State v. Hodges , 2013 Ohio 1195 ( 2013 )

[Cite as State v. Hodges, 2013-Ohio-1195.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-110630
TRIAL NO. B-1006698
Plaintiff-Appellee, :
vs. : O P I N I O N.
CHRISTOPHER HODGES, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and
Cause Remanded
Date of Judgment Entry on Appeal: March 29, 2013
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Scott A. Rubenstein, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
F ISCHER , Judge.
{¶1} Defendant-appellant Christopher Hodges was convicted of one count of
attempt to commit felonious assault with a firearm specification, one count of having
weapons while under disability, and two counts of attempt to commit improper
discharge of a firearm at or into a habitation. Hodges now appeals, raising three
assignments of error. For the following reasons, we vacate his prison terms for each
attempt offense, and remand this cause for the trial court to merge those offenses and
to impose one sentence under R.C. 2941.25. In all other respects, we affirm the
judgment of the trial court.
Background
{¶2} In October 2010, the grand jury returned an indictment charging
Hodges with several offenses stemming from an altercation between Hodges and
Demetrius Elliott. According to the bill of particulars,
On 9/24/10, 11:21 am, at 5418 Winneste Ave., Defendant
and Victim engaged in a verbal altercation. This
escalated to the point when Defendant pulled a weapon
and fired several shots at Victim striking him once and
critically injuring him. Victim fired a shot back striking
Defendant in the side. Defendant, while firing shots at
Victim shot in the direction of an apartment building.
Bullets were recovered in from [sic] 5417 Winneste and a
bullet hole was discovered at 5411 Winneste. Because
Defendant was convicted of Drug Trafficking in 2007, he
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was under disability and precluded from possessing a
firearm.
{¶3} Pursuant to a plea agreement, Hodges pleaded guilty to one count of
attempt to commit felonious assault as defined by R.C. 2903.11(A)(2), in violation of
R.C. 2923.02, with a firearm specification; one count of having weapons while under
disability; and two counts of attempt to commit improper discharge of a firearm at or
into a habitation as defined by R.C. 2923.161(A), also in violation of R.C. 2923.02, each
with a firearm specification. At the sentencing hearing, the state conceded that the
firearm specifications should merge, explaining that Hodges had “discharge[ed] the
weapon in a quick manner, one bullet after the other. And you could see as the victim
was running away, the pattern of bullets across this apartment building * * * .” The
state continued, “But I think when you’re talking about he was trying to purposely shoot
this individual, but this is a populated area, people were out, and he knew there was an
apartment building that was full of people and he was just firing off that gun like it was
an old western shootout. That’s what makes this case so serious.” The trial court
merged the three specifications, but sentenced Hodges separately on each offense, for
an aggregate prison term of 11 years. This appeal followed.
{¶4} Previously-appointed counsel for Hodges filed a no-error brief stating
that no meritorious issues existed to support Hodges’s appeal. See Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Contrary to that
assertion, this court found that legal points arguable on the merits existed, particularly
whether the trial court erred in imposing separate sentences on each attempt offense
under R.C. 2941.25. We therefore granted counsel’s motion to withdraw, appointed
new counsel, and ordered further briefing. State v. Hodges, 1st Dist. No. C-110630,
2012-Ohio-2462, ¶ 8-9. Hodges now raises three assignments of error.
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Merger of Attempt Convictions
{¶5} In his first assignment of error, Hodges argues that the trial court
erred in sentencing him separately for each attempt offense under Ohio’s multiple-
count statute, R.C. 2941.25. The statute provides:
(A) Where the same conduct by 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.
(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 of them.
{¶6} In light of the Ohio Supreme Court’s syllabus holding in State v.
Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, we have held that
under R.C. 2941.25, “a sentence may be imposed for only one of multiple offenses if the
record shows that the state relied upon the ‘same conduct’ to prove the offenses, and
that the offenses were committed neither separately nor with a separate animus as to
each.” State v. Campbell, 2012-Ohio-4231, 978 N.E.2d 970, ¶ 10 (1st Dist.). Accord
State v. Adams, 1st Dist. No. C-120059, 2013-Ohio-926, ¶ 21; State v. Anderson, 2012-
Ohio-3347, 974 N.E.2d 1236, ¶ 20 (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-
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3143, 958 N.E.2d 977, ¶ 78 (1st Dist.). We review whether a trial court erred in
imposing multiple sentences for multiple offenses under this statute de novo. State v.
Williams, Slip Opinion No. 2012-Ohio-5699, ¶ 28.
{¶7} In applying R.C. 2941.25, we “consider the statutory elements of each
offense in the context of the defendant’s conduct.” Id. at ¶ 20. Here, Hodges was
convicted of one count of attempt to commit felonious assault, as defined by R.C.
2903.11(A)(2), and two counts of attempt to commit improper discharge of a firearm at
or into a habitation, as defined by R.C. 2923.161(A)(1). Each attempt offense was a
violation of R.C. 2923.02, which provides that “[n]o person, purposely or knowingly,
and when purpose or knowledge is sufficient culpability for the commission of an
offense, shall engage in conduct that, if successful, would constitute or result in the
offense.” R.C. 2923.02(A). Thus, the offense of attempt incorporates the elements of
the attempted offense. In this case, under the relevant felonious assault statute, “[n]o
person shall knowingly * * * [c]ause or attempt to cause physical harm to another * * *
by means of a deadly weapon or dangerous ordinance,” and under the improper-
discharge statute, “[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[.]” “A person acts knowingly, regardless of his purpose,
where he is aware that his conduct will probably cause a certain result or will probably
be of a certain nature.” R.C. 2901.22.
{¶8} Although our record is not particularly well developed, it does reflect
that during a verbal altercation, Hodges fired several gunshots at Demetrius Elliott “in a
quick manner,” and that while doing so, he shot in the direction of an apartment
building. Thus, Hodges committed each attempt offense during the same shooting
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sequence. The issue is whether this amounts to the “same conduct” for purposes of
R.C. 2941.25.
{¶9} We are not without guidance. Since Johnson, courts have identified the
discharge of multiple gunshots in quick succession as the “same conduct” under the
multiple-count statute. For instance, in State v. McClendon, 2d Dist. No. 23558, 2011-
Ohio-5067, the Second Appellate District rejected the state’s argument that the
defendant had “engaged in five separate acts” where he shot the same victim five times.
Id. at ¶ 28. The court concluded that “there was but one criminal act/incident in which
Defendant fired five shots at the same victim * * * all at the same time in rapid
succession,” and that, therefore, the felony-murder offenses “[arose] from and were
committed by the same conduct.” (Internal quotation marks and citations omitted.) Id.
at ¶ 31-32; see also State v. Evans, 1st Dist. No. C-100028, 2011-Ohio-2356(defendant committed voluntary manslaughter and felonious assault during a single
course of conduct where he “fired three shots in rapid succession” at the victim).
{¶10} Courts have further held that similar offenses can be committed with
the same conduct. For example, the Eighth Appellate District concluded that the
offenses of felonious assault and the discharge of a firearm at or near a prohibited
premises in violation of R.C. 2923.162(A)(3) (that is, upon or over a public road or
highway) were committed by the same conduct where the defendant shot two
individuals while standing in the middle of a street. State v. Melton, 8th Dist. No.
97675, 2013-Ohio-257, ¶ 54. Similarly, the Tenth Appellate District decided that the
same offenses should have merged where the defendant shot at occupants of a vehicle
traveling on a public road. State v. Carson, 2012-Ohio-4501, 978 N.E.2d 621, ¶ 21 (10th
Dist.). Finally, the Fifth Appellate District held that the offenses of improper discharge
of a firearm at or into a habitation and felony murder predicated on the improper-
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discharge offense were committed with the same conduct where the defendant shot
into a residence, fatally wounding a girl inside. State v. Walton, 5th Dist. No. 2011 CA
00214, 2012-Ohio-2597, ¶ 56.
{¶11} In this case, by quickly firing multiple shots towards Elliott and an
apartment building at the same time, Hodges committed each attempt offense with the
“same conduct.” Consequently, our analysis turns to whether he committed these
offenses separately or with a separate animus as to each. See Anderson, 2012-Ohio-
3347, 974 N.E.2d 1236 at ¶ 23.
{¶12} We first consider whether the offenses were committed separately. In
Anderson, we held that the defendant’s aggravated robbery of a bank and kidnapping of
a bank employee to facilitate that robbery were not committed separately because they
occurred during one sustained, continuous act that began and ended within 90
seconds. Id. at ¶ 24. Given the temporal and spatial proximity of the attempt offenses
in this case, we come to the same conclusion here.
{¶13} We, therefore, finally examine whether the offenses were each
committed 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(1979). Although animus is often difficult to prove directly, “the manner in which a
defendant engages in a course of conduct may indicate distinct purposes.” State v.
Whipple, 2012-Ohio-2938, 972 N.E.2d 1141, ¶ 38 (1st Dist.).
{¶14} In Whipple, we identified a separate animus as to three counts of
felonious assault and one count of improper discharge of a firearm at or into a
habitation where the evidence adduced at trial indicated that the defendant and his
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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 actually
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 casings 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.
Id. at ¶ 40.
{¶15} 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, therefore, he had committed the improper-discharge
offense with an animus separate from each of the felonious assaults. Id. at ¶ 37. See
also State v. Kelly, 5th Dist. No. 2012CA00067, 2012-Ohio-5875, ¶ 26 (following
Whipple); but see Whipple at ¶ 53 (Fischer, J., concurring in part and dissenting in
part) (concluding that the defendant had committed the improper-discharge offense
with the immediate motive only to injure those inside).
{¶16} In Anderson, however, we held that the defendant had committed
aggravated robbery and kidnapping with the same animus where the bank-employee
victim was detained for a brief period, moved only a short distance to the common area
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of the bank, and was released immediately following the commission of the aggravated
robbery of the bank. Anderson at ¶ 31. We determined that it was “beyond cavil that
the bank robbery was the immediate motive for the kidnapping,” and that the
“[k]idnapping of the bank employees was merely incidental to the robbery.” Id.{¶17} In this case, although Hodges was aware that his conduct would
probably result in physical harm to Elliott and shots fired at or into two separate
apartments, the record does not reflect that Hodges intended to “shoot up” the
dwellings. Indeed, his immediate motive was clearly to injure Elliott after their verbal
altercation had escalated. We, therefore, cannot say that Hodges committed his
attempt offenses with a separate animus as to each offense. Having also determined
that the offenses were committed with the same conduct and not separately, we hold
that they should have been merged under R.C. 2941.25. Accordingly, the first
assignment of error is sustained.
Additional Matters
{¶18} In his second assignment of error, Hodges argues that his pleas were
not entered knowingly, voluntarily, and intelligently because his trial counsel had
advised him that the trial court would not impose a prison term longer than six years.
The trial court ultimately imposed an aggregate term of 11 years. And in his third
assignment of error, Hodges maintains that he was denied the effective assistance of
counsel for the same reason.
{¶19} For support, Hodges refers only to an affidavit that he signed and
attached to a motion to withdraw his guilty pleas under Crim.R. 32.1, which he filed the
same day as his notice of appeal. Because he appeals only from his convictions,
however, we cannot consider on direct appeal those matters that were not before the
trial court at the time of those convictions. See, e.g., McKay v. Cutlip, 80 Ohio App.3d
9OHIO FIRST DISTRICT COURT OF APPEALS
487, 490 fn. 3, 609 N.E.2d 1272 (9th Dist.1992) (“Appellate review is limited, pursuant
to App.R. 12(A), to the record as it existed at the time the judgment was rendered.”); see
generally State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph two of
the syllabus (“A reviewing court cannot add matter to the record before it, which was
not a part of the trial court’s proceedings, and then decide the appeal on the basis of the
new matter.”). We, therefore, disregard his affidavit and turn to the merits of these
assigned errors on the record now before us.
{¶20} “When a defendant enters a plea in a criminal case, the plea must be
made knowingly, voluntarily, and intelligently. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.” State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953
N.E.2d 826, ¶ 9, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
To ensure that a defendant’s pleas are made knowingly, voluntarily, and intelligently,
the trial court must engage the defendant in a colloquy pursuant to Crim.R. 11. State v.
Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25-26.
{¶21} Upon our review of the record, we conclude that the trial court fully
complied with Crim.R. 11, engaging the defendant on each point and making sure that
he understood the consequences of his guilty pleas. We therefore determine that
Hodges’s pleas were entered knowingly, voluntarily, and intelligently. The second
assignment of error is overruled.
{¶22} Consequently, we turn to his final assignment of error, alleging
ineffective assistance of trial counsel. We reverse on such grounds only where the
defendant shows that counsel’s performance was deficient and that this deficient
performance prejudiced the defense. E.g., State v. Miller, 1st Dist. No. C-120109, 2012-
Ohio-5964, ¶ 19, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
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80 L.Ed.2d 674 (1984) and State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
paragraph two of the syllabus. “To show that a defendant has been prejudiced by
counsel’s deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel’s errors, the result of the proceeding
would have been different.” Id.{¶23} Again based on the record now before us, we cannot say that the
defendant has demonstrated either deficient performance or prejudice. The third
assignment of error is, therefore, overruled.
Conclusion
{¶24} Having determined that the trial court erred in imposing separate
sentences on each of Hodges’s three attempt offenses, we vacate those sentences and
remand this cause for resentencing pursuant to 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. In all other respects, we affirm the judgment of the trial court.
Judgment accordingly.
H ENDON , P.J., concurs.
D INKELACKER , J., concurs in part and dissents in part.
DINKELACKER, J., concurring in part and dissenting in part.
{¶25} Based on my review of the record, Christopher Hodges has failed to
demonstrate that his three attempt offenses should merge under R.C. 2941.25. See
State v. Wesseling, 1st Dist. No. C-110193, 2011-Ohio-5882, ¶ 11, citing State v. Mughni,
33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987). Therefore, I respectfully dissent as to the
majority’s disposition of the first assignment of error.
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{¶26} I am particularly troubled by the majority’s conclusion that these
offenses were committed with a single animus—that is, to injure Demetrius Elliott—
simply because they arose from an altercation between Hodges and Elliott. This
determination downplays the severity of the shooting, which occurred in “a populated
area, [while] people were out, and [Hodges] knew there was an apartment building that
was full of people and he was just firing off that gun like it was an old western
shootout.” These facts demonstrate such an increased risk of harm and such a
profound disregard for the consequences of his conduct that I cannot say Hodges
committed each attempt offense with a single animus. See State v. Whipple, 2012-
Ohio-2938, 972 N.E.2d 1141, ¶ 38-42 (1st Dist.); State v. Shields, 1st Dist. No. C-
100362, 2011-Ohio-1912, ¶ 19-20 (finding separate animus as to aggravated robbery
and felonious assault where the “assault was so unnecessary for the robbery itself that it
demonstrated a significance independent of that robbery”).
{¶27} Because I concur with the majority’s disposition of the second and third
assignments of error, I would affirm the judgment of the trial court.
Please note:
The court has recorded its own entry this date.
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