[Cite as State v. Hodges, 2013-Ohio-1195.] 

 

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed in Part, Sentences Vacated in Part, and 

 Cause Remanded 

Date of Judgment Entry on Appeal: March 29, 2013

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Melynda J. Machol, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Scott A. Rubenstein, for Defendant-Appellant. 

Please note: this case has been removed from the accelerated calendar. 

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

CHRISTOPHER HODGES, 

 Defendant-Appellant. 

:

: 

: 

: 

: 

APPEAL NO. C-110630 

TRIAL NO. B-1006698 

 O P I N I O N.
OHIO FIRST DISTRICT COURT OF APPEALS

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FISCHER, Judge. 

{¶1} Defendant-appellant Christopher Hodges was convicted of one count of 

attempt to commit felonious assault with a firearm specification, one count of having 

weapons while under disability, and two counts of attempt to commit improper 

discharge of a firearm at or into a habitation. Hodges now appeals, raising three 

assignments of error. For the following reasons, we vacate his prison terms for each 

attempt offense, and remand this cause for the trial court to merge those offenses and 

to impose one sentence under R.C. 2941.25. In all other respects, we affirm the 

judgment of the trial court. 

Background 

{¶2} In October 2010, the grand jury returned an indictment charging 

Hodges with several offenses stemming from an altercation between Hodges and 

Demetrius Elliott. According to the bill of particulars, 

On 9/24/10, 11:21 am, at 5418 Winneste Ave., Defendant 

and Victim engaged in a verbal altercation. This 

escalated to the point when Defendant pulled a weapon 

and fired several shots at Victim striking him once and 

critically injuring him. Victim fired a shot back striking 

Defendant in the side. Defendant, while firing shots at 

Victim shot in the direction of an apartment building. 

Bullets were recovered in from [sic] 5417 Winneste and a 

bullet hole was discovered at 5411 Winneste. Because 

Defendant was convicted of Drug Trafficking in 2007, he 
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was under disability and precluded from possessing a 

firearm.

{¶3} Pursuant to a plea agreement, Hodges pleaded guilty to one count of 

attempt to commit felonious assault as defined by R.C. 2903.11(A)(2), in violation of 

R.C. 2923.02, with a firearm specification; one count of having weapons while under 

disability; and two counts of attempt to commit improper discharge of a firearm at or 

into a habitation as defined by R.C. 2923.161(A), also in violation of R.C. 2923.02, each 

with a firearm specification. At the sentencing hearing, the state conceded that the 

firearm specifications should merge, explaining that Hodges had “discharge[ed] the 

weapon in a quick manner, one bullet after the other. And you could see as the victim 

was running away, the pattern of bullets across this apartment building * * * .” The 

state continued, “But I think when you’re talking about he was trying to purposely shoot 

this individual, but this is a populated area, people were out, and he knew there was an 

apartment building that was full of people and he was just firing off that gun like it was 

an old western shootout. That’s what makes this case so serious.” The trial court 

merged the three specifications, but sentenced Hodges separately on each offense, for 

an aggregate prison term of 11 years. This appeal followed. 

{¶4} Previously-appointed counsel for Hodges filed a no-error brief stating 

that no meritorious issues existed to support Hodges’s appeal. See Anders v. 

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Contrary to that 

assertion, this court found that legal points arguable on the merits existed, particularly 

whether the trial court erred in imposing separate sentences on each attempt offense 

under R.C. 2941.25. We therefore granted counsel’s motion to withdraw, appointed 

new counsel, and ordered further briefing. State v. Hodges, 1st Dist. No. C-110630, 

2012-Ohio-2462, ¶ 8-9. Hodges now raises three assignments of error. 
OHIO FIRST DISTRICT COURT OF APPEALS

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Merger of Attempt Convictions 

{¶5} In his first assignment of error, Hodges argues that the trial court 

erred in sentencing him separately for each attempt offense under Ohio’s multiplecount statute, R.C. 2941.25. The statute provides: 

 (A) Where the same conduct by defendant can be 

construed to constitute two or more allied offenses of 

similar import, the indictment or information may 

contain counts for all such offenses, but the defendant 

may be convicted of only one. 

(B) Where the defendant's conduct constitutes two or 

more offenses of dissimilar import, or where his conduct 

results in two or more offenses of the same or similar 

kind committed separately or with a separate animus as 

to each, the indictment or information may contain 

counts for all such offenses, and the defendant may be 

convicted of all of them. 

{¶6} In light of the Ohio Supreme Court’s syllabus holding in State v. 

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, we have held that 

under R.C. 2941.25, “a sentence may be imposed for only one of multiple offenses if the 

record shows that the state relied upon the ‘same conduct’ to prove the offenses, and 

that the offenses were committed neither separately nor with a separate animus as to 

each.” State v. Campbell, 2012-Ohio-4231, 978 N.E.2d 970, ¶ 10 (1st Dist.). Accord 

State v. Adams, 1st Dist. No. C-120059, 2013-Ohio-926, ¶ 21; State v. Anderson, 2012-

Ohio-3347, 974 N.E.2d 1236, ¶ 20 (1st Dist.); State v. Cooper, 1st Dist. Nos. C-110027 

and C-110028, 2012-Ohio-555, ¶ 13; State v. Johnson, 195 Ohio App.3d 59, 2011-Ohio-
OHIO FIRST DISTRICT COURT OF APPEALS

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3143, 958 N.E.2d 977, ¶ 78 (1st Dist.). We review whether a trial court erred in 

imposing multiple sentences for multiple offenses under this statute de novo. State v. 

Williams, Slip Opinion No. 2012-Ohio-5699, ¶ 28. 

{¶7} In applying R.C. 2941.25, we “consider the statutory elements of each 

offense in the context of the defendant’s conduct.” Id. at ¶ 20. Here, Hodges was 

convicted of one count of attempt to commit felonious assault, as defined by R.C. 

2903.11(A)(2), and two counts of attempt to commit improper discharge of a firearm at 

or into a habitation, as defined by R.C. 2923.161(A)(1). Each attempt offense was a 

violation of R.C. 2923.02, which provides that “[n]o person, purposely or knowingly, 

and when purpose or knowledge is sufficient culpability for the commission of an 

offense, shall engage in conduct that, if successful, would constitute or result in the 

offense.” R.C. 2923.02(A). Thus, the offense of attempt incorporates the elements of 

the attempted offense. In this case, under the relevant felonious assault statute, “[n]o 

person shall knowingly * * * [c]ause or attempt to cause physical harm to another * * * 

by means of a deadly weapon or dangerous ordinance,” and under the improperdischarge statute, “[n]o person, without privilege to do so, shall knowingly * * * 

[d]ischarge a firearm at or into an occupied structure that is a permanent or temporary 

habitation of any individual[.]” “A person acts knowingly, regardless of his purpose, 

where he is aware that his conduct will probably cause a certain result or will probably 

be of a certain nature.” R.C. 2901.22. 

{¶8} Although our record is not particularly well developed, it does reflect 

that during a verbal altercation, Hodges fired several gunshots at Demetrius Elliott “in a 

quick manner,” and that while doing so, he shot in the direction of an apartment 

building. Thus, Hodges committed each attempt offense during the same shooting 
OHIO FIRST DISTRICT COURT OF APPEALS

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sequence. The issue is whether this amounts to the “same conduct” for purposes of 

R.C. 2941.25. 

{¶9} We are not without guidance. Since Johnson, courts have identified the 

discharge of multiple gunshots in quick succession as the “same conduct” under the 

multiple-count statute. For instance, in State v. McClendon, 2d Dist. No. 23558, 2011-

Ohio-5067, the Second Appellate District rejected the state’s argument that the 

defendant had “engaged in five separate acts” where he shot the same victim five times. 

Id. at ¶ 28. The court concluded that “there was but one criminal act/incident in which 

Defendant fired five shots at the same victim * * * all at the same time in rapid 

succession,” and that, therefore, the felony-murder offenses “[arose] from and were 

committed by the same conduct.” (Internal quotation marks and citations omitted.) Id.

at ¶ 31-32; see also State v. Evans, 1st Dist. No. C-100028, 2011-Ohio-2356 

(defendant committed voluntary manslaughter and felonious assault during a single 

course of conduct where he “fired three shots in rapid succession” at the victim). 

{¶10} Courts have further held that similar offenses can be committed with 

the same conduct. For example, the Eighth Appellate District concluded that the 

offenses of felonious assault and the discharge of a firearm at or near a prohibited 

premises in violation of R.C. 2923.162(A)(3) (that is, upon or over a public road or 

highway) were committed by the same conduct where the defendant shot two 

individuals while standing in the middle of a street. State v. Melton, 8th Dist. No. 

97675, 2013-Ohio-257, ¶ 54. Similarly, the Tenth Appellate District decided that the 

same offenses should have merged where the defendant shot at occupants of a vehicle 

traveling on a public road. State v. Carson, 2012-Ohio-4501, 978 N.E.2d 621, ¶ 21 (10th 

Dist.). Finally, the Fifth Appellate District held that the offenses of improper discharge 

of a firearm at or into a habitation and felony murder predicated on the improper-
OHIO FIRST DISTRICT COURT OF APPEALS

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discharge offense were committed with the same conduct where the defendant shot 

into a residence, fatally wounding a girl inside. State v. Walton, 5th Dist. No. 2011 CA 

00214, 2012-Ohio-2597, ¶ 56. 

{¶11} In this case, by quickly firing multiple shots towards Elliott and an 

apartment building at the same time, Hodges committed each attempt offense with the 

“same conduct.” Consequently, our analysis turns to whether he committed these 

offenses separately or with a separate animus as to each. See Anderson, 2012-Ohio3347, 974 N.E.2d 1236 at ¶ 23. 

{¶12} We first consider whether the offenses were committed separately. In 

Anderson, we held that the defendant’s aggravated robbery of a bank and kidnapping of 

a bank employee to facilitate that robbery were not committed separately because they 

occurred during one sustained, continuous act that began and ended within 90 

seconds. Id. at ¶ 24. Given the temporal and spatial proximity of the attempt offenses 

in this case, we come to the same conclusion here. 

{¶13} We, therefore, finally examine whether the offenses were each 

committed with a separate animus. “The Ohio Supreme Court interprets the term 

‘animus’ to mean ‘purpose or, more properly, immediate motive,’ and infers animus 

from the surrounding circumstances.” State v. Shields, 1st Dist. No. C-100362, 2011-

Ohio-1912, ¶ 16, quoting State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 

(1979). Although animus is often difficult to prove directly, “the manner in which a 

defendant engages in a course of conduct may indicate distinct purposes.” State v. 

Whipple, 2012-Ohio-2938, 972 N.E.2d 1141, ¶ 38 (1st Dist.). 

{¶14} In Whipple, we identified a separate animus as to three counts of 

felonious assault and one count of improper discharge of a firearm at or into a 

habitation where the evidence adduced at trial indicated that the defendant and his 
OHIO FIRST DISTRICT COURT OF APPEALS

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accomplices had peppered a house with bullets mere moments after three people had 

run inside. 

Police recovered 28 shell casings from the crime scene. 

The casings were found in the street spread across the 

length of the property, on the sidewalk, in the driveway, 

in the yard, on the porch, and three were found actually 

inside the home. Most of the windows of the van the 

victims had been riding in, which was parked on the 

street, had also been shot out. The investigating officer 

testified that “there were casings everywhere. The house 

had been shot up.” Based on where the casings were 

found, the shooters had been in the street and had 

advanced through the yard and onto the porch. 

Id. at ¶ 40. 

{¶15} On those facts, we held that the “level of destruction unleashed by 

Whipple upon the home demonstrated that he sought to do more than commit 

felonious assault,” and that, therefore, he had committed the improper-discharge 

offense with an animus separate from each of the felonious assaults. Id. at ¶ 37. See 

also State v. Kelly, 5th Dist. No. 2012CA00067, 2012-Ohio-5875, ¶ 26 (following 

Whipple); but see Whipple at ¶ 53 (Fischer, J., concurring in part and dissenting in 

part) (concluding that the defendant had committed the improper-discharge offense 

with the immediate motive only to injure those inside). 

{¶16} In Anderson, however, we held that the defendant had committed 

aggravated robbery and kidnapping with the same animus where the bank-employee 

victim was detained for a brief period, moved only a short distance to the common area 
OHIO FIRST DISTRICT COURT OF APPEALS

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of the bank, and was released immediately following the commission of the aggravated 

robbery of the bank. Anderson at ¶ 31. We determined that it was “beyond cavil that 

the bank robbery was the immediate motive for the kidnapping,” and that the 

“[k]idnapping of the bank employees was merely incidental to the robbery.” Id. 

{¶17} In this case, although Hodges was aware that his conduct would 

probably result in physical harm to Elliott and shots fired at or into two separate 

apartments, the record does not reflect that Hodges intended to “shoot up” the 

dwellings. Indeed, his immediate motive was clearly to injure Elliott after their verbal 

altercation had escalated. We, therefore, cannot say that Hodges committed his 

attempt offenses with a separate animus as to each offense. Having also determined 

that the offenses were committed with the same conduct and not separately, we hold 

that they should have been merged under R.C. 2941.25. Accordingly, the first 

assignment of error is sustained. 

Additional Matters 

{¶18} In his second assignment of error, Hodges argues that his pleas were 

not entered knowingly, voluntarily, and intelligently because his trial counsel had 

advised him that the trial court would not impose a prison term longer than six years. 

The trial court ultimately imposed an aggregate term of 11 years. And in his third 

assignment of error, Hodges maintains that he was denied the effective assistance of 

counsel for the same reason. 

{¶19} For support, Hodges refers only to an affidavit that he signed and 

attached to a motion to withdraw his guilty pleas under Crim.R. 32.1, which he filed the 

same day as his notice of appeal. Because he appeals only from his convictions, 

however, we cannot consider on direct appeal those matters that were not before the 

trial court at the time of those convictions. See, e.g., McKay v. Cutlip, 80 Ohio App.3d 
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487, 490 fn. 3, 609 N.E.2d 1272 (9th Dist.1992) (“Appellate review is limited, pursuant 

to App.R. 12(A), to the record as it existed at the time the judgment was rendered.”); see 

generally State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph two of 

the syllabus (“A reviewing court cannot add matter to the record before it, which was 

not a part of the trial court’s proceedings, and then decide the appeal on the basis of the 

new matter.”). We, therefore, disregard his affidavit and turn to the merits of these 

assigned errors on the record now before us. 

{¶20} “When a defendant enters a plea in a criminal case, the plea must be 

made knowingly, voluntarily, and intelligently. Failure on any of those points renders 

enforcement of the plea unconstitutional under both the United States Constitution and 

the Ohio Constitution.” State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 

N.E.2d 826, ¶ 9, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). 

To ensure that a defendant’s pleas are made knowingly, voluntarily, and intelligently, 

the trial court must engage the defendant in a colloquy pursuant to Crim.R. 11. State v. 

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25-26. 

{¶21} Upon our review of the record, we conclude that the trial court fully 

complied with Crim.R. 11, engaging the defendant on each point and making sure that 

he understood the consequences of his guilty pleas. We therefore determine that 

Hodges’s pleas were entered knowingly, voluntarily, and intelligently. The second 

assignment of error is overruled. 

{¶22} Consequently, we turn to his final assignment of error, alleging 

ineffective assistance of trial counsel. We reverse on such grounds only where the 

defendant shows that counsel’s performance was deficient and that this deficient 

performance prejudiced the defense. E.g., State v. Miller, 1st Dist. No. C-120109, 2012-

Ohio-5964, ¶ 19, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 
OHIO FIRST DISTRICT COURT OF APPEALS

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80 L.Ed.2d 674 (1984) and State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), 

paragraph two of the syllabus. “To show that a defendant has been prejudiced by 

counsel’s deficient performance, the defendant must prove that there exists a 

reasonable probability that, were it not for counsel’s errors, the result of the proceeding 

would have been different.” Id. 

{¶23} Again based on the record now before us, we cannot say that the 

defendant has demonstrated either deficient performance or prejudice. The third 

assignment of error is, therefore, overruled. 

Conclusion 

{¶24} Having determined that the trial court erred in imposing separate 

sentences on each of Hodges’s three attempt offenses, we vacate those sentences and 

remand this cause for resentencing pursuant to the state’s election. See State v. 

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

of the syllabus. In all other respects, we affirm the judgment of the trial court. 

Judgment accordingly. 

HENDON, P.J., concurs.

DINKELACKER, J., concurs in part and dissents in part. 

DINKELACKER, J., concurring in part and dissenting in part. 

{¶25} Based on my review of the record, Christopher Hodges has failed to 

demonstrate that his three attempt offenses should merge under R.C. 2941.25. See 

State v. Wesseling, 1st Dist. No. C-110193, 2011-Ohio-5882, ¶ 11, citing State v. Mughni, 

33 Ohio St.3d 65, 67, 514 N.E.2d 870 (1987). Therefore, I respectfully dissent as to the 

majority’s disposition of the first assignment of error. 
OHIO FIRST DISTRICT COURT OF APPEALS

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{¶26} I am particularly troubled by the majority’s conclusion that these 

offenses were committed with a single animus—that is, to injure Demetrius Elliott—

simply because they arose from an altercation between Hodges and Elliott. This 

determination downplays the severity of the shooting, which occurred in “a populated 

area, [while] people were out, and [Hodges] knew there was an apartment building that 

was full of people and he was just firing off that gun like it was an old western 

shootout.” These facts demonstrate such an increased risk of harm and such a 

profound disregard for the consequences of his conduct that I cannot say Hodges 

committed each attempt offense with a single animus. See State v. Whipple, 2012-

Ohio-2938, 972 N.E.2d 1141, ¶ 38-42 (1st Dist.); State v. Shields, 1st Dist. No. C100362, 2011-Ohio-1912, ¶ 19-20 (finding separate animus as to aggravated robbery 

and felonious assault where the “assault was so unnecessary for the robbery itself that it 

demonstrated a significance independent of that robbery”). 

{¶27} Because I concur with the majority’s disposition of the second and third 

assignments of error, I would affirm the judgment of the trial court. 

Please note: 

 The court has recorded its own entry this date.