaurant next

door, Icon’s Bar and Grille, on Navarre Avenue in Oregon. Maldonado testified that he

did not bring a weapon with him to the bar, and, at that time, he did not know if

Welninski or Lauro had one either. While at Icon’s, Maldonado said that each of them

consumed “maybe two shots and a couple of beers.” Video surveillance from the bar and

testimonial evidence established that Welninski and Maldonado were both wearing grey

hooded sweatshirts. Welninski had a number of tattoos that were visible that night.

Maldonado had no visible tattoos and was wearing a baseball hat.

       {¶ 5} Also at Icon’s that evening were Ana Pecina, Jay Davis, and Brandon

Vergara. The three went there together, around 12:40 a.m., now December 18, 2015, to

meet a mutual friend. Within a few minutes of entering the bar, they found their friend.

All but Pecina went to an outdoor patio where smoking was allowed. Pecina used the

restroom, and then began looking for her friends. As Pecina walked throughout the bar

looking for them, she was approached by a man, later identified as Welninski, near the

entrance. Welninski asked for her name, and when she ignored him, he asked again.

Pecina testified that a woman suddenly got “in [Pecina’s] face” and told her “not to be

3.
talking to him” because “he has a wife,” and the woman called Pecina a “bitch.” Silent

video footage captured part of that exchange, including: Pecina walking in front of the

camera; Welninski speaking to somone (who was not within view of the camera); Lauro

physically directing, almost pushing, Welninski out the door; and Welninski continuing

to talk over his shoulder to someone. The video also shows Welninski with his hood

pulled up over his head. At trial, the woman yelling at Pecina was identified as Erica

Lauro, Welninski’s wife.

       {¶ 6} Pecina walked away, in search of her friends and called Jay Davis to ask

where in the bar they were. When Davis answered the call, he could hear a woman, not

Pecina, yelling, “[b]itch, I will beat your ass.” Pecina found her friends outside, on the

patio. The patio is enclosed by a fence that is chest high and has no separate entry, other

than through the bar. Pecina reported that “some girl was trying to fight [me] because the

dude had said ‘hi’ to [me] and [the girl] got mad.” As Pecina was retelling the story,

Lauro, Welninski, and Maldonado were exiting the bar and appeared on the other side of

the patio fence. The argument between the women then resumed. Lauro was described

as “going crazy” and “trying to fight” and “jumping up and down and yelling and

screaming and cussing.”

       {¶ 7} The spat escalated to a physical altercation almost immediately, with

Pecina’s friends (Davis and Vergara) leaned up against one side of the fence, and the

other two men (Welninski and Maldonado) outside of the fence. As described by Davis

and Vergara, one of the men grabbed Vergara and tried to pull him over the fence. The

other man, who was initially holding back Lauro, soon joined in and began punching

4.
Vergara. Vergara’s view was obstructed by his tee-shirt that was pulled up over his head,

but he insisted that he received blows to his torso from two different people. Davis, who

was beside his friend Vergara, tried to free Vergara from the others’ hold and punches.

          {¶ 8} Vergara described feeling “something [hard] hit me on the top of my head.”

Davis testified that the person who was not wearing a baseball hat, i.e. Welninski, was

the one who pulled out a gun and hit Vergara over the head with it. The gun came within

six inches of Davis’ face, and Davis found himself “holding * * * [the] hand [of the

person] with the gun in it and he is aiming it at me [in an] up and down motion.”

          {¶ 9} With Davis’ help, Vergara broke free. Once freed, Vergara grabbed a patio

chair and threw it over the fence at Welninski and Maldonado. According to Vergara, the

two men “stumble[d] back” and “two gunshots * * * were fired.” Davis gave a similar

account. He testified that the chair “[flew] over the gated area and hit [the shooter] in

the face and chest area and he falls, stumbles back, and that is when two rounds are

fired.”

          {¶ 10} At trial, during their direct examination by the state, Pecina, Vergara, and

Davis independently identified Welninski as the person who was responsible for pistol-

whipping Vergara and for firing two shots. Their respective testimony was challenged on

cross-examination. For example, during her direct examination, Pecina testified that the

person with the gun and the person who asked her name earlier were one and the same,

and she identified Welninski as that person. Under cross-examination, Pecina

acknowledged that she told the police that night that the person with the girl inside the

bar was not the person who pistol whipped Vergara. Moreover, she repeated the latter

5.
version just days before trial, when she was interviewed by Welninski’s investigator.

And while Vergara and Davis testified that they told police that the guy with a gray

hoodie and tattoos had pistol-whipped Vergara on the patio, on cross examination they

both acknowledged that neither had told police that the assailant had tattoos.

       {¶ 11} Maldonado also testified. He stated that he was testifying voluntarily, and

not as part of any plea agreement with the state. Maldonado identified his brother as the

one who pistol-whipped Vergara and who fired the gun. As he described the scene,

Maldonado left the bar around 1:30 a.m., which was right after Welninski and Lauro had

left. Once outside, he saw that his brother “had a guy by the shirt and he was like face-

to-face with him saying something to him.” Maldonado moved closer to Lauro, who was

“in a run-in with this girl and I stopped [Lauro] and told her ‘it isn’t worth it.’”

Maldonado watched his brother “let [the man] go” but when the man said something to

Welninski, that is when Welninski “started hitting him - - pulled a gun out and started

hitting him * * * on top of his head.” Maldonado described the gun as the same silver

gun that he had seen in the hotel room. Welninski hit the person two or three times.

Once Maldonado realized what was happening, he “went to pull [his brother] back and

the gun went off in the air when I pulled him back.”

       {¶ 12} After the gun went off, everyone scattered. Vergara, Davis, and Pecina ran

inside, to the kitchen bar, where Davis called 911. After reporting Vergara’s injury,

Davis told the 911 operator that the assailant and two others ran inside the hotel next

door. Vergara received treatment at St. Charles Hospital and was diagnosed with a

concussion. A scar remains on Vergara’s head, along with two indents in his scalp.

6.
       {¶ 13} The incident at Icon’s lasted a little over three minutes, from 1:06 a.m.,

when Pecina called Davis from within the bar, until 1:09 a.m., when Davis called 911.

       {¶ 14} Maldonado felt “scared” when the gun went off and ran to the hotel ahead

of Welninski and Lauro. Back in the room, Welninski started to pack and told

Maldonado that they were leaving. When Maldonado said that he thought they should

stay in the hotel, Welninski “hit [him] in the back of the head with a gun and said ‘we are

leaving.’” Welninski also instructed that Maldonado would drive. Maldonado testified,

“[w]ell, he said we’re leaving and said I was going to drive and I took it that I was going

to drive.”

       {¶ 15} As planned, the three left. Maldonado drove an SUV2 with Lauro in the

front passenger seat and Welninski in the back. At the time, Maldonado did not have a

gun on him. About a mile into the trip, they were pulled over by a police car with

flashing lights. Maldonado turned to his brother, in the back seat, and said that he was

not going to run from the police. Welninski pointed the silver gun at Maldonado and said

that he was “not going back to prison, [and] to drive.” Maldonado “floored the gas” for

about a mile and a half, until they came into a residential neighborhood.

       {¶ 16} Inside the SUV, he recalled Welninski handing Lauro the black handgun

and the two of them saying “we are fucked.” Maldonado backed into a driveway and

turned the lights off. They watched as a police car drove by. Welninski told Maldonado


2
  The vehicle was described as a “Chevy Tahoe” and a “Tahoe Surburban.” Maldonado
testified that it was purple, while two officers described it as red or green. As neither the
ownership, nor the details of the vehicle are at issue in this case, we refer to it simply as
an “SUV” (sport utility vehicle).

7.
to go get a license plate from another vehicle. As Maldonado exited the SUV, Welninski

handed him the silver gun “so the farmers don’t shoot [me].” Maldonado crossed the

street in pursuit of license plates and realized that, without a screw driver, he would not

be able to remove plates from another car. He also heard, what he assumed was a person

on a phone, talking to the police, describing Maldonado’s location. Maldonado “froze”

and then saw two officers running after him. Maldonado ran from front yard to back

yard, over a fence and onto another street, where another police officer was waiting for

him, about ten yards away, gun drawn and directing him to “get on the ground.”

Maldonado laid down flat and said, “Don’t shoot me.” He threw the gun he had been

carrying on the ground.

         {¶ 17} Six police officers testified at trial: Sergeant Kenneth Reno, Sergeant Jeff

Martin, Officer Timothy Stecker, Officer John Kersker, Officer-in-Training Krystal

Steller-Komenick, and Officer Joshua Hannum.

         {¶ 18} The first officer to testify was Sergeant Kenneth Reno of the Oregon Police

Department. Sergeant Reno was one of three officers to respond to a dispatch that shots

had been fired at Icon’s and that there was “a person down in the parking lot with a head

wound.” The dispatcher also reported that “two white males and a Hispanic female had

fled south from Icon’s towards the Holiday Inn.” Sergeant Reno approached Icon’s from

the south, “in hopes of catching the suspects fleeing.” When he didn’t see anybody, he

pulled into Icon’s parking lot. The time was 1:13 a.m. Two patrol cars were already

there.



8.
       {¶ 19} From the parking lot, Sergeant Reno watched an SUV driving through the

parking lot of the Holiday Inn Express without its lights on, at a high rate of speed, before

pulling onto Dustin Road. Sergeant Reno observed “what looked to be two white males

in the front seat,” but he could not identify the driver. Sergeant Reno followed them in

his car, which he reported over his radio. Oregon Police Sergeant Jeff Martin heard the

call and provided back-up. At the time, Sergeant Martin was inside the lobby of the

hotel, looking for the three who had fled Icons. Sergeant Martin had the department’s

police dog with him at the time.

       {¶ 20} Sergeant Reno caught up to the SUV on Coy Road, notified dispatch that

he would be stopping a vehicle, activated the patrol car’s emergency lights, and watched

the SUV pull to the side of the road. Although he had not been given a description of any

vehicle to be looking for, he was suspicious of it because of the proximity in time

between the dispatch and the time he saw it speeding through a parking lot with its lights

off. Understanding that he had been dispatched on a “weapons call,” Sergeant Reno

ordered the driver out of the vehicle, rather than to approach it himself. When he did, the

SUV sped off, to the south. Sergeant Reno communicated to his fellow officers that he

was in pursuit of the SUV. An Oregon Police Patrolman, Officer Timothy Stecker, heard

the call and headed to the area.

       {¶ 21} Sergeant Reno estimated that the SUV accelerated to a speed of about 70

miles per hour in a 35 mile per hour speed zone. Sergeant Reno lost sight of the car when

it ran a stop sign and crossed into Northwood, Ohio in Wood County. Sergeant Reno,

Sergeant Martin, and Officer Stecker scoured the area for approximately 10 minutes from

9.
their respective squad cars. Also in the area were other officers in three patrol cars from

the Northwood Police Department who were responding to a 911 call about a suspicious

person in the neighborhood.

       {¶ 22} From there, events transpired quickly. From their respective squad cars,

Sergeant Reno, Sergeant Martin, and Officer Stecker witnessed Northwood Police

Officer John Kersker and Officer-in-Training Krystal Steller-Kominek chasing “a white

male suspect” (later determined to be Maldonado) on foot. Sergeant Martin described the

person as wearing a white shirt with a dark object in his waistband, running toward him.

Maldonado ran around Sergeant Martin’s vehicle and continued running. Sergeant

Martin got out of his vehicle and gave “multiple warnings” that if Mardonado “didn’t

stop” he would release the dog on him. Maldonado did not stop, and Martin released the

dog, who bit Maldonado in the arm. Maldonado went to the ground and surrendered.

Later, the silver handgun, identified as a .9 millimeter, would be found in the area near

where Maldonado surrendered. While law enforcement officers were focused on

Maldonado, the officers “heard a loud boom.”

       {¶ 23} Sergeant Reno described an “extremely loud gunshot” to the east. Reno

looked and saw “another male suspect holding a sawed-off shotgun.” Reno observed the

gun recoil and smoke exit the barrel. He also noticed that the man, whom he identified in

court as Welninski, was standing outside the driver-side door of the SUV. The car was

backed into a driveway, facing the street.

       {¶ 24} Officer Stecker described the incident similarly. That is, he also watched

as Maldonado attempted to run on foot. To assist the Northwood police officers who

10.
were chasing him, Officer Stecker directed his spotlight on Maldonado. As he was

adjusting the spotlight from within his patrolcar, he heard a “loud boom.” Stecker

testified, “[a]s I am adjusting [my spotlight], a loud explosion, a bright flash of light to

my left. I * * * experience[d] the overpressure of a projectile passing behind my head

and neck.” Overpressure is the air being pushed out of the way by a projectile as it cuts

through the air. The bullet traveled through the open driver-side window, behind

Stecker’s neck and head and penetrated his passenger-side door, exiting the door and

shattering the window.

       {¶ 25} Sergeant Martin, who was parked behind Officer Stecker’s car, about 50

feet away from Welninski, testified that after the first gunshot, “multiple gunshots come

from the other side of the vehicle,” i.e. the passenger-side. Martin’s dash-cam video

indicates that the initial gunshot was immediately followed by two additional gunshots,

also fired from the SUV.

       {¶ 26} Suddenly, all attention turned to the SUV that was parked, backside in, in a

driveway, with its lights off. Officer Stecker, who was the closest to the SUV at a

distance of about 30 feet, fired two rounds from his handgun. As he returned fire, Officer

Stecker noticed two figures retreat behind the SUV. Officer Stecker retrieved his patrol

rifle from the trunk of his vehicle and “pointed it towards the shadows that were moving

behind the car.” Officer Stecker fired three rounds through the windshield of the SUV.

Officer Stecker also ordered Maldonado, who had surrendered in the grass, to “crawl

towards us * * * out of the field of fire * * * for his safety.” On Officer Stecker’s dash-



11.
cam video, Maldonado can be seen crawling through the grass towards the vehicle as

instructed. Officer Stecker asked Officer-in-Training Sellers-Kominek to keep control of

Maldonado.

       {¶ 27} From his location about 75 feet away, Sergeant Reno observed the female

(Lauro) on the passenger side of the SUV, holding a handgun. Sergeant Reno ordered

her multiple times to drop the gun. When she did not, Sergeant Reno fired at her once.

When his gun malfunctioned, Sergeant Reno replaced it with a rifle. He fired a second

shot at Lauro. Lauro returned fire at Reno, and then fled to the rear of the vehicle.

       {¶ 28} Sergeant Martin also fired one round from his issued handgun and observed

Northwood Police Sergeant Genzman also return fire. Sergeant Martin ordered the dog

to run to the back of the SUV, where it attacked Welninski and bit him on the arm.

       {¶ 29} It was described as a chaotic scene, with a lot of talking amongst the

officers and the suspects. Sergeant Reno recalled Welninski yelling that he had a

“hostage,” and Sergeant Reno yelled to his fellow-officers that there was no hostage and

that both suspects were armed. At some point, Sergeant Reno became aware that the

female “went to the pavement” but did not know the cause.

       {¶ 30} Welninski surrendered by walking around the driver’s side of the SUV and

throwing his shotgun “out into the street which bounced off the front of [Officer

Stecker’s] patrol car’s grill” and back onto the street. Officer Stecker’s dash-cam

captured the shotgun sliding along the pavement before it came to a rest. When taken

into custody, Welninski screamed profanity at the officers, spat at them and said, “You

killed my wife, you killed my wife.” Police retrieved two unused shotgun shells from

12.
Welninski’s pockets. In all, 17 minutes elapsed between the time Sergeant Reno began

following the SUV at 1:13 a.m. until Welninski’s surrender at 1:29:31.

       {¶ 31} Officer Kersker found Lauro behind the SUV, on the ground, bleeding

from the head. He checked for a pulse but could not find one.

       {¶ 32} Welninski was taken to the hospital where a bullet was removed from his

right calf. He was also treated for a dog bite on his right forearm. Blood tests revealed

that Welninski’s blood alcohol level was 0.111 percent. He also tested positive for

cocaine and marijuana.

       {¶ 33} Patrolman Joshua Hannum reported to the hospital to transport Welninski

to the Northwood Police Station. While waiting, Officer Hannum observed Welninski on

a gurney with a towel over his head. Officer Hannum assumed Welninski was

unconscious until Welninski announced that he wished he would have killed some cops

and that “[t]he coward pussies killed a 22 year-old girl hiding behind a truck.” Officer

Hannum took Welninski to the police station so that he could be fingerprinted and

booked. While in a temporary holding cell, Welninski made several unsolicited

comments, including, “I ran up to that cop and popped one in his door.” Officer Hannum

observed Welninski say words to that effect “multiple” times and did so with “a slight

smile on his face.” Two audio video clips from the station were also played. In one,

Officer Hannum can be heard conducting an inventory. When he asked Welninski how

much money he had, Welninski replied, “What does my money have anything to do with

it? I shot at a cop.” The second clip was more difficult to hear, but clearly audible was

Welninski’s question to Officer Hannum in which he asked, “[h]ey, did that squad car

13.
even get hit? I didn’t even shoot [inaudible].” Officer Hannum replied that he “had no

idea what happened out there” because he was not at the crime scene. Welninski then

added, “I ran up on that motherfucker [inaudible]. That’s what happened.” On the

witness stand, Officer Hannum testified that Welninski said that he had run up on an

officer and “dumped on him.”

       {¶ 34} The Ohio Bureau of Criminal Investigation (“BCI”) is a branch of the Ohio

Attorney General’s Office that assists local law enforcement agencies conduct criminal

investigations. BCI Agent David Horn arrived at the crime scene at approximately 3:30

a.m. to secure it and to gather evidence. In all, Agent Horn took hundreds of

photographs, many of which he identified at trial.

       {¶ 35} A series of pictures depict Lauro’s dead body near the back, passenger side

of the SUV. Blood stains run from her body toward the front of the car. Pictures of

Lauro’s head indicate a wound to her temple. Next to Lauro is a black weapon, identified

as a “Hi-Point” CF-380 semi-automatic handgun. Agent Horn testified that the position

of the slide on the gun indicates that a round was fired. Also, “red brown staining on the

front of the gun” indicates that the gun was either “in close proximity to a wound” or that

blood was transferred there by hand. Another picture shows a “spent” Winchester .380

shell casing nearby. Inside the open front passenger door is a live, unused shell casing

and a purse.

       {¶ 36} A “Harrington & Richardson” shotgun used by Welninski was also

presented, as was an unused “Remington” 12-guage shell casing that was found behind



14.
the SUV and “wadding” from the shotgun slug, which was found near Officer Stecker’s

cruiser. The wadding separates the gunpowder from the slug. Agent Horn investigated

the weapon and testified it had been fired.

       {¶ 37} Kevin Belcik, also with the BCI, examined and tested the firearms in this

case. According to Belcik, all three weapons (the black .380 semiautomatic that was

recovered near Lauro’s body, the silver Ruger .9-millimeter semiautomatic pistol, that

Maldonado discarded as he ran from the police, and the Harrington & Richardon “sawed

off” shotgun, that Welninski used) were all operable when recovered by police.

       {¶ 38} Vickie Bartholomew is a fingerprint analyst with BCI. Bartholomew

testified that none of the weapons had sufficient ridge details on them to allow a

comparison of fingerprints. In other words, she could not identify who had handled the

weapons, or eliminate anyone as having done so. She testified that “very often we don’t

see positive results for weapons. We often see either negative or insufficient findings.”

       {¶ 39} Special Agent Emahiser identified still shots created from video taken from

Sergeant Reno’s dash-cam. Sergeant Reno’s car was parked behind Officer Stecker’s

vehicle, on the passenger side of the SUV. In three separate, grainy photos, Lauro can be

seen dressed in white shoes and dark pants. In one, she is shown standing next to the

passenger-side door of the SUV. A second shot shows Lauro and a flash of light, thought

to be “the muzzle flash coming from the weapon she’s firing.” A third photo shows her

moving toward the rear of the SUV. A similar dashcam photo was shown from Sergeant




15.
Martin’s vehicle, which was parked on the other side of Officer Stecker’s patrolcar,

further down the street, facing the driver’s side of the SUV. It depicts the muzzle flash

from Welninski’s shotgun blast at Stecker.

       {¶ 40} The actual door of Officer Stecker’s cruiser was presented to the jury, as

were pictures showing a hole in the metal door and the remains of the shattered window.

Part of a spent lead slug that was found in a yard, “in line” with the trajectory of the

bullet was also presented. Also, after the evidence was transported to a secured garage,

the police discovered a second area of damage to the patrol car, caused by a projectile

that was found in the driver’s door. An analysis of the spent bullet revealed that it was

fired from the .380 handgun that was found near Lauro’s body.

       {¶ 41} Agent Emahiser met Welninski and Maldonado at the Northwood Police

Station. Both told Agent Emahiser that they would be willing to talk to him. After they

were transported to the Wood County jail, Welninski told him, “I don’t know why those

cops are saying I shot up those cars, I only shot once.”

       {¶ 42} Agent Emahiser read Maldonado his Miranda rights later in the day on

December 18, 2015. Initially, Maldonado told several lies. For example, he said that

“nothing really occurred” at Icon’s and that no shots had been fired there. He also said

that he had not handled a gun and that it been Welninski who drove away from the hotel

and ignored Officer Reno’s instruction to exit the vehicle. When Agent Emahiser met

with Maldonado a few days later, Maldonado had a lawyer with him. At that time, he

claimed that he had been the one to take a gun to Icons, and had pistol whipped a person

there. During a third interview seven months later, on July 7, 2016, Maldonado said that

16.
it was his brother who had assaulted the patron at Icons. Maldonado testified that he

initially lied because he had been threatened by his uncle, who told him not to say

anything against Welninski or Maldonado would “wish [he] never did.” Maldonado

claimed that he also received a note in jail from Welninski directing Maldonado to accept

a plea for the events that occurred in the bar, and that if he did not, Maldonado “would

get beat up all of the time” in jail. Maldonado decided to tell the truth once prosecutors

assured him that he would be “kept separate” while at the jail. Maldonado testified that

Welninski blames him for Lauro’s death-by-suicide and expected Maldonado to “take the

hit for the charges stemming from the bar.”

       {¶ 43} Maldonado told the jury that his brother told him a “bunch” of times that he

wanted to commit “suicide by cop,” meaning that he would die in a gun fight with police.

Maldonado recounted that Welninski and Lauro saw themselves as a modern day

“Bonnie and Clyde,” the fictional, outlaw couple from the 1960’s movie of the same

name in which the couple die during a gunfight with police.

       {¶ 44} Audio clips from five different jail house phone calls were played for the

jury. Before inmates use the prison phone system at the Wood County Jail, they are

warned that their phone calls are being recorded. The state proffered Welninski as the

speaker in each call, without objection. In the clips, Welninski can be heard stating the

following:

              1. December 18, 2015, to his brother, Bobby: “I didn’t do nothing

       to nobody. I still got her blood all over my hands. * * * I am trying to take

       the charges for Kenny, too, because that was my gun.”

17.
                2. January 22, 2016, to his mother: “Kenny didn’t do nothing. He

       literally had nothing to do with anything. He fucking ran at everything. He

       had nothing to do with anything.”

                3. April 18, 2016, to another brother, Kevin: “Cuz the kid didn’t do

       nothing man. I forced him to drive and everything, right. * * * He didn’t

       know I had a gun on me, but he knew I had a gun, you know what I am

       saying at the hotel. * * * I looked at the pictures. * * * I be looking at this

       shit thinking it’s all my fault.”

                4. May 30, 2016, to brother Bobby: “That fool that I hit in the head

       at the bar. * * * I should have went there and snapped his mother-fucking

       neck.”

                5. June 27, 2016, to brother Bobby: “I said, ‘[t]he only reason that I

       came out and I gave up when everything happened was because I was

       trying to get her help.’ * * * besides that, I would have had a standoff with

       them bitches for hours? You feel me? Fuck’em.”

       {¶ 45} Welninski was indicted in two separate cases. On January 6, 2016, in case

No. 15-CR-552, Welninski was indicted on one count of attempted murder, in violation

of R.C. 2923.02, a felony of the first degree. Attached to this charge were three

specifications: a seven year firearm specification pursuant to R.C. 2941.1412(A); a

repeat violent offender specification pursuant to R.C. 2941.149(A), and a specification

for forfeiture pursuant to R.C. 2941.1417(A). Welninski was also charged with felonious

assault, in violation of R.C. 2903.11(A)(2), a felony of the second degree. Attached to

18.
this charge were two specifications: a seven year firearm specification pursuant to R.C.

2941.1412(A); and a repeat violent offender specification pursuant to R.C. 2941.149(A).

Welninski was arraigned on January 14, 2016, where he entered pleas of not guilty to all

counts.

       {¶ 46} On January 21, 2016, in Case No. 16-CR-039, Welninski was indicted on

six separate counts: receiving stolen property, in violation of R.C. 2913.51(A), a felony

of the fourth degree, carrying a concealed weapon, in violation of R.C. 2923.12(A)(2)

and (F)(1), a felony of the fourth degree; illegal possession of a firearm in a liquor permit

establishment, in violation of R.C. 2923.121(A) and (E), a felony of the third degree;

felonious assault, in violation of R.C. 2903.11(A)(2), a felony of the second degree;

having weapons under disability, in violation of 2923.13(A)(2), a felony of the third

degree, and failure to comply, in violation of R.C. 2921.331(B), a felony of the fourth

degree. Each count carried with it one or more firearm specifications, and the felonious

assault charge carried with it a repeat violent offender specification. Welninski entered

not guilty pleas during his January 22, 2016 arraignment.

       {¶ 47} A three day jury trial began on July 5, 2016. At the start, the state

dismissed the receiving stolen property charge. The jury found Welninski guilty as to all

remaining charges.

       {¶ 48} The court held a separate hearing regarding the repeat violent offender

specifications. The court found that Welninski was convicted of the repeat violent

offender specifications attached to Counts 1 and 2 in case No. 15-CR-552 and Count 4 in



19.
case No. 16-CR-039. The court sentenced Welninski to 97 years in prison, 88 years of

which are mandatory. Welninski was appointed appellate counsel and raises six

assignments of error for our review.

               1. First Assignment of Error: The trial court abused its discretion when it

       sentenced appellant to all firearm specifications in Case Number 16-CR-039.

               2. Second Assignment of Error: The offenses of attempted murder

       and felonious assault are allied offenses of similar import and subject to

       merger.

               3. Third Assignment of Error: Appellant’s convictions are against

       the manifest weight of the evidence.

               4. Fourth Assignment of Error: The trial court erred when it

       prevented appellant from introducing into evidence the co-defendant’s

       proffer, cooperation agreement, and plea of guilty and questioning

       witnesses regarding the same, and by commenting on appellant not

       testifying at trial.

               5. Appellant was denied effective assistance of counsel as

       guaranteed by the United States and Ohio Constitutions.

               6. The trial court erred when it imposed the costs of prosecution

       without consideration of appellant’s present or future ability to pay.

       {¶ 49} We will address the trial-related assignments of error first, followed by the

sentencing-related assignments of error, in the following order: (1) the trial court’s failure

to allow certain evidence relating to Maldonado’s plea bargain and the trial court’s

20.
alleged violation of Welninski’s Fifth Amendment right to remain silent (fourth

assignment of error): (2) whether the convictions are against the manifest weight of the

evidence (third assignment of error); (3) the alleged ineffective assistance of trial counsel

(fifth assignment of error); (4) whether Welninski’s convictions for attempted murder and

felonious assault in case number 15-CR-552 are allied offenses of similar import and

should merge (second assignment of error); (5) whether the trial court abused its

discretion when it sentenced Welninski to all firearm specifications in case number 16-

CR-039 (first assignment of error); and (6) whether the trial court erred by imposing costs

of prosecution without a finding of Welninski’s ability to pay (sixth assignment of error).

                1. Impeachment of Maldonado; Welninski’s Outburst

       {¶ 50} In his fourth assignment of error, Welninski makes two separate arguments.

He argues that the trial court erred when it prevented him from introducing into evidence

Maldonado’s cooperation agreement and plea bargain between Maldonado and the state.

He also argues that the trial court violated his Fifth Amendment right to remain silent by

commenting on his failure to testify. We consider each argument in turn.

       {¶ 51} First, Welninski argues that he “attempted to impeach” Maldonado’s

credibility by questioning Agent Emahiser “regarding [Maldonado’s] plea deal.”

Welninski claims that the trial court “denied * * * his right to elicit testimony from

[Agent Emahiser] regarding these factors.”

       {¶ 52} By way of context, Maldonado, who testified before Emahiser, was also

questioned, albeit briefly, about a plea bargain. During his testimony, the trial court

instructed Welninski’s lawyer not to question Maldonado about the length of any prison

21.
sentence Maldonado faced if convicted of the charges for which he was indicted. On

appeal, Welninski does not challenge that instruction. Instead, his complaint stems from

what occurred later that same day, during his counsel’s cross examination of Agent

Emahiser. While examining Agent Emahiser on the subject of Maldonado’s inconsistent

statements to the police, Welninski’s counsel asked him, “[t]he deal was is that

[Maldonado] was going to get nine years in prison, correct?” [sic] An extensive sidebar

conversation ensued, out of earshot from the jury. At its conclusion, the trial court ruled

that counsel could “talk about a statement that was made in anticipation of a [plea

bargain], but when you talk about specific years A versus B, then you have gone across

the line.” The court then instructed the jury to disregard counsel’s question.

       {¶ 53} Criminal defendants are entitled to cross-examine witnesses as provided by

Evid.R. 611(B), but the scope of cross-examination is a matter within the discretion of

the trial court. See State v. Green, 66 Ohio St.3d 141, 147, 609 N.E.2d 1253 (1993). We

review a trial court's decision to limit the scope of cross-examination under an abuse of

discretion standard. State v. Treesh, 90 Ohio St.3d 460, 480, 739 N.E.2d 749 (2001). An

abuse of discretion is more than an error of judgment; it means that the trial court was

unreasonable, arbitrary, or unconscionable in its ruling. Blakemore v. Blakemore, 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140 (1983).

       {¶ 54} Evidence of a plea agreement between a witness and the state of Ohio is

admissible under Evid.R. 616(A), as a means of demonstrating bias. State v. Drummond,

111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶104, citing State v. Brooks, 75

Ohio St.3d 148, 152, 661 N.E.2d 1030 (1996). Evid.R. 616(A) provides, “Bias,

22.
prejudice, interest, or any motive to misrepresent may be shown to impeach the witness

either by examination of the witness or by extrinsic evidence.” The fact that a witness

pled guilty to lesser charges and to testify against the defendant is sufficient to

demonstrate the witness’ potential to misrepresent the facts. However, “[a] comparison

of the potential penalties under the plea agreement versus the original charges does not

add to this demonstration.” (Emphasis added.) State v. Gresham, 8th Dist. Cuyahoga

No. 81250, 2003-Ohio-744, ¶ 9. Accordingly, a trial court does not err in prohibiting

testimony regarding a witness’ potential penalty. State v. Reed, 10th Dist. Franklin No.

09AP-84, 2009-Ohio-6900, ¶11. (“The trial court did not abuse its discretion by limiting

trial counsel’s attempt to further hammer home [witness’] motive by questioning her in

greater detail about the possible penalties she faced, especially in light of the fact that

appellant was charged with the same offenses.”).

         {¶ 55} Here, the trial court did not prohibit Welninski from eliciting testimony

about the presence of a cooperation agreement or plea bargain, either from witnesses

Maldonado or Emahiser. Rather, it prohibited and struck his counsel’s specific question

as to the number of years Maldonado faced in prison. The trial court’s ruling on this

matter was proper. Accord State v. Price, 9th Dist. Summit No. 28291, 2017-Ohio-4167,

¶ 4-9.

         {¶ 56} Within the fourth assignment of error, Welninski also makes a separate

argument: he complains that the trial court violated his Fifth Amendment right to remain

silent, following an outburst by Welninski during his counsel’s closing argument. We

disagree.

23.
       {¶ 57} During closing arguments, Welninski interrupted his lawyer, Scott Coon,

and blurted out, “Hey, Mr. Coon? I apologize, but I am tired. I did all that shit, find me

guilty on everything. I am saying - -.” The court responded, “Excuse me, this isn’t your

closing argument, sir. It is not the time. You didn’t take the stand and testify, but now

you have to be quiet. You have to be quiet.”

       {¶ 58} We find no merit to Welninski’s argument that the trial court erred in its

directive. Instead, we view the court’s statement that “[y]ou didn’t take the stand and

testify, but now you have to be quiet” as an explanation that Welninski had an

opportunity to testify, that he chose not to testify, and he could not testify now. We do

not think that the court’s statement can be construed as an invitation to the jury to draw

an adverse conclusion from his decision not to testify. In fact, the trial court properly

instructed the jury that Welninski “has a constitutional right not to testify. The fact that

the defendant did not testify must not be considered for any purpose.” We see no

violation of Welninski’s Fifth Amendment right to remain silent.

       {¶ 59} Welninski’s fourth assignment of error is not well-taken.

                         2. The Manifest Weight of the Evidence

       {¶ 60} In his third assignment of error, Welninski argues that his convictions in

case No. 16-CR-039, stemming from the incident at the bar, were against the manifest

weight of the evidence. The central issue in this case was whether Welninski brought a

weapon to Icons, used it to pistol-whip Vergara, and then fired it twice. Welninski

alleged that it was Maldonado, not him, who committed these offenses. Vergara, Pecina,



24.
Davis, and Maldonado testified that it was Welninski. The jury chose to believe the

testimony of these four eyewitnesses rather than Welninski.

       {¶ 61} In determining whether a verdict is against the manifest weight of the

evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997). We review the entire record, weigh the evidence and all reasonable

inferences, and consider the credibility of witnesses. Id. Additionally, we 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.” Id. We reverse a conviction on manifest weight grounds for only the

most “exceptional case in which the evidence weighs heavily against the conviction.”

Thompkins at 387. “’[I]t is inappropriate for a reviewing court to interfere with factual

findings of the trier of fact * * * unless the reviewing court finds that a reasonable juror

could not find the testimony of the witness to be credible.’” State v. Miller, 6th Dist.

Lucas No. L-08-1056, 2009-Ohio-2293, ¶ 21, quoting State v. Brown, 10th Dist. Franklin

No. 02AP-11, 2002-Ohio-5345, ¶ 10.

       {¶ 62} Welninski argues that the jury should not have believed Vergara, Pecina,

and Davis because, according to Welninski, they “all testified similarly, specifically in

their inconsistencies with respect to the identification of the individual who produced the

weapon, hit Mr. Vergara on head [sic], and discharged the weapon at the bar.”

       {¶ 63} During their direct examination, all three witnesses identified Welninski as

the person who was responsible for pistol whipping Vergara and for firing two shots at

the bar. Although neither Vergara nor Davis initially told police that the assailant had

25.
tattoos, at trial they both testified that the assailant had visible tattoos. And Pecina

admitted on the witness stand that she had made out-of-court statements, including to the

police, that the person who asked for her name inside the bar (i.e. Welninski) was not the

person who pistol whipped Vergara, while at trial she testified that they were the same

person.

       {¶ 64} Welninski also challenges the credibility of Maldonado. He says that

Maldonado’s testimony was “self-serving and not credible” because he “greatly

contradicted” himself in the multiple statements he gave to police. Maldonado explained

the discrepancies by stating that he had been threatened by both his uncle and Welninski,

and he decided to tell the truth after prosecutors assured him that he would be “kept

separate” while in jail.

       {¶ 65} A conviction is not against the manifest weight of the evidence solely

based upon inconsistent or contradictory testimony. State v. Wade, 8th Dist. Cuyahoga

No. 90029, 2008-Ohio-4574, ¶ 38, citing State v. Asberry, 10th Dist. Franklin No. 04AP-

1113, 2005-Ohio-4547, ¶ 11; see also State v. Mann, 10th Dist. Franklin No. 10AP-1131,

2011-Ohio-5286, ¶ 37 (“While the jury may take note of the inconsistencies and resolve

or discount them accordingly, * * * such inconsistencies do not render defendant’s

conviction against the manifest weight or sufficiency of the evidence.”). The decision

whether, and to what extent, to believe the testimony of a particular witness is “within the

peculiar competence of the factfinder, who has seen and heard the witness.” State v.

Johnson, 8th Dist. Cuyahoga No. 99822, 2014-Ohio-494, ¶ 54. Moreover, even though

some discrepancies do exist, “’eyewitness identification testimony alone is sufficient to

26.
support a conviction so long as a reasonable juror could find the eyewitness testimony to

be credible.’” State v. Robinson, 8th Dist. Cuyahoga No. 100126, 2014-Ohio-1624, ¶ 12,

quoting Johnson at ¶ 52; State v. Jordan, 10th Dist. Franklin No. 04AP-827, 2005-Ohio-

3790, ¶ 14. “‘The reliability of properly admitted eyewitness identification, like the

credibility of the other parts of the prosecution’s case is a matter for the jury.’” State v.

Roper, 9th Dist. Summit No. 20836, 2002-Ohio-7321, ¶ 55, quoting Foster v. California,

394 U.S. 440, 443, 89 S.Ct. 1127, 22 L.Ed.2d 402 (1969).

         {¶ 66} We cannot say that the jury lost its way in believing Vergara, Pecina,

Davis, and Maldonado despite the slight inconsistencies in their testimony. Indeed, the

jury also heard Welninski’s own confession to the crime (“That fool that I hit in the head

at the bar. * * * I should have went there and snapped his mother-fucking neck”), which

is certainly consistent with the eyewitnesses who testified that it was Welninski who

pistol-whipped Vergara and then discharged his firearm.

         {¶ 67} Accordingly, we find that Welninski’s third assignment of error is not well-

taken.

                         3. Ineffective Assistance of Trial Counsel

         {¶ 68} In Welninski’s fifth assignment of error, he claims that he was denied

effective assistance of counsel at trial. The Sixth Amendment right to counsel exists “in

order to protect the fundamental right to a fair trial.” Strickland v. Washington, 466 U.S.

668, 684, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove a claim of ineffective

assistance of counsel, a defendant must show that: (1) counsel's performance was



27.
deficient and (2) the deficient performance prejudiced the defense. State v. Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs one and two of the syllabus, citing

Strickland at 688.

       {¶ 69} A reviewing court must determine whether trial counsel’s assistance fell

below an objective standard of reasonable advocacy. Bradley at 141-142. Moreover, the

deficient performance must have been so serious that, “were it not for counsel’s errors,

the result of the trial would have been different.” Id. at 141-142.

       {¶ 70} Welninski cites three instances of ineffective assistance of counsel. He

claims that trial counsel was ineffective because (1) counsel did not request a

psychological examination of Welninski; (2) counsel did not seek a curative instruction

after Welninski’s outburst during his counsel’s closing argument; and (3) counsel did not

object to testimony by Agent Emahiser regarding Maldonado’s credibility.

       {¶ 71} First, Weninski argues that that, “[g]iven the extreme nature of the alleged

charges and potential penalties,” his counsel should have requested a psychological

examination for purposes of determining his criminal responsibility and competency to

stand trial. Welninski claims that it would have been appropriate for counsel to request a

psychological examination because Welninski participated in high-speed chase, shot at a

police officer, and participated in conduct that lead to the death of his “girlfriend.” We

find no merit to Welninski’s argument.

       {¶ 72} Welninski’s attempt to avoid capture through a high-speed chase with law

enforcement indicates an understanding of wrongfulness which, as a matter of law, does

not support a not guilty by reason of insanity (“NGRI”) defense. State v. Myers, 10th

28.
Dist. Franklin No. 09AP-926, 2010-Ohio-4602, ¶ 17, citing State v. Saleh, 10th Dist.

Franklin No. 07AP-431, 2009-Ohio-1542, ¶ 86 (Engaging in furtive conduct is reflective

of a consciousness of guilt.). In addition, Welninski’s expressions of remorse (“I still got

her blood all over my hands” and “[T]his shit [is] all my fault”) demonstrate his

understanding of right from wrong, the antithesis to a NGRI defense. Counsel’s

“[f]ailure to pursue * * * a defense strategy is only deficient performance when the facts

and circumstances show that a plea of not guilty by reason of insanity would have had a

reasonable probability of success.” State v. Hawkins, 8th Dist. Cuyahoga No. 102185.

2015-Ohio-3140, ¶ 8. Here, because there is no indication in the record that a NGRI

defense would have been successful or that there was any reason to believe that

Welninski was not competent to stand trial, counsel did not err by not requesting a

psychological examination.

       {¶ 73} Next, Welninski claims that his counsel was ineffective for failing to seek a

curative instruction after his outburst during closing arguments (“Hey Mr. Coon? I

apologize, but I am tired. I did all of this shit, find me guilty of everything.”). Counsel’s

decision-making as to whether to seek a curative instruction falls within the ambit of trial

strategy, which “must be accorded deference and cannot be examined through the

distorting effect of hindsight.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815,

848 N.E.2d 810, ¶ 115. When challenging counsel’s trial strategy through an ineffective-

assistance claim on appeal, “the appellant must overcome the ‘strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance * *



29.
*.’” State v. Lawson, 64 Ohio St.3d 336, 341, 595 N.E.2d 902 (1992) quoting Strickland,

466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Leonard, 104 Ohio St.3d 54,

2004-Ohio-6235, 818 N.E.2d 229, ¶ 146.

       {¶ 74} Welninski does not overcome the “strong presumption” that his attorney’s

decision not to seek a curative instruction was reasonable. Welninski does not articulate

what the curative instruction should have been, or how such an instruction would have

cured the impact of his outburst. We also agree with the state that such a request may

have only served to draw further attention to Welninski’s comment, thereby doing more

harm than good. Moreover, even if we assume that Welninski’s counsel erred by failing

to seek a curative instruction, Welninski invited that error, and any resulting prejudice,

himself. “Under the invited-error doctrine, a party will not be permitted to take advantage

of an error which he himself invited or induced the trial court to make.” State ex rel.

Bitter v. Missig, 72 Ohio St.3d 249, 254, 648 N.E.2d 1355 (1955). The invited error

doctrine precludes Welninski from taking advantage of any prejudice that resulted from

his own “outbursts and interruptions.” State v. Gonzalez, 4th Dist. Athens No. 97CA52,

1998 Ohio App. LEXIS 5510 (Nov. 18, 1998).

       {¶ 75} Finally, Welninski argues that his counsel was ineffective for failing to

object to testimony from Agent Emahiser regarding Maldonado’s credibility, because

“the opinion of a witness as to whether another witness is being truthful is inadmissible.”

State v. Pruett, 8th Dist. Cuyahoga No. 101471, 2015-Ohio-1377. He claims that the

testimony was particularly damaging in this case because it was offered by a law



30.
enforcement officer who is more likely to be perceived by a jury as an expert on the

subject of whether a person is being truthful.

       {¶ 76} Welninski complains about a single line of testimony, italicized below,

which Agent Emahiser provided during cross-examination by Welninski’s attorney:

              Q: But, you believed what [Maldonado] was telling you, otherwise,

       you wouldn’t have played any part in bringing him in to perger testimony

       would you?

              A: I would say it is my opinion that he wasn’t being completely

       consistent.

              Q: But, yet you were going to call him as a witness in this trial?

              A: Because that is his testimony, that is what he is saying is truthful.

              ***

              Q: So, apparently, there are parts of his story that the prosecutor

       didn’t like, was that your impression?

              A: There were parts of his story that we didn’t believe were truthful.

       {¶ 77} We disagree with Welninski that Agent Emahiser testified that Maldonado

was being truthful. Rather he simply stated that Maldonado’s testimony “is what

he”―meaning Maldonado―“is saying is truthful.” Regardless, as discussed,

Welninski’s conviction for the felonious assault at Icon’s bar was based upon a

significant amount of evidence beyond Maldonado’s testimony, including the testimony

of three other eyewitnesses and Welninski’s own jailhouse confession. In light of the



31.
other evidence, Welninski cannot show a reasonable probability that, but for the

admission of Agent Emahiser’s allegedly improper statement, he would not have been

convicted of the crimes that occurred at Icon’s bar.

         {¶ 78} Welninski’s fifth assignment of error is not well-taken.

                           4. Allied Offenses of Similar Import

         {¶ 79} In his second assignment of error, Welninski argues that his attempted

murder and felonious assault convictions in case Number 15-CR-552, stemming from the

shoot-out with police, are allied offenses of similar import and the two convictions should

have merged at the sentencing phase under R.C. 2941.25. For the reasons that follow, we

agree.

         {¶ 80} The Double Jeopardy Clause of the Fifth Amendment to the U.S.

Constitution, applicable to the state through the Fourteenth Amendment, “protects against

three abuses: (1) ‘a second prosecution for the same offense after acquittal,’ (2) ‘a second

prosecution for the same offense after conviction,’ and (3) ‘multiple punishments for the

same offense.’” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10,

quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656

(1969), overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201,

104 L.Ed.2d 865 (1989). R.C. 2941.25 codifies the Double Jeopardy Clause’s third

protection, which prohibits multiple punishments for the same offense. The statute

prohibits multiple convictions for “allied offenses of similar import” arising out of the

same conduct. R.C. 2941.25 states:



32.
              (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.

       {¶ 81} “At its heart, the allied-offense analysis is dependent upon the facts of a

case because R.C. 2941.25 focuses on the defendant’s conduct.” Ruff at ¶ 26. This

means that the “analysis may be sometimes difficult to perform and may result in varying

results for the same set of offenses in different cases. But different results are

permissible, given that the statute instructs courts to examine a defendant’s conduct―an

inherently subjective determination.” Id. at ¶ 32.

       {¶ 82} In Ruff, the Supreme Court of Ohio announced that whenever a court

considers whether there are allied offenses that merge into a single conviction, the court

“must first take into account the conduct of the defendant. In other words, how were the

offenses committed?” Id. at ¶25. When considering this overarching question, the court

must address three sub-questions: (1) Were the offenses “dissimilar in import,” meaning

did the offenses involve either separate victims or “separate and identifiable” harm? (2)

Were the offenses committed separately? and (3) Were the offenses committed with

33.
separate animus? Id. at ¶ 23-25. “An affirmative answer to any of the above will permit

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

(Emphasis added.) State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266,

¶ 12. The defendant bears the burden to establish that R.C. 2941.25 prohibits multiple

punishments. State v. Washington, 137 Ohio St.3d 427, 2013-Ohio-4982, 999 N.E.2d

661, ¶18, citing State v. Mughni, 33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987).

       {¶ 83} We review de novo a trial court’s ruling as to whether convictions merge

under the allied-offenses doctrine. State v. Corker, 10th Dist. Franklin No. 13AP-264,

2013-Ohio-5446, ¶ 28, citing State v. Roush, 10th Dist. Franklin No. 12AP-201, 2013-

Ohio-3162, ¶ 47.

       {¶ 84} Here, Welninski was convicted of attempted murder, in violation of R.C.

2923.02(A) (“No person shall purposefully cause the death of another”) and felonious

assault “by means of a deadly weapon * * * to wit: High Point Model CF .380 cal

handgun” in violation of R.C. 2903.11(A)(2). (“No person shall knowingly * * * cause

or attempt to cause physical harm to another * * * by means of a deadly weapon”). As

stated in the indictment, the sole victim of both crimes was Officer Stecker.

       {¶ 85} Various eye-witness testimony combined with police dash-cam video

establishes that the two offenses occurred in the following manner: shortly after

Maldonado surrendered to police, three shots were fired from the parked SUV at Officer

Stecker, who was sitting in his parked patrol car. The shots were fired by Welninski and

Lauro as they were standing on either side of the SUV. Welninski used a Harrison &

Richardson 12 gauge shotgun, and Lauro used a High Point Model CF .380 caliber

34.
handgun. The state argued, and proved, that when Welninski and Lauro shot at Officer

Stecker with their respective weapons, they were acting in concert to grievously

injure―and hopefully kill―Officer Stecker. Welninski was convicted of attempted

murder for firing his own shotgun at Officer Stecker, and he was convicted of felonious

assault for acting as Lauro’s accomplice when she fired her .380 caliber handgun at

Officer Stecker.

       {¶ 86} The state argues that these two convictions cannot merge because the

felonious assault conviction was based on aiding and abetting charges―which, according

to the state, means separate conduct and separate animus. The state claims that because

complicity between Welninski and Lauro was argued, proven, and instructed upon,

Welninski could be convicted and sentenced for both attempted murder and felonious

assault because “two separate shots from the two separate weapons wielded by two

separate shooters created separate animi.”

       {¶ 87} The state’s argument, however, is inherently illogical given that

Welninski’s complicity conviction under R.C. 2923.03 required the state to prove that

Welninski and Lauro shared the same animus. State v. Johnson, 93 Ohio St.3d 240, 734

N.E. 2d 796 (2001), syllabus (“To support a conviction for complicity by aiding and

abetting pursuant to R.C. 2923.03(A)(2), the evidence must show that the defendant

supported, assisted, encouraged, cooperated with, advised or incited the principal in the

commission of the crime, and that the defendant shared the criminal intent of the

principal.”) (Emphasis added). Moreover, because Welninski was convicted as an

accomplice to Lauro’s felonious assault of Officer Stecker, the law imputes the elements

35.
of that offense to Welninski and treats him as though he had pulled the trigger himself.

See State v. Thompson, 10th Dist. Franklin No. 10AP-593, 2011-Ohio-6725 ¶ 1 (“[T]he

law will impute the elements of the offense committed by the principal actor to the

accomplice as an aider and abettor, as if the accomplice had committed those acts.”);

State v. Jackson, 90 Ohio App.3d 702, 705, 630 N.E.2d 414 (6th Dist.1993) (The law will

treat an accomplice as though the accomplice had committed every act of the underlying

principal offense.).

       {¶ 88} Thus, contrary to the state’s argument, Welninski’s felonious assault

conviction was not necessarily “committed separately” or “with a separate animus” under

the Ruff test just because that conviction was based on complicity charges. Rather,

because Lauro’s conduct and intent are both imputed to Welninski as a matter of law, we

must analyze the joint conduct of Welninski and Lauro―who were acting in concert to

grievously injure or kill Officer Stecker―to determine whether, under the facts of this

case, the two offenses of attempted murder and felonious assault were of dissimilar

import, committed separately, or committed with separate animus.

       {¶ 89} In considering the first prong of the Ruff analysis, i.e. whether the

convictions were of dissimilar import, we must determine whether the two offenses

involved separate victims or “separate and identifiable” harm. Ruff, 143 Ohio St.3d 114,

2015-Ohio-995, 34 N.E.3d 892, at ¶ 23. Both parties agree that the two offenses do not

involve multiple victims; the only victim was Officer Stecker.3 In addition, given that all


3
 At a certain point during the gunfight, Lauro turned her gun and shot at Sergeant Reno.
The felonious assault charge against Welninski, however, is not based on Lauro’s
36.
of the fired bullets missed Officer Stecker, the resulting harm was identical. There is no

way to identify any separate harm that resulted from each missed shot.4 See State v.

Anthony, 8th Dist. Cuyahoga No. 101847, 2015-Ohio-2267 (Concluding that the offenses

of involuntary manslaughter and felonious assault were of similar import because the

defendant killed the victim by stabbing him four times and there was nothing in the

record to distinguish between the fatal and non-fatal stab wounds.) We therefore find

that the two offenses were not of dissimilar import.

       {¶ 90} Next, we consider the second and third prongs of the Ruff

analysis―whether the offenses were committed separately or with a separate


separate assault against Reno. The indictment against Welninski lists Officer Stecker as
the sole victim of the felonious assault charge.
4
  In this regard, the instant case is distinguishable from State v. Williams, 124 Ohio St.3d
381, 2010-Ohio-147, 922 N.E.2d 937, which, in any event, was decided under the now-
overruled standard of State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d
181, ¶ 3 that previously required courts “to compare the elements of offenses in the
abstract without considering the evidence in the case” to determine whether offenses are
allied offenses of similar import. In Williams, the defendant fired two shots, one bullet
missed the victim and the other paralyzed him. The state charged the defendant with two
counts of felonious assault under R.C. 2903.11(A)(1) and (A)(2), and two counts of
attempted murder under R.C. 2903.02(A) and (B) and the attempt statute R.C. 2923.02.
After comparing the elements of the crimes, the court concluded that the two counts
relating to the bullet that paralyzed the victim were allied offenses based on a comparison
of R.C. 2903.11(A)(1) and R.C. 2903.02(B), and the two counts relating to the missed
bullet were allied offenses based on a comparison of R.C. 2903.11(A)(2) and R.C.
2903.02(A). Id. ¶ 23-27. The Williams court did not consider the defendant’s conduct or
otherwise rely upon any facts in the record other than the fact that one bullet injured the
victim and one bullet missed. Although we believe that Williams is no longer good law
in light of Ruff’s subsequent pronouncement that courts “must first take into account the
conduct of the defendant,” Ruff at ¶ 25, we mention the case because we recognize that it
may be possible to distinguish “separate and identifiable” harm in a case, unlike this one,
where two bullets are fired but only one physically injures the victim. In contrast, all of
the fired bullets missed Officer Stecker and, therefore, there is no “separate and
identifiable harm” in this case.
37.
animus―together. In State v. Woods, 6th Dist. Lucas Co. L-13-1181, 2014-Ohio-3960,

we recognized:

              Separate conduct or separate animus may occur when a court

       determines the ‘defendant at some point broke ‘a temporal continuum

       started by his initial act.’’* * * Alternatively, a separate conduct or animus

       may exist when ‘facts appear in the record that ‘distinguish the

       circumstances or draw a line of distinction that enables a trier of fact to

       reasonably conclude separate and distinct crimes were committed. (Internal

       citations omitted) Id. at ¶35 quoting State v. Nuh, 10th Dist. Franklin No.

       10AP-31, 2010-4740, ¶ 16.

       {¶ 91} Here, we cannot say that Welninski broke a “temporal continuum” or that

any facts allow us to “distinguish the circumstances or draw a line of distinction”

between the felonious assault and attempted murder of Officer Stecker. The evidence

establishes that Welninski fired one shot at Officer Stecker from his position at the

driver-side door of the SUV, and then Lauro fired two shots at Officer Stecker from her

position at the passenger-side door of the SUV. The police dash-cam video demonstrates

that these three shots, although fired from two different guns,5 were fired in rapid

succession, from the same location, and at the same target. Some Ohio courts have

recognized that “a perpetrator’s discharge of gunshots in rapid succession either


5
  As we discussed earlier, because Welninski was convicted for his complicity in Lauro’s
felonious assault of Officer Stecker, it was established that Welninski and Lauro shared
the same criminal intent and the law treats Welninski as if he actually fired the two
additional, quick-fire shots from the High Point Model CF .380 caliber handgun.

38.
constitutes a single continuous act or is evidence of a single animus to harm the victim* *

*.” State v. Jackson, 1st Dist. Hamilton No. C-090414, 2010-Ohio-4312, ¶ 25; State v.

Norris, 8th Dist. Cuyahoga No. 102104, 2015-Ohio-2857 ¶ 21 (finding merger was not

appropriate because that case “d[id] not involve the quick firing of all of the gunshots at

the same location in an unbroken succession”).

       {¶ 92} For example, in State v. Gandy, 1st Dist C-070152, 2010-Ohio-2873, the

defendant approached the victim on the street, told him to “strip” and before he could

respond, the defendant shot the victim three times. Witnesses confirmed that “the

shooting had happened quickly.” Id. at ¶ 10. The defendant was convicted and sentenced

separately for attempted murder and two felonious-assault offenses. The court of appeals

found that the trial court erred in sentencing the defendant for three separate offenses. It

held that “because the shooting involved [the defendant’s] discharge of three bullets into

a single victim in rapid succession, the offenses cannot be said to have been committed

separately or with a separate animus as to each.” Id. at ¶ 11.

       {¶ 93} Cases involving the analogous scenario of multiple stab wounds are also

instructive. In State v. Anthony, 8th Dist. Cuyahoga No. 101847, 2015-Ohio-2267, the

defendant stabbed the victim four times in the back, and the victim died. The defendant

was convicted of involuntary manslaughter and felonious assault, and the court of appeals

found that the trial court erred in failing to merge the two convictions. The appellate

court first found that there was no “separate and identifiable harm” because there were no

facts in the record to distinguish between the fatal and non-fatal stab wounds. Id. at ¶ 49.

The court then turned to the next prong of the analysis under R.C. 2941.25, and noted that

39.
“just because there were multiple stabbings does not make it separate and distinct for

purposes of our analysis.” Id. at ¶ 51. The court ultimately concluded that there were no

facts to establish “a break in a ‘temporal continuum’ between the initial stabbing and the

final stabbing such that we could find that there were separate acts or separate animus,”

nor were there any facts in the record to “‘distinguish the circumstances or draw a line of

distinction that enables a trier of fact to reasonably conclude separate and distinct crimes

were committed.’” Id. at ¶ 50 quoting State v. Roberts, 180 Ohio App.3d 666, 2009-

Ohio-298, 906 N.E.2d 1177, ¶14 (3d Dist.).

       {¶ 94} Similarly, in State v. Craig, 4th Dist. Athens No. 15CA22, 2017-Ohio-

4342, ¶ 26, the defendant stabbed the victim three times in rapid succession, and the court

found that the defendant’s convictions for attempted murder and felonious assault should

merge because “there are no details to establish that there was a break in the continuum

of events between the initial stabbing and the final stabbing.”

       {¶ 95} In contrast to these cases, merger is not warranted where―unlike here―the

facts establish a clear break in the temporal continuum. For example, in State v. Norris,

8th Dist. Cuyahoga No. 102104, 2015-Ohio-2857, the issue was whether the defendant’s

convictions for murder and felonious assault should merge as allied offenses of similar

import. The facts in that case established that the defendant first fired his gun at the

victim in the street, but the gun was jammed and did not go off. The victim ran while the

defendant cleared the jam from the gun. The defendant then chased the victim through

the neighborhood, shot at him a second time, and killed him. The court found merger

was inappropriate because that case “d[id] not involve the quick firing of all of the

40.
gunshots at the same location in an unbroken succession.” Id. at ¶ 21. Rather, there was

“a break in which [the defendant] cleared the jam from the gun [and] then pursued [the

victim] to a new location and fatally shot him there.” Id. at ¶ 21.

       {¶ 96} Similarly, in State v. Jackson, 1st Dist. Hamilton No. C-090414, 2010-

Ohio-4312, ¶ 27, the defendant shot the victim once during a fistfight, fled the scene, and

then returned to fire one, fatal shot “to finish [him] off.” The court concluded that the

defendant’s conduct supported separate convictions for murder and felonious assault,

stating that “we are persuaded that the evidence supports the conclusion that he had

knowingly caused serious physical harm to [the victim] with the first shot but that he had

a more malevolent goal for the second shot.” Id.

       {¶ 97} And in State v. Hayes, 9th Dist. Summit No. 26388, 2013-Ohio-2429, the

court found that the defendant’s three separate gunshots supported three separate

felonious assault convictions, and the trial court did not err in sentencing the defendant

on all three counts, because the defendant “fired in three distinct directions, one of which

covered the back entrance, one of which covered the front, and one of which could have

covered either, depending on how far a person had walked.” Id. at ¶ 35. The court found

this demonstrated separate animus for each shot, and distinguished that case from those

that involve “[t]he discharge of multiple gunshots in quick succession.” Id. at ¶ 33. The

court observed that the defendant did not “simply discharge [the gun] three times in the

same direction.” Id. at ¶ 35.

       {¶ 98} Turning back to this case, we find that unlike Norris, Jackson, and Hayes,

we cannot say that Welninski broke a temporal continuum after his initial shot at Officer

41.
Stecker, nor do we find any facts in the record that “distinguish the circumstances or

draw a line of distinction” that is sufficient to identify separate conduct or any separate

animus that would support a conviction for attempted murder as opposed to felonious

assault, or vice versa. Rather, we find this case more analogous to Gandy, Anthony, and

Craig because this case involves the rapid discharge of three bullets, all fired from the

same location of the parked SUV, and all fired at the same victim: Officer Stecker. And

given that all of the bullets missed their intended victim, there is no way to differentiate

them. Moreover, when Welninski and Lauro fired these three, quick-fire shots from the

same location and in the same direction at Officer Stecker, it is undisputed that they were

acting with a single animus. As the state itself recognizes, “[they] were acting in concert

to grievously injury[sic]―and hopefully kill―Patrolman Timothy Stecker.” Finally, the

police dash-cam video confirms that the two guns6 were fired in rapid succession. There

was simply no break in the sequence of events to support a finding that any of the three

shots were fired with separate conduct or with a separate animus to kill, versus seriously

injure, Officer Stecker.

       {¶ 99} Accordingly, we find that Welninski’s separate convictions of attempted

murder and felonious assault are allied offenses of similar import and should have been




6
 Again, under the circumstances of this case, the fact that the shots were fired from two
guns held by two different people is immaterial. Because Welninski was convicted for
his complicity in Lauro’s felonious assault of Officer Stecker, it was established that
Welninski and Lauro shared the same criminal intent, and the law treats Welninski as if
he actually fired both guns at Officer Stecker.

42.
merged under R.C. 2941.25. Welninski’s second assignment of error is well-taken, and

the judgment of the trial court is reversed and remanded for a limited resentencing where

the state will elect which conviction to pursue for sentencing.

                                5. Firearm Specifications

       {¶ 100} Welninski’s first assignment of error challenges the trial court’s decision

to impose consecutive sentences as to each and every firearm specification for which he

was convicted in case number 16-CR-039. That case involved the events that occurred at

Icon’s and the traffic stop thereafter.7 Welninski was convicted of five felonies in that

case: carrying a concealed weapon, illegal possession of a firearm in a liquor permit

premises, felonious assault, having weapons while under disability, and failure to comply

with an order or signal of a police officer. As to each of those five felonies, Welninski

was convicted of a 1 year firearm specification, pursuant to R.C. 2941.141(A) (“[T]he

offender had a firearm on or about the offender’s person or under the offender’s control

while committing the offense.”) As to three of those felonies (illegal possession of a

firearm, felonious assault, and having weapons while under disability), Welninski was

convicted of a 3 year firearm specification pursuant to R.C. 2941.145(A) (“[T]he

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




7
  Welninski does not challenge the gun specifications or the repeat violent offender
specifications attached to his attempted murder and felonious assault convictions in case
No. 15-CR-552, nor does he challenge the repeat violent offender specification attached
to his felonious assault conviction in case No. 16-CR-039.

43.
that the offender possessed the firearm, or used it to facilitate the offense.”). The trial

court ordered that all of the specifications be served consecutively to any other prison

terms imposed.

       {¶ 101} A specification is a sentencing enhancement, not a separate criminal

offense. State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, ¶ 16.

According to R.C. 2929.14(B)(1)(b), a trial court is ordinarily prohibited from imposing

more than one prison term for multiple firearm specifications associated with felonies

that were committed as part of the same act or transaction unless R.C. 2929.14(B)(1)(g)

applies. R.C. 2929.14(B)(1)(g) serves as an exception to the rule that multiple firearm

specifications must be merged for purposes of sentencing when the predicate offenses

were committed as a single criminal transaction. It provides:

              If an offender is convicted of * * * two or more felonies, if one or

       more of those felonies are * * * felonious assault, * * * and if the offender

       is convicted of * * * a specification of the type described under division

       (B)(1)(a) of this section in connection with two or more of the felonies, the

       sentencing court shall impose on the offender the prison term specified

       under division (B)(1)(a) of this section for each of the two most serious

       specifications of which the offender is convicted * * * and, in its discretion,

       also may impose on the offender the prison term specified under that

       division for any or all of the remaining specifications. (Emphasis added.)

       {¶ 102} Because Welninski was found guilty of two or more felonies, including

felonious assault, and the felony counts contained firearm specifications, the trial court

44.
was mandated by R.C. 2929.14(B)(1)(g) to impose sentences “for each of the two most

serious specifications of which [Welninski] was convicted,” i.e. two of the three 3-year

firearm specifications, consecutively. See e.g. State v. Gervin, 3d Dist. Marion No. 9-15-

52, 2016-Ohio-8399, ¶ 199 (“All of his convictions were felonies and one of them was of

the type enumerated in R.C. 2929.14(B)(1)(g). Therefore, the trial court was required to

impose two separate three-year prison terms for the firearm specifications and those

terms must be consecutive to the prison terms imposed for the underlying offenses.”) In

addition to the mandatory, consecutive sentences, the trial court had discretion to impose,

and did in fact impose, consecutive sentences on the single remaining 3-year firearm

specification and five consecutive sentences on the 1-year firearm specifications. See

State v. James, 8th Dist. Cuyahoga No. 102604, 2015-Ohio-4987, ¶ 41 (“[T]he trial judge

is required to impose prison terms for the two most serious specifications, and could also,

in its discretion, impose a sentence for any other specification.”).

       {¶ 103} Welninski is not challenging the trial court’s mandatory imposition of

consecutive sentences for the first and second 3-year firearm specifications. Instead,

Welninski challenges the discretionary imposition of consecutive sentences for the third

3-year firearm specification and the five, 1-year firearm specifications. He argues that

the trial court abused its discretion in imposing multiple, consecutive sentences because

“each charge in case number 16-CR-039 resulted from a single series of events which

took place at Icon’s Bar and immediately thereafter” and involved only “one gun.”

       {¶ 104} We disagree. By operation of R.C. 2929.14(B)(1)(g), the trial court was

within its discretion to impose separate firearm specifications, “without considering

45.
whether the conduct was part of the same act or transaction.” State v. Hudson, 8th Dist.

Cuyahoga No. 102767, 2015-Ohio-5424, ¶ 27, citing State v. Cassano, 8th Dist.

Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 34. As noted by Twelfth Appellate District,

the statute is “unequivocal” and there is no need to engage in statutory interpretation.

State v. Israel, 12th Dist. Warren No. CA2011-11-115, 2012-Ohio-4876, ¶ 70 (“The plain

language of the statute provides the trial court with discretion to impose a prison term for

any of the remaining specifications.”).

       {¶ 105} Welninski also argues that the consecutive sentences amount to “duplicate

enhancements for the same conduct, and that duplication is inherently unfair.” But

Welninski fails to show how the trial court abused its discretion, or provide any authority

in support of his claim.

       {¶ 106} In the absence of any evidence that the trial court abused its discretion in

ordering the firearm specifications to run consecutively in this case, we do not find any

error by the trial court. Accord, State v. Hale, 5th Dist. Muskingum No. CT2016-0048,

2017-Ohio-2844, ¶ 44 (“Based on the number of victims, the number of serious crimes

committed by Appellant, and the violent nature of those crimes, we find no abuse of

discretion in the trial court's imposition of consecutive sentences on seven firearm

specifications in this matter”); State v. Nelson, 8th Dist. Cuyahoga No. 104336, 2017-

Ohio-5568 (The trial court did not err in imposing consecutive sentences for the three-

year firearm specifications on defendant’s aggravated murder, attempted murder, and

aggravated robbery counts and trial court had no obligation to make findings “of any

kind” before ordering him to serve the three-year firearm specifications consecutively).

46.
       {¶ 107} We therefore find Welninski’s first assignment of error not well-taken.

                                  6. Costs of Prosecution

       {¶ 108} In his sixth and final assignment of error, Welninski argues that the trial

court erred when it imposed the costs of prosecution without considering his present or

future ability to pay.

       {¶ 109} In its judgment entry, the trial court issued a single sentence with regard

to costs: “The Defendant shall pay the costs associated with these cases and judgment for

such costs is hereby awarded to Wood County.” Welninski argues that “[b]ased upon the

length of [his] sentence, including mandatory time, the trial court erred by not conducting

an inquiry into [his] ability to pay the costs associated with his case.”

       {¶ 110} Our standard of review on this issue is whether the imposition of costs and

financial sanctions was contrary to law. R.C. 2953.08(A)(4) and (G)(2)(b). State v.

Farless, 6th Dist. Lucas Nos. L-15-1060, L-15-1061, 2016-Ohio-1571, ¶ 4, citing State v.

Collins, 12th Dist. Warren No. CA2014-11-135, 2015-Ohio-3710, 41 N.E.3d 899, ¶ 30

(“An appellate court may not modify a financial sanction unless it finds by clear and

convincing evidence that it is not supported by the record or is contrary to law.”).

       {¶ 111} With regard to the costs of prosecution, R.C. 2947.23(A)(1)(a) provides

that the trial court shall include in every sentencing judgment the costs of prosecution

without consideration of whether the defendant has the ability to pay such costs. State v.

Rohda, 6th Dist. Fulton No. F-06-007, 2006-Ohio-6291, ¶ 13. Therefore, we conclude

that the trial court did not err by imposing the costs of prosecution against Welninski.

Also, we note that a trial court has the discretion to waive payment of court costs upon

47.
the filing of a motion by the defendant. R.C. 2949.092; State v. Joseph, 125 Ohio St.3d

76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 11. Although Welninski did not file such a

motion, he may do so in the future. R.C. 2947.23(C) provides that the trial court retains

jurisdiction to address the waiver, suspension, or modification of the payment of court

costs. Therefore, Welninski need not have moved at the time of sentencing for waiver of

the payment of costs. State v. Farnese, 4th Dist. Washington No. 15CA11, 2015-Ohio-

3533, ¶ 12-16.

       {¶ 112} Welninski’s assignment of error is limited to challenging the costs of

prosecution. However, to the extent that the trial court intended to impose the costs of

Welninski’s appointed trial counsel and/or the costs of his confinement by stating that

“[t]he defendant shall pay the costs associated with these cases * * *,” we find that the

record does not support the imposition of either. Regarding attorney fees, the record

contains no evidence that Welninski “has, or reasonably may be expected to have, the

means to meet some part of the cost of the services rendered to the person.” R.C.

2941.51(D). Likewise, Welninski would not be subject to the costs of his confinement

under R.C. 2929.18(A)(5) absent some indicia that the trial court properly considered his

ability to pay. See State v. Woods, 6th Dist. Lucas No. L-15-1024, 2016-Ohio-545. To

the limited extent that the trial court imposed the costs of confinement and/or appointed

counsel, we vacate that portion of the sentencing entry.

       {¶ 113} Welninski’s sixth assignment of error is found not well-taken.




48.
                                       Conclusion

       {¶ 114} Based on the foregoing, Welninski’s attempted murder and felonious

assault convictions, in case No. 15-CR-552, are allied offenses of similar import that

must have been merged by the trial court. This matter is remanded for the limited

purpose of resentencing Welninski. The state will elect which conviction to pursue for

sentencing purposes.

       {¶ 115} Welninski’s conviction and sentence is affirmed in all other respects.

Welninski is ordered to pay the costs of this appeal pursuant to App.R. 24(A).

                                                               Judgment affirmed, in part,
                                                               and reversed, in part.


       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.



Arlene Singer, J.                              _______________________________
                                                           JUDGE
Thomas J. Osowik, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




49.
