[Cite as State v. West, 2013-Ohio-487.]

Court of Appeals of Ohio

 EIGHTH APPELLATE DISTRICT 

 COUNTY OF CUYAHOGA 

 JOURNAL ENTRY AND OPINION

 No. 98274 

STATE OF OHIO 

PLAINTIFF-APPELLEE

vs.

REONTE D. WEST

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-555955 

BEFORE: Kilbane, J., Celebrezze, P.J., and Blackmon, J. 

RELEASED AND JOURNALIZED: February 14, 2013
ATTORNEY FOR APPELLANT

Tyresha Brown-O’Neal 

Brown-O’Neal Law 

420 Lakeside Place 

323 Lakeside Avenue, West 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

Sherrie S. Royster 

Assistant County Prosecutor 

The Justice Center - 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.: 

{¶1} Defendant-appellant, Reonte West, appeals from his convictions for 

felonious assault, vandalism, possession of a firearm in a liquor permit premises, and 

having a weapon while under disability. This court notes that the indictment in this 

matter originally identified the defendant as “Rayonte West,” the fraternal twin brother of 

defendant herein. On December 9, 2011, the State moved to amend the indictment to 

identify the defendant as “Reonte West,” and explained that it had made a typographical 

error in identifying defendant as “Rayonte West.” This court further recognizes that the 

State’s motion to amend was not ruled upon in the lower court, but the motion was 

unopposed. In addition, the Cleveland Municipal Court charging documents and the 

probable cause determination were correctly issued in the name of “Reonte West.” The 

common pleas trial court file, transcript of proceedings, the brief of the appellant, and the 

brief of the appellee all correctly identify the defendant as “Reonte West.” Other 

portions of the record incorrectly identify the defendant as “Rayonte West.” Therefore, 

we have sua sponte corrected the record in this appeal and in the Cuyahoga C.P. No. 

555955 to identify “Reonte West” as the defendant in this matter. 

{¶2} On November 7, 2011, following an alleged altercation with Michael 

Calhoun (“Calhoun”) at Whitmore’s Barbeque (“Whitmore’s”), 15301 Kinsman Road in 

Cleveland, defendant was indicted pursuant to a six-count indictment. Counts 1 and 2 
charged him with the felonious assault of Calhoun in violation of R.C. 2903.11(A)(1) 

(causing serious physical harm), and felonious assault in violation of R.C. 2903.11(A)(2) 

(causing physical harm with a deadly weapon). Count 3 charged him with vandalism of 

Whitmore’s in violation of R.C. 2909.05(B)(1)(b), and Count 4 charged him with 

possessing a firearm in a liquor permit premises in violation of R.C. 2923.121. The first 

four counts also set forth one- and three-year firearm specifications. Count 5 charged 

defendant with having a weapon while under disability in violation of R.C. 

2923.13(A)(3), and Count 6 charged him with criminal damaging in violation of 

R.C. 2909.06(A)(1). 

{¶3} Defendant pled not guilty and waived his right to a jury trial as to the charge 

of having a weapon while under disability. The matter then proceeded to a jury trial on 

March 7, 2012. 

{¶4} The State’s evidence demonstrated that on September 15, 2011, at 

approximately 10:45 p.m., a shooting occurred at Whitmore’s, and patron Calhoun was 

struck in the leg. 

{¶5} Calhoun testified that he frequents Whitmore’s regularly. He acknowledged 

that patrons, including himself, are usually patted down for weapons before they are 

permitted to enter the bar. He stated that he does not carry a gun. Calhoun further 

testified that he knows the defendant from the neighborhood, and that defendant’s twin 

brother, Rayonte, is his friend. On the night of September 15, 2011, Calhoun and an 

acquaintance, George Grizzley (“Grizzley”), went to Whitmore’s to sell concert tickets to 
people at the bar. A security guard was on duty and patted down patrons for weapons. 

Calhoun ordered food in the restaurant section in the eastern half of the establishment and 

then went to the bar in the western half and spoke with the bartender. Another friend, 

Ravon Crockett (“Crockett”) was also there. Defendant and his older brother, 

Rayshawn, entered the bar. According to Calhoun, defendant “stayed back, faked like he 

was going to walk past me, swung on me.” Calhoun and defendant began to fight, and 

his brother Rayshawn “faked like he had a gun.” Calhoun backed away, and patrons 

began to flee through the rear exit door. Defendant and Rayshawn walked to the front 

door, and Calhoun and his friends went toward the front door to watch them. Someone 

then warned Calhoun to watch out. According to Calhoun, defendant reentered the bar 

from the area of the emergency exit and aimed a gun at him. Calhoun began to run 

toward the back of the bar, but he could not get away. He heard a gunshot, and his legs 

went numb. Calhoun’s friends carried him to the kitchen portion of the establishment 

and then called for an ambulance. Calhoun testified that he heard one shot inside 

Whitmore’s then several other shots coming from outside. He then heard glass breaking. 

 

{¶6} Calhoun was transported to MetroHealth Hospital where he received 

surgery on his leg. While in the hospital, Calhoun determined that he was going to 

“handle [the matter] in the street,” so he told Cleveland police officers that he did not 

know who shot him. Later, however, he changed his mind, and when a detective 

indicated that the police received information that “Rayonte” was the shooter, Calhoun 
informed the detective that the assailant was actually “Reonte,” and identified defendant 

from a photo array. 

{¶7} Calhoun acknowledged that he and the defendant are both friends with a 

female bartender and that he and defendant had argued prior to September 15, 2011. He 

indicated, however, that they never had a physical confrontation prior to that date. 

Calhoun denied that he called for someone to get his gun. Calhoun also denied that his 

friend Crockett had a weapon and denied that Crockett was the person who had shot him. 

 

{¶8} Grizzley testified that he and Calhoun were together at Whitmore’s, and 

that a security guard had searched each patron for weapons upon entry. He then stepped 

outside with Crockett. Someone told Grizzley that one of his relatives was involved in a 

fight so he went back inside. By this point, the fight had ended and he told Calhoun to 

be calm. Grizzley felt someone behind him and when he turned around, he saw someone 

aiming a weapon at them. The individual fired a shot, and Grizzley fell to the floor for 

safety. Grizzley acknowledged that it was dark in the bar and that he could not identify 

the assailant, but he was certain that he did not see Calhoun or Crockett with a gun. 

{¶9} Roneshia Brown (“Brown”), the barmaid on duty that night, testified that 

she saw two men fighting with Calhoun, then afterward, a gunshot was fired into 

Whitmore’s from the area of the exit door. Calhoun was struck in the leg so Brown 

called police. On cross-examination, Brown stated that the security guard was supposed 

to check identification and frisk every patron who enters, but he does not always do his 
job well. She also stated that Crockett had been outside when the fight occurred, and he 

then re-entered the bar before the shooting started. She denied that Calhoun asked for 

his gun. 

{¶10} Vanessa Whitmore (“Vanessa”), vice president of Whitmore’s, testified that 

the establishment has an Ohio Liquor License and had a valid license on the date of the 

shooting. Vanessa further established that the emergency exit is unlocked during 

business hours and that it is possible to enter the establishment from that door. 

{¶11} Crockett testified that he was at the bar with Calhoun and Grizzley. He 

stepped outside but came back inside the bar when he learned that Calhoun was involved 

in a fight. Crockett observed an individual restraining Calhoun, and Calhoun explained 

that he had just gotten into a fight with defendant. Crockett walked to the front door to 

see where defendant had gone. He then heard a gunshot and, when he re-entered the 

bar, Calhoun collapsed in his arms. At that point, an older man warned the group not to 

go outside because he had seen men with guns running through the parking lot. 

{¶12} Crockett went outside to confront the security guard about what had 

happened, and he observed defendant at the car wash adjacent to Whitmore’s. Crockett 

testified that defendant began shooting at him. One of the bullets struck the front 

window of the bar. Crockett ran inside and joined others hiding behind the restaurant 

counter as defendant continued to shoot at the building. Crockett testified that he did not 

have a weapon, that he did not shoot Calhoun, and that Calhoun was not accidentally shot 
by one of his friends following the initial argument with defendant. He additionally 

stated that the security guard searched everyone who entered the premises. 

{¶13} Crockett acknowledged that prior to this incident, Calhoun did not like the 

defendant, but he denied that Calhoun wished to harm the defendant. 

{¶14} Cleveland police officers responded to the scene and obtained information 

that the shooter was Rayonte West, defendant’s twin brother, and arrested him. 

Cleveland Police Detective Michael Shay subsequently spoke with Calhoun who 

identified Reonte as the shooter. Detective Gerald Sowul then prepared a six-person 

photo array that contained defendant’s photograph, and Calhoun identified defendant as 

the assailant. However, Calhoun refused to make a written statement. 

{¶15} Cleveland police officers recovered a shell casing from a .40 caliber 

semi-automatic handgun just inside the emergency door of the bar on the western half of 

the establishment, and two shell casings outside and across the street from the front of the 

premises. They also found a slug and glass shards inside the bar, beneath the front 

window, and another slug inside the bar near the jukebox. The officers also 

photographed a pool of blood on the floor of the restaurant portion in the eastern half of 

establishment. 

{¶16} Patron Jermaine Henderson (‘Henderson”) testified that he was ordering 

food and heard someone shout that a man had a gun. Henderson fled out the back exit 

and hid near a dumpster. He heard shots being fired through Whitmore’s. As 

Henderson left, he observed bullet holes in the driver’s side passenger door of his Ford 
F150 truck that was parked facing southward or away from the Whitmore’s. The bullet 

penetrated the outer portion of his truck door and wedged toward the door frame. 

{¶17} Defendant presented two witnesses, DeMarco Clayton (“Clayton”) and 

Deanna Gibson (“Gibson”). Clayton testified that he observed defendant alone in the 

parking lot of Whitmore’s. Defendant was talking on his cell phone and did not re-enter 

the establishment. 

{¶18} Gibson testified that she had plans to meet defendant at Whitmore’s bar on 

September 15, 2011. The security guard checked her for weapons and she waited for 

defendant. She then watched as the security guard also searched him for weapons. 

Neither had a gun. According to this witness, Calhoun approached defendant from 

behind, hit him in the face, and the two men started fighting. Calhoun then yelled for 

someone to give him his gun and said that he was going to shoot defendant. Defendant 

then ran out of the bar as gunshots were fired at him. Gibson further testified that shots 

continued to be fired from inside the bar after the defendant fled. She stated that she 

believes that one of the men with Calhoun accidentally shot Calhoun while firing at 

defendant. 

{¶19} On March 14, 2012, defendant was convicted of both counts of felonious 

assault, vandalism, and illegally possessing a firearm in liquor permit premises, as well as 

the firearm specifications. The jury acquitted defendant of the charge of criminal 

damaging, and the court convicted defendant of the charge of having a weapon while 

under disability. 
{¶20} The trial court referred the matter for a presentence investigation and report. 

 On April 18, 2012, the court held a sentencing hearing. On that date, the trial court 

sentenced defendant to a total of nine years of imprisonment. The court merged the 

felonious assault convictions, and sentenced defendant to six years of imprisonment for 

felonious assault and three years of consecutive time for the firearm specification. The 

court also sentenced defendant to a total of four years for the vandalism charge (one year, 

plus three years for the firearm specification); six years for having a firearm in liquor 

permit premises (three years, plus three years for the firearm specification); and three 

years for having a weapon while under disability. All terms were ordered to be served 

concurrently with each count but consecutive with the firearm specification for a total 

sentence of nine years, and also imposed three years of mandatory postrelease control 

sanctions. Defendant now appeals and assigns three errors for our review. 

{¶21} Defendant’s first assignment of error states: 

The convictions are against the manifest weight and the sufficiency of the 

evidence. 

{¶22} Within this assignment of error, defendant maintains that the State failed to 

prove that he, rather than one of Calhoun’s friends, was the assailant who fired shots in 

the bar and shot Calhoun. 

{¶23} The Ohio Supreme Court in State v. Diar, 120 Ohio St.3d 460, 

2008-Ohio-6266, 900 N.E.2d 565, ¶ 113, explained the standard for sufficiency of the 

evidence as follows: 
Raising the question of whether the evidence is legally sufficient to support 

the jury verdict as a matter of law invokes a due process concern. State v. 

Thompkins (1997), 78 Ohio St.3d 380, 386, 678 N.E.2d 541. In reviewing 

such a challenge, “[t]he relevant inquiry is whether, after viewing the 

evidence in a light most favorable to the prosecution, any rational trier of 

fact could have found the essential elements of the crime proven beyond a 

reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 

492, paragraph two of the syllabus, following Jackson v. Virginia (1979), 

443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. 

{¶24} In this matter, Calhoun testified that the defendant left the bar after the 

initial fight. Calhoun then went to the front of the bar to watch for him, but defendant 

suddenly re-entered from the area of the emergency exit and aimed a gun at him. 

Calhoun began to run toward the back of the bar, but he could not get away. Although 

Calhoun did not initially cooperate with the police, he later identified Reonte as his 

assailant and identified him from a photo array. He testified at trial that he was positive 

that defendant is the person who shot him. In addition, Crockett testified that following 

the initial fight, he walked to the front door to see where defendant had gone. He then 

heard a gunshot and, when he re-entered the bar, he found that Calhoun had been shot. 

As Crockett went outside to confront the security guard about what had happened, he 

observed defendant at the car wash adjacent to Whitmore’s. According to Crockett, 

defendant began shooting at him, striking the front window of the bar. 
{¶25} In addition, the physical evidence corresponded with the testimony from 

these witnesses. Calhoun was struck in the back of his calf, which is consistent with his 

testimony that as he watched for defendant toward the front window of the bar, defendant 

re-entered from the emergency exit and began firing a handgun. Further, Cleveland 

police officers recovered a shell casing from a .40 caliber semi-automatic handgun just 

inside the emergency door of the bar on the western half of the establishment, and two 

shell casings outside and across the street from the front of the premises. They also 

found a slug and glass shards inside the bar, beneath the front window, and another slug 

inside the bar near the jukebox. 

{¶26} Therefore, we conclude that a rational trier of fact, viewing the evidence in a 

light most favorable to the prosecution, could have concluded that defendant was the 

assailant in the shooting of Calhoun and the additional shooting that occurred inside and 

toward Whitmore’s. The State presented sufficient evidence to establish that defendant 

knowingly caused serious physical harm to Calhoun in violation of R.C. 2903.11(A)(1), 

that he knowingly caused physical harm to Calhoun by means of a handgun, in violation 

of R.C. 2903.11(A)(2), that he caused physical harm to the bar with a deadly weapon, in 

violation of R.C. 2909.05(B)(1)(b), and that he possessed a firearm in liquor permit 

premises in violation of R.C. 2923.121. There is also sufficient evidence to establish that 

while defendant had the firearm, he was subject to a disability in connection with Case 

No. CR-506151, as alleged by the State. There is sufficient evidence to support the 

convictions in this matter. 
{¶27} With regard to a manifest weight challenge, the Ohio Supreme Court in 

State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 865 N.E.2d 1264, ¶ 25, states: 

[T]he reviewing court asks whose evidence is more persuasive — the 

state’s or the defendant’s? * * * “When a court of appeals reverses a 

judgment of a trial court on the basis that the verdict is against the weight of 

the evidence, the appellate court sits as a ‘thirteenth juror’ and disagrees 

with the factfinder’s resolution of the conflicting testimony.” [Thompkins

at 387], citing Tibbs v. Florida (1982), 457 U.S. 31, 42, 102 S.Ct. 2211, 72 

L.Ed.2d 652. 

{¶28} Moreover, an appellate court may not merely substitute its view for that of 

the jury, but must find that “‘in resolving conflicts in the evidence, the jury clearly lost its 

way and created such a manifest miscarriage of justice that the conviction must be 

reversed and a new trial ordered.’” Thompkins at 387, quoting State v. Martin, 20 Ohio 

App.3d 172, 485 N.E.2d 717 (1st Dist.1983). Accordingly, reversal on manifest weight 

grounds is reserved for “‘the exceptional case in which the evidence weighs heavily 

against the conviction.’” Id., quoting Martin. 

{¶29} In this matter, the State’s evidence demonstrated that defendant exited the 

bar after fighting with Calhoun and that he then re-entered through the emergency door 

and began firing, striking Calhoun in the back of his leg. The defendant then fled out of 

the building to the adjacent parcel, then shot at Crockett, shattering Whitmore’s front 

window. Moreover, the testimony of the each of the State’s witnesses was corroborated 

by the physical evidence, including shell casings located just inside the emergency exit 

door and a spent shell located among glass fragments inside the bar beneath the front 

window. The evidence presented by the defense, on the other hand, conflicted with the 
physical evidence, including shell casings located across the street from Whitmore’s and 

broken glass found inside the restaurant. Therefore, we are unable to conclude that the 

jury clearly lost its way and created such a manifest miscarriage of justice in convicting 

defendant in this matter, or that this is the exceptional case in which the evidence weighs 

heavily against the conviction. The convictions are not against the manifest weight of 

the evidence. 

{¶30} The first assignment of error is without merit. 

{¶31} Defendant’s second assignment of error states: 

The Appellant was unduly prejudiced, at sentencing, by the testimony of 

[two Cleveland police officers] with regard to the past unconfirmed conduct 

of [Defendant] and his brother Rayonte West. 

{¶32} Within this assignment of error, defendant complains that the remarks of 

two Cleveland police officers regarding defendant’s uncharged “other acts” prejudiced 

his sentencing hearing. 

{¶33} In State v. Blake, 3d Dist. No. 14-03-33, 2004-Ohio-1952, the court held 

that a trial court may not impose a sentence that is predicated upon the court’s belief that 

the defendant is guilty of other offenses where there is no evidence that he committed 

those offenses. 

The Blake court explained that 

“[a]lthough all of these things can be considered to determine likelihood to 

recidivate, they cannot be the sole basis for imposing the maximum 

sentence. To allow that is to permit [the defendant] to be convicted of 

those offenses without a trial or an opportunity to defend himself by 
cross-examining the witnesses.” Accord State v. Fisher, 11th Dist. No. 

2002-L-020, 2003-Ohio-3499, State v. Park, 3d Dist. No. 3-06014, 

2007-Ohio-1084. 

{¶34} In this matter, the record reflects that after the verdict was announced, the 

trial court referred the matter for a presentence investigation and report. The court then 

held a sentencing hearing approximately one month later, on April 18, 2012. At that 

time, the court advised defendant that it had read the letters submitted on his behalf, and 

the court then permitted two Cleveland police officers to address the court. The officers 

stated that the police have been to defendant’s family’s home on multiple occasions, that 

defendant’s “name [comes] up over and over again regarding violent situations, usually 

towards women,” and that the family is uncooperative with police. 

{¶35} In this matter, after hearing from the police officers and from the defendant, 

the trial court stated as follows: 

The Court has considered all the relevant seriousness and recidivism 

factors, the overriding purposes and principles of sentencing; namely to 

protect the public from future crime by defendant and others, and also to 

punish the defendant using the minimum sanctions * * * 

[T]his was a bad case, in my view. I mean, not only were the injuries 

severe, I think there were several operations that required skin grafts. 

It was a situation where anyone could have been hurt or killed, because they 

were in a bar, and I just think that’s reckless. I think that is reflective of 

not caring about human life. 

I mean, it’s just beyond my comprehension that someone would just start 

firing a gun in a bar with plenty of people in there. 

I mean, if you had a beef with the guy, it’s bad enough that you’re trying to 

hurt him, but you’re hurting, trying to hurt him in a manner where you can 

hurt any innocent bystander. * * * 
I mean, I don’t understand, in the time that we live, when there’s more 

opportunities than ever, why it’s almost like you young men are living in 

the dark ages, shooting each other up and shooting things up and just 

random craziness. It just doesn’t make sense. 

So I do believe that a minimum sentence would be inappropriate. I believe 

that the Court must protect the public from people who will react to 

situations like this, in the manner that you reacted. 

{¶36} From the foregoing, the trial record indicates that the court did not consider 

the remarks of the officers when it fashioned its sentence, as the court did not mention the 

other uncharged conduct or reference the officers’ remarks regarding defendant’s alleged 

general propensity for violence. To the contrary, the court required a presentence 

investigation, considered letters offered on defendant’s behalf, and reflected at length 

upon the seriousness of the offenses, the harm that defendant had caused, and the need to 

protect the public. In any event, the trial court did not impose a maximum term on any 

count. There is, therefore, no basis upon which we can conclude that the officers’ remarks 

tainted the proceedings. State v. Treesh, 90 Ohio St.3d 460, 488, 2001-Ohio-4, 739 

N.E.2d 749. 

{¶37} Moreover, applying the two-step approach for reviewing reviewing a 

felony sentence set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 

N.E.2d 124, ¶ 4, we find no error. That is, examining all applicable rules and statutes in 

imposing the sentence, we conclude that the sentence is not clearly and convincingly 

contrary to law, because the six-year term imposed for felonious assault, a felony of the 

second degree, is within the two to eight year statutory range for that offense. R.C. 

2903.11 and 2929.14(A). Similarly, the one-year term for vandalism, a fifth-degree 
felony, is within the six to twelve month statutory range for this offense under 

R.C. 2909.05(B)(1)(b) and R.C. 2929.14(A)(5). The three-year term for illegally 

possessing a firearm in liquor permit premises, a third-degree felony, is within the twelve 

to sixty month statutory range for this offense under R.C. 2909.05(E) and R.C. 

2929.14(A)(3). The three-year term for having a weapon while under disability, a third 

degree felony under R.C. 2923.13(B), is within the nine to thirty-six month range for this 

offense. R.C. 2929.14(A)(3)(b). Therefore, the trial court imposed a sentence within 

the permissible statutory ranges herein, never imposing a maximum term, and we find no 

abuse of discretion in connection with the sentence terms. State v. Foster, 109 Ohio 

St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, at paragraph seven of the syllabus. The second 

assignment of error is without merit. 

{¶38} Defendant’s third assignment of error states: 

The trial court failed to merge counts 2, 4, & 5 of the indictment. 

{¶39} In this assignment of error, defendant asserts that his convictions for 

felonious assault under R.C. 2903.11(A)(2) (causing physical harm with a deadly 

weapon), possessing firearm in liquor permit premises in violation of R.C. 2923.121, and 

having a weapon while under disability in violation of R.C. 2923.13(A)(3) are allied 

offenses of similar import. 

{¶40} Under Ohio law, “[w]here 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.” R.C. 2941.25(A). But 

“[w]here 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(B). 

{¶41} In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, 

the Ohio Supreme Court redefined the test for determining whether two offenses are 

allied offenses of similar import subject to merger under R.C. 2941.25. The Johnson

court expressly overruled State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d 

699, which required a “comparison of the statutory elements in the abstract” to determine 

whether the statutory elements of the crimes correspond to such a degree that the 

commission of one crime will result in the commission of the other. Pursuant to 

Johnson, the conduct of the accused must be considered in determining whether two 

offenses should be merged as allied offenses of similar import under R.C. 2941.25. Id., at 

the syllabus. The determinative inquiry is two-fold: (1) “whether it is possible to commit 

one offense and commit the other with the same conduct,” and (2) “whether the offenses 

were committed by the same conduct, i.e., ‘a single act, committed with a single state of 

mind.’” Id. at ¶ 48-49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 

895 N.E.2d 149, ¶ 50 (Lanzinger, J., dissenting). “If the answer to both questions is yes, 

then the offenses are allied offenses of similar import and will be merged.” Id. at ¶ 50. 

“Conversely, if the court determines that the commission of one offense will never result 
in the commission of the other, or if the offenses are committed separately, or if the 

defendant has separate animus for each offense, then, according to R.C. 2941.25(B), the 

offenses will not merge.” Id. at ¶ 51. 

{¶42} In the instant case, for the purposes of sentencing, the trial court merged the 

felonious assault convictions in Counts 1 and 2 that pertained to Calhoun. Defendant 

claims that the felonious assault under R.C. 2903.11(A)(2) (causing physical harm to 

Calhoun with a deadly weapon), possessing a firearm in a liquor permit premises in 

violation of R.C. 2923.121, and having a weapon while under disability in violation of 

R.C. 2923.13(A)(3) are allied offenses of similar import. 

{¶43} In State v. Cowan, 8th Dist. No. 97877, 2012-Ohio-5723, this court 

considered whether the offenses of felonious assault, having a weapon while under 

disability, improper handling of a firearm in a motor vehicle, and discharge of a firearm 

near a prohibited premises, were committed with one animus and should have merged. 

The court stated: 

The felonious assault conviction was the result of Cowan shooting at 

Robert. However, the improper handling of a firearm in a motor vehicle 

and discharge of a firearm on or near a prohibited premises occurred 

approximately one hour before. The improper handling of a firearm 

concerned Cowan’s driving away with a loaded revolver after stranding his 

passengers. The discharge of a firearm concerned Cowan shooting his gun 

twice at the ground while sitting in the vehicle, after threatening Artemus. 

Therefore, these offenses each involved a separate animus and could not 

result in the commission of each other under these factual circumstances. 

We also conclude that the animus of having a weapon under disability is 

making a conscious choice to possess a weapon. Here, Cowan necessarily 

acquired the guns sometime prior to committing the other crimes. The fact 

that he then used the weapons to commit the other crimes does not absolve 
Cowan of the criminal liability that arises solely from his decision to 

illegally possess the weapons. See State v. Jones, 1st Dist. No. C-110059, 

2011-Ohio-6633; State v. Dillingham, 12th Dist. No. CA2011-03-043, 

2011- Ohio-6348; State v. Bray, 2d Dist No. 2010 CA 14, 2011-Ohio-4660. 

Id.; accord State v. Elder, 5th Dist. No. 2011-CA-00058, 2011-Ohio-4438 (animus for 

possessing a weapon under disability is different from the animus for felonious assault). 

{¶44} We further note that in State v. Young, 2d Dist. No. 23642, 2011-Ohio-747, 

the court addressed a bar fight that escalated into a fatal shooting and considered whether 

the defendant could be convicted and sentenced for carrying a concealed weapon, illegal 

possession of a firearm in a liquor permit establishment, and having a weapon while 

under disability. The court analyzed the issue as follows: 

Young, a person under disability, necessarily acquired a handgun sometime 

before concealing it on his person. Thus, the elements of proof for having 

a weapon while under disability were satisfied when Young acquired the 

firearm. His subsequent conduct of concealing the handgun constituted a 

separate and distinct act from initially acquiring the weapon. Similarly, 

Young acquired the handgun and concealed it on his person before entering 

a liquor-permit establishment. His subsequent conduct of bringing the 

weapon into a bar constituted a separate and distinct act from acquiring and 

concealing it. As a result, each of these offenses was committed separately 

under R.C. 2941.25(B). Therefore, even if the crimes were allied offenses 

under R.C. 2941.25(A), the trial court did not err in convicting and 

sentencing Young separately for carrying a concealed weapon, illegal 

possession of a firearm in a liquor-permit establishment, and having a 

weapon while under disability. 

Id. at ¶ 49. 

{¶45} Analyzing defendant’s conduct with these concepts in mind, we note that 

defendant, a person under a weapons disability, had a gun ready at hand on the night of 

September 15, 2011. He was in possession of that gun prior to entering the bar through 
the emergency exit. Once inside with the gun, he then shot Calhoun, fled from the bar, 

then continued to fire shots into Whitmore’s from across the street. Therefore, the record 

demonstrates that the offense of having a weapon while under a disability had already 

occurred before defendant entered the bar. Thereafter, he possessed the gun inside the 

bar, before committing the offense of felonious assault upon Calhoun. Therefore, we 

conclude that defendant’s conduct resulted in the commission of three distinct offenses 

committed separately and with a separate animus as to each. He was therefore properly 

convicted and sentenced on the three individual charges of felonious assault on Calhoun, 

possession of a firearm in a liquor permit premises, and having a weapon while under 

disability pursuant to R.C. 2941.25(B). 

{¶46} The third assignment of error is without merit. 

{¶47} Judgment affirmed. 

It is ordered that appellee recover from appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending appeal is terminated. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

MARY EILEEN KILBANE, JUDGE 
FRANK D. CELEBREZZE, JR., P.J., and 

PATRICIA A. BLACKMON, J., CONCUR