[Cite as State v. Carner, 2012-Ohio-1190.]

 Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION

 No. 96766 

STATE OF OHIO 

PLAINTIFF-APPELLEE

vs.

BYRON CARNER

DEFENDANT-APPELLANT 

JUDGMENT:

CONVICTIONS AFFIRMED; SENTENCE VACATED 

IN PART AND REMANDED FOR RESENTENCING

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-541812 

BEFORE: Kilbane, J., Stewart, P.J., and Cooney, J. 

RELEASED AND JOURNALIZED: March 22, 2012
ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Chief Public Defender 

Nathaniel McDonald 

Assistant Public Defender 

310 Lakeside Avenue 

Suite 400 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

Brian D. Kraft 

Assistant County Prosecutor 

The Justice Center - 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
MARY EILEEN KILBANE, J.: 

{¶1} Defendant-appellant, Byron Carner (“Carner”), appeals his convictions and 

sentence. Finding merit to the appeal, we affirm Carner’s convictions, but vacate his 

sentence in part and remand the matter for resentencing. 

{¶2} In September 2010, Carner was charged in a 12-count indictment. Count 1 

charged him with felonious assault of Cleveland police officer Christopher Holstein 

(“Holstein”). Counts 2 and 3 charged him with the felonious assault of his nephew, 

Tyrone Banks (“Banks”). Count 4 charged him with carrying a concealed weapon. 

Counts 5–9 charged him with aggravated menacing. Counts 10–12 charged him with 

domestic violence. 

{¶3} The matter proceeded to a jury trial, at which the following evidence was 

adduced. 

{¶4} On the evening of September 2, 2010, Banks had an argument with his uncle, 

Byron Carner, regarding Carner’s use of drugs in the home they shared at 853 Whitcomb 

Road in Cleveland, Ohio. Banks and Carner shared the home with Banks’s mother, 

sisters, and grandmother. The next morning, as Banks passed Carner on the stairs, Carner 

muttered something to Banks relating to an argument the day before. Banks followed 

Carner downstairs and into the living room, where Carner hit Banks on the head with a 
glass vase. The two then began to fight. Banks’s sister called the police, and Banks’s 

friends, who came over to visit, separated Banks and Carner. 

{¶5} Carner attempted to leave through the front door, but was blocked by Banks, 

his sister, and his friends. They wanted Carner to be present when the police arrived. 

Carner then went through the kitchen to the back door. In the kitchen, Carner picked up a 

knife, waved it in the direction of Banks, his sister, and his friends and told them he would 

kill them if they did not let him leave. Carner then exited through the back door. 

{¶6} At approximately the same time, Cleveland police arrived at the scene. 

Holstein and his partner, Cleveland police officer Andrew Papaleo (“Papaleo”), learned 

from Carner’s family members that Carner was running through the yards near their home. 

Holstein then walked up the driveway of a neighbor’s house. When he reached the back 

of this house, he encountered Carner. Carner was standing approximately eight feet from 

Holstein and was holding a large knife in an overhead fashion. Holstein had his gun 

drawn and pointed at Carner. He ordered Carner to “drop the knife, drop the knife, drop 

the knife.” Holstein testified that Carner then lunged at him while bringing the knife 

downward in an aggressive manner. Holstein, who feared for his safety, responded by 

firing his gun three times at Carner. Carner was approximately four feet away when 

Holstein fired his gun. Holstein testified Carner fell to the ground after being shot and 

dropped the knife. Holstein kept his gun on Carner until Papaleo and Cleveland Police 

Detective Theodore Perez (“Perez”) arrived. 
{¶7} Perez testified that he arrived on the scene after Holstein and walked up the 

driveway. He observed Holstein with his gun drawn. He heard Holstein say “drop the 

knife, drop the knife, drop the knife.” Then, he heard three gunshots. He stopped for a 

second and then continued up the driveway. He observed Carner lying on the ground, 

with the knife also on the ground. Holstein had his gun pointed at Carner. Carner said, 

“you shot me.” Holstein replied, “you lunged at me. I told you to drop it.” Perez 

described Holstein as visibly upset. 

{¶8} Papaleo testified that he arrived on the scene after Perez. He observed Perez 

and Holstein standing by Carner, who was lying on the ground. Papaleo further testified 

that Carner said to him, “[y]our partner shot me.” Holstein replied, “[Carner] lunged at 

me.” Papaleo described Holstein’s emotional state at that time as upset because Holstein 

was “pacing back and forth and grabbing his head * * *.” 

{¶9} Collin Gonzalez (“Gonzalez”) testified that he lived a few houses away from 

where the incident occurred. He heard three gunshots and, when he looked outside, he 

observed Holstein walking around with his hands on his head. He heard Carner yell, “you 

shot me, you shot me” and Holstein reply, “you lunged at me.” 

{¶10} At the close of the State’s case, the State moved to dismiss Count 4 (carrying 

a concealed weapon), Counts 6–9 (aggravated menacing) and Counts 11 and 12 (domestic 

violence). In an unusual trial strategy, defense counsel objected to the dismissal of these 

counts, arguing that he intended to argue to the jury that the State over-indicted Carner in a 

concerted effort to insulate Holstein from legal responsibility for his mistake in shooting 
Carner. The State argued the dismissal of the counts was due to witness noncooperation. 

The trial court overruled defense counsel’s objection and dismissed Counts 4, 6–9, 11, and 

12. Defense counsel requested that Count 2 be amended to simple assault and Count 3 be 

dismissed under Crim.R. 29. The trial court granted the motion with respect to Count 2 

and denied the motion with respect to Count 3. As a result, the following charges were 

presented to the jury: Count 1 — felonious assault on a police officer, Count 2 — simple 

assault on Banks, Count 3 — felonious assault on Banks, Count 5 — aggravated menacing 

concerning Banks, and Count 10 — domestic violence concerning Banks. 

{¶11} The jury found Carner guilty of all five counts. The trial court sentenced 

Carner to 4 years in prison on Count 1, six months in prison on Count 2, three years in 

prison on Count 3, 90 days in prison on Count 5, and six months in prison on Count 10. 

The trial court ordered that all prison terms be served concurrently, for an aggregate of four 

years in prison. The trial court found Carner indigent and ordered Carner to pay court 

costs. 

{¶12} Carner now appeals, raising the following five assignments of error for 

review, which shall be discussed together where appropriate. 

 ASSIGNMENT OF ERROR ONE 

When [the trial court] prohibited defense counsel from mentioning the 

dismissed counts of the indictment in closing argument, [it] violated 

[Carner’s] right to present his defense, right to effective assistance of 

counsel, and right to a fair trial pursuant to the Fifth, Sixth, and Fourteenth 

Amendments to the United States Constitution. 

 ASSIGNMENT OF ERROR TWO 
[Carner] was denied his Sixth Amendment right to effective assistance of 

counsel because his counsel failed to object to hearsay statements that he 

“lunged” at officer Holstein. 

 ASSIGNMENT OF ERROR THREE 

[Carner’s] conviction for felonious assault on a [police] officer was against 

the manifest weight of the evidence. 

 ASSIGNMENT OF ERROR FOUR 

The trial court failed to treat the assault, felonious assault, and domestic 

violence convictions as allied offenses of similar import and merge them at 

the sentencing hearing. 

 ASSIGNMENT OF ERROR FIVE 

Ineffective assistance of counsel due to failure to request waiver of, or object 

to, court costs for an indigent defendant. 

Dismissed Counts and Closing Argument

{¶13} In the first assignment of error, Carner argues the trial court violated his 

constitutional rights to present his defense, effective assistance of counsel, and a fair trial 

when it precluded him from arguing that the dismissed counts indicate an overreaching by 

the State to insulate Holstein from the consequences of mistakenly shooting Carner. 

{¶14} We recognize that counsel is afforded great latitude in the presentation of 

closing argument to the jury. Pang v. Minch, 53 Ohio St.3d 186, 559 N.E.2d 1313 (1990), 

at paragraph two of the syllabus. However, “[t]he assessment of whether the permissible 

bounds of closing argument have been exceeded is, in the first instance, a discretionary 
function to be performed by the trial court. Such determination will not be reversed on 

appeal absent an abuse of discretion.” Id. at paragraph three of the syllabus. An abuse of 

discretion “‘implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’” 

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. 

Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980). 

{¶15} Here, the State moved to dismiss Counts 4, 6, 7, 8, 9, 11, and 12, which was 

more than half of the counts against Carner. Defense counsel opposed the State’s motion, 

arguing that part of his defense was that the State over-indicted Carner in an effort to obtain 

a conviction and insulate Holstein from legal accountability for his mistake in shooting 

Carner. The following exchange took place: 

[DEFENSE COUNSEL]: You know, part of my argument is that when 

there is a police shooting, the police go over board a little bit and they might 

cover for one another, and I intend to argue to the jury that these indictments 

prove this. * * * [The number of charges] just proves the [onslaught] that 

[the State will] put against a defendant when they need to protect someone 

that’s on their side of the fence. So really, I have to object to the dismissal, 

Judge. 

* * * 

THE COURT: Well, by that argument you would object to a dismissal of 

the indictment in its entirety, wouldn’t you? 

[DEFENSE COUNSEL]: Of all counts? 

THE COURT: Yes. 

[DEFENSE COUNSEL]: I would probably let that go by, Judge. 

THE COURT: Oh, okay. I’m sorry counsel, I deny your request. The 

State can dismiss. 
[DEFENSE COUNSEL]: Okay. Then let me ask you this. * * * By 

dismissing these counts, am I going to be prohibited from arguing that they 

were there, that they’re not there, and this is what this man faced. This is 

what this man had to defend. And they brought these charges knowing that 

they had no evidence. I presume I can still argue it. 

[THE STATE]: I’d like to be heard on that matter, if necessary, your 

Honor. 

THE COURT: Go ahead. 

[THE STATE]: Okay. That just simply isn’t the case. Every count that 

I’ve just dismissed besides the carrying concealed weapon count, there was 

evidence of. It was just the State’s inability to call some of these witnesses 

due to their noncooperation with the State of Ohio. I mean, [Banks] 

testified that all those people were present and all were present during the 

situation with the defendant waiving [sic] the knife. It has no connection to 

the law enforcement end of this case. 

* * * 

THE COURT: I was prepared to grant a Rule 29 request for most of these 

counts that the State is dismissing, precisely because these witnesses didn’t 

come forward. As I recall the testimony[, there] was a scene described 

where the defendant had a knife and others are surrounding him and he’s 

allegedly making a statement that he’s going to cause harm to anyone who 

approaches, or confronts, or tries to keep him from leaving the premises. So 

I don’t know that those counts really suggest a policy of over-indicting 

because the officer happened to shoot [Carner]. I would have granted a 

motion Rule 29 on the basis that no one came forward and said, yeah, I felt 

threatened. I was menaced, I was in fear. * * * So I guess I’m not going to 

let you make that sort of ominous argument that we had all these other 

charges and my goodness * * * we took care of them. That shows the 

unfairness of the injustice of the process. So we will go forward with the 

counts that are left. 

{¶16} Based on the above exchange, we do not find that the trial court’s attitude was 

unreasonable, arbitrary, or unconscionable. The trial court indicated that it was prepared 

to grant a Crim.R. 29 request to dismiss most of the counts because the witnesses did not 
come forward. The trial court considered defense counsel’s creative argument, but did not 

find that the State over-indicted Carner because Holstein shot Carner. As a result, the trial 

court exercised its discretion and determined that defense counsel cannot make that 

“ominous argument.” 

{¶17} Accordingly, the first assignment of error is overruled. 

Ineffective Assistance of Counsel

{¶18} In the second and fifth assignments of error, Carner challenges the 

effectiveness of defense counsel. Carner argues defense counsel was ineffective for 

failing to object to the hearsay statements suggesting that Carner lunged at Holstein. 

Carner further argues that defense counsel was ineffective for failing to request a waiver of 

court costs because Carner was declared indigent. 

{¶19} In order to substantiate a claim for ineffective assistance of counsel, Carner 

must demonstrate 

(a) deficient performance (“errors so serious that counsel was not 

functioning as the ‘counsel’ guaranteed the defendant by the Sixth 

Amendment”) and (b) prejudice (‘errors * * * so serious as to deprive the 

defendant of a fair trial, a trial whose result is reliable’). Strickland v. 

Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. 

Accord State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. 

State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 30. 

{¶20} In Ohio, a properly licensed attorney is presumed competent. Vaughn v. 

Maxwell, 2 Ohio St.2d 299, 209 N.E.2d 164 (1965). In evaluating whether a petitioner 

has been denied the effective assistance of counsel, the Ohio Supreme Court held that the 

test is “whether the accused, under all the circumstances, * * * had a fair trial and 
substantial justice was done.” State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), 

paragraph four of the syllabus. When making that evaluation, a court must determine 

“whether there has been a substantial violation of any of defense counsel’s essential duties 

to his client” and “whether the defense was prejudiced by counsel’s ineffectiveness.” 

State v. Lytle, 48 Ohio St.2d 391, 358 N.E.2d 623 (1976); State v. Calhoun, 86 Ohio St.3d 

279, 1999-Ohio-102, 714 N.E.2d 905. To demonstrate that a defendant has been 

prejudiced, the defendant must prove “that there exists a reasonable probability that, were 

it not for counsel’s errors, the result of the trial would have been different.” Bradley at 

paragraph three of the syllabus. 

Hearsay Statements

{¶21} Carner argues that defense counsel was ineffective for failing to object to 

hearsay statements by witnesses who essentially testified that Holstein shot Carner after he 

lunged at Holstein. Specifically, Papaleo testified that after the shooting, Carner said to 

him, “your partner shot me.” To which Holstein replied, “why did you lung[e] at me.” A 

neighbor, Collin Gonzalez, testified that he heard Carner say, “you shot me” and Holstein 

reply, “you lunged at me.” Lastly, Perez testified that Carner said, “you shot me” and 

Holstein replied, “I told you to drop it.” This exchange occurred within seconds after the 

shooting. The witnesses described Holstein as upset. He spoke with his voice raised 

and was pacing back and forth. Carner contends that without these hearsay statements, 

the only evidence that he lunged at Holstein would be Holstein’s testimony. 
{¶22} At oral argument, however, appellate counsel conceded that these 

statements qualify under the excited utterance hearsay exception. We note that excited 

utterances are excepted from the hearsay rule under Evid.R. 803(2) as long as the 

statement relates to a startling event or condition made while the declarant was under the 

stress of excitement caused by the event or condition. 

{¶23} Thus, the second assignment of error is overruled. 

Court Costs

{¶24} Carner next argues that defense counsel was ineffective for failing to request 

a waiver of court costs because Carner was declared indigent and assigned counsel. 

Carner claims there is a reasonable probability that the court would have granted the 

motion if it was requested by defense counsel. 

{¶25} R.C. 2947.23 governs the imposition of court costs and provides in pertinent 

part that: “In all criminal cases * * * the judge * * * shall include in the sentence the costs 

of prosecution * * * and render a judgment against the defendant for such costs.” The 

Ohio Supreme Court has stated that R.C. 2947.23 requires a court to assess costs against 

all convicted defendants.” (Emphasis sic.) State v. White, 103 Ohio St.3d 580, 

2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. Court costs may, however, be waived in the 

discretion of the court if the court first determines that the defendant is indigent. Id. at ¶ 

14. The “indigent defendant must move a trial court to waive payment of costs at the time 

of sentencing. If the defendant makes such a motion, then the issue is preserved for appeal 

and will be reviewed under an abuse-of-discretion standard. Otherwise, the issue is 
waived and costs are res judicata.” State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 

843 N.E.2d 164, ¶ 23. 

{¶26} In the instant case, the trial court appointed counsel because it declared 

Carner indigent in September 2010. At the sentencing hearing, the trial court advised 

Carner that it was imposing court costs. The sentencing entry indicates that “defendant is 

indigent. The court appoints the public defenders[’] office for purposes of appeal. 

Defendant is to pay court costs.” From this record, we can reasonably determine that 

when the trial court sentenced Carner, including ordering him to pay costs, it took into 

account his indigent status. As such, we cannot say that there is a reasonable probability 

that, but for defense counsel’s errors, the result of the proceeding would have been 

different. See State v. Bagwell, 8th Dist. No. 96419, 2011-Ohio-5841 (where this court 

found that defense counsel was not ineffective for failing to request a waiver of court 

costs). 

{¶27} Thus, the fifth assignment of error is overruled. 

Manifest Weight

{¶28} In the third assignment of error, Carner argues his conviction for felonious 

assault on a police officer is against the manifest weight of the evidence. 

{¶29} With regard to a manifest weight challenge, the 

reviewing court asks whose evidence is more persuasive — the state’s or 

the defendant’s? * * * “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. [State v. Thompkins, 
78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997)], citing [Tibbs v. Florida, 

457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982)]. 

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25. 

{¶30} Moreover, an appellate court may not merely substitute its view for that of 

the jury, but must find that “‘in resolving conflicts in the evidence, the jury 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, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight 

grounds is reserved for “‘the exceptional case in which the evidence weighs heavily 

against the conviction.’” Id., quoting Martin. 

{¶31} In the instant case, Carner was convicted of felonious assault of a police 

officer under R.C. 2903.11(A)(2), which provides in pertinent part: “[n]o person shall 

knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a 

deadly weapon or dangerous ordnance.” Furthermore, “[i]f the victim of a violation of 

division (A) of this section is a peace officer * * *, felonious assault is a felony of the 

first degree.” Id. at (D)(1)(a). 

{¶32} Carner argues that his conviction is against the manifest weight of the 

evidence because the testimony of the other officers indicates a concerted effort to 

insulate Holstein from responsibility by convicting Carner of felonious assault. He 

refers to the fact that no one, other than Holstein, observed Carner’s response to 

Holstein’s orders to drop the knife and Perez’s and Papaleo’s testimony about the knife. 
{¶33} In the instant case, Perez testified that when he arrived on the scene, the 

knife was within inches of Carner, so Perez kicked it approximately two feet away from 

Carner. Papaleo testified that the knife was on the ground and within approximately two 

feet of Carner, so he kicked it away from Carner. Papaleo further testified that he kicked it 

approximately eight to ten feet away, ending up about a foot from where the grass meets 

the driveway. Perez testified, however, that he did not observe Papaleo kick the knife 

approximately eight to ten feet. 

{¶34} In State v. Montgomery, 8th Dist. No. 95700, 2011-Ohio-3259, ¶ 10, we 

stated: 

A defendant is not entitled to a reversal on manifest weight grounds merely 

because inconsistent evidence was presented at trial. The determination of 

weight and credibility of the evidence is for the trier of fact. The rationale 

is that the trier of fact is in the best position to take into account 

inconsistencies, along with the witnesses’ manner and demeanor, and 

determine whether the witnesses’ testimony is credible. As such, the trier 

of fact is free to believe or disbelieve all or any of the testimony. 

Consequently, although an appellate court must act as a “thirteenth juror” 

when considering whether the manifest weight of the evidence requires 

reversal, it must give great deference to the fact finder’s determination of 

the witnesses’ credibility. (Citations omitted.) Id., quoting State v. 

Blackman, 8th Dist. No. 95168, 2011-Ohio-2262. 

{¶35} While there may have been inconsistencies as to what happened with the 

knife, the jury was in the best position to take into account any inconsistencies and 

believed Holstein’s testimony that Carner lunged at him with a knife. Perez and 

Papaleo both testified that Holstein said Carner lunged at him. Moreover, Gonzalez, an 

independent witness, testified that he heard three gunshots, and when he looked outside, he 

observed Holstein walking around with his hands on his head. He heard Carner yell, “you 
shot me, you shot me” and Holstein reply, “you lunged at me.” Accordingly, we cannot 

say that the jury “clearly lost its way and created such a manifest miscarriage of justice 

that the conviction must be reversed and a new trial ordered.” Martin, 20 Ohio App.3d 

at 175, 485 N.E.2d 717. 

{¶36} Thus, Carner’s felonious assault on a peace officer conviction is not against 

the manifest weight of the evidence. 

{¶37} Therefore, the third assignment of error is overruled. 

Merger of Allied Offenses

{¶38} In the fourth assignment of error, Carner argues the trial court erred by failing 

to merge the assault (Count 2), felonious assault (Count 3), and domestic violence (Count 

10) counts. 

{¶39} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, 

the Ohio Supreme Court redefined the test for determining whether two offenses are allied 

offenses of similar import subject to merger under R.C. 2941.25.1

 The Johnson court 

 1R.C. 2941.25 governs allied offenses and provides: 

(A) Where the same conduct by defendant can be construed to constitute 

two or more allied offenses of similar import, the indictment or 

information may contain counts for all such offenses, but the defendant 

may be convicted of only one. 

(B) Where the defendant’s conduct constitutes two or more offenses of 

dissimilar import, or where his conduct results in two or more offenses 

of the same or similar kind committed separately or with a separate 

animus as to each, the indictment or information may contain counts for 

all such offenses, and the defendant may be convicted of all of them.
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. 

{¶40} The Johnson court held that rather than compare the elements of the crimes 

in the abstract, courts must consider the defendant’s conduct. Id. at syllabus. The court 

found: 

In determining whether offenses are allied offenses of similar import under 

R.C. 2941.25(A), the question is whether it is possible to commit one offense 

and commit the other with the same conduct, not whether it is possible to 

commit one without committing the other. * * * 

If multiple offenses can be committed by the same conduct, then the court 

must determine whether the offenses were committed by the same conduct, 

i.e., “a single act, committed with a single state of mind.” [State v.] Brown, 

119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 50, (Lanzinger, 

J., dissenting). 

If the answer to both questions is yes, then the offenses are allied offenses of 

similar import and will be merged. 

Conversely, if the court determines that the commission of one offense will 

never result in the commission of the other, or if the offenses are committed 

separately, or if the defendant has separate animus for each offense, then, 

according to R.C. 2941.25(B), the offenses will not merge. Id. at ¶ 48-50. 

{¶41} In the instant case, a review of the record reveals that there was no discussion 

of the merger of allied offenses at sentencing. The Ohio Supreme Court has found that the 

failure to merge allied offenses of similar import constitutes plain error. State v. 

Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31, citing State v. 

Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845. Under Crim.R. 52(B), 
“[p]lain errors or defects affecting substantial rights may be noticed although they were not 

brought to the attention of the court.” 

{¶42} Felonious assault is defined in R.C. 2903.11(A)(1) as follows: “[n]o person 

shall knowingly * * * [c]ause serious physical harm to another * * *.” Assault is defined 

in R.C. 2903.13(A) as follows: “[n]o person shall knowingly cause or attempt to cause 

physical harm to another * * *.” Domestic violence is defined in R.C. 2919.25(A) as 

follows: “[n]o person shall knowingly cause or attempt to cause physical harm to a family 

or household member.” 

{¶43} In analyzing these three offenses under Johnson, we find that they could be 

committed by the same conduct. Simple assault is a lesser included offense of felonious 

assault. State v. Tolbert, 60 Ohio St.3d 89, 92, 573 N.E.2d 617 (1991). It follows then 

that both offenses could be committed with the same conduct. Similarly, “it is possible to 

commit the offenses of felonious assault and domestic violence with the same conduct.” 

State v. Sutphin, 8th Dist. No. 96015, 2011-Ohio-5157, ¶ 59, citing Johnson, 128 Ohio 

St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. 

{¶44} At oral argument, the State conceded that the assault and domestic violence 

counts merge, but not the felonious assault count. The State contends that Carner’s 

gestures towards Banks with the knife constitutes a separate act. However, that was not 

the State’s theory below. When discussing the dismissal of the felonious assault count at 

trial, the State argued that Count 3 “should certainly stay. The jury will be able to touch 

and feel the vase. It’s a heavy object that was used as a bludgeon.” Furthermore, in 
closing argument, the State relied on the same conduct (Carner fighting with his nephew, 

Banks, and hitting Banks in the head with the vase) to support Carner’s convictions for 

assault, felonious assault, and domestic violence. “We therefore are ‘compelled to view 

the record as it stands in revisiting the issue.’ See State v. Craycraft, 12th Dist. Nos. 

CA2009-02-013 and CA2009-02-014, 2011-Ohio-413, ¶ 19.” Sutphin at ¶ 61 (where the 

State relied on the same conduct in opening statement and closing argument to prove both 

offenses at trial, it cannot then change its theory on appeal). 

{¶45} Based on the record before us, we find that the charges arose from the same 

conduct and Carner committed these offenses with a single animus. As a result, the trial 

court committed plain error by not merging the assault (Count 2), felonious assault (Count 

3), and domestic violence (Count 10) counts for sentencing. 

{¶46} Accordingly, the fourth assignment of error is sustained. We vacate 

Carner’s sentences on Counts 2, 3, and 10, and remand the matter for a sentencing hearing, 

at which the State will elect which allied offense it will pursue against Carner. See State v. 

Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at paragraphs one and two of 

the syllabus. 

{¶47} Accordingly, Carner’s convictions are affirmed, his sentence is vacated in 

part, and the matter is remanded for further proceedings on the resentencing of allied 

offenses. 

It is ordered that appellant and appellee share the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s convictions 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. 

 

MARY EILEEN KILBANE, JUDGE 

MELODY J. STEWART, P.J., and 

COLLEEN CONWAY COONEY, J., CONCUR