[Cite as State v. Fellows, 2010-Ohio-2699.]

STATE OF OHIO, JEFFERSON COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, ) 

 ) CASE NO. 09 JE 36 

 PLAINTIFF-APPELLEE, ) 

 ) 

 - VS - ) O P I N I O N 

 ) 

BRIAN FELLOWS, ) 

 ) 

 DEFENDANT-APPELLANT. ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, 

 Case No. 09CR15. 

JUDGMENT: Convictions Affirmed; Sentence Vacated in 

 part; Cause Remanded for Resentencing. 

APPEARANCES: 

For Plaintiff-Appellee: Attorney Thomas Straus 

 Prosecuting Attorney 

 Attorney Jane Hanlin 

 Assistant Prosecuting Attorney 

 16001 State Route Seven 

 Steubenville, Ohio 43952 

For Defendant-Appellant: Attorney Dennis McNamara 

 88 East Broad Street, Suite 1350 

 Columbus, Ohio 43215 

JUDGES: 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 Dated: June 14, 2010 
VUKOVICH, P.J. 

¶{1} Defendant-appellant Brian Fellows appeals from the judgment of the 

Jefferson County Common Pleas Court entered after a jury found him guilty of 

attempted murder, kidnapping, and felonious assault. He raises three evidentiary 

issues concerning the admission and exclusion of certain testimony. He also contests 

the jury instruction regarding attempted murder, claiming that the court failed to 

instruct on the elements of attempt. Finally, he states that after the court merged the 

attempted murder and the felonious assault counts, the court was not permitted to 

impose a concurrent sentence on each. 

¶{2} For the following reasons, the jury verdict is upheld. However, 

appellant’s sentences for attempted murder and felonious assault are reversed and 

remanded for resentencing. As appellant points out, when counts are merged, only 

one sentence can be entered thereon, and this remains true even if the sentences 

were run concurrently. 

STATEMENT OF THE CASE

¶{3} On January 7, 2009, appellant was arrested for his behavior toward Lori 

Destefano, his former girlfriend. He was indicted for the following offenses: attempted 

murder, a first degree felony in violation of R.C. 2903.02(A) and R.C. 2923.02(A); 

kidnapping, a first degree felony in violation of R.C. 2905.01(A)(3); and felonious 

assault, a second degree felony in violation of R.C. 2903.11(A)(2). His jury trial began 

on September 29, 2009. 

¶{4} Ms. Destefano testified that she ended her long-term relationship with 

appellant in 2008, when she moved into an apartment to which he did not have a key. 

(Tr. 149-150). She disclosed that on January 7, 2009, she returned from dropping her 

daughter off at school to find that appellant had entered her apartment without her 

permission. (Tr. 156-157). He demanded to speak with her and would not listen when 

she asked him to leave. (Tr. 158, 161). She testified that he then pulled out a gun and 

pointed it at her, adding that he did not point the gun at himself. (Tr. 161, 163). 
¶{5} Ms. Destefano stated that appellant checked to make sure a door was 

locked and asked for her cellular telephone. (Tr. 162-163). She said that she tried to 

“talk him down.” (Tr. 161-162). She testified that they began wrestling while he had a 

gun in his hand. He then pushed her backwards over a bench causing her to fall to 

the floor. She said that he kept saying that he was going “to end it all right now.” She 

begged him not to leave her child without a mother. (Tr. 163). 

¶{6} Ms. Destefano disclosed that appellant held the gun so tight to her chest 

that it left a bruise. (Tr. 170-172). Photographs were admitted showing the injury. At 

this point, she testified that he pulled the trigger but the gun merely clicked and did not 

fire. (Tr. 164). It was explained that the reason the gun did not fire was that the slide 

moved out of place due to it being pushed so hard against the victim, which engaged a 

safety device. (Tr. 256-259, 288-290). 

¶{7} Ms. Destefano testified that when the gun did not fire, appellant said, 

“What the fuck.” He adjusted the gun parts and successfully fired into the floor right 

next to her. He then asked, “What’s going on? What’s happening to me?” (Tr. 164). 

He fled the scene but soon called to apologize. (Tr. 169). This conversation was 

recorded on her answering machine. 

¶{8} Appellant’s former co-worker, who works in the justice center as a 

sergeant for the sheriff’s office, testified that he loaned appellant his gun a few days 

prior to the incident. (Tr. 130, 135). Appellant testified that he borrowed the gun from 

his friend when he decided to take his own life. (Tr. 323). He said that he then 

purchased bullets for the gun. A few days later, he went to Ms. Destefano’s apartment 

to thank her for the help she had given him throughout their years together. (Tr. 324). 

He admitted that if she refused to talk to him, he planned to use the gun to scare her. 

(Tr. 325, 345). 

¶{9} Appellant also admitted that he pushed the door shut when Ms. 

Destefano tried to open it to escape. (Tr. 328, 350). He conceded that he grabbed 

her and bent her backwards over a bench with one hand while the gun was in his other 

hand. (Tr. 329, 352). He claimed that the gun was nowhere near her body and that 

he did not point it at her. (Tr. 350-354). He acknowledged that he pulled the trigger 
twice in Ms. Destefano’s presence: the first time the gun did not fire as he allegedly 

intended to shoot a table, and the second time the gun fired into the floor. (Tr. 329). 

¶{10} After the gun discharged into the floor, he said that he tried to shoot 

himself two times while fleeing but the gun did not fire. (Tr. 330). He disposed of the 

gun along a road. He directed the police to the gun after his arrest. (Tr. 235). He 

claimed that his intent was only to kill himself. (Tr. 330-331, 357). The jury found 

appellant guilty as charged. 

¶{11} The court sentenced appellant to eight years for attempted murder, eight 

years for kidnapping, and seven years for felonious assault. The court merged the 

attempted murder and felonious assault counts with the agreement of the state. The 

court then ran the attempted murder sentence concurrent with the felonious assault 

sentence and ran the kidnapping sentence consecutively for a total of sixteen years. 

Appellant filed a timely appeal from the October 2, 2009 sentencing entry. 

ASSIGNMENT OF ERROR NUMBER ONE

¶{12} Appellant sets forth four assignments of error, the first of which provides: 

¶{13} “THE TRIAL COURT ERRED WHEN IT ADMITTED OVER OBJECTION 

THAT 1) THE VICTIM AND APPELLANT HAD A PRIOR ALTERCATION AND 2) 

APPELLANT CONSENTED TO HIS CHILD BEING ADOPTED.” 

¶{14} It is well-established that the admission or exclusion of evidence rests 

within the sound discretion of the trial court and an evidentiary decision will not be 

reversed absent an abuse of discretion. State v. Robb (2000), 88 Ohio St.3d 59, 68; 

State v. Lowe (1994), 69 Ohio St.3d 527, 532 (specifically dealing with other acts 

evidence); State v. Martin (1985), 19 Ohio St.3d 122, 129. An abuse of discretion 

connotes more than an error of law or judgment; it implies that the court's attitude was 

unreasonable, arbitrary, or unconscionable. State v. Adams (1980), 62 Ohio St.2d 

151, 157. 

¶{15} “Evidence of other crimes, wrongs, or acts is not admissible to prove the 

character of a person in order to show that he acted in conformity therewith. It may, 

however, be admissible for other purposes, such as proof of motive, opportunity, 

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” 

Evid.R. 404(B). A statute similarly provides: 
¶{16} “In any criminal case in which the defendant's motive or intent, the 

absence of mistake or accident on his part, or the defendant's scheme, plan, or system 

in doing an act is material, any acts of the defendant which tend to show his motive or 

intent, the absence of mistake or accident on his part, or the defendant's scheme, 

plan, or system in doing the act in question may be proved, whether they are 

contemporaneous with or prior or subsequent thereto, notwithstanding that such proof 

may show or tend to show the commission of another crime by the defendant.” R.C. 

2945.59. 

¶{17} The standard for admitting other acts evidence is strict, and thus, there 

must be substantial proof that the other act occurred. Lowe, 69 Ohio St.3d at 529; 

State v. Broom (1988), 40 Ohio St.3d 277, 281-282. However, the standard for 

admitting evidence of other acts is not whether the evidence is necessary to prove an 

element of the offense. State v. Crotts, 104 Ohio St.3d 432, 2004-Ohio-6550, ¶19. 

Rather, the issue is merely whether the evidence “tends to show” any of those matters 

enumerated in the rule or statute. Id. 

¶{18} Appellant first contends that the arresting officer should not have been 

permitted to testify over objection that he responded to a disturbance at Ms. 

Destefano’s apartment in August of 2008 and that he told appellant that he would be 

arrested for trespassing if he returned. (Tr. 237-239). Appellant states that none of 

the offenses involved trespassing and argues none of the other acts exceptions apply. 

As the officer’s testimony constituted substantial proof that the “other act” occurred, 

the question here is whether the disputed testimony tended to show an enumerated 

exception. 

¶{19} The main issue in this case was whether appellant had the requisite 

intent. He claimed that he went to the apartment with the intent to kill himself, not the 

intent to murder Ms. Destefano. It could be said that entering an apartment after 

police have threatened to arrest you for doing so tends to show intent to injure or 

restrain the occupant of that apartment. 

¶{20} Moreover, as the state suggests, the fact that he had been informed by 

police that entering again would be trespassing shows absence of mistake as to 

whether he had permission to enter. Although not an element of his charges, the fact 
that appellant entered without permission was relevant to establishing his intent. As 

stated above, the standard for admitting evidence of other acts is not whether the 

evidence is necessary to prove an element of the offense. Crotts, 104 Ohio St.3d 432 

at ¶19. 

¶{21} Furthermore, the Supreme Court has allowed, in a kidnapping trial, 

testimony that, soon before his kidnapping of another female who rejected him, the 

defendant threatened to hit his girlfriend after she had rejected him. State v. Wilson

(1996), 74 Ohio St.3d 381, 390. The Court noted that the state argued in part that the 

defendant’s motive for kidnapping the victim was his inability to deal with female 

rejection. Id. See, also, State v. Charley, 7th Dist. No. 05BE34, 2007-Ohio-1108, ¶44-

45 (prior wife’s testimony that she obtained restraining order tends to show motive of 

inability to accept female rejection in prosecution for murder of last girlfriend). Here, 

we have a similar admitted inability to deal with the victim’s rejection, providing a 

motive for the kidnapping and for the presence of the weapon. As appellant admitted, 

he thought he would scare Ms. Destefano into talking to him. (Tr. 328). 

¶{22} In addition, as the state points out, by the time the police officer testified, 

the jury had already heard about the summer disturbance from Ms. Destefano. The 

only objection entered during this portion of Ms. Destefano’s testimony was that the 

witness appeared to be speculating that appellant knew that he could not come to the 

apartment. (Tr. 158-160). 

¶{23} Prejudice is lacking where the objected to evidence was already heard. 

See, e.g., State v. Fain (Aug. 22, 1990), 9th Dist. No. 14578. Prejudice was also 

diminished by the fact that the jury heard that the summer incident involved no 

physical violence. (Tr. 312). 

¶{24} An error may not be predicated on a ruling which admits or excludes 

evidence unless a substantial right is affected. Evid.R. 103(A)(1); Crim.R. 52(A) 

(harmless error). In arguing that the admission of this testimony was not harmless, 

appellant erroneously sets forth the harmless error test for constitutional violations. 

See State v. Williams (1983), 6 Ohio St.3d 281, 290. 

¶{25} Evidentiary questions such as this involve non-constitutional claims. See, 

e.g., State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, ¶88, 286 (other acts 
evidence harmless where impact of such testimony was minimal and was not 

prejudicial given other compelling evidence of appellant's guilt); State v. Skatzes, 101 

Ohio St.3d 196, 2004-Ohio-6391, ¶110. Non-constitutional error is harmless if there is 

substantial other evidence to support the guilty verdict. Id. See, also, State v. 

Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, ¶74; State v. Keenan (1998), 81 Ohio 

St.3d 133, 142; State v. Webb (1994), 70 Ohio St.3d 325, 335. 

¶{26} Here, Ms. Destefano presented compelling testimony that appellant held 

her at gunpoint and otherwise restrained her against her will. Appellant essentially 

admitted the elements of kidnapping on the stand. (Tr. 350-354). He pressed the gun 

so hard against her chest that it left a bruise. (Tr. 163-164). Ms. Destefano stated that 

he pulled the trigger in order to shoot her in the chest. She heard the click when the 

gun failed to fire. (Tr. 164). She testified that he then swore, adjusted the gun, and 

successfully test-fired it into the floor. 

¶{27} Appellant apologized to Ms. Destefano over the telephone soon after the 

incident. Contrary to his suggestion, the fact that they did not speak of the fact that he 

pulled the trigger against her chest in the conversation does not show that the attempt 

did not occur. Adding to the evidence against him is the fact that he disposed of the 

weapon by throwing it out of a car window, even though he had borrowed it from a 

friend. This disposal is more indicative of behavior in a case of attempted murder than 

in a case of firing a hole in a floor while trying to kill oneself. 

¶{28} In conclusion, there was substantial evidence that it was Ms. Destefano 

he intended to kill when he pulled the trigger, even if he also intended to kill himself. 

As such, even assuming arguendo the court should have sustained the objection 

regarding the officer’s testimony, any error would have been harmless. 

¶{29} The second other acts issue raised here concerns the prosecutor 

eliciting from appellant on cross-examination that he consented to his son’s adoption. 

(Tr. 362). He urges that this could only be an attempt to show his bad character. 

¶{30} As the state responds, this question was asked only after appellant twice 

mentioned that he had a son on direct examination, even referring to child support. (Tr. 

308, 324). Thus, the state urges that the trial court could have rationally found that he 
opened the door to allow the state to show that he does not currently have a son 

because he agreed to his prior wife’s request for him to consent to adoption. 

¶{31} In fact, no objection was entered to the state’s questions on whether he 

gave up his rights to his son. (Tr. 361). The objection was only entered after three 

questions on the topic had already been asked and answered. (Tr. 361-362). Thus, 

appellant waived any error. Evid.R. 103(A). 

¶{32} In any event, even if this evidence should not have been admitted, there 

is no evidence of prejudice to his substantial rights. See Evid.R. 103(A); Crim.R. 

52(A). Rather, as outlined above, there was substantial evidence to support the guilty 

verdict. See, e.g., McKnight, 107 Ohio St.3d 101 at ¶88; Skatzes, 101 Ohio St.3d 196 

at ¶110; Conway, 109 Ohio St.3d 412 at ¶74; Keenan, 81 Ohio St.3d at 142; Webb, 70 

Ohio St.3d at 335. Additionally, giving your ex-wife consent to have your son adopted 

(presumably by her new husband) is of minor significance compared to the gravity of 

the attempted murder charge. See Conway, 109 Ohio St.3d 412 at ¶74 (involvement 

in robbery is of minor significance compared to the gravity of an aggravated murder 

charge). In accordance, this assignment of error is overruled. 

ASSIGNMENT OF ERROR NUMBER TWO

¶{33} Appellant’s second assignment of error contends: 

¶{34} “THE TRIAL COURT ERRED WHEN IT PRECLUDED THE SEARGENT 

[SIC] FROM TESTIFYING THAT APPELLANT WAS SUICIDAL.” 

¶{35} As aforestated, the admission or exclusion of evidence rests within the 

sound discretion of the trial court, and an evidentiary decision will not be reversed 

absent an abuse of discretion. Robb, 88 Ohio St.3d at 68. Moreover, even if the 

preclusion of evidence was an abuse of discretion, there must be evidence of 

prejudice to the defendant’s substantial rights or the error is considered harmless. 

Evid.R. 103(A); Crim.R. 52(A). 

¶{36} Here, appellant complains that the court improperly precluded a deputy 

sheriff at the jail (the friend who loaned appellant the gun) from testifying as to why 

appellant was kept in the booking area for sometime after his arrest. (Tr. 139). 

Defense counsel wished to elicit that appellant was on suicide watch. (Tr. 140). Since 

the defense theory was that appellant only had an intent to kill himself, rather than an 
intent to kill Ms. Destefano, he states that the precluded evidence about a suicide 

watch was critical to support his claim that he was in fact suicidal. 

¶{37} The state claims that appellant’s mental state after being arrested for 

kidnapping and for trying to murder someone he loved is not strictly relevant to his 

intent before and during the commission of the offenses. That is, one may become 

suicidal due to the shame of their behavior or the fact of being apprehended and the 

contemplated future in prison. 

¶{38} Furthermore, as the state points out, being suicidal does not negate an 

intent to kill your former girlfriend. See State v. Boggess (Sept. 20, 1989), 9th Dist. 

No. 89CA4501 (alleged intent to commit suicide was not a defense to the offenses and 

could be excluded, especially considering witness testimony regarding defendant’s 

actions). Here, as set forth above, substantial evidence was presented that appellant 

tried to kill Ms. Destefano. Since being suicidal is not a defense to murder, it seems 

that the trial court did not abuse its discretion on this issue. 

¶{39} Moreover, prejudice is not apparent. First, evidence of suicidal thoughts 

could just as likely lead a juror to conclude that a murder-suicide was planned. 

Second, the court here allowed a great deal of evidence that appellant was suicidal. It 

was only the friend’s testimony of a suicide watch that was excluded. 

¶{40} Notably, if a suicide watch is imposed as a result of the defendant’s 

statements, then admitting an officer’s testimony on this matter could be equated to a 

court improperly allowing the defendant to introduce his own statement in violation of 

Evid.R. 801(D)(2); only admissions of a party-opponent are admissible under this 

hearsay exception. In other words, the question could be seen as an attempt to get in 

self-serving evidence that was the result of a self-serving statement without being 

subject to cross-examination on the statement. 

¶{41} Appellant did testify here, and he described his suicidal feelings and 

intent. He also described his depression and the fact that the jail nurse put him on an 

anti-depressant after his arrest. His uncle also testified that he was suicidal before 

and after the incident. 

¶{42} In addition, there was substantial evidence to support the guilty verdicts. 

See, e.g., McKnight, 107 Ohio St.3d 101 at ¶88; Skatzes, 101 Ohio St.3d 196 at ¶110;
Conway, 109 Ohio St.3d 412 at ¶74; Keenan, 81 Ohio St.3d at 142. Thus, even if the 

evidence could have been admitted, it does not appear that its exclusion was so 

prejudicial that appellant’s substantial rights were affected. See Evid.R. 103(A); 

Crim.R. 52(A). As such, this assignment of error is overruled. 

ASSIGNMENT OF ERROR NUMBER THREE

¶{43} Appellant’s third assignment of error alleges: 

¶{44} “THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT DID NOT 

CHARGE THE JURY AS TO THE ELEMENT OF ATTEMPT.” 

¶{45} This argument deals only with the attempted murder charge. Appellant 

believes that the court failed to charge the jury on attempt and thus erred by failing to 

instruct on all of the essential elements of the offense of attempted murder. As 

appellant failed to object at trial, this argument is subject only to a plain error analysis. 

(Tr. 377, 429). See, e.g., State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 

¶275-276; Crim.R. 30(A). 

¶{46} Murder is defined as purposely causing the death of another. R.C. 

2903.02(A). Attempt is statutorily defined as purposely or knowingly, when purpose or 

knowledge is sufficient culpability for the commission of an offense, engaging in 

conduct that, if successful, would constitute or result in the offense. R.C. 2923.02(A). 

¶{47} As appellant acknowledges, the court properly instructed on the 

elements of murder. (Apt. Brief at 17, stating, “The trial court charged the jury as to 

offense of murder, as opposed to attempted murder.”); (Tr. 411-413). As the state 

points out, the court had already instructed: 

¶{48} “Count one. Attempted murder. The defendant is charged with 

attempted murder. Before you can find the defendant guilty, you must find beyond a 

reasonable doubt that on or about January 7, 2009 at Jefferson County, Ohio, that the 

defendant, Brian W. Fellows, did purposefully engage in conduct that, if successful, 

would constitute the offense of murder.” (Tr. 411). 

¶{49} The court’s language mirrors the relevant portions of the statute defining 

attempt. See R.C. 2923.02(A). Appellant does not pinpoint exactly what he contends 

is missing from the instruction. 
¶{50} If appellant believes the court should have used the phrase, “when 

purpose * * * is sufficient culpability for the commission of an offense,” this would have 

been superfluous and confusing where the court is already defining murder as 

requiring purpose. Moreover, there was no need to say “or knowingly” because 

knowingly is not the mental state for murder. See R.C. 2923.02, Staff Note (1973) (“If 

the offense attempted specifies that purpose is the culpable mental state required for 

its commission, then the attempt must be purposeful.”). 

¶{51} Although he does not do so, appellant may have meant to argue that the 

trial court should have added the model instruction proposed in 4 OJI 523.02: “A 

criminal attempt is when one purposely does or omits to do anything which is an act or 

an omission constituting a substantial step in a course of conduct planned to culminate 

in his commission of the crime.” This further instruction would have been accurate and 

acceptable. See State v. Woods (1976), 48 Ohio St.2d 127, 131. However, it was not 

required. See, e.g., State v. Valentine, 5th Dist. No. 08CA24, 2009-Ohio-4738, ¶41-48 

(where court read statutory definition, it fully instructed on elements of attempt); State 

v. Martin (Dec. 6, 1996), 2d Dist. No. 151615 (statutory definition was sufficient). 

¶{52} Trial counsel did not ask for such instruction, and the failure to do so 

could very likely have been trial strategy. This is because the main issue revolved 

around whether appellant pulled the trigger against Ms. Destefano’s chest; a jury could 

easily find that appellant purposely pulled the trigger of a loaded gun against her chest 

and that if the firing was successful, then Ms. Destefano’s death would have resulted. 

Defense counsel may have worried that with the substantial step instruction, the jury 

would have even more reason to find the elements of attempted murder satisfied 

because he took many other steps. For instance, he borrowed a gun from a friend, 

bought bullets, entered the apartment without permission, waited for Ms. Destefano, 

and forcefully restrained her all while holding a gun in one hand, and he fired a bullet 

into the floor next to her as she was on the ground. 

¶{53} In conclusion, appellant’s argument is unclear and is wholly without merit 

in any case. We presume trial tactics on matters such as jury instructions are within 

the wide range of competent assistance. State v. Clayton (1980), 62 Ohio St.2d 45, 

47-49. See, also, State v. Carter (1995), 72 Ohio St.3d 545, 558. This is one of the 
reasons why Crim.R. 30(A) requires counsel make a specific objection to jury 

instructions before the jury retires to deliberate in order to preserve the error for 

appeal. The outcome of the trial would not clearly have been otherwise had a different 

attempt instruction been sought and then given. See State v. Underwood (1983), 3 

Ohio St.3d 12. Neither plain error nor deficient performance is apparent. This 

assignment of error is overruled. 

ASSIGNMENT OF ERROR NUMBER FOUR

¶{54} Appellant’s fourth and final assignment of error states: 

¶{55} “THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT 

SENTENCED APPELLANT ON BOTH THE OFFENSES OF FELONIOUS ASSAULT 

AND ATTEMPTED MURDER.” 

¶{56} After trial, the court merged the attempted murder count and the 

felonious assault count with the state’s consent. (Tr. 442, 444, 448). However, the 

court then sentenced on both offenses and ran the sentences concurrently. As the 

parties agree, this is impermissible. (There is no dispute about the consecutive 

sentence for the kidnapping charge, which was not merged.) 

¶{57} Where two counts are merged, only one conviction can be entered. R.C. 

2941.25. Thus, only one sentence can be entered. Running the two sentences 

concurrently does not solve this problem because two sentences and thus convictions 

end up being entered in the record. See State v. Rance (1999), 85 Ohio St.3d 632, 

636 (a conviction in this context requires both a finding of guilt and a punishment). 

¶{58} The state urges that resentencing is not required as correction of the 

procedural error can be accomplished on appeal. See State v. Jones (2000), 90 Ohio 

St.3d 403, 419, 423 (merging two death sentences). However, the Supreme Court 

has recently addressed the proper procedure for courts of appeal to follow after finding 

reversible error with regard to sentences imposed for allied offenses of similar import. 

State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, ¶1, 11, 14. The Court held that 

where the appellate court finds merger is required, it must remand for new sentencing 

hearing at which the state must elect which allied offense it will pursue against the 

defendant. See id. at ¶25. Although the case before us is factually different since 

merger was done here at the trial court level, that distinction does not detract from the 
basic rationale in Whitfield. Namely, that it is the basic function of the prosecutor, not 

a court of appeals, to make the determination which merged offense it will pursue for 

sentencing purposes. Thus, we must reverse appellant’s concurrent sentences for the 

merged offenses of attempted murder and felonious assault and remand for a new 

sentencing hearing where the state shall elect which merged offense it will pursue for 

purposes of sentencing. See id. 

¶{59} For the foregoing reasons, appellant’s convictions are affirmed. 

However, we reverse appellant’s concurrent sentences and remand the case to the 

trial court for a new sentencing hearing. 

Waite, J., concurs. 

DeGenaro, J., concurs.