State v. Coleman , 2021 Ohio 968 ( 2021 )

[Cite as State v. Coleman, 2021-Ohio-968.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee/Cross- : Appellate Case No. 28676
Appellant :
: Trial Court Case No. 2018-CR-4339
v. :
: (Criminal Appeal from
STEVEN COLEMAN : Common Pleas Court)
:
Defendant-Appellant/Cross- :
Appellee
...........
OPINION
Rendered on the 26th day of March, 2021.
...........
MATHIAS H. HECK, JR. by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee/Cross-Appellant
J. DAVID TURNER, Atty. Reg. No. 0017456, 101 Southmoor Circle NW, Dayton, Ohio
45429
Attorney for Defendant-Appellant/Cross-Appellee
.............
HALL, J.
-2-
{¶ 1} Steven Coleman appeals from his conviction on charges of purposeful
murder, evidence tampering, two counts of having a weapon while under disability, and
a firearm specification.1
{¶ 2} Coleman advances two assignments of error. First, he contends the trial
court erred in denying his request for a jury instruction on voluntary manslaughter.
Second, he claims the trial court erred in sentencing him on a firearm specification where
the record does not contain a jury verdict form addressing the specification.
{¶ 3} In a cross-appeal, the State claims the trial court erred in merging the offense
of discharging a firearm on or near a prohibited premises into Coleman’s murder
conviction as an allied offense of similar import. Assuming that merger was not
appropriate, the State also argues that an additional three-year sentence must be
imposed on a firearm specification accompanying the discharging-a-firearm offense.
{¶ 4} The charges against Coleman stemmed from the shooting death of Robert
Burdette outside a Dayton-area bar on the night of November 7, 2018. The State’s
evidence at trial established that Coleman was providing security that night as a “bouncer”
for the Ashwood Lounge. Two brothers, Jason and Michael Fox, also provided security
along with an unarmed bouncer named Graylon Russell. Burdette arrived at the bar that
evening in an SUV driven by Tyrone McGee. After McGee parked the SUV in an
unauthorized area, Russell asked him to move it. An unidentified third-party then moved
the SUV into a parking space without incident.
1 A jury also found Coleman guilty of discharging a firearm on or near a prohibited
premises (with a firearm specification) and several other offenses and specifications,
which the trial court merged into those set forth above as allied offenses of similar import.
-3-
{¶ 5} When he arrived at the bar, McGee had a handgun in his vehicle. There was
some question at trial about whether he brandished it or whether it was removed from the
SUV by the person who moved the vehicle. In any event, while acting in his capacity as
security for the bar, Russell obtained McGee’s handgun and secured it in his own truck.
At some point, McGee became upset about Russell’s taking the weapon and demanded
its return. The two men argued about the handgun while standing in the front parking lot.
Burdette also was present, and he broke a beer bottle on Russell’s truck. Russell then
began arguing with Burdette because he believed the bottle had been broken
intentionally. Russell and Burdette eventually calmed down. At that point, Russell and
McGee continued arguing about the return of McGee’s handgun. As they did so, Coleman
approached Burdette, who was standing in the middle of the street, and punched him in
the face. After Burdette staggered, Coleman shot him in the face. The shot killed Burdette.
Coleman walked away and hid the gun in lattice behind the bar. Coleman then told Jason
Fox to get rid of the weapon. Fox hid the handgun in the women’s restroom. He
subsequently disclosed where the weapon was hidden, however, and police retrieved it.
{¶ 6} That same night, Coleman was arrested at his apartment, which was above
the bar. When questioned by police, he initially denied involvement and claimed that
Burdette had been shot by McGee. But after being confronted with security-video footage
capturing the incident, Coleman admitted shooting Burdette. He explained that he had
done so because Burdette had threatened to pull up to his house and shoot him. Coleman
explained: “I get tired of people making them type of threats to me talking about what you
gonna do to me. It’s not gonna work because I’m gonna get you first.” (Trial Tr. at 658.)
Although the record contains conflicting testimony, there was some evidence that
-4-
Burdette said something like “I got guns” and “I’ll call my people” prior to being shot by
Coleman. The record also contains testimony that Burdette made these statements after
being punched by Coleman. In addition to Coleman’s confession, the State presented
DNA evidence and testimony from eyewitnesses who identified Coleman as the shooter.
{¶ 7} Coleman did not testify at trial, and he called no witnesses. However, he did
request a jury instruction on the inferior-degree offense of voluntary manslaughter as an
alternative to murder. The trial court denied the request, finding it unsupported by the
evidence. The jury subsequently found Coleman guilty of purposeful murder, two counts
of felony murder, two counts of felonious assault, discharging a firearm on or near a
prohibited premises, evidence tampering, and two counts of having a weapon while under
disability. Most of the counts included firearm specifications, which the jury found
applicable.
{¶ 8} At sentencing, the trial court merged all of the murder counts, the felonious
assault counts, and the discharging-a-firearm count. The trial court found that these
counts were allied offenses of similar import, and the State elected to proceed to
sentencing for purposeful murder. The trial court imposed a sentence of 15 years to life
in prison for the murder conviction along with a three-year prison term for the
accompanying firearm specification. The trial court imposed concurrent prison terms of
nine months for evidence tampering and nine months for one count of having a weapon
while under disability. The trial court imposed a prison term of 24 months for the other
count of having a weapon while under disability, and it ordered that sentence to be served
consecutively. The result was an aggregate prison sentence of 20 years to life. This
appeal and cross-appeal followed.
-5-
{¶ 9} In his first assignment of error, Coleman challenges the trial court’s denial of
his request for a voluntary-manslaughter jury instruction. He contends the trial court erred
in finding that no threats were made against him. Coleman cites testimony that prior to
the shooting Burdette made comments about having guns and threatened to call “his
people.” When considered in context and viewed objectively, Coleman asserts that these
comments were sufficient to provoke a reasonable person to respond with deadly force.
Coleman further claims the trial court erred in finding that he subjectively was not under
the influence of a sudden passion or a fit of rage when he shot Burdette.
{¶ 10} “In a proper case, a jury may consider, in addition to the offense actually
indicted, inferior degrees of the indicted offense.” State v. Beatty-Jones, 2d Dist.
Montgomery No. 24245, 2011-Ohio-3719, ¶ 20, citing State v. Deem, 40 Ohio St.3d 205,
533 N.E.2d 294 (1988), paragraph one of the syllabus. “An offense is of an inferior degree
if its elements are ‘identical to or contained within the indicted offense, except for one or
more additional mitigating elements.’ ” Id., quoting Deem at paragraph two of the syllabus.
{¶ 11} “Voluntary manslaughter is an inferior degree of aggravated murder[.]”
State v. Florence, 2d Dist. Montgomery No. 20439, 2005-Ohio-4508, ¶ 42, quoting State
v. Tyler, 50 Ohio St.3d 24, 36, 553 N.E.2d 576 (1990). “The mitigating element * * * is
that the defendant acted ‘while under the influence of sudden passion or in a sudden fit
of rage, either of which is brought on by serious provocation occasioned by the victim that
is reasonably sufficient to incite the person into using deadly force.’ ” Beatty-Jones at
¶ 21, quoting R.C. 2903.03(A). “A trial court must charge the jury on an inferior offense if
the evidence presented at trial reasonably supports, in addition to an acquittal on the
indicted offense, a conviction on the inferior offense.” Id. at ¶ 20, citing Deem at paragraph
-6-
one of the syllabus.
{¶ 12} The analysis of voluntary manslaughter’s mitigating element first involves
an objective question and second a subjective question. The objective question is
whether the victim’s provocation was “ ‘sufficient to arouse the passion of an ordinary
person beyond the power of his or her control,’ ” Id. at ¶ 22, quoting State v. Shane, 63
Ohio St.3d 630, 635, 590 N.E.2d 272 (1992), “or described differently, whether the
provocation was ‘reasonably sufficient to bring on extreme stress and * * * to incite or
arouse the defendant into using deadly force,’ ” Id., quoting Deem at paragraph five of the
syllabus. The subjective question is “whether this particular defendant was in fact acting
under a sudden passion or in fit of rage.” (Citation omitted.) Id. “When analyzing the
subjective prong of the test, ‘evidence supporting the privilege of self-defense, i.e., that
the defendant feared for his own personal safety, does not constitute sudden passion or
fit of rage.’ ” State v. Harding, 2d Dist. Montgomery No. 24062, 2011-Ohio-2823, ¶ 43,
quoting State v. Stewart, 10th Dist. Franklin No. 10AP-526, 201[1]-Ohio-466, ¶ 13.
{¶ 13} We apply abuse-of-discretion review to the trial court’s denial of Coleman’s
request for a voluntary-manslaughter instruction. State v. Thompson, 141 Ohio St.3d 254,
2014-Ohio-4751, 23 N.E.3d 1096, ¶ 152. With the foregoing standards in mind, we see
no abuse of discretion in the trial court’s refusal to instruct the jury on voluntary
manslaughter. We see virtually nothing in the record suggesting that Coleman shot
Burdette while under the influence of sudden passion or in a fit of rage caused by serious
provocation from Burdette that was reasonably sufficient to incite Coleman into using
deadly force.
{¶ 14} The confrontations prior to the shooting involved (1) Russell arguing with
-7-
McGee about returning McGee’s handgun that had been secured in Russell’s truck and
(2) Russell arguing with Burdette about Burdette breaking a beer bottle on Russell’s truck.
After Russell and Burdette calmed down, Russell began arguing with McGee again. At
that point, Coleman punched Burdette and then shot him in the face. There is no evidence
that Burdette was armed at the time of the incident. In fact, multiple witnesses testified
that he did not possess a weapon or that they did not see him with one that night. Russell
testified that Burdette did not pose a threat that evening and did not make any threats to
Coleman. Russell further testified that he never heard Burdette say anything about having
guns. Tyrone McGee likewise testified that he did not hear Burdette say anything to
Coleman about having guns or threatening to call his “people.”
{¶ 15} Bouncer Michael Fox testified that he was walking across the street toward
the bar when he did hear “somebody holler something about “guns” or “I got guns.” (Trial
Tr. at 340.) Fox testified that he then turned and saw Coleman punch and shoot Burdette.
(Id.) At trial, Fox was unable to identify who made the “guns” comment. Detective David
House also testified about what Fox heard that night. House interviewed Fox after the
shooting. According to House, Fox reported hearing Burdette say “I got guns” and “I’ll call
my people” before being shot. (Id. at 678, 684.) House testified that Fox reported hearing
Burdette make these statements after being punched by Coleman and just before being
shot. (Id. at 685.)
{¶ 16} In his own interview at the police station, Coleman responded as follows
when detective House asked why he shot Burdette:
[Burdette] say he’ll pull up on me to my house and you know, he’ll
shoot me and do this and do that the third [sic]. And I’m like, well, you don’t
-8-
make no threats to me because you might not never make it. You know
what I’m saying? Because you got to go get your shit.
***
You know? And I get tired of people making them type of threats to
me talking about what you gonna do to me. It’s not gonna work because I’m
gonna get you first.
Id. at 658.
{¶ 17} According to detective House, Coleman did not say anything about being in
a rage or losing control at the time of the shooting. (Id.) Witnesses at the scene also
reported that Coleman did not appear to be in a fit of passion or rage immediately before
or after the shooting.
{¶ 18} Even if we assume, arguendo, that before being punched Burdette did say
something to Coleman about having guns, calling his “people,” and showing up at
Coleman’s house, these comments did not come close to justifying a voluntary-
manslaughter instruction. Viewed objectively, any threat of harm to Coleman was not
reasonably sufficient to incite him to respond with immediate deadly force. The record
also does not suggest that Coleman subjectively was acting under a sudden passion or
in fit of rage. No eyewitnesses testified about seeing Coleman in such a condition, and
Coleman’s own police statement did not suggest a fit of passion or rage. Based on the
evidence before us, the trial court did not abuse its discretion in denying Coleman’s
request for a voluntary-manslaughter instruction. The first assignment of error is
overruled.
{¶ 19} In his second assignment of error, Coleman contends the trial court erred
-9-
in entering a guilty verdict and sentencing him on the firearm specification accompanying
count six, which charged him with discharging a firearm on or near a prohibited premises.
Coleman argues that the record does not contain a jury verdict form addressing the
mandatory three-year firearm specification accompanying this count. Therefore, he
contends the trial court erred in entering a guilty verdict on the specification and
sentencing him on it.
{¶ 20} Upon review, we find Coleman’s argument to be unpersuasive. As an initial
matter, the trial court did not impose a separate sentence on the firearm specification
accompanying count six. The trial court found that the offense in count six (discharging a
firearm on or near a prohibited premises) and the accompanying firearm specification
merged into purposeful murder and the firearm specification associated with that count.2
We note too that the record does contain a jury verdict form for the firearm specification
accompanying count six. All of the original verdict forms signed by the jurors were filed
and made part of the record below as “Court’s Exhibit II” at docket number 200. We
examined those verdict forms and found among them the signed verdict form for the
firearm specification accompanying count six. Finally, we note that the jury’s verdict on
the firearm specification was read in open court. (Trial Tr. at 814.) Because the jury did
return a verdict form for the firearm specification, and that form was made part of the
record, we overrule Coleman’s second assignment of error.
{¶ 21} In its assignment of error on cross-appeal, the State challenges the trial
court’s merger of Coleman’s conviction for discharging a firearm on or near a prohibited
2 In fact, the trial court’s failure to impose a sentence for the firearm specification
accompanying count six is the subject of the State’s cross appeal.
-10-
premises with his purposeful-murder conviction. The State objected to the merger below.
It argues on appeal that merger was not appropriate because the two offenses had a
dissimilar import or significance.
{¶ 22} We review the trial court’s merger ruling de novo. State v. Barnes, 2d Dist.
Montgomery No. 28613, 2020-Ohio-4150, ¶ 10. “ ‘As a practical matter, when determining
whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25,
courts must ask three questions when defendant’s conduct supports multiple offenses:
(1) Were the offenses dissimilar in import or significance? (2) Were they committed
separately? and (3) Were they committed with separate animus or motivation? An
affirmative answer to any of the above will permit separate convictions. The conduct, the
animus, and the import must all be considered.’ ” State v. Earley, 145 Ohio St.3d 281,
2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-
Ohio-995, 34 N.E.3d 892, ¶ 31.
{¶ 23} In the present case, the trial court attempted to distinguish State v. Williams,
2d Dist. Montgomery No. 27663, 2018-Ohio-1647, in which we applied plain-error review
and held that discharging a firearm on or near a prohibited premises and murder were not
subject to merger because they were of dissimilar import or significance. We recognized
in Williams that offenses may be of dissimilar import or significance when they involve
different victims, when they are not alike in their resulting harm, or when a defendant’s
conduct places more than one person at risk. The defendant in that case fired multiple
shots across a roadway in rapid succession, striking and killing the victim.
{¶ 24} Here the trial court found Williams distinguishable and determined that
Coleman’s convictions for discharging a firearm on or near a prohibited premises and
-11-
purposeful murder were subject to merger. In support, it reasoned:
* * * The case is cited by the State and I think it’s a pretty applicable
case in the sense that it addresses this type of a charge. Discharge of a
firearm on or near prohibited premises in a murder case. There the Second
District Court of Appeals, and I think it was just a[s] recently as last year,
2018, found that discharge of a firearm on or near prohibited premises was
not an allied offense, in similar report [sic] to murder.
I think in case—it’s been argued, the facts of that’s been argued by
the lawyers. The Court has examined it. I think that the Bryson Williams,
that’s the Bryson Williams case is distinguishable from the facts in this case.
There you had someone shooting into a crowd might be an exaggeration.
A number of people across a street, people gathered in front of a store there.
And actually, I think the shot was intended for someone who did not strike,
struck another person and killed that other person.
In this case, the Court knows from the facts, of course presided at
trial. We have the video. This case involved the Defendant in very close
proximity to the victim firing the shot within—first the Defendant struck the
victim. The victim was staggering in the street. Then the Defendant shot at
close range the victim and probably no more than two or three feet away.
It’s not like it went clear across the roadway as in the Williams case.
It also—I noted in Williams that the Court analyzed that issue under
a plain error type doctrine. Which is, I think—here defense counsel has
raised this. It was not raised at that time. And the Court specifically
-12-
mentioned that it was analyzing it under plain error doctrine. So given the
facts in this case, the Court finds that Count IV, discharge of a firearm on or
near a prohibited premises is a[n] allied offense to murder under the fact[s]
of this particular case.
(Trial Tr. at 822-823.)
{¶ 25} Upon review, we conclude that the purposeful murder and the discharging-
a-firearm offenses were not committed separately and were not committed with a
separate animus. The record reflects that Coleman fired a single shot at close range with
the singular motivation of killing Robert Burdette. In our view, however, the trial court’s
observations that the two men were in close proximity and that Coleman, who was
standing in the street, did not shoot completely across the roadway fail to adequately
address the first question above, namely whether the offenses were of dissimilar import
or significance.
{¶ 26} In Williams, 2d Dist. Montgomery No. 27663, 2018-Ohio-1647, we noted
that offenses may be of dissimilar import or significance when (1) they involve different
victims, (2) they are not alike in their resulting harm, or (3) a defendant’s conduct places
more than one person at risk. Upon review, we found that the defendant’s offenses were
not subject to merger, reasoning:
Williams was convicted and sentenced on one count of murder for
causing Terion Dixon’s death as a proximate result of committing felonious
assault. He also was convicted and sentenced on one count of discharging
a firearm on or near prohibited premises in violation of R.C. 2923.162(A)(3),
which provides: “No person shall do any of the following: * * * Discharge a
-13-
firearm upon or over a public road or highway.” Notably, “[t]he victim of the
offense of discharging a firearm upon or over a public road or highway is
the public. This is because it is the act itself that is prohibited. The offense
can be completed with no one remotely near the location where the firearm
is discharged upon or over the public road or highway. R.C. 2923.162(A)(3)
is a statute intended to benefit the public good[.]” State v. James, 2015-
Ohio-4987, 53 N.E.3d 770 (8th Dist.), ¶ 33; see also State v. Carzelle, 8th
Dist. Cuyahoga No. 105425, 2018-Ohio-92 (applying James). Although
Williams actually shot and killed Dixon, his act of firing a handgun across
the roadway itself violated the statute, placed numerous people at risk, and
harmed the public at large. [Footnote omitted.] Conversely, his murder
conviction required harm to a particular victim and differed in the
significance and the nature of the harm it addressed.
Id. at ¶ 24.
{¶ 27} As in the present case, we acknowledged in Williams that the defendant’s
act of shooting the victim “elevated the degree of the offense of discharging a firearm on
or near prohibited premises to a first-degree felony.” Id. at ¶ 24, fn. 4. We nevertheless
found merger not required because “the act of discharging a firearm over a public road or
highway itself constituted a violation of the statute.” Id. This court has followed Williams
on several occasions, finding that discharging a firearm on or near a prohibited premises
does not merge with murder or other offenses because the offenses are of dissimilar
import or significance. State v. Shoecraft, 2d Dist. Montgomery No. 27860, 2018-Ohio-
3920, In re T.P.-A., 2d Dist. Montgomery No. 28196, 2019-Ohio-2038, ¶ 17-18; State v.
-14-
Ropp, 2d Dist. Champaign No. 2018-CA-44, 2020-Ohio-824, ¶ 26; see also State v.
Johnson, 10th Dist. Franklin No. 18AP-889, 2019-Ohio-4265, ¶ 19 (“Though we are
mindful that [the defendant’s] act of shooting [the victim] elevated the degree of the
offense of discharging a firearm on or near a prohibited premises to a first-degree felony
pursuant to R.C. 2923.162(C)(4), we nonetheless still find the offense of discharge of a
firearm on or near prohibited premises, under these specific facts, to cause separate and
distinct harm to the public.”). We recognize that Williams and some of the other cases
cited above involved plain-error review of a trial court’s failure to merge the offense of
discharging a firearm on or near a prohibited premises with another offense. Although the
procedural posture of Coleman’s case is different, insofar as the State objected below
and now challenges the trial court’s decision to apply merger, we find the substantive
analysis in Williams and the other cases equally applicable here.
{¶ 28} We accept that Coleman committed a single act with a single animus when
he shot Burdette in the face. Based on the case law set forth above, however, we
conclude that his offenses of murder and discharging a firearm on or near a prohibited
premises were of dissimilar import or significance. Even if we assume, arguendo, that
Coleman’s close-range shot did not place multiple people at risk, we recognized in
Williams that offenses also may be of dissimilar import or significance when they involve
different victims. Here the two offenses involved separate victims, as Coleman’s act of
firing on the roadway harmed the public at large and his act of murder harmed Burdette
personally. We note too that Coleman’s shot was not required to go entirely across a
roadway. In State v. Davison, 2d Dist. Montgomery No. 28579, 2021-Ohio-728, we found
that discharging a firearm on or near a prohibited premises and aggravated murder did
-15-
not merge even though the defendant fired at his victims from point-blank range while
sitting in his vehicle on the road.
{¶ 29} For the foregoing reasons, we conclude that the trial court erred in merging
discharging a firearm on or near a prohibited premises into Coleman’s purposeful-murder
conviction. In light of this determination, the State next argues that the trial court is
obligated to impose an additional three-year sentence for the firearm specification
accompanying the discharging-a-firearm conviction.
{¶ 30} Although under R.C. 2929.14(B)(1)(b) a trial court ordinarily may impose
only one additional prison term for three-year firearm specifications attendant to felonies
committed as part of the same act or transaction, the State contends an exception applies.
In particular, the State claims R.C. 2929.14(B)(1)(g) obligates the trial court to impose two
separate prison sentences for three-year firearm specifications accompanying Coleman’s
discharging-a-firearm and purposeful murder convictions.
{¶ 31} In response, Coleman does not challenge the correctness of the State’s
argument. He argues only that the State waived the issue below. Colman notes that the
State opposed merger of the offenses of discharging-a-firearm and purposeful murder. At
the same time, however, the State did not address R.C. 2929.14(B)(1)(g) or dispute
whether the firearm specification accompanying the discharging-a-firearm offense was
subject to merger. Under these circumstances, Coleman maintains that the State may not
argue for separate sentences on the two firearm specifications now.
{¶ 32} Upon review, we conclude that the trial is required to impose a separate
three-year sentence for the firearm specification accompanying the discharging-a-firearm
offense. Under R.C. 2941.145, Coleman was found guilty of multiple three-year firearm
-16-
specifications for having a firearm on or about his person while committing his offenses
and displaying, brandishing, indicating that he possessed, or using it to facilitate the
offenses. Although a trial court ordinarily may impose only one additional three-year
prison term for multiple firearm specifications committed as part of the same act or
transaction (see R.C. 2929.14(B)(1)(b)), an exception is created by R.C.
2929.14(B)(1)(g), which provides:
If an offender is convicted of or pleads guilty to two or more felonies,
if one or more of those felonies are aggravated murder, murder, attempted
aggravated murder, attempted murder, aggravated robbery, felonious
assault, or rape, and if the offender is convicted of or pleads guilty to a
specification of the type described under division (B)(1)(a) of this section in
connection with two or more of the felonies, the sentencing court shall
impose on the offender the prison term specified under division (B)(1)(a) of
this section for each of the two most serious specifications of which the
offender is convicted or to which the offender pleads guilty and, in its
discretion, also may impose on the offender the prison term specified under
that division for any or all of the remaining specifications.
{¶ 33} Here Coleman was convicted of two or more felonies, and one of those
felonies was murder. He also was convicted of three-year firearm specifications of the
type described under R.C. 2929.14(B)(1)(a) in connection with two or more of the felonies.
Therefore, the trial court is required to impose the three-year prison term specified under
R.C. 2929.14(B)(1)(a) “for each of the two most serious specifications” of which Coleman
was convicted. In short, the trial court is obligated by statute to impose separate prison
-17-
terms for the three-year firearm specifications accompanying Coleman’s purposeful
murder and first-degree-felony discharging-a-firearm convictions.3
{¶ 34} We reject Coleman’s argument that the State waived the foregoing issue by
failing to raise it below. A sentence that violates a statutory mandate is by definition
contrary to law. In the present case, the trial court committed plain error when it
overlooked the statutory mandate in R.C. 2929.14(B)(1)(g) obligating it to impose a
separate three-year prison sentence for the firearm specification accompanying
Coleman’s discharging-a-firearm conviction. Therefore, we may correct the error on
appeal. The State’s assignment of error is sustained.
{¶ 35} Based on the reasoning set forth above, we reverse the trial court’s
judgment insofar as it merged Coleman’s conviction for discharging a firearm on or near
a prohibited premises into his conviction for purposeful murder. The doctrine of merger
did not apply because the two offenses were of dissimilar import or significance. We also
reverse the trial court’s judgment insofar as it merged the three-year firearm specifications
accompanying Coleman’s discharging-a-firearm and purposeful-murder convictions. The
matter is remanded for a limited resentencing to correct these errors. In all other respects,
the trial court’s judgment is affirmed.
.............
TUCKER, P. J. and EPLEY, J., concur.
3Parenthetically, we note that the firearm specifications accompanying the felony-murder
and felonious-assault counts properly were merged into the firearm specification
accompanying the purposeful-murder count because the felony-murder and felonious-
assault counts themselves merged into the purposeful murder.
-18-
Copies sent to:
Mathias H. Heck, Jr.
Heather N. Ketter
J. David Turner
Hon. Timothy N. O’Connell