State v. Cowan , 2012 Ohio 5723 ( 2012 )

[Cite as State v. Cowan, 2012-Ohio-5723.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97877
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CRAIG A. COWAN
DEFENDANT-APPELLANT
JUDGMENT:
CONVICTIONS AFFIRMED;
SENTENCE VACATED IN PART;
REMANDED FOR RESENTENCING
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-550536
BEFORE: Jones, P.J., Cooney, J., and E. Gallagher, J.
RELEASED AND JOURNALIZED: December 6, 2012
ATTORNEY FOR APPELLANT
Thomas A. Rein
Leader Building, Suite 940
526 Superior Avenue
Cleveland, Ohio 44114
FOR APPELLANT
Craig A. Cowan
Inmate No. 622-034
Trumbull Correctional Institution
5701 Burnett Road
Leavittsburg, Ohio 44430
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brad S. Meyer
Assistant County Prosecutor
The Justice Center, 8 Floor
ht
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:
{¶1} Defendant-appellant, Craig A. Cowan (“Cowan”), appeals his
convictions for felonious assault, discharge of a firearm on or near a
prohibited premises, having weapons while under disability, and improperly
handling firearms in a motor vehicle. His attorney filed five assignments of
error, and Cowan filed three pro se assignments of error for our review.1
For the following reasons, we affirm Cowan’s convictions but vacate his
sentence in part and remand for further proceedings.
{¶2} The Cuyahoga County Grand Jury indicted Cowan on nine counts:
three counts of felonious assault, three counts of kidnapping with firearm
specifications, notice of prior conviction, and repeat violent offender
specifications attached, and one count each of having a weapon while under
disability, improperly handling a firearm in a motor vehicle, and discharge of
a firearm on or near a prohibited premises. Cowan agreed to bifurcate and
try to the bench the notice of prior conviction, repeat violent offender
specifications, forfeitures, and the charges for improperly handling a firearm
in a motor vehicle, and having a weapon while under disability.
{¶3} Cowan filed a motion to suppress; after conducting a hearing, the
trial court denied the motion and the matter proceeded to a jury trial.
{¶4} Toni Walcott testified that on the afternoon of May 19, 2011, she,
1
See appendix.
her brother Robert, her cousin Artemus Blandling, her aunt Kim Blandling,
Robert’s girlfriend Celena Glover, Celena’s cousin Albert Glover,2 and Cowan
were socializing and drinking. They first convened at Cowan’s home and
then at Kim’s home. At some point that evening, they decided to go to a bar
on Miles Avenue.
{¶5} They drove in two cars because they could not all fit in one.
Celena drove Robert and Albert, and Cowan drove Toni, Artemus, and Kim.
According to Toni, Cowan got into an argument with Kim causing Artemus to
tell Cowan he did not like how he was talking to his mother. Cowan stopped
the vehicle and reached under his seat, which caused them all to think he had
a gun. Instead, he got out of the car, as did the others. He then pulled a
gun out of the trunk and held it to Artemus’s head. Toni was able to talk
Cowan out of harming Artemus. Cowan then sat in the car and shot two
times into the ground. He then left.
{¶6} Toni called Celena, who came to pick up the stranded passengers.
At that point, Toni told her brother that Cowan had her laptop at his house.
She attempted to call Cowan to ask for permission to retrieve the computer,
but Cowan hung up on her. Her brother then called him and told him they
were on their way to pick up the computer.
{¶7} Because of the earlier altercation with Artemus, Celena parked
2
The witnesses will be referred to by their first names to prevent confusion
due to shared surnames.
the car down the street, and Toni and Robert walked the rest of the way to
Cowan’s house. As they reached his house, Cowan jumped out from behind a
tree with two guns drawn. According to Robert, Cowan ordered them to “lay
it down,” an expression used when robbing someone. Robert said Cowan was
four to five feet away from him. He grabbed Cowan’s hand and twisted it
and at the same time the gun went off. Robert and Toni ran in different
directions while Cowan continued to shoot at them. According to Celena, he
also started shooting at her car, causing her to drive in reverse to get away.
Celena later located Toni running in the street. Toni then used Celena’s cell
phone to call police.
{¶8} Darrell Gunter lived next to Cowan. He stated that at around
10:30 p.m. he heard someone loudly say, “I’m going to get you mother f—er.”
He then heard gunshots. He looked out the window and saw a man wearing
the same clothes the other witnesses had described Cowan wearing, firing a
gun. He could not see who he was shooting at, but claimed he shot about
three rounds. Gunter called 911.
{¶9} Officer Vasile Nan testified that he and his partner received a call
about shots being fired in the area of East 142nd and Kinsman Road. As they
were canvassing the area to locate the vehicle described in that shooting, they
received a call regarding a shooting at East 139th Street. As they approached
the scene, they saw Toni waving her hands frantically, crying, and yelling.
She told them her brother had been shot down the road and gave Cowan’s
name as the shooter, a description of his car, and his address. Because the
car matched the description of the car from the earlier shooting, the officer
realized the shootings were related.
{¶10} The officers proceeded to Cowan’s house, which was a two-family
duplex. The door of the downstairs unit was open. The residents living
there verified that Cowan lived upstairs. The officers then went upstairs
where they found Cowan’s apartment door open but Cowan was not present.
{¶11} The next morning, Officer Terrance Smith located Cowan’s
vehicle near Cowan’s residence and notified his supervisor. When back-up
arrived, two officers went upstairs to Cowan’s apartment and knocked loudly
and announced “police.” They received no response; therefore, the SWAT
unit was called. As the SWAT unit and Cleveland police set up a perimeter
around the house, one of the SWAT officers who was standing near an
abandoned house next to Cowan’s house discovered two weapons near a tree,
a 9 millimeter and a revolver.
{¶12} A SWAT officer, using the PA system from the SWAT mobile,
announced several times “Cleveland Police SWAT Unit” and requested that
“Craig Cowan” come out. Cowan eventually exited the home on his own with
his arms up. He kneeled on the driveway as directed and was handcuffed by
SWAT officers. As he was being escorted to the zone car he stated, “What’s
the big deal? I didn’t hit anybody.” One of the arresting officers read
Cowan his Miranda rights and inquired if he had any more weapons.
According to the officer, Cowan turned and looked toward the tree where the
weapons were recovered and said, “no that was it.”
{¶13} Prior to the jury deliberation, the state dismissed one count of
felonious assault and two counts of kidnapping. The jury found Cowan
guilty of one count of felonious assault against Robert along with the one- and
three-year firearm specifications, notice of prior convictions, repeat violent
offender and forfeiture specifications, and one count of discharging a firearm
near or on a prohibited premises, along with the firearm specification. The
jury found him not guilty of one count of felonious assault and one count of
kidnapping. At a separate hearing, the trial court found Cowan guilty of
having a weapon while under disability and improperly handling firearms in
a motor vehicle, along with the forfeiture specification. The trial court
sentenced Cowan to a total of 18 years in prison.
Search Warrant
{¶14} In his first assignment of error, Cowan argues the trial court
erred by denying his motion to suppress. Specifically, he argues the police
needed a warrant to search his home because none of the exceptions to a
warrantless search existed. As a result, he argues that because he was
illegally arrested, his statements to police should be suppressed.
{¶15} Appellate review of the denial of a motion to suppress presents a
mixed question of law and fact. State v. Burnside, 100 Ohio St.3d 152,
2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. When considering a motion to suppress,
the trial court assumes the role of trier of fact and is therefore in the best
position to resolve factual questions and evaluate the credibility of witnesses.
State v. Carter, 72 Ohio St.3d 545, 552, 1995-Ohio-104, 651 N.E.2d 965; State
v. Mills, 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992).
{¶16} Consequently, when reviewing a ruling on a motion to suppress,
deference is given to the trial court’s findings of fact so long as they are
supported by competent, credible evidence. Burnside at ¶ 8. However, an
appellate court reviews de novo whether the trial court’s conclusions of law,
based on those findings of fact, are correct. State v. Anderson, 100 Ohio
App.3d 688, 691, 654 N.E.2d 1034 (4th Dist.1995).
{¶17} “[A] search conducted without a warrant issued upon probable
cause is per se unreasonable [and is] subject only to a few specifically
established and well-delineated exceptions.” State v. Posey, 40 Ohio St.3d
420, 427, 534 N.E.2d 61 (1988), citing Schneckloth v. Bustamonte, 412 U.S.
218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), quoting Katz v. United States,
389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). If a search or
seizure is found to be unreasonable, the evidence derived from the
unreasonable search or seizure is subject to exclusion. Mapp v. Ohio, 367 U.S.
643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).
{¶18} The Ohio Supreme Court has determined that there are “four
exceptions to the warrant requirement which justify a warrantless search of a
home: (1) an emergency situation, (2) search incident to an arrest, (3) ‘hot
pursuit’ and (4) easily destroyed or removed evidence. State v. Cheers (1992),
79 Ohio App.3d 322, 325, 607 N.E.2d 115.” State v. King, 8th Dist. No. 80573,
2003-Ohio-1143, ¶ 16.
{¶19} A review of the evidence submitted at the suppression hearing
indicates that the only warrantless entry by police into Cowan’s apartment
occurred minutes after Cowan shot at multiple individuals. The police
testified they received the call of the shots being fired at 10:40 p.m. and
because they were less than a mile away, arrived by 10:43 p.m. Thus, their
entry into the apartment could fall under the existence of an emergency
situation because they were searching for an armed person who had just shot
at several individuals. Moreover, because no evidence was recovered from
the apartment at this time, the entry into the apartment was harmless error.
Officers did state that they saw in plain view a box of gun shells on Cowan’s
dresser, but this evidence was not admitted at trial.
{¶20} Cowan’s statement to police, “What’s the big deal? I didn’t hit
anyone” was made the next day after he voluntarily exited the house at the
SWAT team’s request. The officers did not have an arrest warrant;
therefore, Cowan contends the trial court should have suppressed this
statement. An arrest without a warrant is constitutionally invalid unless
the arresting officer had probable cause to make the arrest. The test for
probable cause to justify an arrest is
whether at that moment the facts and circumstances within [the
officers’] knowledge and of which they had reasonably
trustworthy information were sufficient to warrant a prudent
man in believing that the [arrestee] had committed or was
committing an offense.
Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1991). Probable
cause requires more than a generalized suspicion of criminal conduct,
although less certainty than proof beyond a reasonable doubt. State v.
Watson, 8th Dist. No. 67396, 1995 Ohio App. LEXIS 1724 (Apr. 27, 1995).
Probable cause must exist at the time of the arrest; it cannot be established
later by evidence gathered from the suspect after his illegal arrest. Beck.
{¶21} Here, the totality of the facts and circumstances were sufficient
for the officers to believe that Cowan had committed an offense. Toni and
Robert Walcott had told the officers that Cowan had threatened their cousin
with a gun and had shot at them outside of his home. Therefore, probable
cause supported his arrest.
{¶22} Cowan’s statement, “What’s the big deal? I didn’t hit anybody”
was also made prior to any question being posed to him. He was being
escorted to the zone car when he made the statement. Therefore, the
statement was uncoerced and voluntarily given. After he was read his
Miranda rights, the officers asked if he had any other weapons. It was at
that point that Cowan looked toward the area under the trees and said, “No,
that’s it.” Thus, the statements made by Cowan were properly deemed
admissible by the trial court judge. Accordingly, Cowan’s first assigned error
is overruled.
Insufficient Evidence
{¶23} We will address Cowan’s second and third assignments of error
together. Cowan argues that his convictions were not supported by sufficient
evidence and were against the manifest weight of the evidence.
{¶24} Crim.R. 29 mandates that the trial court issue a judgment of
acquittal where the state’s evidence is insufficient to sustain a conviction for
the offense. Crim.R. 29(A) and a sufficiency of the evidence review require the
same analysis. State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847
N.E.2d 386, ¶ 37. In analyzing whether a conviction is supported by
sufficient evidence, the reviewing court must view the evidence “in the light
most favorable to the prosecution” and ask whether “any rational trier of fact
could have found the essential elements of the crime proven beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979); State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),
paragraph two of the syllabus.
{¶25} Cowan contends that his convictions were not supported by
sufficient evidence because there was no evidence that the guns were his.
The guns were discovered next to Cowan’s property by a tree. No one lived
in the house by the tree. When the officer asked Cowan if he had any other
weapons, Cowan looked towards the tree and replied, “No, that was it”
indicating that he was aware of where he had last placed the guns.
Moreover, Robert identified the guns at trial as the ones that Cowan was
pointing at him from a short distance of four to five feet. Therefore,
sufficient evidence was presented that the guns discovered were Cowan’s.
{¶26} Cowan also argues that his convictions were not supported by
sufficient evidence because the guns were not test-fired to show that they
were in fact operable. It is not necessary for a gun to be test-fired to prove
that it is operable. The Ohio Supreme Court has held that “proof of
operability can be established beyond a reasonable doubt by testimony of lay
witnesses who were in a position to observe the instrument and the
circumstances surrounding the crime.” State v. Murphy, 49 Ohio St.3d 206,
551 N.E.2d 932 (1990), syllabus. Moreover, whether a firearm was operable or
capable of being readily rendered operable at the time of the offense is
determined within the context of “all relevant facts and circumstances
surrounding the crime, which include any implicit threat made by the
individual in control of the firearm.” State v. Thompkins, 78 Ohio St.3d 380,
387, 1997-Ohio-52, 678 N.E.2d 541, at paragraph one of the syllabus; State v.
Crawford, 8th Dist. No. 82833, 2004-Ohio-500.
{¶27} We conclude the totality of the circumstances provided proof the
guns were operable. Celena, Toni, and Robert all testified that Cowan shot
at Robert from close range. In fact, Robert saw a flash from one of the guns
as it fired. Additionally, Cowan’s neighbor testified that he heard gunshots
and when he looked outside, he saw Cowan shooting at someone down the
street.
{¶28} Cowan argues his conviction for having a weapon while under
disability was not supported by sufficient evidence because no evidence of his
prior conviction for voluntary manslaughter was presented. However,
Cowan stipulated to his prior conviction, and a certified copy of Cowan’s
sentencing entry from the prior crime was admitted into evidence.
{¶29} Cowan also argues his convictions were against the manifest
weight of the evidence. The concept of manifest weight of the evidence
differs from that of sufficiency of the evidence. Weight of the evidence
indicates that the greater amount of credible evidence supports one side of an
issue more than the other. Thompkins at 387. The Ohio Supreme Court has
explained the standard to be applied to determine whether a criminal
conviction is against the manifest weight of the evidence as follows: “When a
court of appeals reverses a judgment of a trial court on the basis that the
verdict is against the weight of the evidence, the appellate court sits as a
‘thirteenth juror’ and disagrees with the factfinder’s resolution of the
conflicting testimony.” Id. citing Tibbs v. Florida, 457 U.S. 31, 42, 102 S.Ct.
2211, 72 L.Ed.2d 652 (1982).
{¶30} To determine whether a case is an exceptional case where the
evidence weighs heavily against conviction, an appellate court must review
the record, weigh the evidence and all reasonable inferences, and consider the
credibility of witnesses. Thompkins at 387, citing State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). An appellate court should
reverse the conviction and order a new trial only if it concludes that the trier
of fact clearly lost its way in resolving conflicts in evidence and created a
manifest miscarriage of justice. Thompkins.
{¶31} Cowan argues that because the witnesses were admittedly
intoxicated their testimony was not credible. However, the resolution of
issues of credibility is a matter primarily for the trier of fact. State v. DeHass,
10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.
The jury was well aware that the witnesses had been drinking, but chose to
believe their testimony. Moreover, Cowan’s neighbor testified that he
observed a man on the street in front of his home, with the same build as
Cowan and dressed in the same attire as described by the other witnesses,
shooting a gun several times. The neighbor, who was not intoxicated, gave
testimony that corroborated that of the other witnesses. Therefore, we
cannot conclude the jury lost its way in finding Cowan guilty. Accordingly,
Cowan’s second and third assignment of errors are overruled.
Allied Offenses
{¶32} In his fourth assignment of error, Cowan argues the trial court
erred by not merging the offenses, which he claims were allied offenses. He
contends the felonious assault, having a weapon while under disability,
improper handling of a firearm in a motor vehicle, and discharge of a firearm
near a prohibited premises, were committed with one animus and should
have merged.
{¶33} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942
N.E.2d 1061, ¶ 43, the Ohio Supreme Court stated that the purpose of
merging allied offenses as follows:
[It has been] consistently recognized that the purpose of R.C.
2941.25 is to prevent shotgun convictions, that is, multiple
findings of guilt and corresponding punishments heaped on a
defendant for closely related offenses arising from the same
occurrence. [Maumee v.] Geiger, 45 Ohio St. 2d at 242, 344 N.E.2d
133. This is a broad purpose and ought not to be watered down
with artificial and academic equivocation regarding the
similarities of the crimes. When “in substance and effect but one
offense has been committed,” the defendant may be convicted of
only one offense. [State v.] Botta, 27 Ohio St.2d at 203, 271
N.E.2d 776.
{¶34} With this purpose in mind, the Johnson court established a new
two-part test for determining whether offenses are allied offenses of similar
import under R.C. 2941.25. In so doing, the supreme court expressly
overruled State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d 699,
which required a “comparison of the statutory elements in the abstract” to
determine whether the statutory elements of the crimes correspond to such a
degree that the commission of one crime will result in the commission of the
other. The Johnson court held that rather than compare the elements of the
crimes in the abstract, courts must consider the defendant’s conduct.
[Cite as State v. Cowan, 2012-Ohio-5723.]
{¶35} Under Johnson, the first inquiry focuses on “whether it is
possible to commit one offense and commit the other with the same conduct *
* *.” Id. at ¶ 48. It is not necessary that the commission of one offense will
always result in the commission of the other. Id. Rather, the question is
whether it is possible for both offenses to be committed by the same conduct.
Id. Conversely, if the commission of one offense will never result in the
commission of the other, the offenses will not merge. Id. at ¶ 51.
{¶36} If the multiple offenses can be committed with the same conduct,
the court must then determine whether the offenses were in fact committed
by a single act, or performed with a single state of mind. Johnson at ¶ 49. If
the answer to both questions is yes, the offenses are allied offenses of similar
import and must be merged. Id. at ¶ 50. On the other hand, if the offenses are
committed separately or with a separate animus, the offenses will not merge.
Id. at ¶ 51.
{¶37} We conclude that there was a separate animus for each offense;
therefore, the offenses do not merge. Under R.C. 2941.25(B), “animus” is
defined as “purpose or, more properly, immediate motive.” State v. Logan, 60
Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979). If the defendant acted with the
same purpose, intent, or motive, the animus is identical for the offenses. State
v. Lewis, 12th Dist. No. CA2008-10-045, 2012-Ohio-885, ¶ 13. Here, Cowan’s
actions occurred during different times.
{¶38} The felonious assault conviction was the result of Cowan
shooting at Robert. However, the improper handling of a firearm in a motor
vehicle and discharge of a firearm on or near a prohibited premises occurred
approximately one hour before. The improper handling of a firearm
concerned Cowan’s driving away with a loaded revolver after stranding his
passengers. The discharge of a firearm concerned Cowan shooting his gun
twice at the ground while sitting in the vehicle, after threatening Artemus.
Therefore, these offenses each involved a separate animus and could not
result in the commission of each other under these factual circumstances.
{¶39} We also conclude that the animus of having a weapon under
disability is making a conscious choice to possess a weapon. Here, Cowan
necessarily acquired the guns sometime prior to committing the other crimes.
The fact that he then used the weapons to commit the other crimes does
not absolve Cowan of the criminal liability that arises solely from his decision
to illegally possess the weapons. See State v. Jones, 1st Dist. No. C-110059,
2011-Ohio-6633; State v. Dillingham, 12th Dist. No. CA2011-03-043,
2011-Ohio-6348; State v. Bray, 2d Dist. No. 2010 CA 14, 2011-Ohio-4660.
Accordingly, Cowan’s fourth assignment of error is overruled.
Consecutive Sentence Findings
{¶40} In his fifth assignment of error, Cowan argues the trial court did
not make the appropriate findings in support of consecutive sentences as
required by H.B. 86.
{¶41} The General Assembly recently amended former R.C.
2929.14(E)(4), renumbered R.C. 2929.14(C)(4), and enacted new language
requiring fact-finding for consecutive sentences. Am.Sub.H.B. No. 86. Because
Cowan was sentenced after the statute took effect, the trial court was
required to sentence him according to the revisions implemented in H.B. 86.
{¶42} R.C. 2929.14(C)(4), as revised, now requires that a trial court
engage in a three-step analysis in order to impose consecutive sentences.
First, the trial court must find that a “consecutive sentence is necessary to
protect the public from future crime or to punish the offender.” Id. Next, the
trial court must find that “consecutive sentences are not disproportionate to
the seriousness of the offender’s conduct and to the danger the offender poses
to the public.” Id. Finally, the trial court must find that at least one of the
following applies: (1) the offender committed one or more of the multiple
offenses while awaiting trial or sentencing, while under a sanction, or while
under postrelease control for a prior offense; (2) at least two of the multiple
offenses were committed as part of one or more courses of conduct, and the
harm caused by two or more of the offenses was so great or unusual that no
single prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct; or (3) the offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by
the offender. Id.{¶43} In each step of this analysis, the statutory language directs that
the trial court must “find” the relevant sentencing factors before imposing
consecutive sentences. R.C. 2929.14(C)(4). In making these findings, a trial
court is not required to use “talismanic words to comply with the guidelines
and factors for sentencing.” State v. Brewer, 1st Dist. No. C-000148, 2000
Ohio App. LEXIS 5455 (Nov. 24, 2000). But it must be clear from the record
that the trial court actually made the findings required by statute. See State
v. Pierson, 1st Dist. No. C-970935, 1998 Ohio App. LEXIS 3812 (Aug. 21,
1998). A trial court satisfies this statutory requirement when the record
reflects that the court has engaged in the required analysis and has selected
the appropriate statutory criteria. See State v. Edmonson, 86 Ohio St.3d 324,
326, 1999-Ohio-110, 715 N.E.2d 131.
{¶44} In the instant case, the trial court failed to articulate the
appropriate findings required by R.C. 2929.14(C)(4). In fact, the court
merely recited Cowan’s convictions and the accompanying sentence for each
offense. Accordingly, we must remand the case to the trial court to consider
whether consecutive sentences are appropriate under H.B. 86, and if so, to
enter the proper findings on the record. Accordingly, Cowan’s fifth assigned
error is sustained.
Pro Se Assignments of Error
{¶45} Although Cowan assigned three pro se errors for our review, we
will not review them because he has exceeded the ten-page limitation we set
in allowing him to file the supplemental pro se assigned errors. Cowan’s
brief is 21 pages long, and he does not commence his legal arguments until
the 12th page. Page limitations are a valid exercise of judicial power. Even
in capital cases, the Ohio Supreme Court has upheld page limitations, finding
that they force counsel to winnow out weaker arguments and focus on key
issues. State v. Davis, 62 Ohio St.3d 326, 352, 581 N.E.2d 1362, (1991), cert.
denied (1992), 506 U.S. 803, 113 S.Ct. 302, 121 L.Ed.2d 6; State v. Bonnell,
61 Ohio St.3d 179, 186, 573 N.E.2d 1082 (1991), cert. denied (1992), 502 U.S.
1107, 112 S.Ct. 1205, 117 L.Ed.2d 444. Accordingly, Cowan’s pro se brief is
stricken.
{¶46} Convictions affirmed; sentence affirmed in part and vacated in
part; case remanded for the trial court to consider whether consecutive
sentences are appropriate under H.B. 86, and if so, to enter the proper
findings on the record.
It is ordered that appellee and appellant share the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
EILEEN A. GALLAGHER, J., CONCURS;
COLLEEN CONWAY COONEY, J., CONCURS
IN JUDGMENT ONLY
APPENDIX
COUNSEL’S ASSIGNED ERRORS:
I. The trial court erred when it denied appellant’s motion to
suppress.
II. The trial court erred in denying appellant’s motion for
acquittal as to the charges when the state failed to present
sufficient evidence against appellant.
III. Appellant’s convictions are against the manifest weight of
the evidence.
IV. The trial court erred by ordering convictions and a
consecutive sentence for separate counts of felonious assault
and the other weapons counts because the offenses are allied
offenses pursuant to R.C. 2941.25 and they are part of the same
transaction under R.C. 2929.14.
V. The trial court erred by ordering appellant to serve a
consecutive sentence without making the appropriate findings
required by R.C. 2929.14 and HB 86.
PRO SE ASSIGNED ERRORS:
VI. The trial court erred to the prejudice of
defendant/appellant when it did not give appellant a pre-trial
hearing for his motion of self-representation that was filed
properly, timely, knowingly, intelligently, and voluntarily.
VII. The trial court erred to the prejudice of
defendant/appellant conviction. [sic] Appellant’s due process
was violated when the trial court allowed the jury to deliberate
with appellant’s prior convictions.
VIII. The trial court erred to the prejudice of
defendant/appellant conviction [sic]. Appellant contends that
the evidence was insufficient to convict him of firing weapons,
felonious assault, and having weapons in his vehicle.