*1 376 concurring. Judge,
Brown,
the
decision,
not agree
I do
majority
I concur with
While
Colon,
2008-
119
St.3d
v.
Ohio
made clear
of Ohio
Court
Supreme
II”)
to R.C.
(“Colon
only applied
the decision
Ohio-3749,
N.E.2d 169
893
Colon,
2008-
St.3d
118 Ohio
2911.02(A)(2).
of State
Upon reconsideration
that “the
(“Colon I”),
Court stated
Supreme
Ohio-1624,
N.E.2d 917
II at 8. Justice
in that case.” Colon
the facts
I is confined to
in Colon
syllabus
II,
defendants with
treating
raised the issue
O’Donnell, in
in Colon
his dissent
at
manner. See id.
I in the same
as
issue
Colon
defective indictment
the same
from the
are different
in this case
the offenses
surrounding
the facts
12. While
as
I,
here as well
defect exists
the same
the offenses
Colon
surrounding
facts
I.
indictment
Colon
follow the defective
found to
same four errors
Ohio, Appellee,
The
STATE
LANIER, Appellant.
Lanier,
App.3d
[Cite Ohio, Appeals of
Court of District, County. Hamilton First No. C-080162. 31, 2008.
Decided Dec. *3 and Scott M. Deters, Prosecuting Attorney, County T. Hamilton Joseph Heenan, Attorney, appellee. for Prosecuting Assistant Kirk, for
Roger appellant. W. Judge.
Dinkelacker, Lanier, his convictions for one count Defendant-appellant, appeals Daniel assault,2 accompanying counts of felonious all with murder1 and two because findings guilt, firearm We affirm the trial court’s but specifications. for we vacate the merged sentencing, two of the convictions should have been the case for imposed resentencing. sentences and remand
I. Facts Evidence at a trial showed that Biondi and his presented jury Stevenson cousin, Dickerson, Jeremy fight Ronald learned that Josh and Griffin wanted to Jeremy’s them. had friend Jeremy’s Stevenson been and had dated Josh sister, Lanier was at that Cecily. dating Cecily time. noon, At to the approximately Stevenson Dickerson went Griffin try
home to to find out the reason for the went to the dispute. they up When house, Lanier confronted them. “body” He told them he would them and box,” them “in a put slang killing terms for them. Stevenson and Dickerson left During day, they the house and went to their home. text kept receiving messages saying Jeremy and Josh still to fight. wanted That night, past Stevenson Dickerson drove the Griffin home.
4}{¶ street, Because traffic had backed on the up they stopped were front of the house. Lanier and several others saw them pull and tried to them out of their cars, they but were able to drive away. distance, They drove a short long, Stevenson’s home. Before Lanier run,
and three other out of a car. jumped men Dickerson tried to but the three *4 Stevenson, him caught began beating other men and him. Lanier approached pulled Stevenson, out a at him. gun, shooting started One of the shots hit that yelled and he he had been shot. Lanier continued to shoot and fired at least four until gun jammed. more shots the Stevenson ran to the side of the house his for help. mother called
{¶ 6} Lanier and the men with him left the scene. not know Lanier’s Stevenson did name, but was able to him from a identify photographic lineup. Discovery
II. error, In assignment his first of Lanier contends that he was denied {¶ 7} trial, disclose, due to process day when the state failed until the of voluminous 2923.02(A). 1. R.C. 2903.02 and 2903.11(A)(2).
2. R.C. he girlfriend of Lanier’s conversations with his while tape-recorded statements error, of he contends that the trial court jail. assignment in In his second was evidence, from since the state excluding not the recorded statements by erred of error are not well discovery. assignments failed to them These provide had taken. 16(B)(l)(i) the state to disclose relevant recorded requires Crim.R. Lewis,3 In this court held that by
statements made
the defendant.
girlfriend
the defendant and his mother and
telephone
recorded
calls between
16(B).
that
to be disclosed under Crim.R.
were not “statements”
needed
We
stated,
specifically
“The rule does not
define the word ‘statement’ but we believe
girl
that the recorded
conversation to defendant’s mother and
friend does
phone
formal,
a
of facts to law
concept
presentation
not fall within the
detailed
that the
of ‘statement’ connotes.”
personnel
plain meaning
enforcement
years
that
several
later in
v. Dorn.4
repeated
holding
We
We
16(B)
that “no
the disclosure of
provision
inculpatory
stated
Crim.R.
mandates
to
by
except
prosecution
statements made
defendant to others
those made
the
Consequently,
or to law enforcement.”
the
statements of conver-
tape-recorded
sations between Lanier and his
in this case were not statements
girlfriend
within
16(B)
meaning
the
of Crim.R.
that the state was
to disclose.
required
Further,
if
required
tape-
even
the state were
to disclose the
statements,
trial
recorded
we could not hold
the
court abused its discretion
the
by admitting
provide
statements into evidence.5 The state’s failure to
(1)
not
discovery does
amount to reversible error unless the defendant shows
(2)
failure to
prosecution’s
foreknowledge
the
disclose was willful and
of the
defense,
statement would have benefited the accused in
preparation
his
or
prejudiced by
that the accused was
the admission of the statement into evidence.6
Nothing
willfully
the record shows that the state
hid the recordings.
provide
recordings
day
While the state did not
until the
that the trial was
scheduled,
originally
the trial court
large
continued the case. Due
number
recordings,
prosecutor
the court also ordered the
to provide the relevant
easily
conversations to Lanier
a form that he could more
use. The trial did not
later,
until
actually
ample
occur
several weeks
and Lanier had
time to review the
C-840607,
(June
1985),
State Lewis
1st Dist. Nos. C-840596 and
5. See v. Parson 6 State Ohio St.3d 6 OBR 453 N.E.2d 63, 66, 691; (1988), (1999), 6. State v. Moore 40 Ohio St.3d 531 N.E.2d State v. Johnson 134 586, 592, App.3d N.E.2d Ohio 731 1149.
381 circumstances, any that he he did not show suffered recordings. Under recordings.7 to the late disclosure of the prejudice due state’s Closing Argument III. Prosecution’s these of error argues assignments Lanier also under tape about the conversations on the and other issues was closing argument state’s (1) is whether the remarks were improper. prosecutorial The test for misconduct (2) so, and if the remarks affected the accused’s improper prejudicially whether trial cannot rights.8 prosecuting attorney during substantial The conduct of the for error it the defendant of a fair trial.9 grounds deprives be unless that he were object complains Lanier failed to to the comments now Thus, on unless the improper. precluded raising appeal he is from the issue to entire plain prosecutor’s error rises the level of error.10 Our review the if argument improper, shows even the comments were none of the instances rights of which Lanier was so as to affect his substantial or complains egregious him a fair trial. not rise to the level of error.11 deny They certainly plain did assignments we overrule Lanier’s first and second of error. Consequently, Weight Sufficiency and IY. error, assignment In his fourth Lanier contends support evidence was insufficient to his convictions. Our review of the record fact, that a the evidence in a most viewing light shows rational trier after beyond favorable to the could have found that the state had prosecution, proved doubt all assault under R.C. reasonable the elements felonious (A)(2) 2903.02(A) 2923.02(A), along murder under R.C. Therefore, was accompanying specifications. with the firearm the evidence support sufficient to the convictions.12 him argues Lanier that no forensic evidence connected to the But no rule of law exists that a must be corrobo-
shooting.
testimony
witness’s
592-593,
7. See Johnson at
8. State v. Lott
51 Ohio St.3d
N.E.2d
State v.
1st Dist. Nos.
555
C-060668,
{¶ 16} record, cannot trial reviewing say of the evidence. After the we the weight justice such a of that we must way miscarriage court lost its and created manifest Therefore, a trial. his reverse Lanier’s convictions and order new convictions evidence, not manifest of the and we overrule his fourth against weight were of assignment error.15 Import Allied of
Y. Offenses Similar error, assignment argues In his third of Lanier that the trial court erred when it sentenced him on all three counts of the indictment. He that the argues two counts felonious assault and the one count of murder all import. assignment involved allied offenses of similar This of error has some merit, although agree entirely argument. we do not with Lanier’s
A. A Two-Part Test
Cobrales,16
In
Supreme
the Ohio
Court clarified the law of
by
allied offenses.
It
court
began
stating
recognized
has
that R.C.
“[t]his
requires
analysis.”17
2941.25
a
first
two-step
step requires
comparison
The
a
the elements of the offenses. If the
of the
correspond
elements
offenses
to such
other,
a
that commission of one
degree
crime will result
the commission of the
the crimes are allied
import.18
offenses
similar
offenses,
If the court finds that the offenses are allied
it must
proceed to the second
step, which involves
review of the defendant’s conduct to
determine whether the offenses
separately
separate
were committed
or with a
C-050490,
animus as to each. If the court determines that the offenses were committed separately, may the defendant be convicted of both offenses.19 - Step Comparison
B. Abstract One Elements In the first discussing step, Supreme Court noted its *7 Ranee,20 previous decision in required comparison which an abstract of offenses, the elements of the had caused much confusion and that courts had held, that misinterpreted decision.21 The court “It is clear that interpreting Ranee to 2941.25(A) require a strict textual comparison under R.C. conflicts with legislative intent and causes inconsistent results. that in Accordingly, clarify we determining whether offenses are allied offenses of similar import [the] under 2941.25(A), Ranee requires R.C. courts to compare the elements of offenses [the] abstract, i.e., in case, the without considering the evidence the but does not an require alignment Thus, exact of if elements.”22 the elements of [the] the offenses are so similar that commission of one will result in of commission the other, then the offenses are allied import.23 offenses of similar Cóbrales The court in employed a more pragmatic approach allied- offense But it issues.24 did not two-part abandon the test that courts have traditionally applied to determine whether offenses are allied offenses similar import.25 The first part the test is still an abstract comparison of the elements of the case, offenses without reference to the facts of the using common-sense approach.26 Lanier argues attempted murder and felonious assault
{¶ are 22} allied offenses of similar import that were not separately committed or with a separate Therefore, animus. he argues, he could have been only convicted of one offense. But his analysis faulty. is He charged was with felonious assault under 2903.11(A)(1) (A)(2). both R.C. This court has held that those two offenses 19. id.
20. State v. Rance
85 Ohio St.3d
21. Cobrales at 15-26. ¶
22. Id. at 27. paragraph syllabus.
23.
Id. at
one of the
Williams,
89726,
death for knowledge culpability or is sufficient purpose and when knowingly, or posely successful, that, if would offense, in conduct engage an shall the commission of Thus, must that the accused prove the state or result the offense.” constitute successful, conduct, if would have knowingly engaged purposely had or death.28 resulted in the victim’s “No shall provides, person Felonious assault under R.C. * * *
* * * by means of a harm to another attempt physical cause or to cause holding little trouble ordnance.” We have deadly dangerous or weapon *8 of this section are allied offenses and felonious assault under attempted murder time an exactly. Every not align their elements do import, although similar that, in if success- and conduct attempted engages commits an murder individual death, to cause the ful, person attempting in the victim’s is would result harm. physical victim under about felonious assault R.C. reach a different conclusion We * * *
2903.11(A)(1),
cause serious
person
knowingly
“No
shall
provides,
which
* *
the offender to
requires
murder
Attempted
harm to another
physical
death,
assault
the offender
requires
cause the victim’s
while felonious
attempt to
definition,
murder
By
attempted
harm.29
its
actually
physical
to
cause serious
successful,
that, if
in conduct
would have
only
engaged
that the accused
requires
intent, not the
determining
factor is the accused’s
resulted
murder. The
(A)(1)
offense.
requires
completed
Felonious assault under subsection
result.30
Thus,
may align
offenses
some
while the elements of the two
of
instances,
occur in which the commission
one
many
may
other instances
Therefore, they
in commission of the other.
necessarily
offense will not
result
¶
21-22;
C-060991,
30. See analysis regarding Consequently, import.31 allied offenses of similar are not convicted of both could have been at an end. Lanier those two offenses is 2903.11(A)(1),and we need assault under R.C. murder and felonious attempted separately. if committed they not determine were Cabrales, court has held that, at least one other since We are aware 27}
{¶ test. two-part failed to conduct the But that that court differently.32 we believe abstract, requires, still but in the as Cabrales compare It not the offenses did the individual case.33 looked to the facts of instead 2903.11(A)(1) and sum, assault under R.C. In we hold that felonious 2923.02(A) 2903.02(A) of are not allied offenses and attempted murder under R.C. Felonious that Lanier could have been convicted both. import, similar and offenses, murder are allied attempted under R.C. assault analysis respect of the with to them. proceed step we must to two Defendant’s Step D. Two—Review of Conduct (A)(2) is an allied Because felonious assault under subsection murder, conduct to deter we must review the defendant’s offense separate or with a animus as separately mine if the offenses were committed not, only If Lanier could have been convicted of one they each. were then those offenses. Stevenson, at Lanier filed several shots argues The state because 30}
{¶
Smith,
In
disagree.
attempts.
he could have been convicted
several
We
officers,
his
striking
Though
at
one
the knee.
police
defendant shot
several
at the officers.
held that
jammed,
try
he continued to
to fire more shots
We
gun
counts of felonious assault under both
the defendant could not be convicted of two
(A)(1)
(A)(2)
against
for the same conduct
the same victim.34
subsections
*9
of this case and the
find no material difference between the facts
We
Smith,
Because,
in
involved the
in
like in
the two offenses
this case
facts
Smith.
conduct,
only
have
convicted of
one
same victim and the same
Lanier could
been
Therefore,
merged
trial court should have
the felonious-assault
of them.
2903.11(A)(2)
for
attempted-murder
sentencing.
and the
count
count under R.C.
¶
Hardges
31. Accord
at 45.
33. See at 44-45. at 22-27. Smith convicted Lanier court could have sum, that the trial In we hold 32} {¶ 2903.11(A)(1). He should R.C. assault under and felonious attempted murder we sustain Consequently, offenses. those two only for have been sentenced and remand imposed, the sentences in vacate part, of error assignment Lanier’s in all other judgment trial court’s affirm the resentencing. We the cause for respects.
VI. Certification Eighth in with that of the in case to be conflict our decision this findWe 33} {¶ authority under the and Sutton. Consequently, District Williams Appellate Constitution, IV, certify following question we 3(B)(4), Ohio Article Section 2903.02(A) murder under R.C. “Are Supreme to the Ohio Court:35 law 2923.02(A) allied offenses of R.C. felonious assault under under the test set forth CabralesT’ import similar in part,
Affirmed vacated, sentences remanded. and cause J., Sundermann, P.J., Painter, concur. J., concurring.
Painter, the weird state of the Judge analysis, given I Dinkelacker’s concur abrogate needs to Supreme But I continue to believe that the Ohio Court law. State v. Ranee36 entirety. in its 1032; Bldg. St.3d 613 N.E.2d v. Gilbane Co. 66 Ohio
35. See also Whitelock
3743089, ¶
06AP-103,