[Cite as State v. Helms, 2012-Ohio-1147.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO ) CASE NO. 08 MA 199 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

TARAN HELMS ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: On Remand from Ohio Supreme Court, 

Mahoning County Common Pleas Court 

Case No. 08 CR 382 A 

JUDGMENT: Convictions Affirmed. 

 Remanded. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Paul J. Gains 

Mahoning County Prosecutor 

Atty. Ralph M. Rivera 

Assistant Prosecuting Attorney 

21 West Boardman Street, 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant: Atty. Gary Van Brocklin 

P.O. Box 3537 

Youngstown, Ohio 44513-3537 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Joseph J. Vukovich 

Hon. Mary DeGenaro 

Dated: March 20, 2012
[Cite as State v. Helms, 2012-Ohio-1147.]

WAITE, P.J. 

{¶1} This appeal comes to us on remand from the Ohio Supreme Court after 

our prior Opinion in State v. Helms, 7th Dist. No. 08 MA 199, 2010-Ohio-4872 

(“Helms I”), was partially vacated. For Appellant’s first assignment of error in Helms 

I, he argued that certain of his convictions should have merged at sentencing 

because they should be determined to be allied offenses of similar import. We 

reviewed the matter under the standard set forth in State v. Rance, 85 Ohio St.3d 

632, 710 N.E.2d 699 (1999). The majority held that Appellant’s convictions for 

kidnapping and aggravated robbery should not merge, but that the convictions for 

attempted murder and felonious assault were allied offenses and should have been 

merged by the trial court. The state appealed that portion of our Opinion merging 

Appellant’s convictions for attempted murder and felonious assault, and the state’s 

appeal was accepted for review. After the appeal in Helms I was filed, the Ohio 

Supreme Court overruled Rance in State v. Johnson, 128 Ohio St.3d 153, 2010-

Ohio-6314. Subsequently, in a summary Opinion, the Ohio Supreme Court partially 

vacated Helms I and issued the following order: “The portion of the judgment of the 

court of appeals addressing appellant’s first assignment of error below is vacated on 

the authority of State v. Johnson * * *, and the cause is remanded to the court of 

appeals for application of our decision in State v. Johnson.” State v. Helms, 128 

Ohio St.3d 352, 2011-Ohio-738, 944 N.E.2d 233, ¶3. 

{¶2} Based on the new standard of review for allied offenses of similar 

import set forth in State v. Johnson, we now overrule Appellant’s first assignment of 

error and hold that based on the facts of this case, the crimes of attempted murder 
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and felonious assault are not allied offenses of similar import. The trial court was 

correct when it did not merge these convictions at sentencing. The judgment of the 

trial court is affirmed. 

Facts and Procedural History

{¶3} On April 3, 2008, Taran Helms and his accomplice Hattie Gilbert were 

indicted by the Mahoning County Grand Jury on counts of attempted murder, 

felonious assault, aggravated robbery, and kidnapping, as well as four accompanying 

firearm specifications. The charges arose from a series of events that occurred on 

March 24, 2008, wherein the victim, Joseph Kaluza, was robbed and shot while on 

the way to make a bank deposit for his employer. As he headed for the bank, a bluegray Saturn pulled in front of his car and suddenly stopped in front of him, causing 

Kaluza's car to collide with the Saturn. Kaluza phoned his district manager to report 

the accident, then called the police. Immediately following the accident, a man came 

up from behind Kaluza's vehicle and shot Kaluza in the neck. The man took the 

deposit money, pushed Kaluza's car to a more secluded spot, and threatened to 

shoot Kaluza again. The man then fled on foot. Police investigations eventually led 

to the arrests of Appellant and Gilbert. 

{¶4} The joint trial for Appellant and Gilbert commenced on September 15, 

2008. Joseph Kaluza testified that he was a manager for a Kentucky Fried Chicken 

restaurant. One of his duties was to take the restaurant's deposits to the bank. 

While he was driving to the bank on March 24, 2008, a car decelerated suddenly in 

front of him. He could not stop quickly enough to avoid hitting the rear of Gilbert’s 
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vehicle. Kaluza immediately called the police and the area manager for his 

restaurant. Gilbert got out of her car and asked to use Kaluza's cellular phone. After 

she used the phone and returned it to Kaluza she then returned to her car. 

Immediately thereafter, Appellant appeared at the driver's side of Kaluza's car and 

without warning shot Kaluza in the neck, instantly paralyzing him. Appellant walked 

to Gilbert's car, motioned for her to leave, then returned to Kaluza's car and, after an 

initial search of the vehicle, pushed it off of the main road and onto a side street in 

front of an abandoned house. Appellant then looked in the car for the deposit bag, 

which contained only $300.00. Once he found it, he said to Kaluza: “Where’s the 

rest of the money, or I’m gonna shoot you in the head.” (Tr., p. 1569.) Kaluza 

testified that, at that point, a man in a truck stopped next to his car and asked if 

Kaluza and Appellant needed help. Appellant declined the offer of assistance. 

Appellant then hurriedly grabbed another bag in the car (which turned out to be trash) 

and ran off. 

{¶5} Kaluza also testified that Kimberly Helms, Appellant’s mother, had 

worked at Kaluza's restaurant and knew the deposit procedure, but she was fired the 

prior spring for theft. 

{¶6} Kandace Johnson testified that she lived in a house a short distance 

away from where the incident occurred. Johnson saw Appellant walk from 

Ravenwood Street onto South Avenue, the main street where the accident occurred. 

Helms approached Kaluza's car and fired a shot into the car without breaking his 

stride. Appellant went to Gilbert’s car and spoke with her for a minute. Johnson saw 
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Appellant immediately return to Kaluza's car and start “fumbling around,” by reaching 

into the car through the driver's side window. (Tr., p. 1611.) Johnson saw Helms 

push the car, turn the car off, fumble around a bit more, then push the car off of 

South Avenue and onto a side street, Hilton Avenue. Johnson estimated that 90 

seconds elapsed between the gunshot and moving the car. Johnson saw Appellant 

continue to search in Kaluza's car on the front passenger's side. Johnson then saw 

Appellant run through a yard as tow-trucks arrived at the scene. 

{¶7} Jeremy Vignon, the passerby in the truck, testified that he saw Kaluza 

sitting in his car shortly after the incident occurred. As he drove by, Vignon noticed 

that Kaluza was slumped over and bleeding. Vignon decided to turn around and go 

back to the scene as Appellant finished pushing the car onto Hilton. Vignon asked 

Appellant if he needed any help. Appellant responded that he only had a flat tire. 

Vignon drove off, but noticed that the car did not have a flat tire, and called the 

police. Vignon circled around again, and when he returned to the scene, Appellant 

was running through the yard and tow trucks were arriving. 

{¶8} David White, a tow truck driver for Ludt's Towing, arrived on the scene 

as Appellant was rummaging through Kaluza's vehicle. He and Mr. Vignon both 

observed Appellant leave Kaluza's vehicle and run through a backyard heading 

north, carrying an object in his hand. 

{¶9} Law enforcement officers testified regarding their investigation of the 

incident. Police arrived on the scene shortly after the occurrence and realized that a 

potential homicide had taken place. Officer Justin Coulter and a K-9 unit were called 
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to the scene to search the area. Coulter started the search near the spot where 

Kaluza's vehicle had come to rest. The dog immediately began to track a scent. His 

tracking first led to a firearm. Next, the dog led Officer Coulter around a fence to a 

black and orange jacket laying on the ground. The dog followed the scent to a 

footprint behind a garage, but lost the track soon after that. 

{¶10} Detective Sergeant John Kelty testified that he interviewed Appellant 

and Gilbert after police found Appellant’s wallet in Gilbert’s car and after learning of 

Appellant’s mother’s prior employment at the Kentucky Fried Chicken restaurant. 

Gilbert admitted to police that she staged the accident so that the robbery could take 

place. She watched from her rearview mirror as Appellant shot Kaluza. She heard 

the gun go off, and saw Kaluza's head slump forward. After speaking with Helms, 

she drove away. 

{¶11} Various items of physical and scientific evidence were admitted during 

trial, including a video of the accident captured by a WRTA bus; a spent shell casing 

from the crime scene; a gun, coat, cap, and mask from the crime scene; the Bureau 

of Crime Investigation's lab results, which found Appellant’s DNA on the gun, coat 

and mask; and items retrieved from Gilbert’s car, including a box of bullets and 

Appellant's wallet. 

{¶12} Neither Appellant nor Gilbert presented a defense. The jury was 

charged on September 18, 2008, and on the same day it returned a verdict of guilty 

against both defendants. The jury convicted Appellant of attempted murder, R.C. 

2923.02(A) and 2903.02, a first degree felony; felonious assault, R.C. 2903.11(A)(2), 
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a second degree felony; aggravated robbery, R.C. 2911.01(A)(1), a first degree 

felony; and kidnapping, R.C. 2905.01(A)(2), a first degree felony. The first degree 

felonies carried possible ten-year prison terms, and the second degree felony carried 

a possible eight-year prison term. The jury also convicted Appellant on the four 

corresponding firearm specifications, each carrying a possible three-year prison term. 

{¶13} A sentencing hearing was held on September 23, 2008, and a 

sentencing judgment entry was filed the same day. The court imposed the maximum 

prison terms on each count. Appellant received ten years in prison on count one, 

eight years on count two, ten years on count three and ten years on count four, along 

with three years in prison for each of the four firearm specifications. The sentences 

were ordered to be served consecutively, for a total of fifty years in prison. 

{¶14} On September 29, 2010, this Court affirmed Appellant’s convictions but 

vacated his sentence. We held that the four firearm specifications must merge 

pursuant to R.C. 2929.14(D)(1)(b). We also held that the crimes of aggravated 

robbery and kidnapping were not allied offenses and did not merge. A majority of this 

court determined that the crimes of attempted murder and felonious assault were 

allied offenses under the standard set forth in Rance and its progeny. The matter 

was then remanded to the trial court for resentencing. 

{¶15} Both parties filed a notice of appeal to the Ohio Supreme Court. The 

state appealed that portion of our Opinion merging the attempted murder and 

felonious assault convictions. Appellant appealed our decision that the kidnapping 

and aggravated robbery convictions should not merge. The Ohio Supreme Court 
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accepted the state’s appeal, however, the Court dismissed Appellant’s cross-appeal. 

State v. Helms, Slip Opinion No. 2011-Ohio-738. 

{¶16} On December 29, 2010, the Ohio Supreme Court released State v. 

Johnson, supra, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061. In 

Johnson, the Court overruled State v. Rance. On February 22, 2001, in a summary 

decision, the Ohio Supreme Court vacated that portion of Helms I dealing with 

Appellant’s first assignment of error. Helms, supra, 128 Ohio St.3d 352, 2011-Ohio738, 944 N.E.2d 233. The case was remanded to us to review Appellant’s first 

assignment of error in light of the holding in State v. Johnson. The remainder of 

Helms I was not accepted for review by the Ohio Supreme Court and remains the law 

of the case. See, e.g., Hubbard ex rel. Creed v. Sauline, 74 Ohio St.3d 402, 405, 

659 N.E.2d 781 (1996) (“Where [the Ohio Supreme Court] refuses jurisdiction 

following the issuance of an opinion by a court of appeals, the court of appeals 

opinion becomes the law of the case.”) On remand, the parties filed supplemental 

briefs regarding Appellant’s first assignment of error, and we now proceed to our 

analysis on the issue. 

ASSIGNMENT OF ERROR NO. 1

{¶17} "The trial court committed reversible error when it sentenced Appellant 

Helms to multiple sentences for allied offenses of similar import committed with a 

single animus, in violation of Helms' rights under the Fifth, Sixth, and Fourteenth, 

Amendments to the United States Constitution, and Sections 10 and 16, Article I of 

the Ohio Constitution." 
-8-

{¶18} In Appellant’s assignment of error he challenges two aspects of his 

sentencing. First, Appellant contends that his sentences for aggravated robbery and 

kidnapping should have merged because they are allied offenses under the new 

standard established in State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 

N.E.2d 1061. Second, Appellant contends that his sentences for attempted murder 

and felonious assault should also have merged as allied offenses under Johnson. 

{¶19} We first examine whether attempted murder and felonious assault are 

allied offenses. The question as to whether crimes are allied offenses arises from the 

Double Jeopardy Clause of the Fifth Amendment, which protects individuals from 

multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165, 97 

S.Ct. 2221, 53 L.Ed.2d 187 (1977). The Ohio Legislature has codified this protection 

in R.C. 2941.25. Under the statute, a defendant may not be punished for multiple 

offenses if the defendant's actions constitute allied offenses of similar import. Id. at 

syllabus. 

{¶20} In State v. Johnson, supra, the Ohio Supreme Court overruled State v. 

Rance, 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), to the extent that Rance called for 

a comparison of multiple offenses “solely in the abstract.” Johnson at ¶44. Rance

had attempted to create an objective standard for determining allied offenses based 

on comparing the statutory elements of the crimes rather than looking at the conduct 

of the accused. The Rance formula, though, sometimes led to absurd results and 

became unworkable. Johnson returned a subjective element to the review of allied 

offenses: “the statute instructs courts to examine a defendant's conduct—an 
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inherently subjective determination.” Johnson at ¶52. Pursuant to the plurality 

opinion in Johnson: 

{¶21} “If the multiple offenses can be committed by the same conduct, then 

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

i.e., ‘a single act, committed with a single state of mind.’ Brown, 119 Ohio St.3d 447, 

2008-Ohio-4569, 895 N.E.2d 149, at ¶50 (Lanzinger, J., dissenting). 

{¶22} “If the answer to both questions is yes, then the offenses are allied 

offenses of similar import and will be merged. 

{¶23} “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 ¶49-51. (Emphasis sic.) 

{¶24} It is clear that the conduct of the accused must now be considered 

when determining whether multiple offenses were allied offenses. Id. at syllabus. 

Thus, the test applied in Johnson is: 1) can the two offenses be committed by the 

same conduct; and if so, 2) looking at the facts of the case, were the two offenses 

committed by the same conduct as a single act with a single state of mind. Id. If the 

answer to both questions is yes, then they are allied offenses of similar import and 

must be merged. If the acts were committed separately or with a separate animus, 

they are not allied offenses. Id. at ¶51. 
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{¶25} Johnson recognized that, due to the subjective nature of the analysis 

based on the facts of each case, some crimes may be allied offenses in certain 

cases, but not in another case under a different set of facts. Id. at ¶52. 

{¶26} The Johnson plurality holding has been followed in eleven of the twelve 

appellate districts. State v. McClendon, 2d Dist. No. 23558, 2011-Ohio-5067; State 

v. Taylor, 3d Dist. No. 12-10-49, 2011-Ohio-5080; State v. Humphrey, 4th Dist. No. 

10CA3150, 2011-Ohio-5238; State v. Hight, 5th Dist. No. 2011CA0056, 2011-Ohio5013; State v. Nickel, 6th Dist. No. OT-10-004, 2011-Ohio-1550; State v. Stoffer, 7th 

Dist. No. 09-CO-1, 2011-Ohio-5133; State. Adkins, 8th Dist. No. 95279, 2011-Ohio5149; State v. McDaniel, 9th Dist. No. 25492, 2011-Ohio-5001; State v. Mason, 10th 

Dist. Nos. 10AP-337, 10AP-342, 2011-Ohio-3301; State v. May, 11th Dist. No. 2010-

L-131, 2011-Ohio-5233; State v. Crosby, 12th Dist. Nos. CA2010-10-081, CA2011-

02-013, 2011-Ohio-4907. The First District seems to follow a different standard 

based on the general notion that a trial court must simply look at the facts of the case 

to see if the state relied on the same conduct to prove two offenses. State v. Strong, 

1st Dist. Nos. C-100484, C-100486, 2011-Ohio-4947. We will join the majority of our 

sister districts on this issue. 

{¶27} Turning to the first set of alleged allied offenses, attempted murder and 

felonious assault, to establish the elements of attempted murder, the state must 

prove that the defendant engaged in conduct that, if successful, would have resulted 

in purposely causing the death of another. R.C. 2903.02(A); R.C. 2923.02(A). To 

establish the elements of felonious assault, the state must prove that the defendant 
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knowingly caused or attempted to cause physical harm to another by means of a 

deadly weapon. R.C. 2903.11(A)(2). 

{¶28} The first question is whether attempted murder and felonious assault 

can be committed with the same conduct. The answer is yes. The conduct of 

pointing and shooting a gun at a person or persons can result in the death of one or 

more individuals, and the same conduct can also fall short of causing death but can 

cause physical harm. Since the answer to the first question is yes, the second 

question is whether the two offenses were in fact committed with the same conduct; 

that is, whether there was a single act committed with a single state of mind. 

Johnson, supra, at ¶49. The answer to this question fundamentally depends on a 

review of all of the facts of this case. 

{¶29} The facts supporting attempted murder are as follows: Appellant 

walked up from behind Kaluza’s car with a loaded gun intending to rob the victim, 

pointed the gun at the vicinity of Kaluza’s head from very close range, and fired the 

gun, hitting the victim in the neck and paralyzing him. The facts supporting felonious 

assault are more complicated. As the dissent pointed out in Helms I, there are two 

sets of circumstances in the record where Appellant used or threatened to use a gun 

against Kaluza. The facts surrounding the attempted murder could be used to 

describe a felonious assault. Appellant walked up to Kaluza’s car with a deadly 

weapon and fired the weapon, causing serious physical harm. If we rely on only 

these facts to support both charges, there is no question the two offenses are allied. 

However, this record clearly contains two scenarios involving a gun threat. The 
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record reveals a second, separate, incident establishing that after Appellant shot 

Kaluza, he pushed Kaluza’s car to a more secluded location, rummaged through the 

car looking for more money, then threatened to shoot Kaluza in the head. The record 

reflects that Appellant continued to possess the gun used only a short time earlier, 

and Appellant’s intent to use the weapon again is immediately apparent in this record 

because Kaluza had been shot once already by Appellant. 

{¶30} The dissent contends that the facts of this case amount only to 

aggravated menacing, but this theory was rejected in Green: “Defendant suggests 

that the only conviction that the evidence could support in this case is aggravated 

menacing, in violation of R.C. 2903.21(A), * * *. We disagree, because the 

defendant, in making his threat along with his actions, took a substantial step in a 

course of conduct apparently planned to culminate in the commission of a crime.” Id.

at 242, fn.2. In Green, the threat and the action taken by the defendant were that of 

pointing a loaded and functioning rifle at a policeman’s head, coupled with these 

threatening words: “If you don't have a warrant get the fuck out of my house.” Id. at 

239. The threat and action in this case consist of the actual use of the firearm 

resulting in a gunshot wound to the neck; a brief period of time intervening; then a 

threat to shoot the victim in the head along with substantial proof that the gun was 

loaded, operable, and was hastily discarded near the crime scene when the shooter 

fled. Once again, the facts in this case appear stronger than those in Green, and in 

Green the conviction for felonious assault was upheld. 
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{¶31} The dissent appears to concede that there would be sufficient evidence 

of felonious assault if the state had provided any evidence of what Appellant was 

doing with the gun at the time he made the threat. Given that circumstantial evidence 

is as valid as direct testimonial evidence in proving any element of a crime, the 

record contains more than sufficient, competent and credible circumstantial evidence 

that Appellant had the ability and intent to carry out his threat to shoot Kaluza in the 

head. State v. Jenks (1991), 61 Ohio St.3d 259, 272, 574 N.E.2d 492. 

{¶32} The dissent also contends that there is a due process problem in 

relying on the evidence of Appellant’s threat to kill Kaluza as proof of felonious 

assault because that set of facts does not correspond to the prosecutor’s theory of 

the case set forth in the opening and closing arguments. The issue in a review of 

allied offenses, though, does not involve due process, but whether double jeopardy 

occurred in sentencing a person twice based on the same set of facts. Whether or 

not the prosecutor’s theory of the case as articulated in its opening and closing 

remarks corresponds to the actual evidence presented is not under review when 

examining the record for allied offenses. Obviously, opening and closing statements 

are not evidence. “It is well settled that statements made by counsel in opening 

statements and closing arguments are not evidence.” State v. Frazier, 73 Ohio St.3d 

323, 338, 652 N.E.2d 1000 (1995). In reviewing a sentence for allied offenses, we 

normally look at the entire record and review the entire set of facts and 

circumstances as presented to the trier of fact. We do not exclude particular properly 

admitted facts from our consideration simply because we believe the jury was paying 
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more attention to the prosecutor’s opening and closing remarks rather than the actual 

presentation of the evidence. The jury is free to match the facts presented at trial to 

the elements of the crime as stated in the indictment. The indictment here does not 

specify any facts regarding felonious assault except that Kaluza was the victim and 

that it occurred on March 24, 2008. The bill of particulars does not provide any 

further explanation about the details of felonious assault. There was no objection 

filed regarding the felonious assault charge in the indictment or the bill of particulars. 

There was no objection made to Kaluza’s testimony regarding Appellant’s threat to 

shoot him in the head. There was no clarification requested in the jury instructions 

about felonious assault. We find nothing in the record that would limit our normal 

procedure of viewing the entire record as part of the consideration in determining 

whether there were allied offenses. Based on the record, Appellant committed a 

felonious assault that is not an offense allied to any other crime in this case. Thus, 

the trial court properly imposed a separate sentence for that crime. 

{¶33} Turning to this second set of facts, this scenario also presents us with a 

separate crime having a separate animus distinct from the other charges brought 

against Appellant. “There is no statutory or constitutional prohibition against 

imposing separate punishments for allied offenses or lesser included offenses if they 

are committed independently or with a separate animus.” State v. Hooper, 7th Dist. 

No. 03 CO 30, 2005-Ohio-7084, ¶19. 

{¶34} Various cases have upheld the principle that threatening to use a 

firearm, coupled with the act of pointing or waving a firearm at a victim, satisfies the 
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elements of felonious assault. See, e.g., State v. Green, 58 Ohio St.3d 239, 569 

N.E.2d 1038 (1991); State v. Seiber, 56 Ohio St.3d 4, 564 N.E.2d 408 (1990); State 

v. Brooks, 44 Ohio St.3d 185, 542 N.E.2d 636 (1989); State v. Ellington, 2d Dist. No. 

23828, 2010-Ohio-5280; State v. Jackson, 8th Dist. No. 93815, 2010-Ohio-4486. 

“Pointing a firearm, coupled with a threat indicating an intention to use the weapon, is 

sufficient to establish felonious assault. The defendant's intent to cause physical 

harm may be inferred from his actions under the circumstances.” (Citations omitted.) 

State v. Alexander, 11th Dist. Nos. C-100593, C-100594, 2011-Ohio-4911, ¶5. In all 

of these cases, the determinative factor is whether the “defendant's actions were 

strongly corroborative of his intent to cause physical harm * * * by means of his 

deadly weapon.” Green, supra, at 242. 

{¶35} In the instant case, the record presents more compelling facts than 

those found in Green and its progeny. Regarding the threat element, the record 

reveals that Appellant specifically stated he was going to shoot Kaluza in the head. 

After Appellant made this threat, he was interrupted by a passerby, Jeremy Vignon, 

who stopped to ask whether Kaluza or Appellant needed help. While Appellant fled 

almost immediately after being interrupted by Vignon, there is no doubt that his threat 

was serious because he had already fired the gun at Kaluza earlier, striking him in 

the neck. Appellant had not previously hesitated to use the gun. He walked up 

behind Kaluza’s car and fired at him without warning. Because Kaluza was 

paralyzed, thus unable to turn his head and actually see Appellant when he made the 

verbal threat, the record does not contain direct evidence that the gun was pointed at 
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Kaluza contemporaneously with the threat. This record, however, contains much 

more reliable evidence of Appellant’s willingness and ability to shoot; he actually shot 

the victim shortly before threatening to do it again. Mr. Vignon interrupted the course 

of this crime, but the gun was retrieved near the (second) crime scene with a live 

round in the chamber. (Tr., p. 2024.) The gun was undeniably functional as it had 

been used a short time earlier. The gun was also test fired by the BCI during the 

investigation of the case and was found to be operational. (Tr., p. 2058.) Compared 

to the facts in Green, the facts of the instant case are much more corroborative of 

Appellant’s intent and ability to cause physical harm to Kaluza by means of a deadly 

weapon. 

{¶36} The main difference between the facts presented in Green and related 

cases versus the instant case is that Green and its progeny rely on evidence that the 

gun was physically pointed at the intended victim to establish intent. Here, we rely on 

the prior actual use of the weapon to establish intent. While Kaluza could not testify 

that he actually saw Appellant pointing the gun at him because he had been shot and 

paralyzed by Appellant earlier, the record could not be clearer that Appellant actually 

intended to use the gun. The Green body of cases rely on testimony that the gun 

was aimed at a potential victim as part of the corroborative evidence to establish the 

defendant’s intent to use the weapon. It is not simply the fact that the weapon was 

pointed that is determinative in these types of cases, and in fact, simply pointing a 

gun, with no other corroboration is insufficient to establish felonious assault: “The act 

of pointing a deadly weapon at another, without additional evidence regarding the 
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actor's intention, is insufficient evidence to convict a defendant of the offense of 

‘felonious assault’ as defined by R.C. 2903.11(A)(2).” State v. Brooks, 44 Ohio St.3d 

185, 542 N.E.2d 636, (1989), syllabus. However, if pointing a weapon at a victim 

combined with a general threat is sufficient to establish the necessary intent to 

commit felonious assault, it is even more persuasive to establish the necessary intent 

where the defendant actually used the weapon once to seriously injure the victim, 

and then threatened to do it again a mere few minutes later. 

{¶37} Turning to the counts regarding aggravated robbery and kidnapping, a 

similar analysis must be conducted. R.C. 2911.01(A)(1) provides the definition of 

aggravated robbery: 

{¶38} “(A) No person, in attempting or committing a theft offense, as defined 

in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or 

offense, shall do any of the following: 

{¶39} “(1) Have a deadly weapon on or about the offender's person or under 

the offender's control and either display the weapon, brandish it, indicate that the 

offender possesses it, or use it[.]” 

{¶40} Kidnapping is defined in R.C. 2905.01(A)(2) as: 

{¶41} “(A) No person, by force, threat, or deception, * * * shall remove 

another from the place where the other person is found or restrain the liberty of the 

other person, for any of the following purposes: 

{¶42} “* * * 

{¶43} “(2) To facilitate the commission of any felony or flight thereafter[.]” 
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{¶44} Once again, we must first ask whether these two crimes can be 

committed by the same conduct. The answer is yes. Robbery of a person, by its 

very nature, involves to some degree holding that person by force to commit a crime. 

Hence, it constitutes a type of kidnapping. It has long been the law in Ohio, both 

before and after Rance, that the two crimes may be allied offenses. State v. Logan, 

60 Ohio St.2d 126, 130, 397 N.E.2d 1345 (1979). 

{¶45} The second question is whether the offenses were committed with the 

same conduct: whether there was a single act committed with a single state of mind. 

The answer here is no. 

{¶46} The state established that the movement of Kaluza in his vehicle after 

he was shot was prolonged, secretive and independent of the other offenses. The 

kidnapping took place during the few minutes after Kaluza was shot. After the 

shooting, when Kaluza was paralyzed, Appellant went over to talk to Gilbert. When 

he returned to Kaluza’s car, he briefly searched it, then pushed the victim’s car onto a 

side street, where he undertook a more thorough search for the deposit bag. One 

witness testified that it took 90 seconds for Appellant to push the car down the street. 

Various witnesses established that Appellant left a helpless and paralyzed Kaluza in 

the car while he pushed it to a more secluded area. Any restraint or asportation of a 

victim may constitute a separate offense of kidnapping if it was not necessary in 

order to complete the robbery offense. State v. Gore, 131 Ohio App.3d 197, 127, 

129-130, 722 N.E.2d 125 (1999). The robbery took place when Appellant first 

searched the car for the deposit bag. The kidnapping took place when Appellant left 
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a helpless Kaluza to talk to Gilbert, then moved the car from a busy main road to a 

more secluded street. These are two distinct factual events, and both of them can 

result in a criminal conviction and sentence. 

{¶47} In addition, the record reflects a separate animus for both crimes, and 

separate animus provides another basis for finding that the crimes are not allied 

offenses subject to merger. “Animus refers to the defendant's immediate criminal 

motive, intent or state of mind.” Hooper, supra, ¶15, citing State v. Blankenship, 38 

Ohio St.3d 116, 119, 526 N.E.2d 816 (1988). When a kidnapping is committed 

during another crime, there exists no separate animus “[w]here the restraint or 

movement of the victim is merely incidental to a separate underlying crime.” Logan, 

supra, at syllabus. However, “where the restraint is prolonged, the confinement is 

secretive, or the movement is substantial so as to demonstrate a significance 

independent of the other offense,” there is a separate animus as to each offense. Id. 

Separate animus also exists if the restraint or movement of the victim substantially 

increases the risk of harm to the victim. Id. In this case, the movement of Kaluza 

was prolonged, secretive, substantial, and increased the risk of harm to the victim. 

Therefore, the record contains evidence of separate animus and the two crimes are 

not allied offenses subject to merger. 

{¶48} Appellant’s arguments are without merit pursuant to the holding of State 

v. Johnson. Therefore we overrule in its entirety Appellant’s first assignment of error. 
-20-

Conclusions

{¶49} This case was remanded to us from the Ohio Supreme Court solely for 

review of Appellant’s first assignment of error dealing with allied offenses of similar 

import. Based on the holding of State v. Johnson, Appellant has not shown that 

there were allied offenses that should have been merged. The judgment of the trial 

court as to Appellant’s convictions and sentences for attempted murder, felonious 

assault, aggravated robbery, and kidnapping, are affirmed. This matter must be 

remanded to the trial court, but only to allow the court to merge the four firearm 

specifications into a single firearm specification pursuant to our ruling on Appellant’s 

second assignment of error in Helms I. 

Vukovich, J., concurs. 

DeGenaro, J., concurs in part and dissents in part; see concurring in part and 

dissenting in part opinion. 
-21-

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

{¶50} My reasons to dissent are two-fold. First, while the syllabus in State v. 

Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, unanimously 

overruled State v. Rance , 85 Ohio St.3d 632, 710 N.E.2d 699 (1999), the Ohio 

Supreme Court issued a splintered decision without a controlling majority opinion 

dictating the analysis to follow when reviewing whether multiple convictions should be 

merged for sentencing purposes. I would adopt the First District's analysis in State v. 

Johnson, 1st Dist. No. C-090620, 2011-Ohio-3143, rather than the analysis of the 

Brown plurality in Johnson, 128 Ohio St.3d 153, adopted by the majority. The First 

District's analysis is straightforward and consistent with the syllabus law in Johnson, 

whereas the Brown plurality and the majority still appear to include an abstract 

comparison of the elements of the offenses as part of the merger analysis. Second, 

principles of due process, law of the case, and the syllabus law in Johnson all 

support reaching the same conclusion here that the majority opinion in State v. 

Helms, 7th Dist. No. 08 MA 199, 2010-Ohio-4872 ("Helms I") did; i.e., two of the four 

convictions must merge for sentencing purposes. 

{¶51} Two important preliminary points must be made. The first concerns the 

scope of this remand. At oral argument both counsel conceded that given the 

conduct-based merger analysis applied by this court in Helms I, Johnson does not 

have a legal effect upon the analysis on remand. In fact, the State asserted at oral 

argument that the present proceedings provide, in effect, an opportunity for both 

sides to persuade this court to re-evaluate its decision in Helms I, thus making the 

remand akin to a reconsideration proceeding. I disagree with this characterization; I 

believe the scope of our review on remand is much narrower. 

{¶52} In Helms I the majority held: 

{¶53} To establish the elements of attempted murder, the State must 

prove that the defendant engaged in conduct that, if successful, would have 

resulted in purposely causing the death of another. R.C. 2903.02(A); R.C. 

2923.02(A). To establish the elements of felonious assault, the State must 
-22-

prove that the defendant knowingly caused or attempted to cause physical 

harm to another by means of a deadly weapon. R.C. 2903.11(A)(2). 

{¶54} The State argues that we should follow the reasoning of various 

other Ohio districts, which have previously held that attempted murder and 

felonious assault are not allied offenses under the first tier of the merger 

analysis. However, the Ohio Supreme Court recently reviewed this very issue, 

and held that "[f]elonious assault as defined in R.C. 2903.11(A)(2) is an allied 

offense of attempted murder as defined in R.C. 2903.02(A) and 2923.02." 

Williams, supra, at paragraph two of the syllabus. Specifically, Williams stated: 

{¶55} "In order to commit the offense of attempted murder as defined 

in R.C. 2903.02(A), one must engage in conduct that, if successful, would 

result in purposely causing the death of another; to commit felonious assault 

as defined in R.C. 2903.11(A)(2), one must cause or attempt to cause 

physical harm to another by means of a deadly weapon. 

{¶56} "Considering these elements in the abstract, although they do 

not align exactly, when [the defendant] attempted to cause harm by means of 

a deadly weapon, he also engaged in conduct which, if successful, would 

have resulted in the death of the victim. Here, felonious assault as defined by 

R.C. 2903.11(A)(2) is an allied offense of attempted murder as defined in R.C. 

2903.02(A) and 2923.02." Id. at ¶ 25-26. 

{¶57} Pursuant to this authority, Helms' conviction for felonious 

assault, in violation of R.C. 2903.11(A)(2), and his conviction for attempted 

murder, in violation of R.C. 2903.02(A) and R.C. 2923.02, are allied offenses 

of similar import when viewed in the abstract under the first tier of the merger 

analysis. However, the trial court may still have been able to render separate 

punishment for both convictions, under the second tier of the merger analysis, 

if Helms committed the offenses separately or with a separate animus. 

{¶58} Helms argues that the two offenses must merge because the 

wounding of Kaluza with a single gunshot forms the basis for both convictions. 

The State stopped at the first tier of the merger analysis, and did not provide 
-23-

an animus argument for the offenses of felonious assault and attempted 

murder. At trial, the State's theory of the case appears to have been that 

Helms committed attempted murder by shooting pointblank at Kaluza, and 

committed felonious assault by injuring Kaluza with that shot. This theory of 

the case is based on prior views that attempted murder and felonious assault 

are not allied offenses under the first tier of the merger analysis. Now that 

Williams is the controlling law, the State's theory of the case does not support 

separate punishments for Helms' attempted murder and felonious assault 

convictions. 

{¶59} * * 

{¶60} Here, the gunshot fired by Helms is the act that caused physical 

harm to Kaluza, and it was also the act that, if successful, would have caused 

Kaluza's death. This cannot be differentiated into multiple incidents, and the 

record does not indicate that Helms inflicted any additional injury or created a 

substantial risk of harm that was independent from the single gunshot fired. 

We therefore conclude that Helms did not commit attempted murder and 

felonious assault separately or in a way that involved a separate animus for 

each offense. Helms I at ¶44-53. 

{¶61} The majority correctly states that in Helms I this court analyzed Helms' 

merger argument pursuant to Rance and its progeny. However, the merger issue 

was resolved in Helms I by comparing the elements of attempted murder and 

felonious assault based upon the facts in the case, rather than in the abstract. 

Consequently, as the parties correctly conceded, Johnson had no practical effect 

here. Thus, the principle of law of the case dictates that the merger decision in 

Helms I should be reaffirmed on that basis alone. 

{¶62} Second, this case requires us to consider the relevance of opening and 

closing statements within the context of a criminal defendant's constitutional right to 

due process. Although clearly not evidence, these important parts of a trial are the 

state's opportunity to summarize the evidence that will be presented, and then argue 

that the evidence it has presented proved beyond a reasonable doubt that the 
-24-

defendant committed each element of the charged offenses. Opening and closing 

statements give both sides the opportunity to present their respective theories of the 

case to the jury, and to be able to prepare a defense to the other side's position. 

Important in civil cases, this principle is critical in criminal cases; the defendant must 

be able to meaningfully defend against the case presented by the state. This is 

particularly so given that merger determinations are no longer made in the abstract; 

now they are driven by the specific facts the state uses to prove the elements of each 

offense. 

{¶63} I am troubled that the majority has permitted the State to change its 

theory of the case after the trial has been concluded and one appeal decided. The 

State's abandonment of its theory of the case and introduction of a distinct, 

unexpected and inconsistent theory violates a defendant's due process rights. See

State v. Lukacs, 188 Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, ¶47 (1st 

Dist.) (advocating this legal proposition, but ultimately concluding that the state did 

not abandon one theory and replace it with another.) The majority seeks to confine 

our analysis to double jeopardy only, a perspective I find unduly myopic. The Double 

Jeopardy Clause gives effect to centuries-old principles of due process embedded in 

Anglo-American constitutional law as far back as the Magna Carta. 

Merger of Allied Offenses of Similar Import 

{¶64} Turning first to the issue of the proper merger analysis to apply in light 

of the fractured Johnson decision, the Double Jeopardy Clauses of the Fifth 

Amendment to the United States Constitution and Section 10, Article I of the Ohio 

Constitution prohibit a defendant from being "tried twice for the same offense." This 

prohibition applies both to successive prosecutions and cumulative punishments. 

U.S. v. Dixon, 509 U.S. 688, 704, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). 

{¶65} Further, R.C. 2941.25 prohibits the imposition of multiple punishments 

for the same criminal conduct. The statute allows the state to charge a criminal 

defendant with multiple, related offenses stemming from the same incident, but 

prohibits the imposition of multiple punishments for the same criminal conduct: 
-25-

{¶66} 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. 

{¶67} 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. R.C. 2941.25. 

{¶68} Inherent in R.C. 2941.25 are competing policy considerations. The 

statute allows the state to charge a defendant with multiple crimes arising from the 

same incident. R.C. 2941.25(A). This way, even if the state is unable to prove its 

case on some of the charges, a conviction on others assures that criminal acts do not 

go unpunished. At the same time, "the purpose of R.C. 2941.25 is to prevent 

shotgun convictions, that is, multiple findings of guilt and corresponding punishments 

heaped on a defendant for closely related offenses arising from the same 

occurrence." Johnson, 128 Ohio St.3d 153 at ¶43, citing Maumee v. Geiger, 45 Ohio 

St.2d 238, 242, 344 N.E.2d 133 (1976). 

{¶69} The Ohio Supreme Court held previously in Rance that to determine 

whether two offenses are allied offenses of similar import pursuant to R.C. 

2941.25(A), the elements of the offenses must be compared in the abstract without 

regard to the facts of the case. Rance at paragraph one of the syllabus. Rance

spawned much litigation and the allied offense test went through many permutations, 

as described by the Court in Johnson: 

{¶70} [T]his court has gone to great efforts to salvage the Rance

standard. We have modified it and created exceptions to it in order to avoid 

its attendant absurd results. However, our allied-offenses jurisprudence has 

suffered as a consequence. Our cases currently (1) require that a trial court 

align the elements of the offenses in the abstract—but not too exactly ([State 

v.] Cabrales, [118 Ohio St.3d 54, 2008-Ohio-1625, 886 N.E.2d 181]), (2) 
-26-

permit trial courts to make subjective determinations about the probability that 

two crimes will occur from the same conduct ([State v.] Winn, [121 Ohio St.3d 

413, 2009-Ohio-1059, 905 N.E.2d 154]), (3) instruct trial courts to determine 

preemptively the intent of the General Assembly outside the method provided 

by R.C. 2941.25 ([State v.] Brown, [119 Ohio St.3d 447, 2008-Ohio-4569, 895 

N.E.2d 149]), and (4) require that courts ignore the common sense mandate 

of the statute to determine whether the same conduct of the defendant can be 

construed to constitute two or more offenses (Rance). The current alliedoffenses standard is so subjective and divorced from the language of R.C. 

2941.25 that it provides virtually no guidance to trial courts and requires 

constant ad hoc review by this court. Johnson at ¶40. 

{¶71} Because the Rance standard had become so unworkable, the Ohio 

Supreme Court overruled it and was unanimous in its judgment and the syllabus 

language: "When determining whether two offenses are allied offenses of similar 

import subject to merger under R.C. 2941.25, the conduct of the accused must be 

considered. (State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, overruled.)" 

Id. However, with regard to how courts should apply that syllabus holding, Johnson

lacks a majority opinion, containing instead a minority and two plurality opinions. 

{¶72} Justice Brown's plurality opinion sets forth the following test for how to 

determine whether two offenses are allied offenses of similar import subject to 

merger: 

{¶73} Under R.C. 2941.25, the court must determine prior to 

sentencing whether the offenses were committed by the same conduct. Thus, 

the court need not perform any hypothetical or abstract comparison of the 

offenses at issue in order to conclude that the offenses are subject to merger. 

{¶74} In determining whether offenses are allied offenses of similar 

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

one offense and commit the other with the same conduct, not whether it is 

possible to commit one without committing the other. [State v.] Blankenship, 

38 Ohio St.3d [116,] 119, 526 N.E.2d 816 (Whiteside, J., concurring) ("It is not 
-27-

necessary that both crimes are always committed by the same conduct but, 

rather, it is sufficient if both offenses can be committed by the same conduct. 

It is a matter of possibility, rather than certainty, that the same conduct will 

constitute commission of both offenses." [Emphasis sic]). If the offenses 

correspond to such a degree that the conduct of the defendant constituting 

commission of one offense constitutes commission of the other, then the 

offenses are of similar import. 

{¶75} If the multiple offenses can be committed by the same conduct, 

then the court must determine whether the offenses were committed by the 

same conduct, i.e., "a single act, committed with a single state of mind." 

[State v.] Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, at ¶ 

50 (Lanzinger, J., dissenting). 

{¶76} If the answer to both questions is yes, then the offenses are 

allied offenses of similar import and will be merged. 

{¶77} 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. 

Johnson at ¶47-51 (Brown plurality). 

{¶78} In other words, the Brown plurality advocates that courts first determine 

whether the offenses can be committed by the same conduct. If so, then courts must 

determine whether in that particular case they were committed with the same conduct 

and with a single animus. 

{¶79} Justice O'Connor's plurality opinion advocates that the proper inquiry 

under R.C. 2941.25(A) is not whether the two offenses can be committed with the 

same conduct, but whether the convictions "arose from the same conduct that 

involves similar criminal wrongs and similar resulting harm." Johnson at ¶70 

(O'Connor, J., concurring in judgment.) The O'Connor plurality also notes that this 

determination should be aided by a review of the evidence adduced at trial. Id. at 

¶68-69. 
-28-

{¶80} Justice O'Donnell's separate concurrence, joined by Justice Lundberg 

Stratton, sets forth a slightly different analysis: 

{¶81} [T]he proper inquiry is not whether the elements align in the 

abstract as stated in Rance but, rather, whether the defendant's conduct, i.e., 

the actions and behavior of the defendant, results in the commission of two or 

more offenses of similar or dissimilar import or two or more offenses of the 

same or similar kind committed separately or with a separate animus as to 

each. See Black's Law Dictionary (9th Ed.2009) 336 ("conduct" defined as 

"[p]ersonal behavior, whether by action or inaction"). Johnson at ¶78 

(O'Donnell, J., separately concurring.) 

{¶82} While all three opinions focus on the conduct of the defendant, there 

are notable distinctions between them. The Brown plurality is still somewhat 

hypothetical in nature. The determination of "whether it is possible to commit one 

offense and commit the other with the same conduct," still appears to require an 

abstract comparison. Johnson at ¶48 (emphasis added). The O'Connor plurality 

directs the focus of the analysis back to the evidence adduced at trial, while also 

leaving open the possibility for some comparison of the elements of the offenses: 

"Rance, inasmuch as it requires a comparison of the elements of the offenses solely

in the abstract, should be overruled." Johnson at ¶68-69 (emphasis added). Justice 

O'Connor also returns to the language of the statute, parsing out the meaning of 

several key terms: "allied offenses" and "of similar import." Id. at ¶65-68. The 

O'Donnell concurrence emphasizes the importance of removing abstract 

comparisons from the merger analysis and shifts the focus of the test onto whether 

the two offenses were committed separately or with a separate animus. Johnson at 

¶78-83. 

{¶83} It is well-established that plurality opinions are merely persuasive 

authority and not binding upon the lower courts. See State ex rel. Rouch v. Eagle 

Tool & Machine Co., 26 Ohio St.3d 197, 218, 498 N.E.2d 464 (1986), fn. 7 

(Celebrezze, C.J., concurring in part and dissenting in part); Hedrick v. Motorists Mut. 

Ins. Co., 22 Ohio St.3d 42, 44, 488 N.E.2d 840 (1986), (overruled on other grounds); 
-29-

State v. Bickerstaff, 7th Dist. No. 09 JE 33, 2011-Ohio-1345, ¶75; State v. Preztak, 

181 Ohio App.3d 106, 2009-Ohio-621, 907 N.E.2d 1254, at ¶41, fn. 2 (8th.Dist.) 

(discussing the impact of State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 

N.E.2d 124). Thus, while this court is bound by the syllabus language in Johnson

and can no longer analyze offenses in the abstract, the three opinions in Johnson

only have persuasive value as would opinions from our sister districts. 

{¶84} Turning to prior decisions of this and other districts for guidance, this 

court has had occasion to address Johnson in Bickerstaff, 2011-Ohio-1345, supra 

and State v. Gardner, 7th Dist. No. 10 MA 52, 2011-Ohio-2644. Neither case 

expressly adopted one of the Johnson pluralities, instead citing only to the controlling 

syllabus law and analyzing the defendant's conduct. Bickerstaff at ¶75; Gardner at 

¶23. 

{¶85} In Bickerstaff, this court had to determine whether the crimes of murder 

and aggravated murder should merge. After a brief gang-related altercation in a gas 

station with the victim earlier in the day, the defendant went to the victim's house, 

pulled out a firearm and shot him in the chest at close range, causing his death. The 

trial court failed to merge the aggravated murder and murder convictions. Because 

the State conceded the plain error and the fact-pattern was straightforward, this court 

succinctly reasoned that "the trial court committed plain error by failing to merge 

Bickerstaff's convictions for murder and aggravated murder" because "[t]he record 

reflects that Bickerstaff committed the offenses of aggravated murder and murder 

through the single act of shooting Longmire, and with the single state of mind." 

Bickerstaff at ¶76. 

{¶86} In Gardner, this court analyzed the conduct of the defendant in more 

detail and determined, inter alia, that the rape and kidnapping were not allied 

offenses of similar import subject to merger. The defendant forced the victim, his exgirlfriend, into his vehicle, interrogated her about the new person she was seeing, 

threatened her and took her to an abandoned house. Once there he slapped her, 

ordered her to take off her pants and called her degrading names. When a neighbor 

came by and asked what was going on and whether the victim wanted to leave, the 
-30-

victim said no because the defendant was pointing what she assumed to be a gun at 

her back. The defendant then proceeded to force the victim to have sexual 

intercourse. 

{¶87} This court concluded that the rape and kidnapping were committed with 

a separate animus because "the force used was more than necessary, the 

movement was substantial, the restraint was prolonged, and the confinement was at 

least attempted to be kept secret." Id. at ¶34. Further, we noted that there were 

other objectives for the kidnapping aside from the rape, including the defendant's 

desire to criticize the victim, warn her, and interrogate her. Id. 

{¶88} More recently, instead of looking solely at the defendant's conduct, this 

court applied the two-part test advocated by Justice Brown, but did not discuss the 

fact that it is a plurality opinion. State v. Stoffer, 7th Dist. No. 09-CO-1, 2011-Ohio5133, ¶176-183. Thus, before today, none of this court's post-Johnson cases have 

explicitly adopted one of the plurality opinions. 

{¶89} A review of the approaches employed by our sister districts is also 

instructive. Nine districts have applied the test set forth in the Brown plurality. See

State v. Johnson, 2d Dist. No. 24031, 2011-Ohio-2825, ¶18-23; State v. Tatum, 3d 

Dist. No. 13-10-18, 2011-Ohio-3005, ¶54-55; State v. Abdi, 4th Dist. No. 09CA35, 

2011-Ohio-3550, ¶35-38; State v. Lemmons, 5th Dist. No. 10-CA-48, 2011-Ohio3322, ¶34-38; State v. Dority, 6th Dist. No. E-09-027, 2011-Ohio-2438, ¶13; State v. 

Smith, 8th Dist. No. 95243, 2011-Ohio-3051, ¶74-78; State v. Mason, 10th Dist. Nos. 

10AP-337, 10AP-342, 2011-Ohio-3301, ¶45; State v. May, 11th Dist. No. 2010-L131, 2011-Ohio-5233, ¶18-19; State v. Roy, 12th Dist. No. CA2009-11-290, 2011-

Ohio-1992, ¶10-12. 

{¶90} But, there are some intra-district inconsistencies. Several panels and 

judges of the Eighth District have cited to the O'Connor plurality. See Cleveland v. 

Go Invest Wisely L.L.C., 8th Dist Nos. 95178, 95181, 95179, 95182, 95180, 95447, 

2011-Ohio-3461, ¶31 (Celebrezze, J., concurring); State v. Hicks, 8th Dist. No. 

95169, 2011-Ohio-2780, ¶9. One Second District panel chose to look only to the 
-31-

syllabus law and the facts of Johnson. State v. Alsup, 2d Dist. No. 23641, 2011-

Ohio-3612, ¶9. 

{¶91} The Ninth District has taken the approach of remanding to the trial court 

for application of Johnson in cases where the trial court applied Rance during 

sentencing. See State v. Johnson, 9th Dist. No. 09CA0054-M, 2011-Ohio-3623, ¶81: 

("We have repeatedly declined to apply Johnson in the first instance. See State v. 

Vitt, 9th Dist. No. 10CA0016-M, 2011-Ohio-1448, at ¶8; State v. Maple, 9th Dist. No. 

25313, 2011-Ohio-1216, at ¶8; State v. Washington, 9th Dist. Nos. 10CA009767, 

10CA009768, 2011-Ohio-1149, at ¶27; State v. Brown, 9th Dist. No. 25287, 2011-

Ohio-1041, at ¶50.") 

{¶92} It appears that the best approach is that employed by the First District, 

in which the court notes the absence of a controlling analysis in Johnson and then 

essentially forms its own test based upon the syllabus law: 

{¶93} In State v. Johnson, the Ohio Supreme Court abandoned the 

abstract-elements test of State v. Rance and held that 'when determining 

whether two offenses are allied offenses of similar import subject to merger 

under R.C. 2941.25, the conduct of the accused must be considered.' All 

seven justices concurred in the syllabus overruling Rance. Although the 

justices could not reach a majority opinion with regard to the analysis that 

courts should use in determining whether two or more offenses are allied 

offenses of similar import under R.C. 2941.25(A), they uniformly agreed that 

the conduct of the accused must be considered. Therefore, when, as here, 

there has been a trial, we look to the evidence adduced at trial, and if that 

evidence reveals that the state relied upon the 'same conduct' to prove the 

two offenses, and that the offenses were committed neither separately nor 

with a separate animus as to each, then the defendant is afforded the 

protections of R.C. 2941.25, and the trial court errs by imposing separate 

sentences for the offenses. State v. Johnson, 1st Dist. No. C-090620, 2011-

Ohio-3143, ¶78 (footnote citations omitted); see, also, State v. Phelps, 1st 

Dist. No. C-100096, 2011-Ohio-3144, ¶35. 
-32-

{¶94} I am persuaded by the First District's analysis and would adopt that 

test. It is less cumbersome and less abstract than the test in the Brown plurality, and 

also incorporates the considerations raised by the O'Connor plurality and the 

O'Donnell concurrence. It provides a simple, workable test that is consistent with the 

controlling syllabus law in Johnson. If the evidence at trial demonstrates that the 

State relied upon the 'same conduct' to prove the two offenses, and that the offenses 

were committed neither separately nor with a separate animus as to each, then the 

defendant is afforded the protections of R.C. 2941.25 and the convictions must 

merge for sentencing purposes. The State must then elect which offense it will 

pursue for sentencing. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 

N.E.2d 182, ¶20-22. Thus, I dissent from the majority's adoption of the Brown 

plurality analysis. 

{¶95} Turning to the merits of this case, Helms' counsel primarily argues that 

all four convictions must merge. Conversely, the State argues that none of them 

merge. I concur with the majority that the aggravated robbery and kidnapping 

convictions do not merge. But the attempted murder and felonious assault 

convictions still merge as the majority held in Helms I. Alternatively, the aggravated 

robbery and felonious assault convictions should merge. I will address each in turn, 

but given the syllabus law in Johnson, two of the four convictions must be merged.

Attempted Murder and Felonious Assault 

{¶96} To establish the elements of attempted murder, the State must prove 

that the defendant engaged in conduct that, if successful, would have resulted in 

purposely causing the death of another. R.C. 2903.02(A); R.C. 2923.02(A). To 

establish the elements of felonious assault, the State must prove that the defendant 

"knowingly * * * [c]ause[d] or attempt[ed] to cause physical harm to another * * * by 

means of a deadly weapon or dangerous ordnance." R.C. 2903.11(A)(2). 

{¶97} In its brief on remand, the State concedes that felonious assault and 

attempted murder are "allied offenses" under the (former) first step of the merger 

analysis pursuant to a pre-Johnson case, State v. Williams, 124 Ohio St.3d 381, 

2010-Ohio-147, 922 N.E.2d 937. However, in Williams, the Court applied the 
-33-

Cabrales test which required a comparison of the elements of the offense in the 

abstract without considering the evidence in the case, but did not require an exact 

alignment of those elements. Williams at ¶22-23. Since the majority of the Johnson

Court agrees that elements of offenses should no longer be compared solely in the 

abstract, prior judicial determinations based upon the Rance and Cabrales decisions 

are now called into question. See State v. Hicks, 8th Dist. No. 95169, 2011-Ohio2780, ¶10 ("In abandoning the use of abstract comparisons, prior judicial 

determinations that offenses are allied may be helpful, but are no longer dispositive.") 

{¶98} First, the State did rely on the same conduct to prove both offenses. As 

a majority of this court concluded in Helms I, the State's sole theory of the case at 

trial with respect to these two charges was that Helms committed attempted murder 

by shooting Kaluza at point-blank range, and that Helms committed felonious assault 

by injuring Kaluza with that same shot. Helms I at ¶50. Notably, during the 

sentencing hearing the State did not argue that some separate, subsequent conduct 

by Helms constituted the felonious assault. The State continued to focus on Helms' 

single act of shooting Kaluza in the neck as the conduct underlying both offenses; its 

argument against merger was based not upon conduct but upon an abstract 

comparison of the element of the two offenses. And on appeal, the State maintained 

this theory when briefing the issue in Helms I. 

{¶99} Second, the two offenses were neither committed separately nor with a 

separate animus. A separate animus is generally not found if the infliction of injury 

cannot be differentiated into more than one "incident." For example, in State v. 

Sutton, 8th Dist. No. 90172, 2011-Ohio-2249, the court concluded that the defendant 

"acted with one animus when he fired multiple successive shots into the car 

containing the four victims;" and therefore "under Johnson * * * the trial court erred in 

failing to merge the felonious assault and attempted murder convictions as to each of 

the four victims." Id. at ¶9-10. Earlier cases, which are still relevant inasmuch as 

they concern separate animus, include: State v. Reid, 2d Dist. No. 23409, 2010-Ohio1686, ¶40 (three gunshots, one of which hit the victim, lead to the death of the 

victim); State v. Minifee, 8th Dist. No. 91017, 2009-Ohio-3089, ¶18-19, 113 (a series 
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of gunshots, one of which hit the victim, lead to the death of the victim); State v. Mills, 

5th Dist. No. 2007 AP 07 0039, 2009-Ohio-1849, ¶228 (single incident of inflicting 

multiple head and neck injuries which were fatal). In all three cases the felonious 

assault and attempted murder charges merged. 

{¶100} Courts have found that a separate animus existed in cases where 

factors such as the passage of time, creation of a "substantial independent risk of 

harm," or the infliction of an independent additional injury would allow a trier of fact to 

reasonably conclude that separate offenses were committed. State v. Roberts, 180 

Ohio App.3d 666, 2009-Ohio-298, 906 N.E.2d 1177, ¶14 (3d Dist.). See, e.g., State 

v. White, 8th Dist. No. 10AP-34, 2011-Ohio-2364, ¶67 (where victim was "shot once 

in the back, and then once in the face as he lay on the ground, the trial court could, 

although not obligated to do so, properly draw the inference that each gunshot was 

impelled by a separate animus.") 

{¶101} Here, the single gunshot fired by Helms is the act that caused 

physical harm to Kaluza, and was also the act that, if successful, would have caused 

Kaluza's death. This cannot be differentiated into multiple incidents, nor is there 

sufficient evidence in the record to indicate that Helms inflicted any additional injury 

or created a substantial risk of harm that was independent from the single gunshot 

fired. It was for these reasons that the majority in Helms I determined that Helms' 

attempted murder and felonious assault convictions must merge. Applying the First 

District's analysis and the syllabus language from Johnson, these two convictions 

must still merge. 

{¶102} But after a trial and one appeal, the State now advances a new theory 

as to why merger of these offenses is improper—a theory that had been rejected by 

the majority in Helms I, after being advanced for the first time by the dissent therein. 

The State now contends that Helms' subsequent threat towards Kaluza after he had 

shot him and moved the car to a side street, constitutes a separate act of felonious 

assault that does not merge with the attempted murder. The record does reflect that 

immediately after Kaluza was shot, Helms briefly spoke to his co-defendant and then 

pushed Kaluza's vehicle about 300 feet to a more secluded spot where he told him: 
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"Where's the rest of the money, or I'm gonna shoot you in the head." This abrupt and 

belated modification of the State's theory of the case, co-opted from the dissent in 

Helms I, raises serious due process concerns. Lukacs at ¶47. 

{¶103} Justice O'Connor's Johnson plurality aptly concludes that although 

there may have been alternative theories the state considered in pursuing the 

defendant for the crimes, "we are constrained by the record before us and the legal 

arguments raised in the briefs." Johnson at ¶70 (emphasis added). We are likewise 

constrained, and should resolve the merger issue based upon the evidence the State 

put on to demonstrate its theory of the case: that attempted murder and felonious 

assault were committed when Helms shot Kaluza in the neck. The majority doing 

otherwise and resolving the issue with the State's new theory, co-opted from the 

Helms I dissent, creates due process issues. 

{¶104} The due process ramifications are compounded when one first 

considers that this argument was rejected by a majority of this court in Helms I. 

Second, at oral argument the parties conceded that given the conduct-based merger 

analysis applied in Helms I, Johnson had no legal effect on our analysis of the 

propriety of merging the attempted murder and felonious assault convictions. Third, 

the State suggested at oral argument that the timing of the release of Helms I and 

Johnson gave the parties an opportunity to persuade this court to reconsider our 

decision. 

{¶105} Helms I is a final judgment. The time for reconsideration of that 

judgment has long passed and there would have been no reason to reconsider it at 

the time, even had an application been filed. App. R. 26(A)(1). Given the narrow 

scope of our inquiry on remand, the only valid ground for changing our decision 

would have been if Johnson materially affected the merger analysis and outcome. 

Such is not the case here. There was no change in the law to support a different 

resolution of the merger issue; rather a change of heart. 

{¶106} The cases upon which the majority relies in support of its argument 

that Helms' subsequent threat constitutes a distinct felonious assault are 

distinguishable. In State v. Green, 58 Ohio St.3d 239, 569 N.E.2d 1038 (1991), the 
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Ohio Supreme Court held: "The act of pointing a deadly weapon at another coupled 

with a threat, which indicates an intention to use such weapon, is sufficient evidence 

to convict a defendant of the offense of 'felonious assault' as defined by R.C. 

2903.11(A)(2). (State v. Brooks, 44 Ohio St.3d 185, 542 N.E.2d 636 [1989], syllabus, 

explained and followed.)" Id. at syllabus. In Green, the defendant held a rifle aimed 

at a police officer's head, and at the instant he positioned his weapon in the direction 

of the officers, shouted, "If you don't have a warrant get the f*ck out of my house." 

The Ohio Supreme Court held that under those facts there was sufficient evidence of 

a felonious assault. Green at 241. 

{¶107} In Brooks, the Court reached the same conclusion where the 

defendant pointed a handgun at a woman's face during an argument and stated that 

he would kill her. Brooks at 187. Similarly, in State v. Battle, 5th Dist. No. 09 AP 

0001, 2010-Ohio-4327, the Fifth District concluded there was sufficient evidence 

supporting a felonious assault conviction where the deputy testified that the 

defendant pointed a gun about two feet from the deputy's face and yelled "get out of 

my house." Id. at ¶99. 

{¶108} The present case is factually distinguishable from Brooks, Green and 

Battle. In all three cases the pointing of a firearm at the victim occurred 

contemporaneously with the defendant's threat, not a few minutes before the threat 

was uttered. Here, as conceded by the majority at ¶35, the State failed to provide 

any evidence that Helms used the firearm contemporaneously with uttering his threat. 

These facts are insufficient to establish felonious assault. The State failed to meet its 

burden of proving that Helms had the criminal intent to physically harm Kaluza with 

his firearm, and that Helms' conduct constituted a substantial step in carrying out that 

intent. R.C. 2923.02; State v. Group, 98 Ohio St.3d 248, 2002-Ohio-7247, 781 

N.E.2d 980, ¶95; Green at 240-241. 

{¶109} The majority misconstrues the holding in Green. It does not run 

counter to my analysis; rather, it validates it. The defendant in Green argued that 

pointing the weapon without firing it was insufficient to support a felonious assault 

conviction. The Green court disagreed, holding that the pointing of the weapon 
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coupled with a contemporaneous threat was sufficient. Green at 241-242. Thus, 

Green is distinguishable. The majority concedes that there was a break in time 

between Helms' use of the weapon and his threat. After Helms shot Kaluza, he 

walked to Gilbert's car, spoke with her, returned to Kaluza's car to search for money, 

and then pushed Kaluza's car around the corner—all before making the threat. That 

time gap is not insignificant; it defeats the contemporaneous requirement inherent in 

Green, Brooks and Battle. 

{¶110} Conversely, Helms' actions would constitute aggravated menacing: 

"knowingly caus[ing] another to believe that the offender will cause serious physical 

harm to the person or property of the other person * * *." R.C. 2903.21(A) (emphasis 

added). Although there is insufficient evidence for a felonious assault conviction 

based upon these facts, there could be sufficient evidence for aggravated menacing 

had the State indicted Helms on that offense; specifically, that Helms approached the 

victim and threatened to shoot him in the head if he did not give Helms the rest of the 

money. I remain unpersuaded by the majority's argument that we should infer that 

Helms had the firearm in his hand while he uttered the threat. Neither Green, 

Brooks, nor Battle support making such an inference. In all of these cases there was 

testimony that the victim saw the defendant pointing the weapon while 

simultaneously hearing the defendant utter threatening words. In none of these 

cases did the court infer that the defendant had possession of a weapon, as the 

majority does here. 

{¶111} I find further support for my position in State v. Lodico, 5th Dist. No. 

2005CA00318, 2006-Ohio-5714, where the court concluded aggravated menacing is 

an inferior offense to felonious assault: "The first question to be answered is whether 

the elements of aggravated menacing are identical to felonious assault. Both contain 

the mens rea of "knowingly" and both involve the "serious physical harm" factor. 

What sets the two statutory offenses apart is the apprehension perceived by the 

victim or victims and the motivation of the actor. In felonious assault, the actor 

intends to injure the victim, whereas in aggravated menacing, the actor's intent is to 

scare or threaten the victim." Id. ¶33. Reading Lodico together with Green, Brooks 
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and Battle, the defendant's intent to harm the victim manifested by using a weapon 

contemporaneously with uttering a threat is felonious assault. Conversely, the 

defendant's intent to create apprehension in the victim manifested by uttering a threat 

without contemporaneously pointing a weapon is aggravated menacing. 

{¶112} Because the State did not provide any evidence regarding Helms' use 

of the firearm at the time of making his threat, we could just as easily infer that the 

firearm was in the pocket of Helms' coat or pants, or that it had been flung into the 

yard where it was found by the police; Helms steering and pushing the car and 

searching for and taking the deposit bag would logically be done with two free hands. 

Had the State provided any evidence whatsoever regarding what Helms was doing 

with his firearm at the time he made the threat, a conviction for felonious assault 

potentially would have been established with sufficient evidence. However, the State 

presented no evidence regarding that fact. 

{¶113} Therefore, a conviction for felonious assault based upon the facts 

relied upon by the majority is legally insufficient. Had the State charged Helms with 

aggravated menacing, a conviction for that offense potentially could have been 

legally sufficient. Green, Brooks, and Battle, as well as Alexander, cited by the 

majority, all hold that a felonious assault conviction is sufficient only if the defendant 

points a firearm at the victim contemporaneous with making a threat. It is insufficient 

to show the previous use of a weapon, followed by a subsequent threat. Making a 

threat in order to create apprehension in the victim without simultaneously pointing a 

weapon at the victim is aggravated menacing. 

Aggravated Robbery and Felonious Assault 

{¶114} Alternatively, assuming arguendo that resolving the merger issue 

based upon the State's new post-trial/post-direct appeal theory does not raise due 

process concerns, and that Helms' subsequent threat without contemporaneously 

pointing a weapon constitutes sufficient evidence to support a felonious assault 

conviction, that offense would necessarily merge with the aggravated robbery 

conviction. 
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{¶115} The aggravated robbery statute provides that "[n]o person, in 

attempting or committing a theft offense, as defined in section 2913.01 of the 

Revised Code, or in fleeing immediately after the attempt or offense, shall * * *[h]ave 

a deadly weapon on or about the offender's person or under the offender's control 

and either display the weapon, brandish it, indicate that the offender possesses it, or 

use it[.]" R.C. 2911.01(A)(1). The felonious assault statute provides that "n]o person 

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

another's unborn by means of a deadly weapon or dangerous ordnance." R.C. 

2903.11(A)(2). Following the State's theory for the purposes of this argument and 

ignoring due process ramifications, Helms committed felonious assault when he 

knowingly attempted to cause physical harm to Kaluza with a firearm (by threatening 

to shoot him in the head) while demanding money, and committed aggravated 

robbery when he approached Kaluza and demanded money while threatening to 

shoot him in the head. 

{¶116} Because the State relied upon the same conduct to prove both 

offenses, they must merge pursuant to Johnson. Further, they were committed as 

one course of conduct, with the same animus. See State v. Darnell, 5th Dist. No. 10 

CAA 10 0083, 2011-Ohio-3647, ¶84 (applying Johnson and holding that aggravated 

robbery and felonious assault were allied offenses of similar import and committed 

with the same animus where the defendant committed the felonious assault by 

knowingly causing serious physical harm to the victim with a butcher knife while 

demanding money, and committed the offense of aggravated robbery by approaching 

the victim and demanding money while brandishing the butcher knife.) 

{¶117} Of course, merger of these offenses was not raised as an assignment 

of error in the first appeal because Helms had no reason to raise it—the theory upon 

which the State now relies to prove felonious assault was not raised until after its 

emergence in the Helms I dissent. This quandary illustrates yet again the due 

process concerns that arise from the State raising a new, distinct theory in a second

appeal. Regardless, the failure to merge felonious assault and aggravated robbery 

under these circumstances would constitute plain error. 
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Conclusion

{¶118} Contrary to the assertion of the majority, Helms did not commit 

attempted murder and felonious assault separately or in a way that involved a 

separate animus for each offense. We are constrained by the theory the State chose 

to pursue at trial and in the first appeal, i.e., that the act of shooting the victim once in 

the neck constituted the felonious assault and the attempted murder. Moreover, the 

evidence the majority relies upon to find Helms committed a felonious assault which 

survives merger with the attempted murder conviction is problematic for two reasons. 

First, resolving the case on a new, distinct theory from the theory originally advocated 

by the State at trial, sentencing and the first appeal violates due process. Second, 

evidence of the defendant making a threat without contemporaneously pointing a 

weapon at the victim is insufficient evidence to support a felonious assault conviction. 

While that conduct could be sufficient to prove aggravated menacing, the State failed 

to charge Helms with that crime. Finally, even assuming arguendo that the 

subsequent threat alone is sufficient evidence of felonious assault, that crime would 

have to merge with the aggravated robbery conviction. 

{¶119} Therefore, while I concur with the majority that Helms' aggravated 

robbery and kidnapping convictions do not merge, I dissent in part, because I 

conclude that Helms' felonious assault and attempted murder convictions do merge. 

Thus, I would remand the case to the trial court for resentencing so that the State 

could elect to pursue either Helms' felonious assault conviction or his attempted 

murder conviction for sentencing purposes.