[Cite as State v. Kennedy, 2018-Ohio-4997.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 CLARK COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

DENNIS H. KENNEDY 

Defendant-Appellant 

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Appellate Case No. 2017-CA-100 

Trial Court Case No. 2015-CR-0643C 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 14th day of December, 2018. 

. . . . . . . . . . . 

ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark 

County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 

 Attorney for Plaintiff-Appellee 

 

ALEX KOCHANOWSKI, Atty. Reg. No. 0090940, 6302 Kincaid Road, Cincinnati, Ohio 

45213 

 Attorney for Defendant-Appellant 

. . . . . . . . . . . . . 

 

WELBAUM, P.J. 
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{¶ 1} Defendant-appellant, Dennis H. Kennedy, appeals from his conviction in the 

Clark County Court of Common Pleas after a jury found him guilty of one count of 

improperly handling a firearm in a motor vehicle and two counts of improperly discharging 

a firearm at or into a habitation, with two firearm specifications. In support of his appeal, 

Kennedy contends there was insufficient evidence to support his conviction and that his 

conviction was against the manifest weight of the evidence. Kennedy also contends that 

the trial court erred by failing to merge his offenses and firearm specifications at 

sentencing. Kennedy further contends the trial court erred by imposing consecutive 

sentences and by failing to impose minimum, concurrent sentences. For the reasons 

outlined below, the judgment of the trial court will be affirmed. 

Facts and Course of Proceedings 

{¶ 2} On December 8, 2015, the Clark County Grand Jury returned an indictment 

charging Kennedy with one count of improperly handling a firearm in a motor vehicle in 

violation of R.C. 2923.16(B), a felony of the fourth degree; one count of tampering with 

evidence in violation of R.C. 2921.121(A)(1), a felony of the third degree; and two counts 

of improperly discharging a firearm at or into a habitation in violation of R.C. 

2923.161(A)(1), both felonies of the second degree. Each of the two counts charging 

Kennedy with improperly discharging a firearm at or into a habitation included a 

mandatory three-year firearm specification. 

{¶ 3} The charges arose from allegations that on the night of September 22, 2015, 

Kennedy and Aaron Roberts fired several gunshots at two Springfield, Ohio, residences 
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located on Pine Street and on South Center Boulevard. Kennedy and Roberts were 

allegedly transported to the residences in a red SUV driven by Krista Jones. Following 

the shootings, the red SUV in question engaged in a high-speed chase with several 

Springfield police officers, which ended in the town of South Charleston. Roberts and 

Jones were apprehended from the red SUV in South Charleston after the chase came to 

an end, whereas Kennedy allegedly fled the scene on foot. After investigating the matter 

further, law enforcement apprehended Kennedy three months later and charged him with 

the aforementioned offenses. 

{¶ 4} Kennedy pled not guilty to the charges and the matter proceeded to a jury 

trial. At trial, the State presented 24 witnesses and submitted over 100 exhibits in 

support of the charges against Kennedy. In his defense, Kennedy presented no 

witnesses, but offered five exhibits, two of which were admitted into evidence. After the 

State rested its case, Kennedy moved the trial court for a Crim.R. 29 dismissal of all the 

charges. The trial court denied Kennedy’s motion. Following closing arguments and 

jury instructions, the jury deliberated and found Kennedy guilty of all the charges and 

specifications, excluding the charge for tampering with evidence. 

{¶ 5} Prior to sentencing, Kennedy filed a motion requesting the trial court to merge 

all of his offenses and firearm specifications or, alternatively, to impose minimum, 

concurrent sentences. The trial court denied Kennedy’s motion and thereafter 

sentenced Kennedy to eight years in prison for each count of improperly discharging a 

firearm at or into a habitation. The trial court also sentenced Kennedy to 18 months in 

prison for improperly handling a firearm in a motor vehicle, and it ordered Kennedy to 

serve a mandatory three-year prison term for each of the two firearm specifications. The 
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trial court ordered all of Kennedy’s sentences to be served consecutively for a total term 

of 23.5 years in prison. 

{¶ 6} Kennedy now appeals from his conviction, raising two assignments of error 

for review. 

First Assignment of Error 

{¶ 7} Under his First Assignment of Error, Kennedy contends there was insufficient 

evidence to support his conviction and that his conviction was against the manifest weight 

of the evidence. We disagree. 

{¶ 8} “A sufficiency of the evidence argument disputes whether the State has 

presented adequate evidence on each element of the offense to allow the case to go to 

the jury or sustain the verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery 

No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 

N.E.2d 541 (1997). “When reviewing a claim as to sufficiency of evidence, the relevant 

inquiry is whether any rational factfinder viewing the evidence in a light most favorable to 

the state could have found the essential elements of the crime proven beyond a 

reasonable doubt.” (Citations omitted.) State v. Dennis, 79 Ohio St.3d 421, 430, 683 

N.E.2d 1096 (1997). “The verdict will not be disturbed unless the appellate court finds 

that reasonable minds could not reach the conclusion reached by the trier-of-fact.” 

(Citations omitted.) Id. 

{¶ 9} In contrast, “[a] weight of the evidence argument challenges the believability 

of the evidence and asks which of the competing inferences suggested by the evidence 

is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating 
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whether a conviction is against the manifest weight of the evidence, the appellate court 

must review the entire record, weigh the evidence and all reasonable inferences, consider 

witness credibility, and determine whether, in resolving conflicts in the evidence, the trier 

of fact “ ‘clearly lost its way and created such a manifest miscarriage of justice that the 

conviction must be reversed and a new trial ordered.’ ” Thompkins at 387, quoting State 

v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). “The fact that the 

evidence is subject to different interpretations does not render the conviction against the 

manifest weight of the evidence.” State v. Adams, 2d Dist. Greene Nos. 2013 CA 61, 

2013 CA 62, 2014-Ohio-3432, ¶ 24, citing Wilson at ¶ 14. 

{¶ 10} Because the trier of fact sees and hears the witnesses at trial, we must defer 

to the factfinder’s decisions whether, and to what extent, to credit the testimony of 

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 

476684, *4 (Aug. 22, 1997). However, we may determine which of several competing 

inferences suggested by the evidence should be preferred. A judgment of conviction 

should be reversed as being against the manifest weight of the evidence only in 

exceptional circumstances. Martin at 175. 

{¶ 11} As previously noted, Kennedy was convicted of one count of improperly 

handling a firearm in a motor vehicle in violation of 2923.16(B). Pursuant to that statute: 

“No person shall knowingly transport or have a loaded firearm in a motor vehicle in such 

a manner that the firearm is accessible to the operator or any passenger without leaving 

the vehicle.” R.C. 2923.16(B). 

{¶ 12} Kennedy was also convicted of two counts of improperly discharging a 

firearm at or into a habitation in violation of R.C. 2923.161(A)(1). Pursuant to that 
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statute: “No 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[.]” R.C. 2923.161(A)(1). These charges included two three-year firearm 

specifications which alleged that “the offender had a firearm on or about the offender’s 

person or under the offender’s control while committing the offense and displayed the 

firearm, brandished the firearm, indicated that the offender possessed the firearm, or used 

it to facilitate the offense.” R.C. 2941.145(A). 

{¶ 13} Kennedy contends the State’s evidence was insufficient to support his 

conviction for the aforementioned offenses and specifications because the State failed to 

prove that he was involved in the shootings on Pine Street and South Center Boulevard 

or that he was present inside the get-away vehicle with a loaded firearm. We find no 

merit to Kennedy’s claims. 

{¶ 14} At trial, the State presented Aaron Roberts, who testified that he and 

Kennedy discharged firearms at the Pine Street and South Center Boulevard residences 

on the night in question. Roberts indicated that he and Kennedy engaged in such 

conduct because gunshots were fired at them earlier in the night while they were on 

Kenton Street. Roberts testified that he believed Gary Strodes and Michael Johnson 

were the individuals who fired shots at him and Kennedy. 

{¶ 15} After the shooting on Kenton Street, Roberts testified that Krista Jones 

arrived in a red SUV and transported him and Kennedy to Kennedy’s residence on 

Columbus Road, where they loaded two semi-automatic rifles. Once the rifles were 

loaded, Roberts testified that he and Kennedy returned to Jones’s SUV to go “shoot up 

some houses.” Trial Trans. Vol. II (Oct. 4, 2017), p. 264. 
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{¶ 16} Roberts testified that they first went to the residence of Gary Strodes’s 

cousin, Jeff Strodes, located on Pine Street. Roberts testified that Jones drove him and 

Kennedy to Lafayette Avenue where they exited the SUV, walked through an alley, and 

discharged their firearms at Strodes’s residence until their clips were empty. Roberts 

claimed he and Kennedy then ran back to the SUV and that Jones once again drove them 

to Kennedy’s residence, where they reloaded their firearms. 

{¶ 17} After reloading their firearms, Roberts testified that Jones drove him and 

Kennedy to Woodward Avenue where he and Kennedy exited the SUV and walked to 

Michael Johnson’s residence on South Center Boulevard. Roberts testified that he and 

Kennedy fired several gunshots at Johnson’s residence and then ran back to the SUV on 

Woodward. From there, Roberts testified that Jones drove him and Kennedy to York 

Street where Roberts noticed they were being followed. According to Roberts, a police 

chase ensued shortly thereafter. 

{¶ 18} Roberts testified that the police chase led them out of Springfield and into 

the town of South Charleston. Upon reaching South Charleston, Roberts testified that 

their SUV hit stop sticks placed in the road by police. After hitting the stop sticks, Roberts 

testified that he threw his firearm out the SUV’s window and that Kennedy did the same. 

According to Roberts, Kennedy then said “let me out, let me out, let me out.” Trial Trans. 

Vol. II (Oct. 4, 2017), p. 270. In response, Roberts claimed that he leaned forward from 

where he was sitting in the front-passenger seat of the SUV and opened the front 

passenger door so that Kennedy could jump out of the two-door vehicle. After Kennedy 

fled the vehicle, Roberts testified that he and Jones stayed inside the SUV, where they 

were arrested. 
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{¶ 19} In addition to the foregoing testimony, Roberts identified the two firearms 

that he and Kennedy used during the shootings. The State thereafter called multiple 

investigating officers who testified that the firearms identified by Roberts were found in 

South Charleston near where Roberts and Jones were apprehended and where officers 

observed a third individual, later determined to be Kennedy, flee from the SUV on foot. 

{¶ 20} A firearm examiner from the Ohio Bureau of Criminal Investigation (“BCI”) 

testified that both firearms identified by Roberts were operable. A forensic ballistics 

expert from BCI also testified that all the shell casings collected near the Pine Street and 

South Center Boulevard residences were fired from the two firearms identified by Roberts. 

A DNA analyst from BCI further testified that a mixture of Roberts’s and Kennedy’s DNA 

was discovered on one of the firearms, and that Kennedy and Roberts were the major 

contributors of DNA on that firearm. Although the DNA testing on the second firearm 

was inconclusive, the DNA analyst testified that the inconclusive result simply meant that 

there was not enough data to include Roberts and Kennedy as DNA contributors. The 

analyst, however, testified that he could not rule out the possibility that Roberts’s and 

Kennedy’s DNA were present on the firearm. 

{¶ 21} In addition to the testimony concerning the firearms, a criminal intelligence 

analyst from BCI testified regarding precision location data obtained from Kennedy’s cell 

phone.1 The analyst testified that the cell phone in question received service from 

 

1Although the State presented no cell phone carrier records that officially linked Kennedy 

to the cell phone in question, the State presented other evidence linking Kennedy to the 

cell phone. The State presented Detective Beau Collins who testified that, through his 

occupation, he had dealt with Kennedy in the past and that he was aware of Kennedy’s 

cell phone number, which was the same number associated with the cell phone for which 

the location data was obtained. The State also presented testimony from Detective 

Jerrold Mitchell, who extracted data from the cell phone pursuant to a search warrant. 
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cellular towers located in the area of the shootings at Kenton Street, Pine Street, and 

South Center Boulevard near the time that each of the shootings occurred. The cell 

phone data also indicated that Kennedy’s cell phone received service from cellular towers 

that were located near South Charleston during the time the police were chasing the SUV 

into South Charleston. 

{¶ 22} Kennedy claims the foregoing evidence was insufficient to support his 

conviction because the only direct evidence linking him to the offenses was the testimony 

of Roberts. Kennedy claims Roberts’s testimony should have been discredited because 

it was biased. Kennedy claims Roberts’s testimony was biased because Roberts 

entered a plea agreement with the State that reduced his charges. According to 

Kennedy, the only remaining evidence against him was circumstantial, which Kennedy 

claims was insufficient to convict him because it failed to exclude any reasonable theory 

of innocence. 

{¶ 23} In crafting this argument, Kennedy relies on State v. Kulig, 37 Ohio St.2d 

157, 309 N.E.2d 897 (1974), which was expressly overruled by State v. Jenks, 61 Ohio 

St.3d 259, 574 N.E.2d 492 (1991). Accord State v. Winton, 2d Dist. Montgomery No. 

27043, 2017-Ohio-6908, ¶ 43. Per Jenks, “[w]hen the state relies on circumstantial 

 

Mitchell testified that after extracting data from the cell phone, he discovered that the 

e-mail address associated with the cell phone was “denniskennedy2112@gmail.com.” 

Mitchell also testified that the cell phone was associated with a Snapchat user named 

“denniskennedy21.” The State also presented Detective Ronald Jordan, who testified that 

the cell phone extraction provided several videos that were created by Kennedy. Jordan 

testified that the videos showed Kennedy turning the cell phone around to record himself 

with other people, and that Kennedy was on almost every video taken. Jordan also 

testified that he discovered the cell phone inside a vehicle that was parked outside a 

residence where Kennedy was staying. We find this was sufficient evidence linking 

Kennedy to the cell phone in question. 
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evidence to prove an essential element of the offense charged, there is no need for such 

evidence to be irreconcilable with any reasonable theory of innocence in order to support 

a conviction.” (Emphasis added.) Jenks at paragraph one of the syllabus, overruling 

Kulig. Therefore, contrary to Kennedy’s claim otherwise, “[c]ircumstantial evidence is as 

inherently probative as direct evidence.” Winton at ¶ 23, citing In re A.K., 2d Dist. 

Montgomery No. 21504, 2007-Ohio-2095, ¶ 21. 

{¶ 24} That said, it was the province of the jury to determine whether Roberts’s 

testimony was credible. The State presented the testimony of several law enforcement 

officers, expert witnesses, and other individuals who corroborated Roberts’s testimony 

regarding his and Kennedy’s conduct on the night in question. The DNA evidence 

discovered on one of the firearms and the cell phone location data also supported the 

finding that Kennedy was present during the offenses in question. Therefore, based on 

the facts and circumstances here, we find it was certainly reasonable for the jury to believe 

Roberts’s testimony. 

{¶ 25} At this juncture, we note that, as part of this assignment of error, Kennedy 

argues in his reply brief that the cell phone location data was inadmissible because it was 

obtained without a warrant in violation of his Fourth Amendment rights, pursuant to the 

United States Supreme Court’s recent decision in Carpenter v. United States, __ U.S. __, 

138 S.Ct. 2206, 201 L.Ed.2d 507 (2018). The court in Carpenter held that the 

government’s acquisition of cell-site records constitutes a Fourth Amendment search. 

Id. at paragraph one of the syllabus. The court noted that, “even though the 

Government will generally need a warrant to access [cell-site location information], casespecific exceptions—e.g., exigent circumstances—may support a warrantless search.” 
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Id. at paragraph two of the syllabus. 

{¶ 26} The issue of whether the cell phone location data used at Kennedy’s trial 

was obtained in violation of Kennedy’s Fourth Amendment rights was never argued 

before the trial court, as Kennedy never moved to suppress the data. “It is settled law 

that issues raised for the first time on appeal and not having been raised in the trial court 

are not properly before this court and will not be addressed.” State v. Schneider, 2d Dist. 

Greene No. 95-CA-18, 1995 WL 737910, * 1 (Dec. 13, 1995). While Carpenter was 

decided after Kennedy’s conviction, there was nothing prohibiting Kennedy from moving 

the trial court to suppress the cell phone location data on Fourth Amendment grounds. 

Furthermore, “[a]n appellant may not use a reply brief to raise new issues or assignments 

of error.” State v. Murnahan, 117 Ohio App.3d 71, 82, 689 N.E.2d 1021 (2d Dist.1996), 

citing App.R. 16(C). Accord State v. McComb, 2d Dist. Montgomery No. 26481, 2015-

Ohio-2556, ¶ 14. 

{¶ 27} Regardless, even if we were to review the issue and conclude that the cell 

phone location data was obtained without a warrant in violation of Kennedy’s Fourth 

Amendment rights, such an error would be harmless beyond a reasonable doubt 

because, even without the cell phone location data, there was overwhelming evidence to 

convict Kennedy of the offenses in question. See State v. Williams, 6 Ohio St.3d 281, 

290, 452 N.E.2d 1323 (1983), quoting Harrington v. California, 395 U.S. 250, 254, 89 

S.Ct. 1726, 23 L.Ed.2d 284 (1969) (“evidence * * * improperly admitted in derogation of a 

criminal defendant’s constitutional rights * * * is harmless ‘beyond a reasonable doubt’ if 

the remaining evidence alone comprises ‘overwhelming’ proof of defendant’s guilt”). 

Accord State v. Jenkins, 2d Dist. Montgomery No. 27701, 2018-Ohio-3697, ¶ 16. 
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{¶ 28} When viewing all the other evidence in the light most favorable to the State, 

we find there was sufficient evidence indicating that Kennedy had a loaded firearm 

accessible to him while he was riding as a passenger in a motor vehicle, and that he was 

one of the individuals who discharged a firearm on Pine Street and on South Center 

Boulevard. Such evidence includes Roberts’s testimony, the testimony of all the 

investigating officers, the expert witness testimony, and the DNA evidence. Therefore, 

we find that Kennedy’s conviction for one count of improperly handling a firearm in a motor 

vehicle and two counts of improperly discharging a firearm at or into a habitation was 

supported by sufficient evidence. Because those offenses were supported by sufficient 

evidence, we also necessarily find there was sufficient evidence that Kennedy used a 

firearm while committing the two counts of improperly discharging a firearm at or into a 

habitation, thus supporting the two three-year firearm specifications. 

{¶ 29} We further find that Kennedy’s conviction was not against the manifest 

weight of the evidence. At trial, the State presented testimony from 24 witnesses and 

introduced over 100 exhibits, all of which the jury could have reasonably credited to 

conclude that Kennedy was guilty of the offenses and specifications at issue. Therefore, 

due to the abundance of evidence implicating Kennedy in the alleged offenses, the jury 

did not clearly lose its way or create a manifest miscarriage of justice in finding him guilty. 

{¶ 30} Kennedy’s First Assignment of Error is overruled. 

Second Assignment of Error 

{¶ 31} Under his Second Assignment of Error, Kennedy contends the trial court 

erred by failing to merge his offenses and firearm specifications at sentencing. Kennedy 
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also contends the trial court erred by imposing consecutive sentences and by failing to 

impose minimum, concurrent sentences. We disagree with Kennedy’s claims. 

Merger 

{¶ 32} As previously noted, Kennedy contends the trial court should have merged 

his offenses and firearm specifications at sentencing. With regard to Kennedy’s 

offenses, Ohio’s allied offense statute, R.C. 2941.25, provides that: 

(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. 

{¶ 33} “ ‘[W]hen 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 
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v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31. 

{¶ 34} As to the question of import and significance, “two or more offenses of 

dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s 

conduct constitutes offenses involving separate victims or if the harm that results from 

each offense is separate and identifiable.” Ruff at ¶ 23. In regard to the animus, 

“ ‘[w]here an individual’s immediate motive involves the commission of one offense, but 

in the course of committing that crime he must, [a] priori, commit another, then he may 

well possess but a single animus, and in that event may be convicted of only one crime.’ ” 

State v. Ramey, 2015-Ohio-5389, 55 N.E.3d 542, ¶ 70 (2d Dist.), quoting State v. Logan, 

60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979). 

{¶ 35} We review allied-offense determinations de novo. State v. Harmon, 2017-

Ohio-8106, 98 N.E.3d 1238, ¶ 59 (2d Dist.), citing State v. Williams, 134 Ohio St.3d 482, 

2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. De novo appellate review means that this court 

independently reviews the record and affords no deference to a trial court’s decision. 

State v. Walker, 10th Dist. Franklin No. 06AP-810, 2007-Ohio-4666, ¶ 10. 

{¶ 36} As previously discussed, Kennedy was convicted of two separate counts of 

improperly discharging a firearm at or into a habitation with a firearm specification 

attached to each count. One of the counts was for gunshots fired at a residence on Pine 

Street and the other count was for gunshots fired at a residence on South Center 

Boulevard. The offenses were dissimilar in import and significance because each 

shooting produced separate victims that suffered separate, identifiable damage to their 

respective homes. The record also indicates that the shootings occurred separately in 

time and distance. The record further indicates that the motivation behind the shootings 
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was to exact revenge on two separate individuals, meaning the shootings did not arise 

from a single animus. Therefore, the two counts for improperly discharging a firearm at 

or into a habitation were not allied offenses subject to merger. 

{¶ 37} The improper discharge counts and the count for improperly handling a 

firearm in a motor vehicle were also not allied offenses subject to merger. This is 

because the harm or danger that arose from carrying a loaded firearm in a motor vehicle 

was separate and distinct from the harm or danger that arose from discharging a firearm 

at or into a habitation. See State v. Pope, 2017-Ohio-1308, 88 N.E.3d 584, ¶ 34-35 (2d 

Dist.) (holding that OVI and improper handling offenses were not allied offenses subject 

to merger because the offenses involved separate harm). 

{¶ 38} In State v. Johnson, 10th Dist. Franklin Nos. 16AP-860, 16AP-868, and 

16AP-869, 2017-Ohio-9286, the trial court declined to merge certain offenses at 

sentencing, including two counts of improperly discharging a firearm at or into a habitation 

and one count of improperly handling a firearm in a motor vehicle. Id. at ¶ 15-16. The 

offenses stemmed from the defendant’s driving to an individual’s house, getting out of his 

vehicle, firing shots into the house, and then driving to another individual’s house, where 

the defendant once again got out of his vehicle and fired shots into that house. Id. at ¶ 2. 

The Tenth District held that, because the defendant’s improper handling offense occurred 

both before and after the defendant discharged his firearm at the residences, the improper 

handling offense and improper discharge offenses were “ ‘not alike in their significance 

and their resulting harm.’ ” Id. at ¶ 21, quoting Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 

34 N.E.3d 892, at ¶ 21. We agree. 

{¶ 39} With regard to Kennedy’s two firearm specifications, the Supreme Court of 
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Ohio has made clear that “[t]he criminal offense of discharging a firearm at or into a 

habitation as defined in R.C. 2923.161 and a firearm specification as defined in R.C. 

2941.145 are not allied offenses of similar import as defined in R.C. 2941.25, because a 

firearm specification is a penalty enhancement, not a criminal offense.” State v. Ford, 

128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, paragraph one of the syllabus. 

{¶ 40} As to the question of whether Kennedy’s two firearm specifications should 

have merged with each other, we look to R.C. 2929.14(B)(1)(b), not R.C. 2941.25. R.C. 

2929.14(B)(1)(b) provides that: “Except as provided in division (B)(1)(g) of this section, a 

court shall not impose more than one prison term on an offender under division (B)(1)(a) 

of this section for felonies committed as part of the same act or transaction.” The 

exception under division (B)(1)(g) of the statute does not apply to this case; therefore, 

whether Kennedy’s firearm specifications should have merged depends on whether the 

improper discharge offenses were committed as part of the “same act or transaction.” 

{¶ 41} “ ‘Same act or transaction’ means a series of continuous acts bound 

together by time, space and purpose, and directed toward a single objective.” State v. 

Nowden, 2d Dist. Clark No. 07CA0120, 2008-Ohio-5383, ¶ 77, citing State v. Wills, 69 

Ohio St.3d 690, 635 N.E.2d 370 (1994). In determining whether felonies are committed 

as part of the same act or transaction, “[t]he test is not whether there was a separate 

animus for each offense; the appropriate consideration is whether the defendant ‘had a 

common purpose in committing multiple crimes’ and engaged in a ‘single criminal 

adventure.’ ” State v. Like, 2d Dist. Montgomery No. 21991, 2008-Ohio-1873, ¶ 40, 

quoting State v. Adams, 7th Dist. Mahoning No. 00 CA 211, 2006-Ohio-1761, ¶ 54, 57. 

(Other citation omitted.) 
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{¶ 42} In this case, the improper discharge offenses to which the firearm 

specifications applied were not committed as part of the same act or transaction. As 

previously noted, the shootings occurred at different times and at separate locations. 

After Kennedy finished discharging his firearm at the residence on Pine Street, he left the 

scene and went back to his house to reload his firearm. Once his firearm was reloaded, 

Kennedy then went on to discharge his firearm at the residence on South Center 

Boulevard. These are two separate “criminal adventures” which Kennedy committed for 

purposes of exacting revenge on two separate individuals. The trial court therefore 

properly declined to merge Kennedy’s two firearm specifications. 

{¶ 43} For the foregoing reasons, Kennedy’s merger argument lacks merit. 

Consecutive and Minimum Sentences 

{¶ 44} Kennedy also contends that the trial court erred by imposing consecutive 

sentences and by failing to impose minimum, concurrent sentences. We review felony 

sentences in accordance with the standard set forth in R.C. 2953.08(G)(2). State v. 

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10, 16. Accord State 

v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069 (2d Dist.). 

{¶ 45} R.C. 2953.08(G)(2) provides that: 

The appellate court may increase, reduce, or otherwise modify a sentence 

that is appealed under this section or may vacate the sentence and remand 

the matter to the sentencing court for resentencing. The appellate court’s 

standard for review is not whether the sentencing court abused its 

discretion. The appellate court may take any action authorized by this 
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division if it clearly and convincingly finds either of the following: 

(a) That the record does not support the sentencing court’s findings under 

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 

2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, 

if any, is relevant; 

(b) That the sentence is otherwise contrary to law. 

{¶ 46} Pursuant to the plain language of R.C. 2953.08(G)(2), this court may vacate 

or modify Kennedy’s sentence only if it “determines by clear and convincing evidence that 

the record does not support the trial court’s findings under relevant statutes or that the 

sentence is otherwise contrary to law.” Marcum at ¶ 1. This is a very deferential 

standard of review, as the question is not whether the trial court had clear and convincing 

evidence to support its findings, but rather, whether we clearly and convincingly find that 

the record fails to support the trial court’s findings. Rodeffer at ¶ 31, citing State v. 

Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th Dist.). 

{¶ 47} In this case, the trial court made findings under one of the relevant statutes 

referred to in R.C. 2953.08(G)(2), namely, R.C. 2929.14(C)(4). Pursuant to R.C. 

2929.14(C)(4), a trial court may impose consecutive sentences if it determines that: (1) 

consecutive service is necessary to protect the public from future crime or to punish the 

offender; (2) consecutive sentences are not disproportionate to the seriousness of the 

offender’s conduct and to the danger the offender poses to the public; and (3) one or 

more of the following three findings are satisfied. 

(a) The offender committed one or more of the multiple offenses while the 

offender was awaiting trial or sentencing, was under a sanction imposed 
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pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or 

was under post-release control for a prior offense. 

(b) 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 

multiple offenses so committed 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. 

(c) The offender’s history of criminal conduct demonstrates that consecutive 

sentences are necessary to protect the public from future crime by the 

offender. 

R.C. 2929.14(C)(4)(a)-(c). 

{¶ 48} “ ‘[A] trial court is required to make the findings mandated by R.C. 

2929.14(C)(4) at the sentencing hearing and incorporate its findings into its sentencing 

entry, but it has no obligation to state reasons to support its findings.’ ” State v. Bittner, 

2d Dist. Clark No. 2013-CA-116, 2014-Ohio-3433, ¶ 11, quoting State v. Bonnell, 140 

Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. “[W]here a trial court properly 

makes the findings mandated by R.C. 2929.14(C)(4), an appellate court may not reverse 

the trial court’s imposition of consecutive sentences unless it first clearly and convincingly 

finds that the record does not support the trial court’s findings.” State v. Withrow, 2016-

Ohio-2884, 64 N.E.3d 553, ¶ 38 (2d Dist.). Again, “the question is not whether the trial 

court had clear and convincing evidence to support its findings, but rather, whether we 

clearly and convincingly find that the record fails to support the trial court’s findings.” Id. 

In applying that standard of review, “the consecutive nature of the trial court’s sentencing 
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should stand unless the record overwhelmingly supports a contrary result.” (Citation 

omitted.) Id. at ¶ 39. 

{¶ 49} The record in this case establishes that the trial court made all the required 

consecutive-sentence findings at the sentencing hearing and in the sentencing entry. 

See Sentencing Trans. (Oct. 31, 2017), p. 18; Judgment Entry of Conviction (Nov. 27, 

2017), Docket No. 57, p. 3. Specifically, the trial court stated the following at the 

sentencing hearing: 

The Court finds that consecutive sentences [are] necessary to 

protect the public from future crime and to punish the Defendant and that 

the consecutive sentences are not disproportionate to the seriousness [of] 

his conduct and to the danger he poses to the public. The Court also finds 

that the Defendant committed one or more multiple acts while he was 

awaiting trial or sentencing. As indicated, he was under bond for two cases 

at the time. 

The Court further finds that at least two of the multiple offenses were 

committed as part of the normal courses of conduct and the harm caused 

by the two or more multiple offenses so committed was so great or unusual 

that no single prison term for any of the offenses committed as part of the 

course of conduct or courses of conduct adequately reflects the seriousness 

of the Defendant’s conduct. And the Defendant’s history of criminal 

conduct demonstrates consecutive sentences are necessary to protect the 

public from future crime by the defendant. 

Sentencing Trans., p. 18. 
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{¶ 50} As previously noted, when a trial court makes the required consecutivesentence findings under R.C. 2929.14(C)(4), an appellate court may not reverse the trial 

court’s imposition of consecutive sentences unless it first clearly and convincingly finds 

that the record does not support the trial court’s findings. Withrow at ¶ 38. After a 

thorough review of the record, we do not clearly and convincingly find that the record does 

not support the trial court’s consecutive-sentence findings. The record indicates that 

Kennedy’s shooting spree placed several people in severe danger and caused property 

damage to multiple homes. The record also indicates that Kennedy committed the 

offenses while he was out on bond for two separate cases, one of which involved another 

charge of improperly handling a firearm in a motor vehicle. The record further indicates 

that Kennedy had a history of criminal convictions for aggravated menacing, obstruction 

of official business, fleeing and eluding, improper handling of a firearm in a motor vehicle, 

possession of heroin, driving under suspension, failure to appear, and a juvenile 

adjudication for receiving stolen property. Because we do not clearly and convincingly 

find that the record does not support the trial court’s consecutive-sentence findings, we 

must conclude that the trial court did not err in imposing consecutive sentences. 

{¶ 51} We also do not find that the trial court erred in failing to impose minimum, 

concurrent sentences. “The trial court has full discretion to impose any sentence within 

the authorized statutory range, and the court is not required to make any findings or give 

reasons for imposing maximum or more than minimum sentences.” (Citation omitted.) 

State v. Nelson, 2d Dist. Montgomery No. 25026, 2012-Ohio-5797, ¶ 62. Accord State 

v. Terrel, 2d Dist. Miami No. 2014-CA-24, 2015-Ohio-4201, ¶ 14. A sentence “is not 

contrary to law [if it falls] within the statutory range [and the trial court] expressly state[s] 
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that it * * * considered the purposes and principles of sentencing [under] R.C. 2929.11 

[and] 2929.12.” Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, at ¶ 32. 

{¶ 52} Here, the trial court expressly stated at the sentencing hearing and in its 

sentencing entry that it considered the purposes and principles of sentencing in R.C. 

2929.11 and the seriousness and recidivism factors in R.C. 2929.12. Additionally, the 8-

year prison sentences imposed for each of the two charges for improperly discharging a 

firearm at or into a habitation and the 18-month prison term imposed for the charge of 

improperly handling a firearm in a motor vehicle were within the authorized statutory 

range. See R.C. 2929.14(A)(2),(A)(4). Kennedy’s sentence was therefore not contrary 

to law. 

{¶ 53} An appellate court may vacate or modify any sentence that is not clearly 

and convincingly contrary to law only if the appellate court finds by clear and convincing 

evidence that the record does not support the sentence. Marcum, 146 Ohio St.3d 516, 

2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23. We find no such evidence here. As 

previously noted, the record indicates that Kennedy’s conduct placed several people in 

severe danger and caused extensive property damage. Kennedy also committed the 

offenses in question while he was out on bond for a charge that involved the same type 

of conduct, i.e., improperly handling a firearm in a motor vehicle. The record also 

indicates that Kennedy had a fairly extensive criminal record and that he had not 

responded favorably to prior sanctions. Because we do not find by clear and convincing 

evidence that the record does not support Kennedy’s sentence, his sentence will not be 

disturbed by this court on appeal. 

{¶ 54} For the foregoing reasons, Kennedy’s arguments concerning his sentences 
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lack merit. 

{¶ 55} Kennedy’s Second Assignment of Error is overruled. 

Conclusion 

{¶ 56} Having overruled both of Kennedy’s assignments of error, the judgment of 

the trial court is affirmed. 

. . . . . . . . . . . . . 

HALL, J. and TUCKER, J., concur. 

Copies sent to: 

Andrew P. Pickering 

Alex Kochanowski 

Hon. Richard J. O’Neill