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State v. Lavender

Court of Appeals of Ohio, First District

June 19, 2013

STATE OF OHIO, Plaintiff-Appellee,
v.
MICHAEL LAVENDER, Defendant-Appellant.

Criminal Appeal From: Hamilton County Court of Common Pleas TRIAL NO. B-1106802A

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Bruce K. Hust, for Defendant-Appellant.

OPINION

Fischer, Judge.

{¶1} For his role in two shootings, defendant-appellant Michael Lavender pleaded guilty to felonious assault, improper discharge of 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 term 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) excessively 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 R.C. 2941.25, Ohio's multiple-count statute, a trial court, in a single proceeding, may convict a defendant for two or more offenses having as their genesis the same criminal conduct or transaction if the offenses (1) were not allied offenses of similar import, (2) were committed separately, or (3) were committed with a separate animus as to each offense." State v. Anderson, 2012-Ohio-3347, 974 N.E.2d 1236, ¶15 (1st Dist.); see State v. Bickerstaff, 10 Ohio St.3d 62, 65-66, 461 N.E.2d 892 (1984). We review whether a trial court erred in imposing multiple sentences for multiple offenses under this statute de novo. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

{¶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 the 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 offenses are allied offenses of similar import if the state relies on the same conduct to prove each offense. See State v. Adams, 1st Dist. No. C-120059, 2013-Ohio-926, ¶ 21; State v. Campbell, 2012-Ohio-4231, 978 N.E.2d 970, ¶ 10 (1st Dist.); State v. Cooper, 1st Dist. Nos. C-110027 and C-110028, 2012-Ohio-555, ¶ 13; State v. Johnson, 195 Ohio App.3d 59, 2011-Ohio-3143, 958 N.E.2d 977, ¶ 78 (1st Dist.). We therefore examine "the statutory elements of each offense in the context of the defendant's conduct." Williams at ¶ 20.

{¶5} Lavender was convicted of felonious assault, as defined by R.C. 2903.11(A)(2), and improper discharge, as defined by R.C. 2923.161(A)(1). Under the former, "[n]o person, shall knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a deadly weapon or dangerous ordnance, " and under the latter, "[n]o person, without privilege to do so, shall knowingly * * * [d]ischarge a firearm at or into an occupied structure that is a permanent or temporary habitation of any individual[.]"

{¶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.

{¶7} Thus, the state clearly relied on a single series of three gunshots to support both offenses. The issue, however, is whether this constitutes the "same conduct" for purposes of R.C. 2941.25.

{¶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 Appellate 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 R.C. 2923.162(A)(3) (that is, "upon or over a public road or highway"), and felonious assault with the "same conduct" by shooting occupants of a moving vehicle. State v. Carson, 2012-Ohio-4501, 978 N.E.2d 621 (10th Dist.). And finally, in State v. Melton, 8th Dist. No. 97675, 2013-Ohio-257, the Eighth Appellate District held that the same offenses at issue in Carson were committed with the same conduct where the defendant had shot two individuals while standing in the middle of a street.

{¶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 R.C. 2941.25. Accordingly, because the state relied on Lavender shooting a single series of three bullets into J.T.'s residence and at J.T. at the same time, we ...


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