The STATE of Ohio, Appellee, v. LANIER, Appellant.
No. C-080162
Court of Appeals of Ohio, First District, Hamilton County
Decided Dec. 31, 2008
180 Ohio App.3d 376, 2008-Ohio-6906
[Cite as State v. Lanier, 180 Ohio App.3d 376, 2008-Ohio-6906.]
{¶ 31} While I concur with the majority decision, I do not agree that the Supreme Court of Ohio made clear in State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169 (“Colon II”) that the decision only applied to
Roger W. Kirk, for appellant.
{¶ 1} Defendant-appellant, Daniel Lanier, appeals his convictions for one count of attempted murder1 and two counts of felonious assault,2 all with accompanying firearm specifications. We affirm the trial court’s findings of guilt, but because two of the convictions should have been merged for sentencing, we vacate the sentences imposed and remand the case for resentencing.
I. Facts
{¶ 2} Evidence presented at a jury trial showed that Biondi Stevenson and his cousin, Ronald Dickerson, learned that Josh and Jeremy Griffin wanted to fight them. Stevenson had been Jeremy’s friend and had dated Josh and Jeremy’s sister, Cecily. Lanier was dating Cecily at that time.
{¶ 3} At approximately noon, Stevenson and Dickerson went to the Griffin home to try to find out the reason for the dispute. When they went up to the house, Lanier confronted them. He told them that he would “body” them and put them “in a box,” slang terms for killing them. Stevenson and Dickerson left the house and went to their home. During that day, they kept receiving text messages saying that Jeremy and Josh still wanted to fight.
{¶ 4} That night, Stevenson and Dickerson drove past the Griffin home. Because traffic had backed up on the street, they were stopped in front of the house. Lanier and several others saw them and tried to pull them out of their cars, but they were able to drive away.
{¶ 5} They drove a short distance, to Stevenson’s home. Before long, Lanier and three other men jumped out of a car. Dickerson tried to run, but the three other men caught him and began beating him. Lanier approached Stevenson, pulled out a gun, and started shooting at him. One of the shots hit Stevenson, and he yelled that he had been shot. Lanier continued to shoot and fired at least four more shots until the gun jammed.
{¶ 6} Stevenson ran to the side of the house and his mother called for help. Lanier and the men with him left the scene. Stevenson did not know Lanier’s name, but was able to identify him from a photographic lineup.
II. Discovery
{¶ 7} In his first assignment of error, Lanier contends that he was denied due process when the state failed to disclose, until the day of trial, voluminous
{¶ 8}
{¶ 9} We repeated that holding several years later in State v. Dorn (Dec. 24, 1998), 1st Dist. No. C-970976, 1998 WL 892237. We stated that “no provision of
{¶ 10} Further, even if the state were required to disclose the tape-recorded statements, we could not hold that the trial court abused its discretion by admitting the statements into evidence.5 The state’s failure to provide discovery does not amount to reversible error unless the defendant shows (1) that the prosecution’s failure to disclose was willful and (2) that foreknowledge of the statement would have benefited the accused in the preparation of his defense, or that the accused was prejudiced by the admission of the statement into evidence.6
{¶ 11} Nothing in the record shows that the state willfully hid the recordings. While the state did not provide the recordings until the day that the trial was originally scheduled, the trial court continued the case. Due to the large number of recordings, the court also ordered the prosecutor to provide the relevant conversations to Lanier in a form that he could more easily use. The trial did not actually occur until several weeks later, and Lanier had ample time to review the
III. Prosecution’s Closing Argument
{¶ 12} Lanier also argues under these assignments of error that the state’s closing argument about the conversations on the tape and other issues was improper. The test for prosecutorial misconduct is (1) whether the remarks were improper and (2) if so, whether the remarks prejudicially affected the accused’s substantial rights.8 The conduct of the prosecuting attorney during trial cannot be grounds for error unless it deprives the defendant of a fair trial.9
{¶ 13} Lanier failed to object to the comments that he now complains were improper. Thus, he is precluded from raising the issue on appeal unless the error rises to the level of plain error.10 Our review of the prosecutor’s entire argument shows that even if the comments were improper, none of the instances of which Lanier complains was so egregious as to affect his substantial rights or to deny him a fair trial. They certainly did not rise to the level of plain error.11 Consequently, we overrule Lanier’s first and second assignments of error.
IV. Weight and Sufficiency
{¶ 14} In his fourth assignment of error, Lanier contends that the evidence was insufficient to support his convictions. Our review of the record shows that a rational trier of fact, after viewing the evidence in a light most favorable to the prosecution, could have found that the state had proved beyond a reasonable doubt all the elements of felonious assault under
{¶ 15} Lanier argues that no forensic evidence connected him to the shooting. But no rule of law exists that a witness’s testimony must be corrobo-
{¶ 16} Lanier further argues that his convictions were against the manifest weight of the evidence. After reviewing the record, we cannot say that the trial court lost its way and created such a manifest miscarriage of justice that we must reverse Lanier’s convictions and order a new trial. Therefore, his convictions were not against the manifest weight of the evidence, and we overrule his fourth assignment of error.15
V. Allied Offenses of Similar Import
{¶ 17} In his third assignment of error, Lanier argues that the trial court erred when it sentenced him on all three counts of the indictment. He argues that the two counts of felonious assault and the one count of attempted murder all involved allied offenses of similar import. This assignment of error has some merit, although we do not agree entirely with Lanier’s argument.
A. A Two-Part Test
{¶ 18} In State v. Cabrales, 118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181, the Ohio Supreme Court clarified the law of allied offenses. It began by stating that “[t]his court has recognized that
{¶ 19} If the court finds that the offenses are allied offenses, it must proceed to the second step, which involves a review of the defendant’s conduct to determine whether the offenses were committed separately or with a separate
B. Step One — Abstract Comparison of the Elements
{¶ 20} In discussing the first step, the Supreme Court noted that its previous decision in State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, which required an abstract comparison of the elements of the offenses, had caused much confusion and that courts had misinterpreted that decision.21 The court held, “It is clear that interpreting Rance to require a strict textual comparison under
{¶ 21} The court in Cabrales employed a more pragmatic approach to allied-offense issues.24 But it did not abandon the two-part test that courts have traditionally applied to determine whether offenses are allied offenses of similar import.25 The first part of the test is still an abstract comparison of the elements of the offenses without reference to the facts of the case, using a common-sense approach.26
{¶ 22} Lanier argues that attempted murder and felonious assault are allied offenses of similar import that were not committed separately or with a separate animus. Therefore, he argues, he could have been convicted of only one offense. But his analysis is faulty. He was charged with felonious assault under both
{¶ 23}
{¶ 24} Felonious assault under
{¶ 25} We reach a different conclusion about felonious assault under
{¶ 26} Thus, while the elements of the two offenses may align in some instances, many other instances may occur in which the commission of one offense will not necessarily result in commission of the other. Therefore, they
{¶ 27} We are aware that, since Cabrales, at least one other court has held differently.32 But we believe that that court failed to conduct the two-part test. It did not compare the offenses in the abstract, as Cabrales still requires, but instead looked to the facts of the individual case.33
{¶ 28} In sum, we hold that felonious assault under
D. Step Two — Review of Defendant’s Conduct
{¶ 29} Because felonious assault under subsection (A)(2) is an allied offense of attempted murder, we must review the defendant’s conduct to determine if the offenses were committed separately or with a separate animus as to each. If they were not, then Lanier could have been convicted of only one of those offenses.
{¶ 30} The state argues that because Lanier filed several shots at Stevenson, he could have been convicted of several attempts. We disagree. In Smith, the defendant shot at several police officers, striking one in the knee. Though his gun jammed, he continued to try to fire more shots at the officers. We held that the defendant could not be convicted of two counts of felonious assault under both subsections (A)(1) and (A)(2) for the same conduct against the same victim.34
{¶ 31} We find no material difference between the facts of this case and the facts in Smith. Because, like in Smith, the two offenses in this case involved the same victim and the same conduct, Lanier could have been convicted of only one of them. Therefore, the trial court should have merged the felonious-assault count under
VI. Certification
{¶ 33} We find our decision in this case to be in conflict with that of the Eighth Appellate District in Williams and Sutton. Consequently, under the authority of Section 3(B)(4), Article IV, Ohio Constitution, we certify the following question of law to the Ohio Supreme Court:35 “Are attempted murder under
Affirmed in part, sentences vacated, and cause remanded.
SUNDERMANN, P.J., and PAINTER, J., concur.
PAINTER, J., concurring.
{¶ 34} I concur in Judge Dinkelacker’s analysis, given the weird state of the law. But I continue to believe that the Ohio Supreme Court needs to abrogate State v. Rance36 in its entirety.