State v. Helms

[Cite as State v. Helms, 2010-Ohio-4872.]
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: Criminal Appeal from Common Pleas
Court, Case No. 08 CR 382.

JUDGMENT: Conviction Affirmed. Reversed in Part
and Remanded for Resentencing.

APPEARANCES:
For Plaintiff-Appellee: Attorney Paul J. Gains
Prosecuting Attorney
Attorney Ralph M. Rivera
Assistant Prosecuting Attorney
21 W. Boardman St., 6th Floor
Youngstown, OH 44503

For Defendant-Appellant: Attorney Gary Van Brocklin
P.O. Box 3537
Youngstown, OH 44513

JUDGES:
Hon. Mary DeGenaro
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite

Dated: September 29, 2010
 -2-

DeGenaro, J.
{¶1} This timely appeal comes for consideration upon the record in the trial court,
the parties' briefs and their oral arguments before this court. Taran Helms appeals the
September 29, 2008 decision of the Mahoning County Court of Common Pleas that
sentenced Helms to a total of fifty years in prison, subsequent to a jury finding of guilty on
counts of attempted murder, a first degree felony in violation of R.C. 2923.02(A) and R.C.
2903.02(A)(D); felonious assault, a second degree felony in violation of R.C.
2903.11(A)(2)(D); aggravated robbery, a first degree felony in violation of R.C.
2911.01(A)(1)(C); kidnapping, a first degree felony in violation of R.C. 2905.01(A)(2)(C),
and accompanying firearm specifications, pursuant to R.C. 2941.145.
{¶2} On appeal, Helms argues that the trial court erroneously failed to merge his
felonious assault conviction with the attempted murder conviction, his aggravated robbery
conviction with the kidnapping conviction, as well as all of his firearm specifications.
Helms contends that the trial court's denial of the motion to change venue constituted an
abuse of discretion given the extensive pretrial publicity for his case. Finally, Helms
argues that the trial court abused its discretion in denying Helms's motion for relief from
prejudicial joinder and trying Helms together with his co-defendant, Hattie Gilbert. Upon,
review Helms's arguments are meritorious in part and with respect to sentencing only.
{¶3} Pursuant to recent Ohio Supreme Court precedent, attempted murder in
violation of R.C. 2903.02(A) and felonious assault in violation of R.C. 2903.11(A)(2) are
allied offenses of similar import. We conclude that Helms did not commit the offenses of
attempted murder and felonious assault with separate animus, and that the convictions
must merge. Although aggravated robbery in violation of R.C. 2911.01(A)(1)(C) and
kidnapping in violation of R.C. 2905.01(A)(2)(C) are allied offenses of similar import, we
find that Helms committed the two offenses with separate animus, and that the trial
court's decision not to merge the two offenses was proper. Helms committed all of the
charged offenses as part of a continuous transaction within the same time, space and
purpose, and thus the trial court was required to merge Helms's firearm specifications
 -3-

instead of imposing them consecutively.
{¶4} In Helms's assignment of error regarding venue, he has only presented
evidence that there existed a great deal of pretrial publicity, which is not enough on its
own to demonstrate that the denial of the motion to change venue was an abuse of
discretion. Moreover, there was no evidence presented that the jury panel was in fact
tainted. Finally, the trial court took the appropriate measures to redact Helms's identity
from his co-defendant's confession, and thus the trial court did not abuse its discretion in
denying Helms's motion for relief from prejudicial joinder.
{¶5} Accordingly, the decision of the trial court is affirmed in part and reversed in
part and remanded for further proceedings. Specifically, all of Helms's convictions are
affirmed, to the extent that merger is not required. The firearm specifications must be
merged pursuant to R.C. 2929.14(D)(1)(b). Finally, the case must be remanded for a new
sentencing hearing. At resentencing, the State must elect which conviction, attempted
murder or felonious assault, should merge into the other for sentencing purposes,
pursuant to the authority of Williams and Whitfield, and the trial court should effect all
mergers pursuant to the State's election.
Facts and Procedural History
{¶6} Taran Helms and Hattie Gilbert were indicted by a 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
an incident on March 24, 2008, when the victim, Joseph Kaluza, was robbed and shot
while on the way to make a bank deposit for his employer, a Kentucky Fried Chicken
restaurant.
{¶7} On June 20, 2008, Helms filed a motion for relief from prejudicial joinder,
arguing that the co-defendants' defenses may be antagonistic. Helms also stated that
Gilbert had confessed to the police regarding her involvement in the robbery, that Gilbert's
confession inculpates Helms as she identified Helms as an accomplice, and that Gilbert's
likely decision not to testify would present a Confrontation Clause problem for Helms. On
August 5, 2008, Helms re-filed this motion in a more abbreviated form, as the first motion
 -4-

was struck due to its unreasonable length. On August 28, 2008, the trial court denied
Helms's motion on the condition that the State redact any indication of Helms's existence
in any portion of Gilbert's statement that might be presented at trial.
{¶8} Helms first filed a motion for change of venue on September 3, 2008,
arguing that extensive pretrial publicity about the case necessitated a change of venue.
Helms attached approximately 35 articles from newspaper and internet sources, ranging
from lengthy detailed articles to single-line references, regarding the robbery, the
investigation and legal proceedings, and the medical recovery of the victim. Helms later
supplemented his motion for change of venue, attaching a DVD of television news
coverage of the incident. Helms also filed a motion for sequestered individual voir dire
regarding pretrial publicity.
{¶9} During the hearing on the motions, the trial court stated that it would rule on
the motion for change of venue after voir dire had been conducted. The trial court initially
denied, but later granted Helms's motion for sequestered individual voir dire regarding
pretrial publicity.
{¶10} The trial court began voir dire on September 8, 2008. During the process,
the trial court asked the prospective jurors whether any of them knew about the case
through firsthand information, interactions within the community, or media coverage. The
trial court then conducted individual voir dire of all prospective jurors who had indicated
any familiarity with the case. The jury veniremen were asked about the extent of their
knowledge about the case, and further asked whether they could set aside what they had
heard and decide the case solely upon the evidence presented at trial. Following this
questioning, the trial court excused a number of veniremen who had formed fixed
opinions due to pretrial publicity or who were otherwise unsuitable.
{¶11} During a break in voir dire and out of the presence of any veniremen,
counsel for defendant Gilbert informed the trial court that there was writing above a urinal
in the men's second-floor restroom which read: "Remember Joe Paluka [sic]," and
"KFC," as well as a racial epithet directed at the defendants. Counsel stated that he had
used the same restroom the day before and did not see that writing. The deputy stated
 -5-

that they did not see this writing the night before, and assumed that someone must have
written the message during that day of voir dire. The trial court brought the jury venire
back in, and asked if any of the men had used the second-floor men's restroom that day.
Of the three veniremen who indicated that they had used that restroom, two had not
noticed anything written on the wall, and one had not noticed anything related to this case
written on the wall. None of those three veniremen served on the jury panel for this case.
{¶12} Subsequent to the completion of voir dire, Helms renewed his motion for
change of venue, and filed a supplemental memorandum in support of the motion. The
trial court denied the motion.
{¶13} The joint trial for Helms and Gilbert commenced on September 15, 2008.
Joseph Kaluza testified that he was a manager for a Kentucky Fried Chicken restaurant,
and was generally responsible for driving the restaurant's deposits to the bank. While
Kaluza was en route to the bank on March 24, 2008, a woman in another car decelerated
suddenly in front of Kaluza, causing him to hit the rear end of her vehicle. Kaluza
immediately called the police and the area manager for his restaurant. The woman,
Gilbert, got out of her car and asked to use Kaluza's phone. After briefly using it, Gilbert
returned the phone through Kaluza's open passenger window and returned to her car.
Shortly thereafter, a man appeared on the driver's side of Kaluza's car, and shot Kaluza in
the neck, instantly paralyzing him. The man, Helms, continued walking to Gilbert's car,
motioned for her to leave, then returned to Kaluza's car and pushed it onto a side street in
front of an abandoned house. Helms then looked in the car for the deposit bag, and once
he had found the deposit bag, containing $300.00, he demanded to know where the rest
of the money was and threatened to shoot Kaluza in the head. Kaluza testified that
someone in a truck stopped and asked if Kaluza and Helms needed help, and Helms
declined. Helms then hurriedly grabbed another bag in the car (which turned out to be
trash) and ran off. Kaluza testified that Kimberly Helms, the defendant's mother, used to
work at Kaluza's restaurant and knew the deposit procedure, but she was fired the prior
spring for theft.
{¶14} Kandace Johnson testified that she lived in a house a short distance away
 -6-

from where the incident occurred. Johnson stated that she saw the car accident occur,
Gilbert exit her car, speak to Kaluza, and return to her car. Johnson saw Helms walk
from a side street, Ravenwood, onto South Avenue, the main street where the accident
occurred. Helms walked up to Kaluza's car, fired a shot into the car without breaking his
stride, and continued walking up to Gilbert's car. Johnson saw Helms point for Gilbert to
leave, which Gilbert did. Johnson saw Helms immediately return to Kaluza's car and start
"fumbling around," by reaching into the car through the driver's side window. Johnson
saw Helms push the car, turn the car off, fumble around a bit more, then pull the car off of
South Avenue and onto a side street, Hilton. Johnson estimated that 90 seconds elapsed
between the gunshot and the pushing of the car. Johnson saw Helms continue to look
around in Kaluza's car on the front passenger's side. Johnson saw Helms run through a
yard as tow-trucks arrived at the scene.
{¶15} Jeremy Vignon testified that he saw Kaluza in his car shortly after the
accident had occurred. As he drove by, Vignon noticed that Kaluza was slumped over in
his car and bleeding. Vignon decided to turn around, and got back to the scene as Helms
was finishing pushing the car onto Hilton. Vignon asked Helms if he needed any help,
and Helms responded that he only had a flat tire. Vignon drove off again, 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, Helms was running through the yard and tow trucks were
arriving.
{¶16} A variety of law enforcement officers testified regarding their investigation of
the incident, including Detective Sergeant John Kelty, who testified that he interviewed
Gilbert and later interviewed Helms, after Helms's wallet was found in Gilbert's car and
Helms's mother's prior employment at the Kentucky Fried Chicken had been discovered.
A variety of other witnesses testified in order to lay the foundation for the submission of
evidence, including a video of the accident captured by a Western Reserve Transit
Authority bus; items retrieved from the scene, including a spent shell casing, a gun, coat,
cap, and mask; the Bureau of Crime Investigation's lab results, which found Helms's DNA
on the gun, coat and mask; and items retrieved from Gilbert's car, including a box of
 -7-

bullets and Helms's wallet.
{¶17} After the State rested its case in chief, defense counsel immediately rested.
The jury was charged on September 18, 2008, and on the same day it returned a verdict
of guilty against Helms on all four counts and firearm specifications. Helms filed a
sentencing memorandum with the trial court, arguing for merger of Helms's convictions,
and merger of the firearm specifications.
{¶18} On September 23, 2008, the trial court held a sentencing hearing, at which
Kaluza provided a victim impact statement, both Helms and Gilbert addressed the trial
court upon being given the opportunity, and the trial court considered Helms's argument
that the convictions and firearm specifications should be merged. The trial court
overruled Helms's merger request, outlined its statutory sentencing duties, and imposed
maximum consecutive sentences for the four felony offenses and four firearm
specifications, for a total of 50 years. The trial court filed a judgment entry of sentence
further explaining the reasons for imposing unmerged, maximum consecutive sentences.
Merger of Allied Offenses of Similar Import
{¶19} In his first of four assignments of error, Helms asserts:
{¶20} "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 Helm's rights under the Fifth, Sixth, and Fourteenth, Amendments
to the United States Constitution, and Sections 10 and 16, Article I of the Ohio
Constitution. [sic]"
{¶21} Helms contends that the trial court subjected him to double jeopardy both in
failing to merge his aggravated robbery and kidnapping charges into one conviction, and
in failing to merge his attempted murder and felonious assault charges into one
conviction.
{¶22} 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 (1993), 509 U.S. 688, 704, 113
 -8-

S.Ct. 2849, 125 L.Ed.2d 556.
{¶23} Statutory guidance regarding merger for allied offenses of similar import is
found in R.C. 2941.25, which reads:
{¶24} "(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.
{¶25} "(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."
{¶26} When reviewing the applicability of R.C. 2941.25 to multiple convictions, a
two-step analysis is required. State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, 922
N.E.2d 937, at ¶16, citing State v. Blankenship (1988), 38 Ohio St.3d 116, 117, 526
N.E.2d 816, and State v. Rance, 85 Ohio St.3d 632, 636, 1999-Ohio-291, 710 N.E.2d.
699. First, a reviewing court should determine if the elements of the offenses, when
viewed in the abstract, "correspond to such a degree that the commission of one crime
will result in the commission of the other." State v. Cabrales, 118 Ohio St.3d 54, 2008-
Ohio-1625, 886 N.E.2d 181, at ¶22 (internal citations omitted). If the elements of the
offenses do not correspond to such a degree, the reviewing court's inquiry ends, and
multiple convictions are permitted for the crimes of dissimilar import. Rance at 636.
{¶27} Second, if the elements of the offenses do correspond, the trial court may
not convict the defendant of both offenses unless it finds that the defendant committed
the offenses separately or in a way that involved a separate animus for each offense.
State v. Winn, 121 Ohio St.3d 413, 2009-Ohio-1059, 905 N.E.2d 154, at ¶10; Cabrales at
¶14. This second step of the analysis requires a consideration of the specific facts of the
case and the conduct of the defendant. State v. Cooper, 104 Ohio St.3d 293, 2004-Ohio-
6553, 819 N.E.2d 657, at ¶17-20.
{¶28} Whether multiple offenses are allied offenses subject to merger is a
 -9-

question of law. State v. Taylor, 7th Dist. No. 07 MA 115, 2009-Ohio-3334, at ¶19. See,
also, State v. Cox, 4th Dist. No. 02CA751, 2003-Ohio-1935, at ¶5; State v. Kent (1980),
68 Ohio App.2d 151, 154, 22 O.O.3d 223, 428 N.E.2d 453. We review questions of law
de novo, without deference to the trial court's determination. State v. Carnes, 7th Dist.
No. 05 MA 231, 2007-Ohio-604, at ¶5.
Aggravated Robbery and Kidnapping
{¶29} Helms contends that his kidnapping and aggravated robbery convictions
should have been merged, as they are allied offenses of similar import, and because he
committed the two offenses with a single animus.
{¶30} Helms's aggravated robbery conviction was pursuant to R.C. 2911.01(A)(1),
which states:
{¶31} "(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:
{¶32} "(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[.]"
{¶33} Helms's conviction for kidnapping was pursuant to R.C. 2905.01(A)(2),
which states, in pertinent part:
{¶34} "(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:
{¶35} "(2) To facilitate the commission of any felony or flight thereafter[.]"
{¶36} The Ohio Supreme Court has decisively held that the crimes of aggravated
robbery, in violation of R.C. 2911.01(A)(1), and kidnapping, in violation of R.C.
2905.01(A)(2) are allied offenses of similar import. Winn, supra, at syllabus. Winn noted
that its conclusion was in keeping with thirty years of precedent. Id. at ¶22, citing State v.
Fears, 86 Ohio St.3d 329, 344, 1999-Ohio-111, 715 N.E.2d 136; State v. Jenkins (1984),
15 Ohio St.3d 164, 198, 15 OBR 311, 473 N.E.2d 264; State v. Logan (1979), 60 Ohio
 - 10 -

St.2d 126, 130, 14 O.O.3d 373, 397 N.E.2d 1345. Thus, Helms's convictions for
aggravated robbery and kidnapping are allied offenses of similar import under the first tier
of the analysis. Helms's convictions for these two offenses must merge unless Helms
committed the offenses separately or in a way that involved a separate animus for each
offense.
{¶37} "Animus refers to the defendant's immediate criminal motive, intent or state
of mind." State v. Hooper, 7th Dist. No. 03 CO 30, 2005-Ohio-7084, at ¶15, citing State v.
Blankenship (1988), 38 Ohio St.3d 116, 119, 526 N.E.2d 816. 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.
Additionally, a separate animus exists if the restraint or movement of the victim
substantially increases the risk of harm to the victim. Id.
{¶38} Helms argues that the moving of Kaluza's car occurred before the robbery
had been completed, the movement was necessary to complete the robbery, and the
movement did not occur after the robbery or otherwise in excess of what was necessary
in order to complete the robbery. The State argues that the offenses should not merge
because the movement of Kaluza was substantial and not incidental to the robbery.
{¶39} According to the testimony of Kaluza and Johnson, Helms first shot Kaluza
in the neck, immediately paralyzing him. Helms then walked away from Kaluza, spoke
briefly with Gilbert, returned to Kaluza's car, briefly "fumbled around" in the car, and
moved the car from the busier street to the residential street. Johnson stated that the
time that elapsed between the shooting and the pushing of the car was approximately
ninety seconds. Vignon estimated that the car had been moved approximately 300 feet.
After the car had been moved, Helms continued to search in the car, and threatened to
shoot Kaluza a second time. Helms ran away with the deposit bag once tow trucks
arrived at the scene.
 - 11 -

{¶40} In support of its argument, the State cites various cases in which the victim
was restrained after the underlying robbery offense was completed. See, State v.
Nickelson, 6th Dist. No. WD-06-023, 2007-Ohio-6367; State v. Rodgers, 10th Dist. No.
06AP-808, 2007-Ohio-1501; State v. Hairston, 10th Dist. No. 06AP-420, 2007-Ohio-143;
State v. Parker, 7th Dist. No. 03-MA-190, 2005-Ohio-4888. In cases such as these, it is
quite obvious that the restraint was not incidental to the robbery due to the timing of the
offenses. They are distinguishable from the case at hand, as Helms moved Kaluza in the
midst of committing the robbery offense, rather than afterward.
{¶41} Nonetheless, any restraint or asportation of a victim may constitute a
separate offense if it was not necessary in order to complete the robbery offense. This
court has previously held that the asportation of the victim was not incidental to a robbery
when the defendant first ordered a victim to drive her car down the street, turn down
another street, and then stop, before robbing her at gunpoint, State v. Gore (1999), 131
Ohio App.3d 197, 127, 129-130, 722 N.E.2d 125 (7th Dist.). And therefore convictions for
aggravated robbery and kidnapping should not merge. Id. at 130. In an older Ohio
Supreme Court case, the defendant was already in the process of robbing the victim
when he decided to restrain her, in order to prevent her from using the phone, and then
continued to rob her and commit other offenses. State v. Reynolds, 80 Ohio St.3d 670,
682, 1998-Ohio-171, 687 N.E.2d 1358. The Ohio Supreme Court found that the offenses
were committed separately under these facts, and concluded that the offenses would not
merge. Id. In both of these cases, the deciding factor was not necessarily the distance
the victim was taken or the exact amount of time the victim was restrained, but was
instead whether the kidnapping was more than merely incidental to the robbery.
{¶42} It would have been possible for Helms to have completed the robbery on the
busier street, thus the additional action of moving the car was more than merely incidental
to the robbery, and had a significance independent of the robbery offense. In accordance
with our decision in Gore, Helms committed aggravated robbery with a separate animus
from his commission of the kidnapping offense. The trial court's decision not to merge
the two offenses was therefore proper, and this portion of Helms's first assignment of
 - 12 -

error is meritless.
Attempted Murder and Felonious Assault
{¶43} Helms next contends that the offenses of attempted murder and felonious
assault, though not perfectly aligned in the strictest of textual comparisons, must merge
where there was only one gunshot fired and one victim.
{¶44} 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 caused
or attempted to cause physical harm to another by means of a deadly weapon. R.C.
2903.11(A)(2).
{¶45} 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:
{¶46} "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.
{¶47} "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.
{¶48} Pursuant to this authority, Helms's conviction for felonious assault, in
 - 13 -

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.
{¶49} 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 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 point-
blank 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's attempted murder and felonious assault convictions.
{¶50} Because only a minority of districts had previously continued to a second
tier analysis of animus when looking at attempted murder and felonious assault, the case
law is somewhat limited on the subject. Thus the following overview includes cases
involving various types of assault and murder.
{¶51} A separate animus is generally not found if the infliction of injury cannot be
differentiated into more than one "incident". State v. Reid, 2d Dist. No. 23409, 2010-
Ohio-1686, at ¶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, at ¶18-19, 113 (a series 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, at ¶228 (single incident of inflicting multiple
head and neck injuries which were fatal); State v. Lanier, 1st Dist. No. C-080162, 2008-
Ohio-6906, at ¶29-32 (defendant fired several shots at the victim until the victim yelled
that he had been shot, then defendant fired several more shots until the gun jammed).
 - 14 -

{¶52} Conversely, 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, at ¶14 (3d. Dist.). See, also, State v.
Golson, 8th Dist. No. 92443, 2010-Ohio-63 (two assaults, the second of which resulted in
death, were separated by time and the defendant's departure from and return to the
scene); State v. Hines, 8th Dist. No. 90125, 2008-Ohio-4236, at ¶47 (defendant shot the
victim in an elevator, continued to try to shoot the victim after he had fallen, and later
attempted to shoot the victim after following him outside the building); State v. Wilson, 2d
Dist. No. 22120, 2008-Ohio-4130, at ¶43-44 (initial shooting attempt was interrupted by
physical struggle and the victim's attempt to flee, and the shooting of the victim in the
back as he fled, followed by further shooting, constituted a separate offense); State v.
Siller (Oct. 25, 2000), 8th Dist. No. 75139 (in judgment on a motion to reopen: defendants
first beat and robbed the victim, then bound her so tightly that they caused her additional
severe injuries).
{¶53} 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.
{¶54} Contrary to the claims of the dissent, we cannot find that Helms committed a
separate offense of felonious assault when he stated "Where's the rest of the money, or
I'm gonna shoot you in the head" to Kaluza. To uphold a felonious assault conviction
based on this threat would violate Helms's due process rights, because it does not
constitute legally sufficient evidence to support a verdict.
{¶55} The dissent relies on State v. Green (1991), 58 Ohio St.3d 239, 569 N.E.2d
 - 15 -

1038 to support its contention that the facts of Helms's case support a conviction for
felonious assault. In Green, the prosecution presented evidence that the defendant had
uttered a threat while pointing a loaded rifle, which the defendant had cocked, at a police
officer. Id. at 239. The Ohio Supreme Court concluded that "[t]he act of pointing a deadly
weapon at another coupled with a threat, which indicates an intention to use that 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 [1989], 44 Ohio St.3d 185, 542 N.E.2d
636, syllabus, explained and followed.)." Id. at syllabus (emphasis added). The same
conclusion was reached in Brooks, wherein the defendant pointed a handgun at a
woman's face during an argument and stated that he would kill her. Brooks at 187.
{¶56} Green and Brooks require that in order for the evidence to be sufficient to
support a felonious assault conviction, there must be evidence of the defendant pointing
the weapon and uttering threatening words. In both Green and Brooks, the utterance of a
threat only served to prove the defendant's intent while aiming a weapon at a person; the
threat, in and of itself, did not constitute felonious assault. Both Green and Brooks are
clearly distinguishable from the case at hand. There is no evidence in the record that
Helms's threat was accompanied by any action involving his firearm.
{¶57} The crime of felonious assault under R.C. 2903.11(A)(2) requires that the
accused knowingly cause or attempt to cause physical harm to another by means of a
deadly weapon. In order to prove attempt in this context, the State had the burden of
establishing that Helms had the criminal intent to physically harm Kaluza with his firearm,
and that Helms's 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, at ¶95;
Green at 240-241.
{¶58} A mere threat to cause physical harm, without proof of any accompanying
overt act that corroborates the intent to carry out the physical harm, does not constitute
an attempt to cause physical harm. See State v. Robertson, 8th Dist. No. 80910, 2002-
Ohio-6814, at ¶12 ("a mere threat cannot constitute an assault. In order to be guilty of
assault, the offender must at least cause or attempt to cause physical harm to another.");
 - 16 -

In re Bowers, 11th Dist. No.2002-A-0010, 2002-Ohio-6913, at ¶28 ("evidence that
appellant threatened to inflict physical harm is insufficient to prove the crime of assault.");
State v. Smith (Jan. 26, 2000), 9th Dist. No. 98CA007168, at *2, citing State v. Clark
(June 27, 1991), 8th Dist. No. 58270 (discussing the distinction between aggravated
menacing and felonious assault).
{¶59} Instead, when there is no evidence that an overt act accompanied the threat
of physical harm, the threat itself could, at most, support a conviction for aggravated
menacing. Pursuant to R.C. 2903.21(A), aggravated menacing is "knowingly caus[ing]
another to believe that the offender will cause serious physical harm to the person * * *."
The crime of aggravated menacing does not require the prosecution to prove that the
offender has the ability or intent to carry out the threat. State v. Ali, 154 Ohio App.3d 493,
2003-Ohio-5150, 797 N.E.2d 1019 (7th Dist.), at ¶27. The fundamental distinction
between felonious assault and aggravated menacing is whether the defendant tried to
actually harm the victim, or if he merely knowingly frightened the victim. Smith at *3,
citing Brooks at 192.
{¶60} After using a firearm to shoot Kaluza, Helms walked away to speak with his
accomplice, pushed and steered Kaluza's car onto a side street through the driver side
window, walked around the car and opened the passenger side door to look for the
deposit bag. After finding and taking possession of the bag, Helms uttered the above
threat. Specifically, Kaluza's testimony regarding the circumstances of that utterance, in
its entirety, was as follows:
{¶61} "Q: After being at the house, you said that the shooter grabbed the
bag. What happened next?
{¶62} "A: He thought there was more money.
{¶63} "Q: Why do you believe that?
{¶64} "A: Because he said, "Where's the rest of the money, or I'm gonna shoot
you in the head."
{¶65} "Q: Was there anymore money in the car?
{¶66} "A: No.
 - 17 -

{¶67} "Q: What happened next?
{¶68} "A: I recall somebody coming down the road asking if we were okay, and
the shooter said 'yes.' * * *."
{¶69} The only other testimony relative to the interaction between Helms and
Kaluza was from Officer Wilson who recounted what Kaluza told him after the shooting.
And there was no testimony from Wilson that Helms pointed a weapon at Kaluza or
threatened to shoot him. The State did not present any evidence where Helms's firearm
was or what Helms was doing with it while Helms pushed the car and searched for the
deposit bag.
{¶70} The above testimony is certainly sufficient evidence to support a conviction
for aggravated menacing, pursuant to R.C. 2903.21(A), as Helms knowingly uttered the
threat to cause Kaluza to believe that Helms would cause Kaluza serious physical harm.
However, because the State only presented evidence that Helms threatened to shoot
Kaluza a second time, the dissent's conclusion that Helms committed felonious assault,
pursuant to R.C. 2903.11(A)(2), is based on legally insufficient evidence.
{¶71} The dissent avoids the insufficiency issue by inferring that Helms must have
been committing some sort of overt act with the firearm while uttering the threat, because
the firearm was used earlier to shoot Kaluza, and because the firearm was found near the
scene. Neither Green nor Brooks supports making such an inference. In both cases
there was testimony that the victim saw the defendant pointing the weapon while
simultaneously hearing the defendant utter threatening words. In neither case did the
court infer that the defendant had possession of a weapon as the dissent suggests would
be sufficient here. Moreover, because the State did not provide any evidence regarding
Helms's use of the firearm at the time of his threat, this Court could just as easily infer
that the firearm was in the pocket of Helms's coat or pants, or that it had been flung into
the yard 125 to 130 feet from Kaluza's vehicle where it was found by the police, given that
Helms steering and pushing the car and searching for and taking the deposit bag would
usually be done with two free hands. Had the State provided any evidence whatsoever
regarding what Helms was doing with his firearm at the time of the threat, a conviction for
 - 18 -

felonious assault potentially would have been able to stand. However, the State simply
did not present evidence regarding that fact. Therefore, based upon these facts, a
conviction for felonious assault is legally insufficient. Conversely, had the State charged
Helms with aggravated menacing, based upon these facts, a conviction for that offense
potentially could have been legally sufficient.
{¶72} It is a fundamental principle of appellate review that a reviewing court is not
permitted to deviate from the record in order to resolve issues on appeal. State v. Ishmail
(1978), 54 Ohio St.2d 402, 8 O.O.3d 405, 377 N.E.2d 500, at paragraph one of the
syllabus. The dissent's inference inserts new facts into the record and relieves the
prosecution of its burden of proving all elements of felonious assault beyond a reasonable
doubt. In order to preserve Helms's due process rights, we cannot make such an
inference.
{¶73} Given all of the foregoing, we hold that the trial court erroneously failed to
merge Helms's convictions for attempted murder and felonious assault for sentencing
purposes. We cannot determine which one of the two convictions must be merged into
the other. State v. Whitfield, 124 Ohio St.3d 319, 2010-Ohio-2, 922 N.E.2d 182, at ¶20-
22. The State "retains the right to elect which allied offense to pursue on sentencing on a
remand to the trial court after an appeal." Id. at ¶21. We must therefore remand the
issue to the trial court for a new sentencing hearing wherein the State must elect to
pursue either Helms's felonious assault conviction or his attempted murder conviction for
sentencing purposes. Accordingly, this portion of Helms's first assignment of error is
meritorious.
Merger of Firearm Specifications
{¶74} In his second assignment of error, Helms asserts:
{¶75} "The trial court committed reversible error when it failed to merge all firearm
specifications contained in the indictment in violation of O.R.C.2929.14 (D)(1)(b) and in
violation of Helm's [sic] rights under the Fifth, Sixth, and Fourteenth, Amendments to the
United States Constitution. [sic]"
{¶76} Helms contends that the trial court erroneously failed to merge his firearm
 - 19 -

specifications, because his offenses were all committed with the single purpose of
obtaining money from Kaluza.
{¶77} When a defendant has been convicted of a firearm specification pursuant to
R.C. 2941.145, a trial court may impose a three year prison term for "having a firearm on
or about the offender's person or under the offender's control while committing the
offense and displaying the firearm, brandishing the firearm, indicating that the offender
possessed the firearm, or using it to facilitate the offense." R.C. 2929.14(D)(1)(a)(ii). In a
case of multiple felony convictions with multiple firearm specifications, a trial court is
limited in its ability to impose consecutive sentences for the firearm specifications. "[A]
court shall not impose more than one prison term on an offender under division (D)(1)(a)
of this section for felonies committed as part of the same act or transaction." R.C.
2929.14(D)(1)(b).
{¶78} The Ohio Supreme Court has defined "transaction" to mean "a series of
continuous acts bound together by time, space and purpose, and directed toward a single
objective." State v. Wills, 69 Ohio St.3d 690, 691, 1994-Ohio-417, 635 N.E.2d 370.
Although offenses may be separately punishable according to the merger analysis of R.C.
2941.25, they may still be part of the same transaction under the gun specification
analysis, R.C. 2929.14(D)(1)(b). This is because the concept of "act or transaction"
controlling gun specifications is different and much broader than the concept of "animus"
controlling merger. See State v. Moore, 161 Ohio App.3d 778, 2005-Ohio-3311, 832
N.E.2d 85, at ¶42-46. Determining whether multiple crimes are part of the same act or
transaction involves a determination of the defendant's overall criminal objectives, not the
defendant's specific animus for each crime. State v. Franklin, 178 Ohio App.3d 460,
2008-Ohio-4811, 898 N.E.2d 990, at ¶20; Moore at ¶45. A defendant's objective does
not change from single to multiple merely because a defendant commits acts that
constitute multiple criminal offenses.
{¶79} The application of R.C. 2929.14(D)(1)(b) can involve a consideration of both
law and fact. Moore at ¶36. Here, Helms does not take issue with the trial court's
findings that Helms shot Kaluza, moved his vehicle, searched his vehicle, and absconded
 - 20 -

with the KFC deposit bag. Helms only takes issue with the trial court's conclusion that
each offense was committed with a separate objective. Because the issue raised on
appeal is limited to the trial court's application of the law to the facts, we review the issue
de novo. Id.
{¶80} Helms argues that his use of a firearm during the commission of attempted
murder, felonious assault, kidnapping, and aggravated robbery constituted a single
continuous transaction, because his overarching purpose during all of the offenses was to
obtain Kaluza's deposit money. In support of his argument, Helms cites a number of
cases, the most salient of which are State v. Marshall, 8th Dist. No. 87334, 2006-Ohio-
6271, and State v. Harris, 7th Dist. No. 04 JE 44, 2006-Ohio-3520.
{¶81} In Harris, the defendant and a co-defendant planned to break into the
victims' home and rob them. Harris at ¶5. The defendants forced their way into the
victims' home and held three victims at gunpoint. Id. at ¶6. One of the victims attempted
to subdue the defendant, and after their physical struggle, the defendant shot the victim
and then fled. Id. This Court concluded that the defendant's firearm specifications may
not be imposed consecutively, because the acts of the defendant, constituting offenses of
burglary, felonious assault, kidnapping, murder, and robbery, "occurred at the same time,
in the same location, and were directed to the same object," which was to take money
from the victims. Id. at ¶133. Thus, although the defendants committed various criminal
acts in the course of attempting to rob the victims, the robbery remained the overarching
purpose of the acts.
{¶82} In Marshall, the defendant participated in the planning of a robbery of a deli,
which resulted in the commission of multiple offenses, including robbery and murder,
against multiple victims inside the store. Marshall at ¶2-7. Several co-defendants
entered the deli, held everyone at gunpoint, shot a woman who attempted to run away,
shot a cashier, attempted to shoot other customers, ransacked the store searching for
money, and fled. Id. at ¶5. The trial court imposed four consecutive sentences for the
gun specifications that accompanied convictions for three counts of aggravated robbery,
aggravated burglary, and two counts of murder. Id. at ¶28, fn.1. The Eighth District
 - 21 -

concluded that "the aggravated robberies, the aggravated burglary, and the two murders
were part of the same transaction. They were a series of continuous acts bound together
by time, space and purpose, and directed toward a single objective-to rob the store.
Consequently, the trial court may sentence Marshall for only one three-year firearm
specification." Id. at ¶32. Thus, as in Harris, although the defendants committed various
criminal acts, some of which may or may not have been part of their original plan, the acts
were all committed with the overarching purpose of committing a robbery.
{¶83} The State counters that the decision to impose consecutive sentences for
Helms's firearm specifications is in accordance with State v. Bunch, 7th Dist. No. 02 CA
196, 2005-Ohio-3309, reversed in part on other grounds in In re Ohio Criminal Sentencing
Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109, 847 N.E.2d 1174. In Bunch, the
defendant and a co-defendant robbed the victim at gun point, then after completing the
robbery, they decided to force the victim into her car, drove for some distance to an
isolated lot, then ordered her out of the car and repeatedly raped her. Bunch at ¶230-
231. Bunch was convicted of three counts of rape, three counts of complicity to rape,
kidnapping, aggravated robbery, conspiracy to aggravated robbery, menacing, and nine
accompanying firearm specifications. Id. at ¶34. The trial court did not merge any of the
firearm specifications. This Court reversed the decision of the trial court, concluding that
Bunch committed all of the offenses with, at most, three separate objectives: robbery,
then kidnapping, then rape. Id. at ¶230-232.
{¶84} The State seems to argue that Helms's initial objective was robbery when
the car crash was staged, but his objective changed when he shot Kaluza, changed again
when he decided to move Kaluza's car, and returned to the objective of robbery when he
procured the deposit bag. The State thus argues that Helms's firearm specifications
should not merge because Helms's objectives changed over the course of his actions,
just as Bunch's objectives changed from robbery, to kidnapping, to rape.
{¶85} This case is distinguishable from Bunch, because the specific context of
Bunch's crimes indicated that the objective of robbery was completed when the robbery
was completed; then changed to kidnapping, which was completed when the parties
 - 22 -

arrived at a different location; then changed to rape. Id. at ¶230-231. Thus, Bunch did
not, for example, commit rape with the overarching purpose of robbing the victim, nor vice
versa. Here, Helms shot Kaluza and moved his car, all with the overarching purpose of
finding and taking Kaluza's deposit money, similar to the overarching purpose of robbing
the victims in Harris and Marshall.
{¶86} Given the foregoing, we conclude that the trial court erred in sentencing
Helms to consecutive three-year sentences for each firearm specification. Helms's
actions of shooting Kaluza, moving his car 300 feet, and taking his money constituted a
single transaction with the singular objective of robbing Kaluza. Thus, the trial court
should have merged Helms's firearm specifications for the purposes of sentencing.
Accordingly, Helms's second assignment of error is meritorious.
Motion for Change of Venue
{¶87} In his third assignment of error, Helms asserts:
{¶88} "The trial court abused its discretion and denied Appellant Helms his right to
a fair trial by an impartial jury when it overruled his motion for a change of venue, in
violation of Helm's rights under the Fifth, Sixth, and Fourteenth, Amendments to the
United States Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.
[sic]"
{¶89} Helms argues that the extensive pretrial publicity of the case made the
selection of an impartial jury impossible. A motion for change of venue is governed by
Crim.R. 18(B), which provides that "the court may transfer an action * * * when it appears
that a fair and impartial trial cannot be held in the court in which the action is pending." A
trial court has broad discretion in its ruling on a motion for change of venue. See, also,
State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, at ¶60; State
v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, at ¶34. A reviewing
court must therefore uphold the trial court's decision on the motion absent a clear
showing of an abuse of discretion. State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190,
813 N.E.2d 637, at ¶38. An abuse of discretion connotes more than an error of law or
judgment; it implies that the trial court acted unreasonably, arbitrarily, or unconscionably.
 - 23 -

State v. Adams (1980), 62 Ohio St.2d 151, 157-158, 16 O.O.3d 169, 404 N.E.2d 144.
{¶90} Helms argues that the pretrial publicity in this case is similar to that which
occurred in Sheppard v. Maxwell (1966), 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600.
In Sheppard, the United States Supreme Court reversed the denial of Sheppard's habeas
petition because the trial court failed to take precautions against "massive, pervasive"
pretrial publicity, and failed to control the media's intermeddling and disruptions in the
courtroom during trial. Id. at 335. In Sheppard, the community was "saturated" with
pretrial publicity about the defendant's refusal to take a lie detector test, details about the
investigation and opinions as to why the defendant was guilty, the defendant's affair with
another woman and ensuing theories about the defendant's murder motive, as well as
pictures of the defendant during pretrial proceedings, and events such as the coroner's
pushing the defendant to re-enact the crime before a group of reporters, and a publicly
broadcasted questioning of the defendant, during which defendant's counsel were
prevented from participating. Id. at 338-342.
{¶91} During the trial, in Sheppard, the trial court allowed representatives of the
media to dominate the seating area of the courtroom, allowed the media to photograph
the jury on a daily basis, and did little to regulate their conduct. Id. at 343-345, 358-359.
The trial court paid little heed to the jurors' pretrial media exposure, and did little to
prevent the jurors' further exposure to media during trial. Id. at 347-349 359-362.
Although the Supreme Court noted that trial court's failure to take precautions against the
jury's exposure to enormous pretrial publicity was not enough alone to constitute a due
process failure, they found that the trial court's subsequent acquiescence to the media's
dominance of the courtroom and its subversion of the entire trial process required the
reversal of Sheppard's habeas denial. Id. at 355-356, 363.
{¶92} In Helms's motion for change of venue, he attached approximately 35
articles from newspaper and internet sources regarding the case, ranging from lengthy
detailed articles to single-line references. Earlier articles detail the occurrence of the
crime, the investigation, the arrest of Helms and Gilbert, some information about Helms's
criminal history, and the bond hearings for Helms and Gilbert. Almost all of the later
 - 24 -

articles discuss the community support for the victim and fundraising for his medical bills.
Additional articles towards the time of trial address pre-trial proceedings such as the
defendants' further bond proceedings, and a motion to suppress defendants' statements
for Miranda violations.
{¶93} In Helms's supplement to his motion for change of venue, he attached a
DVD of television news coverage of the incident. A number of clips from the DVD have
the appearance of footage from news agencies, but they do not have the kind of editing
or voice-over narration that would indicate that the footage was actually aired on
television. Thus there is no way to verify if many of the filmed items on this DVD were
ever viewed by the public. However, there were also a number of clips that included
news anchor commentary, which may lead one to assume that they were aired on
television. Footage at the beginning of the DVD showed a video of the car crash as
captured by the WRTA bus security camera. There were also interviews discussing what
was witnessed at the time of the incident. The majority of the later video clips focus on
support for the victim, fundraising for the victim's family, and updates on the victim's
physical recovery and return home.
{¶94} Helms asserts that this extensive pre-trial media coverage of the case
prevented his ability to secure a fair trial. However, the extent of media coverage in this
case does not parallel the media dominance that occurred in Sheppard. The mere
existence of pretrial publicity is not a basis for granting a change of venue. State v.
Roberts, 110 Ohio St.3d 71, 2006-Ohio-3665, 850 N.E.2d 1168, at ¶117. By itself, even
pervasive adverse pretrial publicity "does not inevitably lead to an unfair trial." State v.
Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶58, quoting Nebraska
Press Assn. v. Stuart (1976), 427 U.S. 539, 554, 96 S.Ct. 2791, 49 L.Ed.2d 683. The
Ohio Supreme Court has repeatedly held that a "careful and searching voir dire provides
the best test of whether prejudicial pretrial publicity has prevented obtaining a fair and
impartial jury from the locality." State v. Yarbrough, 104 Ohio St.3d 1, 2004-Ohio-6087,
817 N.E.2d 845 at ¶61, quoting State v. Landrum (1990), 53 Ohio St.3d 107, 117, 559
N.E.2d 710.
 - 25 -

{¶95} In order to successfully claim that pretrial publicity has denied a defendant
of a fair trial, he "must show that one or more jurors were actually biased." Yarbrough at
¶61, citing State v. Treesh, 90 Ohio St.3d 460, 464, 2001-Ohio-4, 739 N.E.2d 749. "Only
in rare cases may prejudice be presumed." Id., citing State v. Lundgren, 73 Ohio St.3d
474, 479, 1995-Ohio-227, 653 N.E.2d 304, and Nebraska Press Assn., supra, at 554.
{¶96} The record shows that the voir dire on pretrial publicity for this case was
comprehensive, and constitutes almost two thirds of the 2333 page trial transcript. First,
the trial court asked the prospective jurors whether any of them knew about the case
through firsthand information, interactions within the community, or media coverage. Only
five of the twelve impaneled jurors fell within this group, and the remaining seven who
were eventually impaneled stated that they had no knowledge of the case. The trial court
then conducted an extensive sequestered individual voir dire of all prospective jurors who
had indicated any familiarity with the case. The jury veniremen were asked about the
extent of their knowledge about the case, and further asked whether they could set aside
what they had heard and decide the case solely upon the evidence presented at trial.
Counsel was able to fully question the veniremen about exposure to pretrial publicity.
Counsel was given the opportunity to move for the disqualification of any veniremen
based on exposure or bias. Following this questioning, the trial court excused a number
of veniremen who had formed fixed opinions due to pretrial publicity or were otherwise
unsuitable.
{¶97} Of the five impaneled jurors who had indicated some prior knowledge of the
case, none knew or recognized the names of the defendants. They could not name the
victim, but four recognized his name when it was told to them. All five heard that the
victim worked for or was a manager of a KFC restaurant, and that the victim had been
critically injured. Juror 32 heard that there was a robbery and an attempted murder by
shooting. He heard that a car crash had been involved, and that people had been
arrested and accused of committing the crime. Juror 34 heard that there had been a
robbery, but did not know how it occurred and did not know (prior to her service as a juror)
whether anyone had been arrested for the crime. Juror 53 heard that a robbery had been
 - 26 -

committed by a young man and woman, and that a car crash and weapon were used.
She heard that a young man and woman had been arrested and accused of committing
the crime. Juror 67 heard that there had been a shooting, and that two people had been
arrested and accused of committing the crime. Juror 77 heard that there had been a
robbery, but had no knowledge of the investigation or arrests of any suspects.
{¶98} All five of these jurors stated that they had not formed any opinion as to the
guilt or innocence of the defendants, and could be fair and impartial to both sides. They
all stated that they could set aside any information about the case that they had
previously been exposed to, and would only take into consideration the evidence
presented at trial. Counsel for Helms and counsel for his co-defendant passed on all five
of these jurors for cause.
{¶99} Helms claims that the trial court's sole justification for denying the motion
for change of venue was that the selected jurors stated that they would be able to be
impartial, and argues that such an assumption is simply too unrealistic in this case.
Helms notes that 70 of the veniremen reported knowledge of this case during voir dire,
and that extreme bias was present somewhere in the jury pool, given the racial epithet
regarding the defendants that was written on the men's bathroom wall at some point
during the voir dire process. Such reprehensible conduct is troubling. However,
veniremen with extensive knowledge of the case or bias were removed from the jury
venire, and there was nothing in the record indicating that any of the impaneled jurors
wrote or even observed the graffiti in the men's restroom. It appears that Helms has not
provided any evidence from the record to imply that any one of the jurors who was in fact
impaneled was "actually biased" as required by Yarbrough.
{¶100} Additionally, if the defense does not challenge any of the impaneled jurors
for cause due to pretrial publicity, the absence of challenges indicates that the defense
"was not particularly troubled by the jury's exposure to pretrial publicity." McKnight, supra,
at ¶63, citing State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, at
¶52, and State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, at ¶37.
Defense counsel made repeated arguments regarding the prejudicial effect of pretrial
 - 27 -

publicity during the individual voir dire on the specific subject of publicity. But counsel
made no such argument for the five jurors that were eventually selected, and passed
those jurors when given the opportunity to object based on bias from knowledge of the
case. This further undermines any presumptions of bias based upon these five jurors'
prior knowledge of the case.
{¶101} The media's presence in this case was not so pervasive as to per se deny
Helms a fair trial, and the comprehensive voir dire process resulted in no example of bias
on the part of any juror who was actually impaneled. Accordingly, Helms's third
assignment of error is meritless.
Prejudicial Joinder
{¶102} In his fourth assignment of error, Helms asserts:
{¶103} "The trial court abused its discretion and denied Appellant his right to a fair
trial when it denied Helm's motion for relief from prejudicial joinder in violation of Helm's
rights under the Fifth, Sixth and Fourteenth Amendments to the United States
Constitution and Sections 10 and 16, Article I of the Ohio Constitution. [sic]"
{¶104} Helms argues that the trial court's redaction of any reference to Helms in
Gilbert's confession during their joint trial was rendered meaningless due to the pretrial
publicity that Gilbert had identified Helms as her accomplice when Gilbert confessed.
{¶105} The joinder of codefendants is governed by R.C. 2945.13, which provides:
{¶106} "When two or more persons are jointly indicted for a felony, except a
capital offense, they shall be tried jointly unless the court, for good cause shown on
application therefor by the prosecuting attorney or one or more of said defendants, orders
one or more of said defendants to be tried separately."
{¶107} Generally, the law favors the joinder of codefendants at trial. "Joinder
conserves judicial and prosecutorial time, lessens the not inconsiderable expenses of
multiple trials, diminishes inconvenience to witnesses, and minimizes the possibility of
incongruous results in successive trials before different juries." State v. Thomas (1980),
61 Ohio St.2d 223, 225, 15 O.O.3d 234, 400 N.E.2d 401. See, also, State v. Schaim, 65
Ohio St.3d 51, 1992-Ohio-31, 600 N.E.2d 661. However, in some cases joinder may be
 - 28 -

prejudicial to a defendant. If in fact it appears that a defendant is prejudiced by a joinder
of multiple defendants, then the trial court must "grant a severance of defendants, or
provide such other relief as justice requires." Crim.R. 14.
{¶108} An appellate court reviews a trial court's decision on joinder for abuse of
discretion. State v. Bundy, 7th Dist. No. 02 CA 211, 2005-Ohio-3310, at ¶55. Abuse of
discretion connotes more than an error of law or fact; it implies that the trial court's
judgment is arbitrary, unreasonable, or unconscionable. Adams, supra. If the alleged
prejudice from joinder is too general and speculative, a reviewing court will not conclude
that the trial court abused its discretion in denying a defendant's motion to sever. In order
to determine whether a trial court's failure to sever was an abuse of discretion, "[t]he test
is 'whether a joint trial is so manifestly prejudicial that the trial judge is required to exercise
his or her discretion in only one way-by severing the trial. * * * A defendant must show
clear, manifest and undue prejudice and violation of a substantive right resulting from
failure to sever. * * * ' " State v. Schiebel (1990), 55 Ohio St.3d 71, 89, 564 N.E.2d 54,
quoting United States v. Castro (C.A.9, 1989), 887 F.2d 988, 996.
{¶109} Helms cites Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620,
20 L.Ed.2d 476, as support for his argument that joinder was prejudicial in this case given
that Gilbert identified Helms in her confession and did not testify at trial. The Ohio
Supreme Court has explained, " 'In Bruton, the Supreme Court held that in a joint trial of
two defendants, a confession of one co-defendant who did not testify could not be
admitted into evidence even with a limiting instruction that the confession could only be
used against the confessing defendant. The rationale of Bruton was that the introduction
of a potentially unreliable confession of one defendant which implicates another
defendant without being subject to cross-examination deprives the latter defendant of his
right to confrontation guaranteed by the Sixth Amendment.' " State v. Moritz (1980), 63
Ohio St.2d 150, 153, 17 O.O.3d 92, 407 N.E.2d 1268, quoting United States v. Fleming
(C.A.7, 1979), 594 F.2d 598, 602.
{¶110} A solution to the confrontation issue presented by a codefendant's
confession is the redaction of that confession statement so that it does not identify the
 - 29 -

defendant, either directly or by implication. Bunch, supra, at ¶88, citing Richardson v.
Marsh (1987), 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176, and In re Watson
(1989), 47 Ohio St.3d 86, 91, 548 N.E.2d 210. Here, the State redacted Gilbert's
statement so that no identification of or reference to Helms was made.
{¶111} Detective Lieutenant Milstead testified that Gilbert admitted to being
involved in an automobile accident and to wearing a pink coat at the time, which involved
no reference to Helms. Detective Sergeant Kelty gave a more detailed account of
Gilbert's confession. The trial court provided an instruction both at the beginning of trial
and immediately preceding Kelty's testimony that a statement by one defendant must not
be considered for any purpose as evidence against the other defendant. Gilbert's
statements, as described by Kelty, outlined her study of the restaurant's deposit activities,
acquisition of a gun, purchase of bullets, staging of the car crash, and request to use the
victim's phone, with no reference to the existence of another person.
{¶112} The next part of Kelty's testimony does at least make an oblique reference
to the existence of another person:
{¶113} "Q: Did she say why it was her job to stage the accident?
{¶114} "A: So the robbery could be committed.
{¶115} "Q: At some point, did she indicate that she saw something happen behind
her?
{¶116} "A: Yes.
{¶117} "Q: What did she say she saw?
{¶118} "A: She saw Mr. Kaluza, the victim, slump to the right of the vehicle, his
head, and saw blood.
{¶119} "Q: Did she ever indicate to you that she heard a gun go off?
{¶120} "A: Yes.
{¶121} "Q: How did she know that this person behind her, his head was slumped,
and there was blood?
{¶122} "A: She saw that through the rearview mirror of her vehicle that she was
sitting in at the time.
 - 30 -

{¶123} "Q: What did she do next?
{¶124} "A: She drove home.
{¶125} Although this testimony naturally implies that there is another person
participating in the crime with Gilbert, there is nothing indicating that Helms was that other
person. Moreover, Helms does not take issue with this testimony in his argument on
appeal.
{¶126} Helms does not argue that Gilbert's confession was inadequately or
improperly redacted, but argues that the redaction was rendered meaningless because
the news media had reported that Gilbert had identified Helms as her accomplice. This
argument speaks more to Helms's third assignment of error regarding pretrial publicity,
than to the issue of joinder. As discussed in the third assignment of error, there was no
evidence of juror bias caused by media coverage of the crime, arrest and pretrial. The
five jurors who had some prior knowledge of the case did not disclose anything during voir
dire that indicated that they knew of Gilbert's statement identifying Helms as her
accomplice. It is not justifiable to presume that the jury nonetheless knew about Gilbert's
identification of Helms.
{¶127} Because any mention of Gilbert's confession was limited to avoid any
reference to Helms, no Bruton violation occurred. Helms has not presented any evidence
of prejudice as a result of the joinder of codefendants at his trial. Helms's fourth
assignment of error is therefore meritless.
Conclusion
{¶128} Helms's assignments of error regarding venue and joinder are meritless.
The trial court did not err in failing to merge Helms's kidnapping and aggravated robbery
convictions. However, the trial court was required to merge Helms's attempted murder
and felonious assault convictions for sentencing, because Helms committed the two
offenses simultaneously, thus with the same animus. Further, because Helms's offenses
were all committed with the objective of robbing the victim, the trial court was required to
merge the gun specifications for the offenses.
{¶129} As borne out in our analysis regarding Helms's claims of improper venue
 - 31 -

and joinder, which we have rejected unanimously, this is a notorious crime in Mahoning
County. And this court reviews cases involving crimes as heinous as those here, and
more so. That being said, we are bound by our judicial oath to uphold the constitution
and laws of this nation and this state "without respect to persons." A prosecutor has the
discretion to charge a defendant with as many offenses as the facts support. Once the
prosecution has put on its case, it is the constitutional role of the appellate court to ensure
that a defendant's conviction, no matter how heinous his or her conduct is, comports with
the law. The constitutions and laws of this nation and this state demand this of judges.
The citizens of this nation and this state expect this of judges. Were judges to do
otherwise, the words "without respect to person" in our judicial oath become meaningless.
And the protections of the constitutions and laws of this nation and this state all of us
enjoy are diminished.
{¶130} Accordingly, the judgment of the trial court is affirmed in part, and reversed
in part and remanded for further proceedings. Specifically, all of Helms's convictions are
affirmed, to the extent that merger is not required. The firearm specifications must be
merged pursuant to R.C. 2929.14(D)(1)(b). Finally, the case must be remanded for a new
sentencing hearing. At resentencing, the State must elect which conviction, attempted
murder or felonious assault, should merge into the other for sentencing purposes,
pursuant to the authority of Williams and Whitfield, and the trial court shall effect all
mergers pursuant to the State's election. All in accordance with the law and consistent
with this Court's opinion.
Vukovich, P.J., concurs.
Waite, J., dissenting with dissenting opinion.
 - 32 -

Waite, J., dissenting.

{¶131} I must dissent in part from the majority Opinion in this case. The

defendant, Taran Helms, shot and robbed the manager of a Kentucky Fried Chicken

restaurant, Joseph Kaluza, on South Avenue, paralyzing the victim. One of the issues on

appeal is whether Appellant’s attempted murder charge and a felonious assault charge

should have been merged at sentencing. Although the majority Opinion is correct that the

initial shooting of the victim constituted a single crime of attempted murder, the evidence

in the record now before us indicates that the defendant committed the crime of felonious

assault a short time after the initial shooting. Therefore, this separate crime is punishable

by up to eight years in prison. The record reflects that immediately after the victim was

shot the defendant spoke with his codefendant for a minute, then pushed the victim’s car

(with the victim in it) about 300 feet to a more secluded spot. The defendant then said to

the victim: “Where’s the rest of the money, or I’m gonna shoot you in the head.” (Tr., p.

1569.) Police found a gun about 20 feet from the crime scene (Tr., p. 1759), and the

victim had already been shot with the weapon when the felonious assault occurred. My

review of the evidence in the record reveals an initial crime of attempted murder, a lapse

of time of a few minutes, then a second crime consisting of felonious assault. Since there

was evidence of two separate crimes of attempted murder and felonious assault apparent

in the record in this case, there is no reason to merge the two sentences as set forth in

the majority Opinion.

{¶132} Felonious assault is defined in R.C. 2903.11(A)(2) as follows:
 - 33 -

{¶133} “(2) Cause or attempt to cause physical harm to another or to another's

unborn by means of a deadly weapon or dangerous ordnance.”

{¶134} In State v. Green (1991), 58 Ohio St.3d 239, 569 N.E.2d 1038, the 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 [1989], 44 Ohio St.3d 185, 542 N.E.2d 636, syllabus, explained and followed.)”

Id. at syllabus.

{¶135} Because felonious assault may be committed without discharging a

firearm, as long as there is some type of threat indicating the intent to use the weapon,

the evidence supports the jury verdict convicting Appellant of felonious assault. Although

the prosecutor’s theory of the case did not precisely explain the distinction between the

attempted murder charge and the felonious assault charge in the manner I find apparent

in this record, we are not charged with reviewing the prosecutor’s theory of the case. We

review the actual evidence presented to the jury as reflected in the record. There is no

doubt that the defendant had a weapon, was willing to use the weapon, did use the

weapon to shoot the victim in the neck, and threatened to shoot the victim in the head

with the weapon to kill him. All this took place approximately two minutes after the initial

shooting, and a sufficient variety of events intervened in those two minutes to clearly

differentiate the second crime of felonious assault from the initial shooting. The initial

shooting occurred without warning or threat. After the shooting, the defendant spoke with

the codefendant, rummaged around in the victim’s car, and pushed the car about 300 feet
 - 34 -

to a secluded side street. Then the defendant threatened to shoot the victim in the head.

Although the victim did not specifically mention that he saw the gun when the death threat

was made, it can certainly be gleaned a gun was used, since it had been already used

once already to shoot the victim in the neck and paralyze him, and was found 20 feet

from the ultimate location of the victim’s car after the defendant fled the scene. Visual

confirmation by the victim is not the only means to establish that a gun was used in the

commission of the crime.

{¶136} Once it has been established that there was a distinct crime of felonious

assault committed, there appears to be no question whether the felonious assault should

merge with the aggravated robbery conviction; the charges should not merge. Although

some elements of the two crimes overlap, the test for determining whether offenses are

allied offenses of similar import is, first, to determine whether the elements of the crime

(considered in the abstract) overlap to such a degree that the commission of one offense

will necessarily result in the commission of the second offense; and second, if the

offenses are allied, whether the crimes were committed separately or with separate

animus. State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, 922 N.E.2d 937, ¶16.

The two crimes, here are not allied offenses, as each crime contains elements that are

not part of the other crime. State v. Bates (Dec. 2, 1997), 10th Dist. No. 97APA02-171;

State v. Crawford (1983), 10 Ohio App.3d 207, 461 N.E.2d 312, syllabus. Felonious

assault occurs when a person knowingly causes or attempts to cause physical harm to

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

Aggravated robbery occurs when a person, while attempting, committing, or fleeing from
 - 35 -

a theft offense, has a deadly weapon on the offender’s person or under the offender’s

control, and displays, brandishes, uses or indicates possession of the weapon. R.C.

2911.01(A)(1). Aggravated robbery does not need to be committed “knowingly,” and

felonious assault does not involve an attempted or actual theft offense. Thus, the overlap

of the crimes is not sufficient for them to be allied offenses of similar import, and they may

be punished separately.

{¶137} Because the evidence supports a separate crime of felonious assault, I

would affirm the trial court’s decision not to merge the attempted murder and the

felonious assault convictions at sentencing. The eight-year prison term imposed for

felonious assault should remain part of the sentence. I do agree with the majority that the

kidnapping and aggravated robbery convictions should not have been merged, and that

there was no reversible error regarding venue or joinder. I further agree with the majority

that there is reversible error with respect to the gun specifications. All the crimes that

occurred in this case were part of one continuous overall plan to rob the victim. Thus,

there should have only been one penalty imposed for the gun specifications, even though

Appellant was convicted of four gun specifications and consecutive three-year prison

terms were imposed for each of the gun specifications. I would modify the sentence by

reducing the gun specification penalty from 12 years to 3 years, thereby reducing the total

penalty from 50 years in prison to 41 years in prison. I would find no need to remand this

case for resentencing, because we have the authority to modify the sentencing error,

accordingly.