State v. Grissom

[Cite as State v. Grissom, 2014-Ohio-857.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO

Plaintiff-Appellee

v.

KHRYSTOPHER GRISSOM

Defendant-Appellant

Appellate Case No. 25750

Trial Court Case No. 2012-CR-2996

(Criminal Appeal from
(Common Pleas Court)
...........

OPINION

Rendered on the 7th day of March, 2014.

...........

MATHIAS H. HECK, JR., by MICHELE D. PHIPPS, Atty. Reg. No. 0069829, Assistant Prosecuting
Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts
Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 North Pioneer Boulevard, Springboro,
Ohio 45066
Attorney for Defendant-Appellant

.............

WELBAUM, J.
 2

{¶ 1} Defendant-appellant, Khrystohpher Grissom, appeals from his conviction and

sentence in the Montgomery County Court of Common Pleas on one count of felonious assault,

one count of discharging a firearm on or near a prohibited premises, one count of having a

weapon while under disability, and two firearm specifications. Grissom contends that there was

insufficient evidence to support his convictions and that his convictions were against the manifest

weight of the evidence. He also contends that the trial court erroneously provided a jury

instruction on flight and failed to merge allied offenses of similar import. For the reasons

outlined below, we affirm the judgment of the trial court.

Facts and Course of Proceedings

{¶ 2} On October 10, 2012, Grissom, who is known by the nickname “Jimmy,” was

indicted on one count of felonious assault in violation of R.C. 2903.11(A)(2), a second-degree

felony; one count of discharging a firearm on or near a prohibited premises in violation of R.C.

2923.162(A)(3),(C)(2), a third-degree felony; one count of having a weapon while under

disability in violation of R.C. 2923.13(A)(3), a third-degree felony; and two firearm

specifications. Grissom pled not guilty to all of the charges and the matter proceeded to a jury

trial. The following facts were elicited at trial.

{¶ 3} On September 29, 2012, at approximately 11:30 p.m., Daniel Sammons was

walking out of a Speedway gas station store on North Dixie Drive in Harrison Township, Ohio,

when the door he used to exit the store grazed Grissom’s arm. Grissom, who had been standing

outside and leaning his shoulder against the door, became angry after the door grazed him, and he

began cussing at Sammons. In response, Sammons looked at Grissom and walked away. The
 3

confrontation between Sammons and Grissom at Speedway is not in dispute.

{¶ 4} Sammons, however, testified that as he walked away, Grissom came toward him

and said: “I’m a shoot you up.” Trans. Vol. I, p. 158, ln. 2. Additionally, Chris Watkins, a

passenger sitting in Sammons's Jeep Liberty parked nearby, testified that he heard Grissom say

“shoot you up” to Sammons in an escalated voice. Id. at 206, ln. 11. Thereafter, both Watkins

and Sammons saw Grissom run and jump inside a maroon Ford Expedition parked nearby. It is

undisputed that Grissom was in the driver’s seat of the Expedition and that Grissom followed

Sammons’s Jeep out of Speedway and onto North Dixie Drive.

{¶ 5} Sammons and Watkins testified that Grissom sped up very close to the rear of

Sammons’s Jeep and changed lanes so that the Expedition was on the Jeep’s driver’s side. Both

men then heard a gunshot fire into the Jeep as they were driving. Neither Sammons nor Watkins

saw a gun, but Watkins testified that he saw a flash and could tell that the gunshot came from the

front-seat area of the Expedition. It is undisputed that there was a gunshot fired at the Jeep and

that it came from somewhere inside the Expedition.

{¶ 6} The gunshot shattered the rear window of Sammons’s Jeep and hit the left side of

the driver's seat. In response to the gunshot, Sammons testified that he slammed on the brakes

and called 9-1-1. Additionally, both Sammons and Watkins testified that they followed the

Expedition, which continued to drive away from them after the shot was fired. Sammons and

Watkins also testified that they pulled over after spotting a State Trooper on the side of the road,

and that they told the officer what had happened.

{¶ 7} Londell Johnson, a passenger in the Expedition driven by Grissom, testified that

the Expedition belonged to his sister, who is Grissom’s girlfriend. Johnson testified that on the
 4

night of the shooting, his brother, Lewis, and Grissom's friend, Jaye, were also riding as

passengers in the Expedition. According to Johnson, Jaye was seated in the front-passenger seat

and he and Lewis were in the back.

{¶ 8} Johnson also testified that when they went to Speedway, he, Grissom, and Lewis

got out of the Expedition, and that Grissom was the last person to return to the vehicle. While

Johnson did not see Grissom’s confrontation with Sammons, he testified that Grissom returned to

the Expedition and said: “Dude just bumped me.” Trans. Vol. II, p. 242, ln. 12. When Johnson

inquired who bumped him, Grissom pointed to Sammons’s Jeep. Johnson testified that Grissom

was the only person in the vehicle that got angry about the confrontation and that he and Lewis

were trying to calm him down.

{¶ 9} In addition, Johnson testified that he heard a gunshot while they were riding

beside the Jeep and that he heard someone say: “Watch out, little bro.” Id. at 246, ln. 23. He

further testified that the gunshot came from inside their vehicle, but that he did not see who fired

the gun. After the gunshot, Johnson testified that Grissom drove away. At trial, Johnson’s

testimony regarding who fired the gun was impeached using a written statement that Johnson

gave to police two days after the shooting. Johnson acknowledged that he wrote as part of his

statement that, “Jimmy [a.k.a. Grissom] shot the gun.” Id. at 262, ln. 10-11. Johnson further

acknowledged that he had indicated in his statement that Grissom told him to say that Jaye had

fired the gun. Furthermore, Johnson testified that he and the other passengers had no reason to

shoot Sammons.

{¶ 10} At the end of trial, the trial court instructed the jury that it may find Grissom

guilty of felonious assault and discharging a weapon on or near a prohibited premises if it finds
 5

that the State proved beyond a reasonable doubt that Grissom was either the principal offender or

an aider and abettor. Additionally, the trial court provided the jury with a flight instruction,

explaining that fleeing the scene does not raise a presumption of guilt, but may tend to indicate a

consciousness or awareness of guilt.

{¶ 11} Based on the testimony and evidence presented at trial, the jury found Grissom

guilty of all charges. At sentencing, the trial court found that Grissom’s convictions for

felonious assault and discharging a weapon on or near a prohibited premises were allied offenses

of similar import that merge. The State elected to proceed on the conviction for felonious

assault for which the trial court imposed a prison term of six years. The two firearm

specifications also merged, and Grissom received a prison term of five years for the firearm

specifications. Additionally, the trial court imposed a prison term of 12 months for having a

weapon while under disability. Grissom’s sentences were ordered to run consecutively for a

total prison term of 12 years.

{¶ 12} Grissom is now appealing from his conviction and sentence, raising four

assignments of error.

Assignments of Error Nos. I and II

{¶ 13} For purposes of convenience, we will address Grissom’s first two assignments of

error together. They are as follows:

I.

THE TRIAL COURT ERRED BY OVERRULING APPELLANT'S MOTION

FOR ACQUITTAL SINCE THE STATE FAILED TO SUPPLY SUFFICIENT
 6

EVIDENCE AS TO ALL THE ELEMENTS NECESSARY TO SUPPORT THE

CHARGES AGAINST THE DEFENDANT.

II.

THE TRIAL COURT'S VERDICTS SHOULD BE REVERSED AS THEY

WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

{¶ 14} Under his first two assignments of error, Grissom argues that there was

insufficient evidence to support his convictions and that his convictions were against the manifest

weight of the evidence. In support of his argument, Grissom claims that the evidence presented

at trial failed to establish that he was the shooter, or that he aided and abetted the shooter.

{¶ 15} “A sufficiency of the evidence argument disputes whether the State has presented

adequate evidence on each element of the offense to allow the case to go to the jury or sustain the

verdict as a matter of law.” State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶

10, citing State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing

whether the State has presented sufficient evidence to support a conviction, the relevant inquiry is

whether any rational finder of fact, after viewing the evidence in a light most favorable to the

State, could have found the essential elements of the crime proven beyond a reasonable doubt.

State v. Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be

disturbed on appeal unless “reasonable minds could not reach the conclusion reached by the

trier-of-fact.” Id.

{¶ 16} In contrast, “a weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. When evaluating whether a
 7

conviction is against the manifest weight of the evidence, the appellate court must review the

entire record, weigh the evidence and all reasonable inferences, consider witness credibility, and

determine whether, in resolving conflicts in the evidence, the trier of fact “clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered.” Thompkins at 387, citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717

(1st Dist.1983).

{¶ 17} Because the trier of fact sees and hears the witnesses at trial, we must defer to the

factfinder's decisions whether, and to what extent, to credit the testimony of particular witnesses.

State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).

However, we may determine which of several competing inferences suggested by the evidence

should be preferred. Id. The fact that the evidence is subject to different interpretations does

not render the conviction against the manifest weight of the evidence. Wilson at ¶ 14. A

judgment of conviction should be reversed as being against the manifest weight of the evidence

only in exceptional circumstances. Martin at 175.

{¶ 18} “ ‘Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that a

conviction is supported by the manifest weight of the evidence necessarily includes a finding of

sufficiency.’ ” State v. Hill, 2d Dist. Montgomery No. 25274, 2013-Ohio-2016, ¶ 31, quoting

State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11. “As a result, ‘a

determination that a conviction is supported by the weight of the evidence will also be dispositive

of the issue of sufficiency.’ ” Id., quoting State v. Braxton, 10th Dist. Franklin No. 04AP-725,

2005-Ohio-2198, ¶ 15. Accordingly, we will address Grissom’s first two assignments of error
 8

by analyzing whether Grissom’s convictions for felonious assault, discharging a firearm on or

near a prohibited premises, and having a weapon while under disability were supported by the

manifest weight of the evidence.

{¶ 19} To support a conviction for felonious assault in violation of R.C. 2903.11(A)(2),

the State is required to establish that Grissom did knowingly cause or attempt to cause physical

harm to Sammons by means of a deadly weapon or dangerous ordnance. A conviction for

discharging a firearm on or near a prohibited premises in violation of R.C. 2923.162(A)(3),(C)(2)

requires the State to establish that Grissom discharged a firearm upon or over a public road or

highway and created a substantial risk of physical harm to any person or caused serious physical

harm to property.

{¶ 20} Additionally, to sustain a conviction for having weapons while under disability in

violation of R.C. 2923.13(A)(3), the State is required to establish that Grissom knowingly

acquired, carried, or used any firearm or dangerous ordnance, while he was “under indictment for

or has been convicted of any felony offense involving the illegal possession, use, sale,

administration, distribution, or trafficking in any drug of abuse or has been adjudicated a

delinquent child for the commission of an offense that, if committed by an adult, would have

been a felony offense involving the illegal possession, use, sale, administration, distribution, or

trafficking in any drug of abuse.”

{¶ 21} We also note that pursuant to R.C. 2923.03, a defendant who joins with another

to commit an offense may be charged either as a principal offender or as an aider and abettor, and

that the trial court in this case instructed the jury that it may consider whether Grissom was the

principal offender and/or an aider and abettor with respect to the charges for felonious assault and
 9

discharging a weapon on or near a prohibited premises. Aiding and abetting means that “the

defendant supported, assisted, encouraged, cooperated with, advised, or incited the principal in

the commission of the crime, and that the defendant shared the criminal intent of the principal.

Such intent may be inferred from the circumstances surrounding the crime.” State v. Johnson,

93 Ohio St.3d 240, 245, 754 N.E.2d 796 (2001). “ ‘Participation in criminal intent may be

inferred from presence, companionship and conduct before and after the offense is committed.’ ”

Id., quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971). An aider

and abettor is “punished as if he were a principal offender.” R.C. 2923.03(F).

{¶ 22} In this case, it is undisputed that Grissom had a confrontation with Sammons at

the Speedway gas station, and that someone in Grissom’s vehicle fired a bullet at Sammons’s

Jeep while traveling on a public roadway. It is also undisputed that the gunshot damaged

Sammons's Jeep. We further note that Grissom stipulated that he was under a firearm disability

during the September 29, 2012 shooting incident. Accordingly, the only fact in dispute is

whether Grissom was the shooter or, alternatively, whether he aided and abetted the shooter.

{¶ 23} The State presented a significant amount of circumstantial evidence tending to

prove that Grissom was the shooter. Specifically, the State established that Grissom: (1) directly

threatened to shoot Sammons after Sammons bumped into him at Speedway; (2) was angry about

Sammons bumping into him; (3) immediately followed Sammons's vehicle out of Speedway after

threatening to shoot him; and (4) drove right beside Sammons’s Jeep just prior to the gunshot

being fired. Moreover, Watkins testified that the gunshot came from the front-seat area of the

Expedition, which is where Grissom was located. Johnson also testified that he and the other

passengers in the Expedition had no reason to want to shoot Sammons, and that he and his
 10

brother, Lewis, were trying to calm Grissom down after Sammons bumped into him.

{¶ 24} In addition, Johnson acknowledged that he had given a written statement to

police two days after the shooting claiming that Grissom was the shooter. Because Jonhson’s

trial testimony was inconsistent with his written statement, Grissom insists that the State failed to

sufficiently prove that he was the shooter. However, as noted above, the weight and credibility

of Johnson's trial testimony is for the jury to decide. The jury heard Johnson’s testimony and

saw his demeanor on the witness stand. Since the jury “is particularly competent to decide

‘whether, and to what extent, to credit the testimony of particular witnesses,’ we must afford

substantial deference to its determinations of credibility.” State v. Spears, 178 Ohio App.3d

580, 2008-Ohio-5181, 899 N.E.2d 188, ¶ 12 (2d Dist.), quoting Lawson, 2d Dist. Montgomery

No. 16288, 1997 WL 476684 at *4. Nevertheless, even if we assume that the jury found

Johnson’s testimony credible, and believed that he did not see who shot the gun, there is still

sufficient circumstantial evidence pointing to Grissom as the shooter.

{¶ 25} Although the evidence is largely circumstantial with respect to whether Grissom

was the shooter and principal offender, the Ohio Supreme Court has stressed that

“[c]ircumstantial evidence and direct evidence inherently possess the same probative value” and

“[i]n some instances certain facts can only be established by circumstantial evidence.”

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

on other grounds by constitutional amendment, as stated in State v. Smith, 80 Ohio St.3d 89, 103,

fn. 4, 684 N.E.2d 668 (1997). “Since circumstantial evidence and direct evidence are

indistinguishable so far as the jury’s fact-finding function is concerned, all that is required of the

jury is that it weigh all of the evidence, direct and circumstantial, against the standard of proof
 11

beyond a reasonable doubt.” Id.

{¶ 26} After weighing all of the evidence, reasonable inferences, and witness credibility,

it cannot be said that the jury lost its way and created a manifest miscarriage of justice when it

convicted Grissom of felonious assault, discharging a firearm on or near a prohibited premises,

and having a weapon while under disability. The circumstantial evidence combined with

Johnson’s inconsistent statements regarding the identity of the shooter are sufficiently compelling

so that these verdicts are not against the manifest weight of the evidence.

{¶ 27} Grissom’s First and Second Assignments of Error are overruled.

Assignment of Error No. III

{¶ 28} Grissom’s Third Assignment of Error is as follows:

THE TRIAL COURT ERRED IN GIVING AN INSTRUCTION ON FLIGHT

OVER DEFENSE OBJECTIONS.

{¶ 29} Under his Third Assignment of Error, Grissom contends that the trial court erred

in giving a jury instruction on flight when there was no evidence warranting such an instruction.

The trial court instructed the jury as follows:

Testimony has been admitted indicating that the Defendant fled the scene.

You are instructed that fleeing the scene alone does not raise a presumption of

guilt. But it may tend to indicate that Defendant's consciousness or awareness of

guilt. If you find that the facts do not support that the Defendant fled the scene,

or if you find that there was some other motive [that] prompted the Defendant's

conduct, or if you are unable to decide what the Defendant’s motivation was, then
 12

you should not consider this evidence for any purpose.

However, if you find that the facts support the– that the Defendant

engaged in such conduct, and if you decide that the Defendant was motivated by

consciousness or an awareness of guilt, you may but are not required to consider

that evidence in deciding whether the Defendant is guilty of the crime charged.

You alone will determine what weight if any to give to this evidence. Trans. Vol.

II, p. 378-379.

{¶ 30} “When reviewing the trial court's jury instructions, the proper standard of review

is whether the trial court's decision to give or exclude a particular jury instruction was an abuse of

discretion under the facts and circumstances of the case.” (Citation omitted.) State v. Fair, 2d

Dist. Montgomery No. 24388, 2011-Ohio-4454, ¶ 65. “A trial court abuses its discretion when it

makes a decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State

v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. An abuse of discretion

includes a situation in which a trial court did not engage in a “ ‘sound reasoning process.’ ”

State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14, quoting AAAA

Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553

N.E.2d 597 (1990).

{¶ 31} A trial court’s decision to instruct the jury on flight is not an abuse of discretion

if the record contains sufficient evidence to support the charge. State v. Bass, 10th Dist.

Franklin Nos. 12AP-622, 12AP-623, 2013-Ohio-4503, ¶ 27; State v. Lozada, 8th Dist. Cuyahoga

No. 94902, 2011-Ohio-823, ¶ 17; State v. Villa, 9th Dist. Lorain No. 05CA008773,

2006-Ohio-4529, ¶ 29; see also United States v. Dillon, 870 F.2d 1125, 1126-1127 (6th
 13

Cir.1989). “Flight means some escape or affirmative attempt to avoid apprehension. It can take

the form of fleeing from the police or eyewitnesses to changing or disguising one's physical

characteristics after the fact.” State v. Wesley, 8th Dist. Cuyahoga No. 80684, 2002-Ohio-4429,

¶ 19, citing United States v. Felix-Gutierrez, 940 F.2d 1200, 1207 (10th Cir.1991). Evidence of

flight is admissible as tending to show consciousness of guilt. State v. Wood, 2d Dist. Clark No.

2010 CA 42, 2011-Ohio-2314, ¶ 30. However, “[e]vidence of flight to support an inference of

guilt should generally be limited to situations when the activities associated with flight occur at a

time and place near the criminal activity for which the defendant is on trial.” Id., citing State v.

Frock, 2d Dist. Clark No. 2004 CA 76, 2006-Ohio-1254, ¶ 57.

{¶ 32} After reviewing the record, we find that there was sufficient evidence to support a

jury instruction on flight. It is undisputed that Grissom was driving the Expedition when the

gunshot was fired at Sammons’s Jeep. Johnson, Sammons, and Watkins also testified that the

Expedition drove away after the gunshot. Moreover, Sammons and Watkins testified that the

Expedition continued driving away as they attempted to chase it. From this evidence, a jury

could conclude that Grissom affirmatively attempted to avoid apprehension by fleeing from

eyewitnesses immediately after engaging in criminal activity. Accordingly, the trial court did

not abuse its discretion when it instructed the jury on flight.

{¶ 33} Grissom’s Third Assignment of Error is overruled.

Assignment of Error No. IV

{¶ 34} Grissom’s Fourth Assignment of Error is as follows:

THE TRIAL COURT ERRED IN FAILING TO MERGE THE WEAPON
 14

UNDER DISABILITY CHARGE INTO THE OTHER TWO CHARGES.

{¶ 35} Under his Fourth Assignment of Error, Grissom contends that his conviction for

having a weapon under disability should have merged with his convictions for felonious assault

and discharging a weapon on or near a prohibited premises, claiming they are allied offenses of

similar import under R.C. 2941.25. Because Grissom’s conviction for discharging a weapon on

or near a prohibited premises merged with his felonious assault conviction, we only need to

determine whether the trial court erred in failing to merge the weapons under disability offense

with the felonious assault.

{¶ 36} R.C. 2941.25 provides that:

(A) 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.

(B) 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.

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

Supreme Court of Ohio held that “[w]hen 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.” Id. at syllabus [overruling State v. Rance, 85 Ohio St.3d 632, 710 N.E.2d 699
 15

(1999)]. In Johnson, the Supreme Court of Ohio also outlined a two-part framework for

evaluating merger issues.

{¶ 38} The first consideration “is whether it is possible to commit one offense and

commit the other with the same conduct * * *.” (Citation omitted. Emphasis in original.) Id. at ¶

48. “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.” Id.

{¶ 39} If the first prong is satisfied, the next consideration is “whether the offenses were

committed by the same conduct, i.e., ‘a single act, committed with a single state of mind.’ ” Id. at

¶ 49, quoting State v. Brown, 119 Ohio St.3d 447, 2008-Ohio-4569, 895 N.E.2d 149, ¶ 50

(Lanzinger, J., dissenting). However, “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.

{¶ 40} The Supreme Court of Ohio has interpreted the term “animus” to mean “purpose

or, more properly, immediate motive.” State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d

1345 (1979); see also, e.g., State v. Smith, 7th Dist. Mahoning No. 11 MA 120, 2013-Ohio-756, ¶

89; State v. Harding, 3d Dist. Auglaize No. 2-12-14, 2013-Ohio-643, ¶ 14; State v. Cowan, 8th

Dist. Cuyahoga No. 97877, 2012-Ohio-5723, ¶ 37; State v. LaPrairie, 2d Dist. Greene

No.2010-CA-09, 2011-Ohio-2184, ¶ 41. “Like all mental states, animus is often difficult to prove

directly, but must be inferred from the surrounding circumstances. * * * Where an individual's

immediate motive involves the commission of one offense, but in the course of committing that

crime he must, A priori, commit another, then he may well possess but a single animus, and in
 16

that event may be convicted of only one crime.” Logan at 131. “If the defendant acted with the

same purpose, intent, or motive in both instances, the animus is identical for both offenses.” State

v. Lewis, 12th Dist. Clinton No. CA2008-10-045, 2012-Ohio-885, ¶ 13.

{¶ 41} Ohio’s Twelfth and Fifth Appellate Districts have concluded that while felonious

assault and having a weapon while under disability may be committed simultaneously by the

same conduct, they are still not allied offenses of similar import, because the animus for

possessing a weapon while under disability is necessarily different from the animus for felonious

assault. See, e.g., State v. Dillingham, 12th Dist. Butler No. CA2011-03-043, 2011-Ohio-6348,

¶ 28; State v. Elder, 5th Dist. Richland No. 2011-CA-0058, 2011-Ohio-4438, ¶ 7-8.

Specifically, “the animus of having weapons under disability is making a conscious choice to

possess a weapon. Felonious assault requires a conscious choice to attack someone using a

weapon.” Elder at ¶ 7.

{¶ 42} Similarly, the First District has concluded that the offenses of murder and having

a weapon under disability have a separate animus, despite being committed simultaneously,

because murder requires a separate motive and intent to kill. State v. Jones, 1st Dist. Hamilton

No. C-110059, 2011-Ohio-6633, ¶ 29-30; compare State v. Brown, 3d Dist. Allen No. 1-12-33,

2013-Ohio-854, ¶ 18 (finding that the offenses of burglary and having a weapon under disability

were not subject to merger, despite being committed simultaneously, because the defendant

continued to possess the firearm after he committed the burglary, which demonstrated a separate

animus).

{¶ 43} However, in State v. Fairman, 2d Dist. Montgomery No. 24299,

2011-Ohio-6489, we addressed the issue of whether to merge a weapons under disability offense
 17

with a simultaneous felonious assault in a different manner. In Fairman, the defendant

encountered a man who the defendant believed murdered his nephew. Id. at ¶ 4. During the

encounter, the defendant, who was under a firearms disability, requested and obtained a gun from

an onlooker and then immediately shot the man in the chest. Id. at ¶ 4-5. Given that the

evidence established that the defendant's immediate intent to possess the gun was solely for

purposes of shooting the victim, we held that the felonious assault and the weapons under

disability offenses were committed with the same animus. Id. at ¶ 67.

{¶ 44} Unlike Fairman, the record in the present case does not establish that Grissom

acquired the gun immediately after his confrontation with Sammons. Instead, the record only

establishes that Grissom acquired the gun at some point in time before the shooting incident. In

addition, the record is devoid of any evidence establishing that Grissom acquired the gun with an

immediate intent to fire at Sammons and that he had no other reason for acquiring the gun. We

note that “[t]he defendant bears the burden to prove entitlement to merger.” State v. Jackson, 2d

Dist. Montgomery No. 24430, 2012-Ohio-2335, ¶ 134, citing State v. Thomas, 10th Dist.

Franklin No. 10AP-557, 2011-Ohio-1191, ¶ 16. Here, Grissom failed to meet his burden of

proof, as there is nothing in the record demonstrating that the felonious assault and weapons

under disability offenses were committed with the same animus as in Fairman. Without any

evidence to the contrary, we conclude that Grissom’s choice to possess a gun while under

disability was separate and distinct from his choice to fire the gun at Sammons. Accordingly,

the offenses are not allied offenses of similar import subject to merger under R.C. 2941.25.

{¶ 45} Grissom’s Fourth Assignment of Error is overruled.
 18

Conclusion

{¶ 46} Having overruled all of Khrystopher Grissom’s assignments of error, the

judgment of the trial court is affirmed.

.............

FAIN, J., concurs.

HALL, J., concurring:

{¶ 47} The majority opinion cites State v. Fairman, 2d Dist. Montgomery No. 24999,

2011-Ohio-6489, for the proposition that a weapons under disability offense merges with a

simultaneous commission of Felonious Assault. I agree that is the holding of Fairman and is the

law of this district. However, I dissented in that case and continue to express my view that it is

incorrect.

{¶ 48} Having a weapon under disability arises from the animus to possess a weapon

when one is prohibited from doing so. The animus for felonious assault includes intent to attack

another with a weapon. With different animi, the offenses do not merge. Additionally, the two

offenses are committed by different acts committed at different times. An offender acquires a

disability from having a firearm by activity completed long before the separate offense of

assaulting someone with a deadly weapon. The earlier-acquired disability is an essential element

of the offense. When different acts, committed in part at different times, constitute different

offenses the offenses do not merge.

{¶ 49} Finally, ordinary logic leads me to the conclusion these offenses should not be

merged. When two different offenders commit a felonious assault with a firearm, the one who is
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prohibited from possessing the firearm in the first place is an entirely different offender than the

one who has no firearm disability. I believe the legislature intended for them to be separately

responsible for the offenses they commit, and the legislature did not intend for these offenses to

merge.

{¶ 50} I concur however in the judgment here given the result that the offenses do not

merge because the having a weapon under disability and the felonious assault were not

simultaneous and the appellant has failed to prove entitlement to merger.

.............

Copies mailed to:

Mathias H. Heck
Michele D. Phipps
Marshall G. Lachman
Hon. Barbara P. Gorman