[Cite as State v. Shannon , 2021-Ohio-1396.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : WILLIAM D. SHANNON : Case No. 2020 CA 51 : Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2019CR0657

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 19, 2021

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant JOSEPH SNYDER STEVEN P. BILLING 38 South Park Street P.O. Box 1671 Mansfield, OH 44902 C olumbus, OH 43215Richland County, Case No. 2020 CA 0051 2

Wise, Earle, J. {¶ 1} Defendant-Appellant William D. Shannon appeals the June 2 4, 2020 judgment of conviction and sentence of the Richland County Cour t of Common Pleas. Plaintiff-Appellee is the state of Ohio. FACTS AND PROCEDURAL HISTORY {¶ 2} On July 16, 2019, Armon Huguely and his brother Emir Hemp hill were looking to buy $20 worth of marijuana. They contacted Kayne Per ry, a former schoolmate of Huguely's via Snapchat. Perry agreed to sell Huguely and Hem phill marijuana and directed them to come to his house. {¶ 3} Since Huguely did not have a car, Hemphill called his fri end Keyara for a ride and told her he and his brother were going to buy marijuan a. Keyara arrived 20 minutes later in a gold SUV, but was not driving. A middle-aged woman unknown to Huguely and Hemphill but later ide ntified as Susan Singleton wa s driving. Shannon was seated in the front passenger seat and Keyara was in the back s eat. Neither Huguely nor Hemphill had ever met Shannon. The brothers got in the back sea t with Keyara, and Singleton drove to Perry's home. {¶ 4} Upon arrival at Perry's apartment, Perry's roommate came out and told Singleton where to park. Huguely got out of the SUV and entered the apartment. The other's stayed in the SUV. {¶ 5} Huguely spoke with Perry in his living room. He noticed a n assault-style rifle propped in a corner. At some point, Shannon entered the apartme nt, used the bathroom, then silently sat in the living room with Huguely and Perry. Sh ortly thereafter Shannon stood, drew a pistol and pointed it at Perry's face. As that ha ppened Perry reached forRichland County, Case No. 2020 CA 0051 3
the rifle. Shannon yelled at Huguely to grab the rifle. As Hugu ely and Perry struggled over the gun, Shannon fired multiple shots, hitting Perry in his lef t hip. When Perry fell to the ground, Huguely grabbed Perry's rifle and ran out of the house. Huguely threw the gun into the back of the gold SUV, stated he had a bag with "a lot of weed in it" and then got back into the vehicle. Transcript of trial (T.) 430. Once there he heard additional shots. {¶ 6} Meanwhile, inside the house, Shannon began to chase Perry 's roommate who eventually escaped by jumping out a window. On his way out of the apartment, Shannon shot Perry's dog. Shannon then jumped back into the fro nt seat of the SUV and continued to fire shots at the apartment as Singleton drove awa y at a high rate of speed. Singleton drove to her home where Shannon began washing his gun in an attempt to remove his fingerprints. {¶ 7} The shots fired by Shannon at Perry broke both of Perry's hips and fractured his lower back. Perry's dog survived her injuries. {¶ 8} As a result of these events, on August 9, 2019, the Richl and County Grand Jury returned an indictment charging Shannon with one count of aiding and abetting aggravated robbery, a felony of the first degree, one count of aiding and abetting felonious assault, a felony of the second degree, and one count of aiding and abetting prohibitions concerning companion animals, a felony of the fifth degree. Eac h count contained a firearm specification. {¶ 9} Shannon entered pleas of not guilty to the charges and op ted to proceed to a jury trial which began on June 18, 2020. The jury found Shan non guilty as charged. Shannon was subsequently sentenced to ten years for aiding and abetting aggravated robbery, seven years for aiding and abetting felonious assault, and twelve months forRichland County, Case No. 2020 CA 0051 4
aiding and abetting prohibitions concerning companion animals. Shannon was additionally sentenced to three years for each firearm specific ation. He was ordered to serve these sentences consecutively. {¶ 10} Shannon filed an appeal and the matter is now before thi s court for consideration. He raises two assignments of error as follow:
I {¶ 11} "THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT'S RIGHT TO DUE PROCESS UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS, IN ENTERING JUDGMENT OF CONVICTION ON COUNT ONE AIDING AND ABETTING ROBBERY AND COUNT TWO AIDING AND ABBETIN AGGRAVATED FELONIOUS ASSAULT, AS THOSE ARE ALLIED OFFENSES OF SIMILAR IMPORT, AND BY SENTENCING APPELLANT TO CONSECUTIVE SENTNECES ON ALLED OFFENSES, THE COURT VIOLATED APPELLANT'S FIF TH AMENDMENT RIGHT TO PROTECTION AGAINST DOUBLE JEOPARDY."
II {¶ 12} "APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUSEL IN VIOLATION OF THE DUE PROCESS AND EQUAL PROTECTION OF THE LAW, AS GUARANTEED BY THE UNITED STATES CONSTITUTION AND OHIO CONSTITUTION, WHER TRIAL COUNSEL FAILED T O MITIGATE AND ARGUE FOR MERGER DURING THE SENTENCING PHASE."
IRichland County, Case No. 2020 CA 0051 5
{¶ 13} In his first assignment of error, Shannon argues the tri al court abused its discretion by failing to merge his convictions for aiding and a betting aggravated robbery and aiding and abetting felonious assault as allied offenses. W e disagree. {¶ 14} R.C. 2941.25 governs multi ple counts and states the foll owing:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the i ndictment or information may contain counts for all such offenses, but th e defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offen ses of dissimilar import, or where his conduct results in two or mo re offenses of the same or similar kind committed separately or wi th 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.

{¶ 15} In State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, syllabus, the Supreme Court of Ohio held the following:

1. In determining whether offenses are allied offenses of simil ar import within the meaning of R.C. 2941.25, courts must evaluate three separate factors—the conduct, the animus, and the import.Richland County, Case No. 2020 CA 0051 6
2. Two or more offenses of dissimilar import exist within the m eaning 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. 3. Under R.C. 2941.25(B), a defendant whose conduct supports multiple offenses may be convicted of all the offenses if any o ne of the following is true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3) the conduct shows that the offenses were committed with separate animus.

{¶ 16} The Ruff court explained at ¶ 26:

At its heart, the allied-offense analysis is dependent upon the facts of a case because R.C. 2941.25 focuses on the defendant's condu ct. The evidence at trial or during a plea or sentencing hearing wi ll reveal whether the offenses have similar import. When a defendant's conduct victimizes more than one person, the harm for each pers on is separate and distinct, and therefore, the defendant can be convicted of multiple counts. Also, a defendant's conduct that constitutes two or more offenses against a single victim can su pport multiple convictions if the harm that results from each offense is separate and identifiable from the harm of the other offense. WeRichland County, Case No. 2020 CA 0051 7
therefore hold that two or more offenses of dissimilar import e xist within the meaning of R.C. 2941.25(B) when the defendant's cond uct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable.

{¶ 17} Shannon was charged with one count of aiding and abettin g aggravated robbery pursuant to R.C. 2911.01(A)(1). To prove the charge the state was required to produce evidence to show Shannon aided another in committing a theft offense, and displayed, brandished, or used a deadly weapon to do so. Shanno n was also charged with aiding or abetting felonious assault pursuant to R.C. 2903 .11(A)(2). This charge required the state to prove Shannon, while aiding and abetting another knowingly caused or attempted to cause serious physical harm to another by means of a deadly weapon. {¶ 18} Shannon argues because there was only one victim and th e offenses occurred over the span of a few seconds they must merge for sen tencing. But we have previously found aggravated robbery and felonious assault are n ot allied offenses. See State v. Napier , 5th Dist. Muskingum No. CT2015-0044, 2016-Ohio-2967, ¶ 32; State v. McLaughlin , 5th Dist. No. CT2017-0104, 2018-Ohio-2333, ¶¶ 29-30 citing Napier . We find the same here. {¶ 19} The charge of aiding and abetting aggravated robbery was complete when Shannon drew his gun, pointed it at Perry's face allowing Hugue ly to flee with "a bag that had a lot of weed in it." T. 233, 329, 430, McLaughlin ¶ 30. Shannon then caused a separate and identifiable harm when he chose to fire his weapon , striking Perry in the hip. T. 239, 335. Because we find separate harm resulted from each o ffense, the trial courtRichland County, Case No. 2020 CA 0051 8
did not error in convicting and sentencing Shannon on both the offense of aiding and abetting felonious assault and the offense of aiding and abetti ng aggravated robbery. {¶ 20} The first assignment of error is overruled.
II {¶ 21} In his second assignment of error, Shannon argues his tr ial counsel rendered ineffective assistance by failing to make a stronger a rgument for merger of the charges of aiding and abetting aggravated robbery and aiding an d abetting felonious assault. We disagree. {¶ 22} The standard this issue must be measured against is set out in State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. Appellant must establish the following:

2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in additio n, prejudice arises from counsel's performance. ( State v. Lytle , 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623 [1976]; Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, [1984] followed.) 3. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exis ts a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different.Richland County, Case No. 2020 CA 0051 9

{¶ 23} Based upon our resolution of Shannon's first assignment of error, we conclude trial counsel was not ineffective. The second assignme nt of error is overruled. {¶ 24} The judgment of the Richl and County Court of Common Plea s is affirmed.

By Wise, Earle, J. Hoffman, J. and Delaney, J. concur.

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