[Cite as State v. Cannon , 2014-Ohio-4801.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100658

STATE OF OHIO
PLAINTIFF-APPELLEE

vs. DEMETRICE CANNON
DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-574884-A BEFORE: E.A. Gallagher, J., Boyle, A.J., and Jones, J. RELEASED AND JOURNALIZED: October 30, 2014ATTORNEY FOR APPELLANT Paul A. Mancino Mancino Mancino & Mancino 75 Public Square Building Suite 1016 Cleveland, Ohio 44113 ATTORNEYS FOR APPELLEE Timothy J. McGinty Cuyahoga County Prosecutor BY: Scott Zarzycki Frank Romeo Zeleznikar Assistant County Prosecutors Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113EILEEN A. GALLAGHER, J.: {¶1} Defendant-appellant Demetrice Cannon appeals his c onvictions in the Cuyahoga County Court of Common Pleas. For the following reasons, we affirm in part, reverse in part and remand. {¶2} On June 18, 2013, Cannon was indicted on ch arges of aggravated murder, murder, two counts of felonious assault, and having a weapon while unde r disability. Appellant plead not guilty to the charges, waived his right to a jury trial, and the case proceeded to a bench trial. For the purposes of R.C. 2923.13(A)(3), Cannon sti pulated to prior felony drug trafficking convictions. {¶3} The facts presented at trial were as follows: in the early hours of May 2, 2013, Kenyahta Steel died as a result of being shot four times with a .40 caliber firearm near the intersection of East 38th Street and Longwood Road in Cleveland, Ohio. Earlier that evening, Steel and Cannon had been shooting dice that deterior ated into a heated ar gument. As Steel was leaving the scene in an automobile, Cannon jogge d to pursue the car and flagged Steel down. Cannon again argued with Steel for several minut es and, ultimately, Cannon shot Steel three to four times, which was testified to by two eyewitnesses: Demarco Parker and Brittany Baker-Terrell, as we ll as the appellant. {¶4} After being Mirandized, when questione d by Cleveland police, Cannon initially claimed he was nowhere near th e incident at the time of the shooting and did not even know Steel. After several witn esses at trial rebutted that assertion, Cannon cla imed that he acted in self-defense, asserting that Steel shot at him first. {¶5} This claim was overwhelmingly rebutted by other evidence. Two eyewitnesses testified to seeing Cannon shoot Steel but not to seeing Steel shooting at Cannon. Steel sufferedfour gunshot wounds. Police found four identical .40 caliber shell casings near the scene of the crime. Steel did own a firearm, but several witnesses testified th at Steel did not have a firearm on his person that evening. {¶6} The only evidence, aside from Cannon’s testim ony, that Steel had fired a weapon at Cannon was gunshot residue found on St eel’s left hand. While this residue is consistent with having fired a gun with his left hand, it is also c onsistent with being shot near his left arm at a range of one to four feet and/or Steel grabbing his wounded leg with his left hand after being shot at close range, which two eyewitne sses testified to having seen. {¶7} The trial court returned a verdict fi nding Cannon guilty of the lesser included offense of murder with a three-year firear m specification and having a weapon while under disability. The trial c ourt found Cannon not guilty of the remaining counts. 1 Cannon was sentenced to 15 years to life on the murder convi ction, three years for th e firearm specification and one year for having a weapon while under disa bility, for a total of 19 years to life. This appeal followed. {¶8} Cannon’s first assignment of error states: Defendant was denied a fair trial when the prosecutor argues that the defendant was guilty because he failed to explain to the police his self-defense version. {¶9} Cannon did not object to the testimony of Det. Raymond Diaz who testified that Cannon, when speaking with police after being arrested, did not present a self-defense explanation for his actions. Th e prosecution argued that Cannon’s claim of self-defense lacked credibility due to his prior statements to police. Cannon’s failure to object to the testimony of

1 Although the trial court found Cannon not guilty of Counts 2, 3 and 4, the court ’ s journal entry of October 25, 2013, and the sentencing entry issued on the same date contain a clerical error in that they state that those counts were nolled.Diaz deprived the trial judge of any opportunity to rule on this issue. As a result, Cannon has waived all but plain error. State v. Harris , 8th Dist. Cuyahoga No. 99817, 2013-Ohio-5733, ¶ 13. An error constitutes plain error if it is obvious and affects a substantial right. State v. Yarbrough , 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 108. Plain error exists only where it is clear that the verdict would have been otherwise but for the error. State v. Skatzes , 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 52. Notice of plain error is to be taken with utmost caution, under exceptional ci rcumstances and only to preven t a manifest miscarriage of justice. State v. Phillips , 74 Ohio St.3d 72, 83, 656 N.E.2d 643 (1995). {¶10} Cannon asserts that the state’s argume nt that Cannon did not present his self-defense claim to police amounts to impeaching th e defendant by causing the trier of fact to draw an impermissible inference of guilt from his silence and therefore violated the rule of Doyle v. Ohio , 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). We disagree. {¶11} Once a criminal defendant receive s the warnings required by Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), it is improper for the state to impeach the defendant by causing the jury to draw an impermissible inference of guilt from the defendant’s post-arrest silence. Doyle at 611. The rationale behind this rule is that Miranda warnings carry the state’s “implicit assurance” that an arrestee’ s invocation of the Fifth Amendment right to remain silent will not later be used against him. Wainwright v. Greenfield , 474 U.S. 284, 290-291, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). Because a defendant’s post- Miranda warning silence could be nothing more than an invo cation of his right to silence, it would be fundamentally unfair to pe rmit a breach of that assurance by allowing impeaching questions as to why the defendant failed to give an exculpat ory account to the police after receiving the warnings. Id . at 295; State v. Rogers , 32 Ohio St.3d 70, 71, 512 N.E.2d 581 (1987).{¶12} The rule in Doyle does not apply where “no govern mental action induce[s] the defendant to remain silent” Fletcher v. Weir , 455 U.S. 603, 606, 102 S.Ct. 1309, 71 L.Ed.2d 490 (1982). So pre-arrest silence may be used fo r impeachment purposes because the state has done nothing to induce the defendant to believe that he has a right to remain silent before arrest. Jenkins v. Anderson , 447 U.S. 231, 240, 100 S.Ct. 2124, 65 L.Ed.2d 86 (1980); State v. Leach , 102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335, ¶ 20- 22. The same applie s to post-arrest,
pre- Miranda warning, silence, Fletcher at 605-607, and any voluntary post- Miranda warning

statements. Anderson v. Charles , 447 U.S. 404, 408-409, 100 S.Ct. 2180, 65 L.Ed.2d 222 (1980). The United States Suprem e Court explained in Anderson : Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence, because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant ha s not remained silent at all. Id . at 408. {¶13} In this instance, the impeachment arguments made by the state at trial complied with the holdings of Jenkins and Anderson . Pursuant to Jenkins , the state’s comments about the disconnect between Cannon’s pre-a rrest silence and his alibi de fense were permissible. Cannon’s claim that the state violated Doyle is similarly without mer it because Cannon did not exercise his right to remain sile nt; he waived it. He spoke ope nly with police, initially telling them that he did not shoot the victim, was not near the scene of the crime and did not know the victim. Cannon’s prior statements , which were inconsistent with other evidence, were being used to impeach him; Cannon’s silence was not. Cannon’s first assignment of error is overruled. {¶14} Cannon’s second assignment of error states:Defendant was denied a fair trial when the prosecutor cross-examined defendant concerning allged [sic] statements made by a witness who did not testify at trial. {¶15} Under Evid.R. 611(B), “[c]ross-examinati on shall be permitte d on all relevant matters and matters affecting credibility.” “The limitation of * * * cross-examination lies within the sound discretion of the trial cour t, viewed in relation to the par ticular facts of the case. Such exercise of discretion will not be disturbed in the absence of a clear showing of an abuse of discretion.” State v. Acre , 6 Ohio St.3d 140, 145, 451 N.E.2d 802 (1983). However, “[i]t is improper for an attorney, under the pretext of putting a question to a witness, to put before a jury information that is not supported by the evidence.” State v. Smidi , 88 Ohio App.3d 177, 183, 623 N.E.2d 655 (6th Dist.1993). {¶16} In this instance, the state cross-examin ed Cannon regarding statements that he purportedly made to Brandy Wyatt, a person who did not testify at trial, with respect to him not being present at the scene of the murder in c ontravention of his trial testimony. Cannon argues that this line of questioning denied him a fair trial. We disagree. {¶17} Cannon’s reliance on Smidi is misplaced. Smidi involved a jury trial wherein a prosecutor implied by his questions that he posse ssed evidence that would rebut the defendant’s testimony and improperly introduced t echnical information to the jury. {¶18} In this case, the prosecutor’s questi oning of Cannon was not analogous to Smidi

. First, this was a bench trial, which carries with it the presumption that only “relevant, material, and competent evidence” is considered absent a showing to the contrary. State v. Vason , 8th Dist. Cuyahoga No. 88069, 2007-Ohio-1599, ¶ 19, citing State v. Baston , 85 Ohio St.3d 418, 421, 709 N.E.2d 128 (1999). The prosecutor’s ques tions, which concerned prior inconsistent statements made by Cannon, s poke directly to Cannon’s cred ibility. Furthermore, this testimony was merely cumulative in light of the state’s intr oduction of Cannon’s contradictorystatements to police and was, at most, harmless error. State v. Chambers , 8th Dist. Cuyahoga No. 99864, 2014-Ohio-390, ¶ 40 (error in the admission of evidence is harmless if there is no reasonable possibility that exclusion of the evidence would have affected the result of the trial). Cannon’s second assignment of error is overruled. {¶19} Cannon’s third assignment of error states: Defendant was denied effec tive assistance of counsel guaranteed by the Sixth Amendment. {¶20} Cannon argues that because his attorney faile d to file a motion to suppress, object to hearsay testimony and/or object to prosecu torial misconduct, he was denied effective assistance of counsel. {¶21} In order to prevail on a claim of ineff ective assistance of counsel, the appellant must show (1) that counsel’s performance was deficient, and (2 ) that the defi cient performance prejudiced the defense so as to depr ive the defendant of a fair trial. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Counsel’s performance may be found to be deficient if counsel “made errors so serious that counsel was not functioning as th e counsel guaranteed the defendant by the Sixth Amendment.” Strickland at 687. To establish prejudice, “the defendant must prove that there exists a reasonable probability that, were it not fo r counsel’s errors, the result of the trial would have been different.” Bradley at 143. {¶22} In determining whether counsel’s perform ance fell below an objective standard of reasonableness, “[j]udicial scrutiny of counsel ’s performance must be highly deferential.” Strickland at 689. Because of the difficulties inherent in determining whet her counsel rendered effective assistance in any given case, a strong presumption exists that counsel’s conduct fell within the wide range of reas onable, professional assistance. Id

.{¶23} First, Cannon argues that by failing to f ile a motion to suppress, he was denied effective assistance of counsel. We disagree. {¶24} “Failing to file a motion to suppress does not constitute ineffective assistance of counsel per se. To establish ine ffective assistance of counsel fo r failure to file a motion to suppress, a defendant must prove that there wa s a basis to suppress the evidence in question.”
State v. Brown , 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, ¶ 65. {¶25} In this instance, Cannon argues that his attorney instructed Det. Diaz that no statement should be taken from Cannon upon his arre st. However, the record does not support this contention. To the contrary, the record refl ects that Det. Diaz tes tified to advising Cannon of his constitutional rights in a video-recorded interview room prior to questioning him. We cannot say that the trial couns el’s performance was deficient because there is no credible evidence to support the notion that a motion to suppress would have been successful. {¶26} Cannon next argues that his attorney provi ded ineffective assistance of counsel by failing to object to hearsay testimony offered by Det. Diaz regarding whether Steel was right- or left-handed. The state does not di spute that the relevant testimony was hearsay but argues that Cannon cannot demonstrate a reasona ble probability that, but for the failure to object to this testimony, the result of the trial would have been different. We agree. {¶27} Cannon argues that Det. Diaz’s tes timony that Cannon was right- handed improperly undermined his self-defen se claim that Steel fired a gun at him prior to his own shots because gunshot residue was discovered on Steel’s left hand. {¶28} We are unpersuaded by Cannon’s argument. The record was rife with evidence suggesting that the gunshot residue on Steel’s le ft hand was not from firing a firearm, but from being shot by Cannon. There was no trace metal found on either of Steel’s hands that wouldindicate he held a firearm. The gunshot residue was cons istent with being shot at a range of one to four feet or by Steel grabbing his left le g after being shot there at close range. The eyewitnesses testified to seei ng Cannon shoot Steel, but not to Steel shooting at Cannon. Therefore, we hold the failure to object to the hearsay statements was harmless in that there was no reasonable probability that, but for the error, the result of the trial would have been different. {¶29} Finally, Cannon repackages his argument from his first assignment of error, asserting that the prosecution’s statements c oncerning the failure of Cannon to present a self-defense version of events to police amounted to prosecutorial misconduct, and the failure of defense counsel to object to that misconduct amount s to ineffective assistance of counsel. We disagree. {¶30} The test for prosecutorial misconduct is whether the prosecutor’s remarks or questions were improper, and if so, whether they prejudicially affected substantial rights of the accused. State v. Hicks , 194 Ohio App.3d 743, 2011-Ohio-3578, 957 N.E.2d 866, ¶ 30 (8th Dist.). A prosecutor’s conduc t during trial cannot be grounds for error unless the conduct deprives the defendant of a fair trial. State v. Apanovitch , 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). The focus of that inquiry is on the fair ness of the trial, not on the culpability of the prosecutor. State v. Bey , 85 Ohio St.3d 487, 496, 709 N.E.2d 484 (1999). “[G]iven the myriad safeguards provided to assure a fair trial, and taking into account the reality of the human fallibility of the participants, there can be no such thing as an error-free, perfect trial , and * * * the Constitution does not guarantee such a trial.” United States v. Hasting , 461 U.S. 499, 508-509, 103 S.Ct. 1974 76 L.Ed.2d 96 (1983). (Emphasis added.) {¶31} Our focus upon review is whether the pros ecutor’s comments violated appellant’s substantial rights, thereby depriving appellant of a fair trial such that there is a reasonableprobability that, but for the prosecutor’s misconduc t, the result of the proceeding would have been different. Hicks at ¶30; State v. Onunwor , 8th Dist. Cuyahoga No. 93937, 2010-Ohio-5587, ¶ 42, citing State v. Loza , 71 Ohio St.3d 61, 641 N.E.2d 1082 (1994). We note, however, that a defendant ’s substantial rights cannot be prejudiced when the remaining evidence, standing alone, is so overwhelming that it constitutes defendant’s guilt and the outcome of the case would have been the same regardless of evidence admitted erroneously. Hicks at 30, citing State v. Williams , 38 Ohio St.3d 346, 528 N.E.2d 910 (1988). {¶32} Pursuant to our analysis in this first assi gnment of error, we cannot say that there was prosecutorial misconduct nor th at the failure to object to it was error by trial counsel, let alone a harmful one. Cannon’s third a ssignment of error is overruled. {¶33} Cannon’s fourth assignme nt of error states: Defendant was denied due process of law when the court overruled his motions for judgment of acquittal. {¶34} “[T]he test an appellate court must a pply when reviewing a challenge based on a denial of a motion for acquittal is the same challenge based on the sufficiency of the evidence to support a conviction.” State v. Thompson , 127 Ohio App.3d 511, 525, 713 N.E.2d 456 (8th Dist.1998). This court has said, in evalua ting a sufficiency of evidence argument: [c]ourts are to assess not whether the state’s evidence is to be believed, but whether, if believed, the evidence agains t a defendant would support a conviction. The relevant inquiry is whether, afte r viewing the evidence in a light most favorable to the prosecution, any rationa l trier of fact could have found the essential elements of th e crime proven beyond a reas onable doubt. The weight and credibility of the evidence are left to the trier of fact. State v. Jackson , 8th Dist. Cuyahoga No. 86542, 2006-Ohio-1938, ¶ 23. {¶35} Cannon was convicted of murder in viol ation of R.C. 2903.02 with a three-year firearm specification pursuant to R.C. 2941.145(A) and having a weapon while under disability in violation of R.C. 2923.13(A)(3). R.C. 2903.02( A) prohibits purposely causing the death ofanother. R.C. 2923.13(A)(3) prohibits firearm po ssession by anyone with a current indictment or prior conviction of a felony drug offens e. R.C. 2941.145 imposes an additional three-year prison term when “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.” {¶36} Cannon fails to present a specific sufficien cy argument and instead attacks the credibility of the eyewitnesses to the shooting. Cannon’s argument is without merit. Two eyewitnesses, Demarco Parker a nd Brittany Baker-Terrell, testif ied that they witnessed Cannon shoot Steel. Cannon himself testified to shoo ting Steel. Three witnesses and Cannon himself testified to an argument over a dice game be tween Cannon and Steel taking place prior to the shooting. Other witnesses who were in the area te stified that they heard three or four gun shots during the time of the incident. Investigators f ound four shell casings at the scene of the crime, all the same type and caliber, indicating that they all came from the same firearm. Dr. Armstrong, a pathologist from the Cuyahoga County medical examiner’s office, testified that Steel died as a result of four gunshot wounds. Four .40 caliber Smith & Wesson shell casings were recovered from the scene. Gunshot residue on Steel’s body was consistent with being shot from a distance of one to four feet, which was al so consistent with the testimony of Demarco Parker. {¶37} In regard to Cannon’s conviction for having a weapon while under disability, Cannon stipulated to a prior felony drug traffick ing offense, demonstra ting disability under R.C. 2913.13(A)(3), and Cannon himself admitted to possessi ng and using a firearm to shoot Steel. {¶38} Cannon’s fourth assignment of error is overruled. {¶39} Cannon’s fifth assignment of error states:Defendant is entitled to a new trial as the judgment and verdict are against the manifest weight of the evidence. {¶40} A manifest weight challenge questions whether the prosecution met its burden of persuasion. State v. Byrd , 8th Dist. Cuyahoga No. 98037, 2012-Ohio-5728, ¶ 27. When considering a manifest weight challenge, a revi ewing court reviews the entire record, weighs the evidence and all reasonable inferences therefrom, considers the credibility of the witnesses and determines whether the finder of fact clearly lost its way. State v. Jackson , 8th Dist. Cuyahoga No. 86542, 2006-Ohio-1938, ¶ 29. A reviewing court may reverse the judg ment of conviction if it appears that 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. Id

. {¶41} Cannon argues that the eyewitness testimony in this case was weak due to the fact that Brittany Baker-Terrell wavered on the stand regarding whether she personally viewed the shooting or had heard about it from others. Ca nnon points out that the only other eyewitness, Demarco Parker, was a friend of the victim. However, aside from these perceived weaknesses in the state’s case, there was overwhelming evid ence to support the tria l court’s verdict. Cannon himself admitted to shooting Steel. His se lf-defense argument was contradicted by evidence recovered from the scene, his own inconsistent statement to police and eyewitness testimony that refuted Cannon’s cla im that Steel fired a gun at him. In light of the evidence presented at trial and analyzed in the fourth assignment of error, we cannot say that the finder of fact clearly lost its way in finding appellant guilty of the above offenses. {¶42} Cannon’s fifth assignment of error is overruled. {¶43} Cannon’s sixth assignment of error states: Defendant was denied due process of law when defendant received a consecutive sentence based on judi cial fact-finding.{¶44} When reviewing a felony sentence, we follo w the standard of review set forth in R.C. 2953.08(G)(2), which provi des in relevant part: The court hearing an appeal under division (A ), (B), or (C) of this section shall review the record, including the finding s underlying the sentence or modification given by the sentencing court. The a ppellate 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 se ntencing court for resentencing. The appellate court’s sta ndard for review is not whethe r the sentencing court abused its discretion. The appella te court may take any ac tion authorized by this division if it clearly and convincingl y 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 ot herwise contrary to law. Id

. {¶45} A sentence is not clearly and convincingly contrary to law where the trial court considers the purposes and principles of sentencing under R.C. 2929.11 as well as the seriousness and recidivism fact ors listed in R.C. 2929.12, properl y applies postrelease control and sentences a defendant within the permissible statutory range. State v. A.H. , 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10, citing State v. Kalish , 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. {¶46} R.C. 2929.14(C)(4) authorizes the court to require an offender to serve multiple prison terms consecutively for convictions on mu ltiple offenses. Consecutive sentences can be imposed if the court finds that (1) a consecutive sentence is necessary to protect the public from future crime or to punish the offender and (2) th at consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public. In addition to these two factors, the court must find any of the following: (a) The offender committed one or more of the multiple offenses while theoffender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of th e 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 ade quately 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 pub lic from future crime by the offender. Id

. {¶47} In this instance, the trial court stated in its sentencing journal entry that it considered all required factors of law and there is no dispute th at the individual sentences are within the applicable statutory ranges. Furthe r, during sentencing, th e trial court found that consecutive sentences were necessary to protect the public from future crime, that consecutive sentences were not disproportiona te to the seriousness of the o ffenses and that Cannon’s prior criminal history demonstrated a disregard for social norms. The trial court made the required findings to support consecutive sentences and th e record supports the court’s findings. {¶48} Cannon appears to argue that the court impr operly engaged in j udicial fact-finding regarding his consecutive sentences in violation of the Sixth Amendment. The Ohio Supreme Court rejected this argument in State v. Hodge , 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d
768. In Hodge , the court explained that “[a]fter [ Oregon v. Ice , 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009)], it is now se ttled law * * * that the jury-t rial guarantee of the Sixth Amendment to the United States Constitution does not preclude states from requiring trial court judges to engage in judici al fact-finding prior to im posing consecutive sentences.” Id . at ¶ 19. {¶49} Sua sponte, we note that the Ohio Suprem e Court recently held that a trial court must incorporate its consecutive sentence findings into its sentencing entry. State v. Bonnell ,140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29. “A trial court’s inadvertent failure to incorporate the statutory findings in the sentencing entry after properly making t hose findings at the sentencing hearing does not render the sentence contrary to law; rather, such a clerical mistake may be corrected by the court through a nunc pro tunc entry to reflect what actually occurred in open court.” Id . at ¶ 30. {¶50} Consequently, Cannon’s sixth assignment of error is overruled in part and sustained in part. {¶51} Cannon’s seventh assignme nt of error states: Defendant was subjected to unconstitutiona l multiple punishments when the court failed to merge the firearm specifications with the offense of having a weapon while under a [sic] disability. {¶52} In his final assignment of error Cannon argues that the trial cour t erred in failing to merge his convictions for murder with a fir earm specification and havi ng a weapon while under disability. {¶53} Our review of an allied o ffenses question is de novo. State v. Webb , 8th Dist. Cuyahoga No. 98628, 2013-Ohio-699, ¶ 4, citing State v. Williams , 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28. {¶54} Under Ohio law, “[w]here the same c onduct 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 de fendant may be convicted of only one.” R.C. 2941.25(A). However, [w]here the defendant’s c onduct constitutes two or more offenses of dissimilar import, or where his conduct results in tw o or more offenses of the same or similar kind committed separate ly or with a separate animus as to each, the indictment or informati on may contain counts for all such offenses, and the defendant may be convict ed of all of them. R.C. 2941.25(B).{¶55} 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. The Johnson court expressly overruled
State v. Rance , 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), 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 resu lt in the commission of the other. Pursuant to Johnson , the conduct of the accused must be considered in determining whether two offenses should be merged as allied offenses of s imilar import under R.C. 2941.25. Id . at syllabus. The determinative inquiry is two -fold: (1) “whether it is possible to commit one offense and commit the other with the same c onduct,” and (2) “whether the offenses were committed by the same conduct, i. e., a single act, committed with a single state of mind.” Id . at ¶ 48-49, quoting State v. Brown , 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 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.” Id . at ¶ 50. {¶56} 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 ¶ 51. {¶57} The term “animus,” as defined by the Ohio Supreme Court in State v. Logan , 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979), means “purpose or, more properly, immediate motive.” {¶58} First, Cannon contends that having a w eapon while under disability is an allied offense of similar import to a firearm specificati on. This exact argument has been previouslyconsidered and rejected by this court. See State v. Shepherd , 8th Dist. Cuyahoga No. 99503, 2013-Ohio-4912, ¶ 8; State v. Majid , 8th Dist. Cuyahoga No. 96855, 2012-Ohio-1192, ¶ 94; State v. Williams , 8th Dist. Cuyahoga No. 81949, 2003-Ohio-3950, ¶ 19-21; State v. Whittsette , 8th Dist. Cuyahoga No. 70091, 1997 Ohio App. LEXIS 500, *6 (Feb. 13, 1997), citing State v. Blankenship , 102 Ohio App.3d 534, 547, 657 N.E.2d 559 (12th Dist.1995). {¶59} Cannon also argues that his conviction fo r murder should have merged with his having a weapon while under disability charge. We disagree. Cannon testif ied that he was in possession of his firearm well befo re he used it to shoot Steel. This court has previously rejected merger of murder and having a w eapon while under disability offenses under similar circumstances due to the se parate animuses involved. State v. Hodges , 8th Dist. Cuyahoga No. 99511, 2013-Ohio-5025, ¶ 20; see also State v. Conner , 8th Dist. Cuyahoga No. 99557, 2014-Ohio-601, ¶ 126 (holding that the animus for possessing a weapon while under disability is different from the animus for felonious assault a nd the discharge of a firearm because the animus of having a weapon while under di sability is making a conscious choice to possess a weapon and the fact that a defendant th en uses the weapon to commit other crimes does not absolve the criminal liability that arises solely from his decision to illegally possess the weapon). {¶60} Therefore, because these o ffenses each involved a separa te animus, the offenses do not merge. {¶61} Cannon’s seventh a ssignment of error is overruled. {¶62} The judgment of the trial court is affirm ed in part and reversed in part, and remanded for the trial court to i ssue nunc pro tunc entries to corr ect the clerical errors in the journal entry dated Oct ober 25, 2013, and the sentencing entry a nd to bring the sentencing entry into compliance with the requirements of Bonnell by incorporating its consecutive-sentencingfindings into its sentence entry. It is ordered that appellee and appe llant share the costs herein taxed. The court finds there were reas onable 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. Th e defendant’s conviction having been affirmed, any bail pending appeal is ter minated. Case remanded to the trial court for execution of

sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

EILEEN A. GALLAGHER, JUDGE MARY J. BOYLE, A.J., and LARRY A. JONES, SR., J., CONCUR