STATE OF OHIO, Plаintiff-Appellee, vs. MICHAEL LAVENDER, Defendant-Appellant.
APPEAL NO. C-120508
TRIAL NO. B-1106802A
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
June 19, 2013
[Cite as State v. Lavender, 2013-Ohio-2508.]
FISCHER, Judge.
Criminal Appeal From: Hamilton County Court of Common Pleas; Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and Cause Rеmanded
Bruce K. Hust, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
O P I N I O N.
{¶1} For his role in two shootings, defendant-appellant Michael Lavender pleaded guilty to felonious assault, improper discharge оf a firearm at or into a habitation with a firearm specification, and voluntary manslaughter with a firearm specification. The trial court imposed an aggregate prison tеrm of 28 years, and this appeal followed.
{¶2} Lavender assigns two errors, both concerning his sentence. He respectively argues that the trial court erred in sentencing him (1) excеssively for the firearm specification to the improper-discharge offense, and (2) separately for improper discharge and felonious assault. Because we find his second argument meritorious and dispositive of this appeal, we address it first.
{¶3} “Under
{¶4} Applying this three-part test, we first consider whether Lavender’s improper-discharge and felonious-assault offenses were allied offenses of similar import. Since thе Ohio Supreme Court’s holding in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, syllabus, we have held that two or more
{¶5} Lavender was convicted of felonious assault, as defined by
{¶6} With these statutes in mind, we turn to the record to identify the conduct that the state relied upon to prove these offenses. According to the bill of particulars,
[A]t approximately 1900 hours, Lavender and Thomas conspired to shoot the victim. After visiting J.T. at his residence and then leaving, A. Thomas dropped Lavender back off at the residence with instructions to shoot J.T. Lavender knocked on the door and, after J.T. opened the door, fired 3 rounds into the home at J.T. A. Thomas picked up Lavender and they left in a car driven by A. Thomas.
{¶8} We are guided in this inquiry by three post-Johnson cases. First, in State v. Walton, 5th Dist. No. 2011 CA 00214, 2012-Ohio-2597, the Fifth Appellаte District determined that a defendant had committed both improper discharge and felony murder predicated on the improper discharge with the “same conduct” by shooting several rounds into the “front door area” of an occupied apartment, fatally wounding a girl inside. More recently, the Tenth Appellate District found that a defendant had committed discharge of a firearm on or near a prohibited premises, in violation of
{¶9} These cases certainly suggest that where a defendant discharges a firearm at, into, on, or over a prohibited space, and thereby injures another, the defendant has committed both a firearm-discharge offense and either homicide or assault with the same conduct under
{¶11} We, therefore, finally consider whether Lavender сommitted these offenses with a separate animus. “The Ohio Supreme Court interprets the term ‘animus’ to mean ‘purpose or, more properly, immediate motive,’ and infers animus from the surrounding circumstances.” State v. Shields, 1st Dist. No. C-100362, 2011-Ohio-1912, ¶ 16, quoting State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1975). “Although animus is often difficult to prove directly, ‘the manner in which a defendant engages in a course of conduct may indicate distinct purposes.’ ” Hodges at ¶ 13, citing State v. Whipple, 2012-Ohio-2938, 972 N.E.12d 1141, ¶ 38 (1st Dist.).
{¶12} In Whipple, we found а separate animus as to three counts of felonious assault and one count of improper discharge where the evidence adduced at trial indicated that the defendant and his accomplices had peppered a house with bullets mere moments after three people had run inside.
Police recovered 28 shell casings from the crime scene. The casings were found in the street spread across the
length of the property, on the sidewalk, in the driveway, in the yard, on the porch, and three were found аctually inside the home. Most of the windows of the van the victims had been riding in, which was parked on the street, had also been shot out. The investigating officer testified that “there were cаsings everywhere. The house had been shot up.” Based on where the casings were found, the shooters had been in the street and had advanced through the yard and onto the porch.
{¶13} On those facts, we held that the “level of destruction unleashed by Whipple upon the home demonstrated that he sought to do more than commit felonious assault,” and that he had, thеrefore, committed the felonious assaults and improper discharge with a separate animus as to each offense. Id. at ¶ 37. See State v. Kelly, 5th Dist. No. 2012CA00067, 2012-Ohio-5875, ¶ 26 (holding that a defendant had committed the same оffenses with a separate animus where his conduct “indicated the distinct purpose to shoot up the [victim’s] residence”).
{¶14} In Hodges, however, we held that the defendant had committed the thrеe attempt offenses with the same animus where he had fired several gunshots at his victim in the direction of an apartment building. Despite bullets having been recovered from two different apartments, we determined that the defendant’s immediate motive had been to injure his victim, and not to “shoot up” the nearby apartments. Id. at ¶ 17.
{¶15} We find this case to be more similar to Hodges. The record reflects that Lavender had сonspired to shoot J.T., approached J.T.’s residence, and, after J.T. opened the front door, shot into the home at J.T. Thus, there is no indication that
{¶16} The second assignment of error is sustained. Lavender’s sentences for improper discharge and felonious assault are vacated, and this cause is remanded for resentencing in accordance with the state’s election. See State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, paragraphs one and two of the syllabus. Consequently, Lavender’s first assignment of error—which concerns only his sentence for the firearm specification to his improper-discharge offense—is overruled as not ripe for review. In all other respects, the judgment of the trial court is affirmed.
Judgment accordingly.
HENDON, P.J., and HILDEBRANDT, J., concur.
Please note:
The court has recorded its own entry this date.