{¶ 2} Appellant contends that the following errors occurred in the proceedings below:
{¶ 3} "1. The evidence was insufficient to establish guilt beyond a reasonable doubt with respect to all of the complicity charges.
{¶ 4} "2. The evidence was insufficient to establish guilt beyond a reasonable doubt with respect to all of the charges of felonious assault.
{¶ 5} "3. The trial court erred in sentencing appellant separately as to the felonious assault charges for the reason that said offense were committed with a single animus. *3
{¶ 6} "4. The trial court erred in sentencing the appellant separately as to the charges of felonious assault, intimidation of a witness, and improperly discharging a firearm at or into a habitation for the reason that said offenses were all committed with a single animus.
{¶ 7} "5. The verdict of the trial court was against the manifest weight of the evidence."
{¶ 8} The following pertinent evidence was adduced at the trial of appellant and his codefendant, Patrick Brown, who was also tried as a complicitor.
{¶ 9} During the early morning hours of January 8, 2006, Detective Daniel Lewis of the Sandusky Police Department, who was currently assigned to the Erie County Drug Task Force, and his wife were asleep in the front bedroom of their residence. At approximately 6:20 a.m., Lewis and his wife were awakened by the sound of gunshots. Lewis initially believed that someone was throwing rocks at the house, but his wife informed him of the fact that it was gunshots. A bullet came through the front window of the Lewis bedroom, passed through the bedroom door, struck the bedroom wall, and ended up on the closet floor in an adjoining bedroom.
{¶ 10} Detective Lewis immediately contacted the Sandusky Police Department. Officer James Desalle was the first to arrive at the scene. After speaking with Lewis and his wife and finding the bullet that came through the bedroom window, Desalle went outside to look for additional evidence. From the angle that the bullet came through the *4 window and entered the door, Desalle determined that it came from a gun held by an individual standing on either a nearby alley or the "apron" of an entrance to an apartment complex across the street from the Lewis residence. When he crossed the street and stood on the apron, Desalle noticed a "skip mark" on the hood of the white vehicle that was used by Detective Lewis in performing his job as a member of the Erie County Drug Task Force.
{¶ 11} Because a witness told the police that she heard a gunshot and then "some individuals" running through the area of the apartment complex, law enforcement officers did a "sweep" of the parking lot and grounds, starting at that portion closest to the Lewis residence and heading toward Clinton Street, which is located on the other side of the complex. According to Captain Charles Samms, there was a lot of frost in the area, especially on any objects that were on the ground or parking lot. However, as he walked between two of the apartment buildings, Captain Samms observed a cell phone on the ground that was not frost covered. The police took a photograph of the phone. It was then secured as evidence and delivered to the Ohio Bureau of Criminal Investigations ("BCI"), where it was determined that Patrick Brown's DNA was on this particular cell phone.
{¶ 12} Investigators also discovered that the phone belonged to Patrick's brother, Cedric Brown, but Cedric claimed that he left the phone in Patrick's car. Four or five calls were made between 6:12 a.m. and 6:15 a.m. on January 8, 2006, from a second cell *5 phone found in the possession of Patrick Brown to the cell phone found on apartment complex grounds. One call was made from the cell phone in the possession of Patrick Brown to appellant's cell phone during that same time frame. After 6:20 a.m., several calls were made from appellant's cell phone to the cell phone found on the apartment complex grounds.
{¶ 13} Officer Eric Mohr was assigned to work the perimeter of the crime scene and was stationed at the intersection of Clinton and Taylor Streets. Mohr saw a green van coming from the north and heading south on Clinton. Approximately halfway down the block, the driver turned off his headlights, continued driving past "three or four houses," and stopped. Approximately one minute later, someone exited from the driver's side. Mohr walked over to the van and asked that individual for some identification. The man gave the officer a state I.D. card identifying him as Patrick Brown. Brown kept putting his hands into his pockets and getting loud. Because he refused to "quiet down," Officer Mohr arrested him for disorderly conduct. He subsequently arrested appellant, who was the passenger in the van, after Detective Max Jarrett, a lieutenant in the Sandusky Police Department, told Mohr that appellant was under house arrest. Several drug charges and a weapons charge were pending against Gowdy at that time. Both Jarrett and Detective Lewis were involved in the investigations leading to those charges.
{¶ 14} When Detective Jarrett arrived at the Lewis residence, Officer Mohr, appellant, Patrick Brown, and the green van were at the scene. Officer Mohr told Jarrett *6 that there was a gun holster in the van behind the driver's seat. At trial, Jarrett opined that such a holster could hold a .380 semiautomatic handgun. The detective took gunshot residue samples from both appellant's and Brown's hands. These samples were taken to the BCI where testing established that appellant had gunshot residue on his hands, but that Patrick Brown did not have gunshot residue on his hands. Appellant claimed, nonetheless, that he did not fire a gun on the morning of January 8, 2006.
{¶ 15} The van was towed to the police department and processed by Special Agent Dan Winterich, who is employed by the BCI. Winterich took samples from the inside of the van's windows and door frames, obtained samples for DNA testing from the holster, collected Patrick Brown's black sweatshirt/jacket, and took the cell phone found in the van for analysis at the BCI. Testing showed that there was gunshot residue on the van's windows and door frames and on the jacket. The bullet recovered in the Lewis residence was also transported to the BCI. The shell casing of that bullet was not found.
{¶ 16} Two days later, Jarrett learned that the recovered bullet was fired from a .380 semiautomatic or automatic pistol. Based upon this information, Jarrett believed that there was a good chance of finding the casing of the bullet in the area of the shooting. Therefore, he, Detective Helen Prosowski, Detective John Orzech, and Officer Kenneth Piotrowski, returned to the scene of the shooting. Detective Prosowski found a fired bullet in an area across the street from the Lewis residence. She also found a shell casing near a boat parked on that side of the street. The BCI determined that the bullet *7 Prosowski found came from the same .380 semiautomatic or automatic pistol as the bullet fired into the Lewis residence. The shell casing did not match that weapon.
{¶ 17} In addition to the foregoing evidence, the parties stipulated to the following facts:
{¶ 18} "1.) Shaunsay Gowdy was convicted in 2000 of an offense that would place him under disability from handling a weapon and he was not relieved from that disability on January 8, 2006."
{¶ 19} "2.) On January 8, 2006, Shaunsay Gowdy was under house arrest."
{¶ 20} As set forth above, the jury found appellant guilty of the charged offenses; nonetheless, Brown was found not guilty of all of those same charged offenses. In sentencing appellant, the trial court merged all of the firearm specifications and ordered appellant to serve an actual seven years in prison consecutive to any other sentences imposed by the court. The judge further imposed (1) a definite sentence of ten years in prison for the violation of R.C.
{¶ 21} In his first assignment of error, appellant urges that insufficient evidence was offered at trial to establish the element of complicity as to each of the charged offenses. Appellant's argument on this issue, however, involves only the fact that no one was prosecuted as the principal offender. Based upon this fact and the fact that the jury found that Patrick Brown was not guilty, appellant contends that he was impermissibly convicted as the principal offender; or that he was convicted of being a complicitor to himself. We disagree. Specifically, R.C.
{¶ 22} In his second assignment of error, Gowdy argues that the prosecution produced insufficient evidence to establish, beyond a reasonable doubt, the two charges of felonious assault. In reviewing the sufficiency of the evidence underlying a criminal conviction, an appellate court examines the evidence in the record in order to determine whether such evidence, if believed, would support a conviction. State v. Jenks (1991), *9
{¶ 23} Under R.C.
{¶ 24} In Mills, the defendant, during the process of robbing a bank, fired a shot that struck the counter in front of two tellers, named, respectively, Johnson and Laster. Id. He then jumped over the counter and hit Johnson in the head with a hard object. Grabbing Laster, he "held a gun to her head, and commanded her to open a nearby safe." Id. A third teller, Katherine Kamphaus, who was standing in the desk area, heard the shot *10 and hid under a desk. Id. Appellant was charged with the felonious assault of all three tellers and was found guilty on all three charges. Id. at 360.
{¶ 25} On appeal to the Ohio Supreme Court, Mills asserted, inter alia, that there was insufficient evidence to sustain the convictions for the felonious assault as to all three tellers. Id. 369. Ohio's high court disagreed, finding that there was sufficient evidence offered at trial to support the felonious assault convictions with regard to Johnson and Laster. Id. Nonetheless, the court reversed the conviction for the alleged felonious assault of Kamphaus, holding:
{¶ 26} "When the initial shot was fired, she [Kamphaus] was standing near a desk area located behind the counter and off to one side. She was not in the line of fire when the gunmen entered and hid under her desk during the remainder of the robbery. The evidence is insufficient to support the finding that Mills knowingly attempted to physically harm Kamphaus. R.C.
{¶ 27} We do not find the holding in Mills to have any effect on the outcome of this cause. In particular, the shots fired at the Lewis residence can be likened to the gunshots fire by Mills at the tellers' counter in the bank, thereby placing any persons therein in the line of fire. Moreover, and of greater importance, is the fact that the Ohio Supreme Court declined to accept an appeal of a case that is on point with the cause before us. See State v. Elko, 8th Dist. No. 83541,
{¶ 28} In State v. Elko, the defendant fired shots into the victims' basement glass block window. Id. at ¶ 3. The intended victim had his bedroom in that basement directly behind that window. Id at ¶ 4. None of the victims was in the basement at the time and none were injured. Id. at ¶ 47. As a result of this incident, Elko was found guilty of felonious assault and improperly discharging a firearm into a habitation. Id. at ¶ 1. On appeal, Elko argued that he could not be convicted of felonious assault because he did not cause any physical harm to any of the victims. Id. at ¶ 47. The court rejected this argument stating that the evidence demonstrated that the defendant fired a pistol, a deadly weapon, into a glass block window without knowing who could be inside at the time of the shooting, Id. at ¶ 53. TheElko court held: "The fact that none of the victims were physically hurt and that none of the bullets penetrated through the glass block window are irrelevant. Firing a pistol into a window, without knowing who could be behind it, satisfies a knowing attempt to cause physical harm. * * * The evidence presented at trial was sufficient to convict the appellant of felonious assault." Id. at ¶ 54.
{¶ 29} As in Elko, shots were fired at the Lewis residence by someone who may have had no knowledge of who might be inside at the time of the shooting. One bullet went through the window immediately above the bed in which Daniel Lewis and his spouse were sleeping and ended up in their daughter's closet. Consequently, sufficient evidence was offered to satisfy R.C.
{¶ 30} In his third assignment of error, appellant maintains that the trial court erred in sentencing him on both convictions for felonious assault and ordering him to serve those sentences consecutively because there "was only one shot fired" into the Lewis residence; thus, there could be only a finding of a single animus in this case. Therefore, he argues that the trial court violated R.C.
{¶ 31} R.C.
{¶ 32} "(A) Where the same conduct by the 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.
{¶ 33} "(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 them."
{¶ 34} In a relatively recent case, this court addressed the question raised by appellant. See State v. Gibson, 6th Dist. No. S-02-016,
{¶ 35} "[R.C.
{¶ 36} As applied to the present case, two persons were put at risk when the shooter fired his or her pistol at the Lewis residence. Therefore, the two charges of felonious assault are of a dissimilar import, and the trial court could impose separate sentences for the convictions on these charges. Consequently, appellant's third assignment of error is found not well-taken.
{¶ 37} Similarly, Gowdy contends, in his fourth assignment of error, that the trial court erred in sentencing him separately for his convictions on the charges of felonious assault, intimidation of a witness, and discharging a firearm at or into a habitation because there was only a single animus in the commission of these crimes. We find that *14 while these offenses may have been committed with a single animus, they are offenses of a dissimilar import.
{¶ 38} In State v. Rance (1999),
{¶ 39} With regard to appellant's convictions on the charges of felonious assault and discharging a firearm into a habitation, a felonious assault occurs when a person knowingly causes or attempts to cause physical harm to another by means of a deadly weapon or dangerous ordnance." R.C.
{¶ 40} In State v. Gray, 10th Dist. No. 04-AP-938,
{¶ 41} R.C.
{¶ 42} In his fifth and final assignment of error, appellant contends that the trial court's judgment is against the manifest weight of the evidence. In reviewing a claim that a trial court's judgment is against the manifest weight of the evidence, an appeals court acts as a "thirteenth juror" to determine whether the trier of fact lost its way and created such a manifest miscarriage of justice that the conviction must be overturned and a new trial ordered. State v. Thompkins (1997),
{¶ 43} Based upon a careful and thorough review of the facts of this cause as set forth above, we cannot find that the jury lost its way and created such a manifest miscarriage of justice that its judgments on each of the charges brought against appellant *17 must be reversed. Accordingly, appellant's fifth assignment of error is found not well-taken.
{¶ 44} The judgment of the Erie County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App. R. 24. Judgment for the clerk's expense incurred in preparation of the record, fees allowed by law, and the fee for filing the appeal is awarded to Erie County.
*18JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App. R. 27. See, also, 6th Dist. Loc. App. R. 4.
Peter M. Handwork, J., William J. Skow, P.J., Thomas J. Osowik, J., Concur.