State v. Coleman

[Cite as State v. Coleman, 2021-Ohio-968.]

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

STATE OF OHIO :
:
Plaintiff-Appellee/Cross- : Appellate Case No. 28676
Appellant :
: Trial Court Case No. 2018-CR-4339
v. :
: (Criminal Appeal from
STEVEN COLEMAN : Common Pleas Court)
:
Defendant-Appellant/Cross- :
Appellee

...........

OPINION

Rendered on the 26th day of March, 2021.

...........

MATHIAS H. HECK, JR. by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee/Cross-Appellant

J. DAVID TURNER, Atty. Reg. No. 0017456, 101 Southmoor Circle NW, Dayton, Ohio
45429
Attorney for Defendant-Appellant/Cross-Appellee

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

HALL, J.
 -2-

{¶ 1} Steven Coleman appeals from his conviction on charges of purposeful

murder, evidence tampering, two counts of having a weapon while under disability, and

a firearm specification.1

{¶ 2} Coleman advances two assignments of error. First, he contends the trial

court erred in denying his request for a jury instruction on voluntary manslaughter.

Second, he claims the trial court erred in sentencing him on a firearm specification where

the record does not contain a jury verdict form addressing the specification.

{¶ 3} In a cross-appeal, the State claims the trial court erred in merging the offense

of discharging a firearm on or near a prohibited premises into Coleman’s murder

conviction as an allied offense of similar import. Assuming that merger was not

appropriate, the State also argues that an additional three-year sentence must be

imposed on a firearm specification accompanying the discharging-a-firearm offense.

{¶ 4} The charges against Coleman stemmed from the shooting death of Robert

Burdette outside a Dayton-area bar on the night of November 7, 2018. The State’s

evidence at trial established that Coleman was providing security that night as a “bouncer”

for the Ashwood Lounge. Two brothers, Jason and Michael Fox, also provided security

along with an unarmed bouncer named Graylon Russell. Burdette arrived at the bar that

evening in an SUV driven by Tyrone McGee. After McGee parked the SUV in an

unauthorized area, Russell asked him to move it. An unidentified third-party then moved

the SUV into a parking space without incident.

1 A jury also found Coleman guilty of discharging a firearm on or near a prohibited
premises (with a firearm specification) and several other offenses and specifications,
which the trial court merged into those set forth above as allied offenses of similar import.
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{¶ 5} When he arrived at the bar, McGee had a handgun in his vehicle. There was

some question at trial about whether he brandished it or whether it was removed from the

SUV by the person who moved the vehicle. In any event, while acting in his capacity as

security for the bar, Russell obtained McGee’s handgun and secured it in his own truck.

At some point, McGee became upset about Russell’s taking the weapon and demanded

its return. The two men argued about the handgun while standing in the front parking lot.

Burdette also was present, and he broke a beer bottle on Russell’s truck. Russell then

began arguing with Burdette because he believed the bottle had been broken

intentionally. Russell and Burdette eventually calmed down. At that point, Russell and

McGee continued arguing about the return of McGee’s handgun. As they did so, Coleman

approached Burdette, who was standing in the middle of the street, and punched him in

the face. After Burdette staggered, Coleman shot him in the face. The shot killed Burdette.

Coleman walked away and hid the gun in lattice behind the bar. Coleman then told Jason

Fox to get rid of the weapon. Fox hid the handgun in the women’s restroom. He

subsequently disclosed where the weapon was hidden, however, and police retrieved it.

{¶ 6} That same night, Coleman was arrested at his apartment, which was above

the bar. When questioned by police, he initially denied involvement and claimed that

Burdette had been shot by McGee. But after being confronted with security-video footage

capturing the incident, Coleman admitted shooting Burdette. He explained that he had

done so because Burdette had threatened to pull up to his house and shoot him. Coleman

explained: “I get tired of people making them type of threats to me talking about what you

gonna do to me. It’s not gonna work because I’m gonna get you first.” (Trial Tr. at 658.)

Although the record contains conflicting testimony, there was some evidence that
 -4-

Burdette said something like “I got guns” and “I’ll call my people” prior to being shot by

Coleman. The record also contains testimony that Burdette made these statements after

being punched by Coleman. In addition to Coleman’s confession, the State presented

DNA evidence and testimony from eyewitnesses who identified Coleman as the shooter.

{¶ 7} Coleman did not testify at trial, and he called no witnesses. However, he did

request a jury instruction on the inferior-degree offense of voluntary manslaughter as an

alternative to murder. The trial court denied the request, finding it unsupported by the

evidence. The jury subsequently found Coleman guilty of purposeful murder, two counts

of felony murder, two counts of felonious assault, discharging a firearm on or near a

prohibited premises, evidence tampering, and two counts of having a weapon while under

disability. Most of the counts included firearm specifications, which the jury found

applicable.

{¶ 8} At sentencing, the trial court merged all of the murder counts, the felonious

assault counts, and the discharging-a-firearm count. The trial court found that these

counts were allied offenses of similar import, and the State elected to proceed to

sentencing for purposeful murder. The trial court imposed a sentence of 15 years to life

in prison for the murder conviction along with a three-year prison term for the

accompanying firearm specification. The trial court imposed concurrent prison terms of

nine months for evidence tampering and nine months for one count of having a weapon

while under disability. The trial court imposed a prison term of 24 months for the other

count of having a weapon while under disability, and it ordered that sentence to be served

consecutively. The result was an aggregate prison sentence of 20 years to life. This

appeal and cross-appeal followed.
 -5-

{¶ 9} In his first assignment of error, Coleman challenges the trial court’s denial of

his request for a voluntary-manslaughter jury instruction. He contends the trial court erred

in finding that no threats were made against him. Coleman cites testimony that prior to

the shooting Burdette made comments about having guns and threatened to call “his

people.” When considered in context and viewed objectively, Coleman asserts that these

comments were sufficient to provoke a reasonable person to respond with deadly force.

Coleman further claims the trial court erred in finding that he subjectively was not under

the influence of a sudden passion or a fit of rage when he shot Burdette.

{¶ 10} “In a proper case, a jury may consider, in addition to the offense actually

indicted, inferior degrees of the indicted offense.” State v. Beatty-Jones, 2d Dist.

Montgomery No. 24245, 2011-Ohio-3719, ¶ 20, citing State v. Deem, 40 Ohio St.3d 205,

533 N.E.2d 294 (1988), paragraph one of the syllabus. “An offense is of an inferior degree

if its elements are ‘identical to or contained within the indicted offense, except for one or

more additional mitigating elements.’ ” Id., quoting Deem at paragraph two of the syllabus.

{¶ 11} “Voluntary manslaughter is an inferior degree of aggravated murder[.]”

State v. Florence, 2d Dist. Montgomery No. 20439, 2005-Ohio-4508, ¶ 42, quoting State

v. Tyler, 50 Ohio St.3d 24, 36, 553 N.E.2d 576 (1990). “The mitigating element * * * is

that the defendant acted ‘while under the influence of sudden passion or in a sudden fit

of rage, either of which is brought on by serious provocation occasioned by the victim that

is reasonably sufficient to incite the person into using deadly force.’ ” Beatty-Jones at

¶ 21, quoting R.C. 2903.03(A). “A trial court must charge the jury on an inferior offense if

the evidence presented at trial reasonably supports, in addition to an acquittal on the

indicted offense, a conviction on the inferior offense.” Id. at ¶ 20, citing Deem at paragraph
 -6-

one of the syllabus.

{¶ 12} The analysis of voluntary manslaughter’s mitigating element first involves

an objective question and second a subjective question. The objective question is

whether the victim’s provocation was “ ‘sufficient to arouse the passion of an ordinary

person beyond the power of his or her control,’ ” Id. at ¶ 22, quoting State v. Shane, 63

Ohio St.3d 630, 635, 590 N.E.2d 272 (1992), “or described differently, whether the

provocation was ‘reasonably sufficient to bring on extreme stress and * * * to incite or

arouse the defendant into using deadly force,’ ” Id., quoting Deem at paragraph five of the

syllabus. The subjective question is “whether this particular defendant was in fact acting

under a sudden passion or in fit of rage.” (Citation omitted.) Id. “When analyzing the

subjective prong of the test, ‘evidence supporting the privilege of self-defense, i.e., that

the defendant feared for his own personal safety, does not constitute sudden passion or

fit of rage.’ ” State v. Harding, 2d Dist. Montgomery No. 24062, 2011-Ohio-2823, ¶ 43,

quoting State v. Stewart, 10th Dist. Franklin No. 10AP-526, 201[1]-Ohio-466, ¶ 13.

{¶ 13} We apply abuse-of-discretion review to the trial court’s denial of Coleman’s

request for a voluntary-manslaughter instruction. State v. Thompson, 141 Ohio St.3d 254,

2014-Ohio-4751, 23 N.E.3d 1096, ¶ 152. With the foregoing standards in mind, we see

no abuse of discretion in the trial court’s refusal to instruct the jury on voluntary

manslaughter. We see virtually nothing in the record suggesting that Coleman shot

Burdette while under the influence of sudden passion or in a fit of rage caused by serious

provocation from Burdette that was reasonably sufficient to incite Coleman into using

deadly force.

{¶ 14} The confrontations prior to the shooting involved (1) Russell arguing with
 -7-

McGee about returning McGee’s handgun that had been secured in Russell’s truck and

(2) Russell arguing with Burdette about Burdette breaking a beer bottle on Russell’s truck.

After Russell and Burdette calmed down, Russell began arguing with McGee again. At

that point, Coleman punched Burdette and then shot him in the face. There is no evidence

that Burdette was armed at the time of the incident. In fact, multiple witnesses testified

that he did not possess a weapon or that they did not see him with one that night. Russell

testified that Burdette did not pose a threat that evening and did not make any threats to

Coleman. Russell further testified that he never heard Burdette say anything about having

guns. Tyrone McGee likewise testified that he did not hear Burdette say anything to

Coleman about having guns or threatening to call his “people.”

{¶ 15} Bouncer Michael Fox testified that he was walking across the street toward

the bar when he did hear “somebody holler something about “guns” or “I got guns.” (Trial

Tr. at 340.) Fox testified that he then turned and saw Coleman punch and shoot Burdette.

(Id.) At trial, Fox was unable to identify who made the “guns” comment. Detective David

House also testified about what Fox heard that night. House interviewed Fox after the

shooting. According to House, Fox reported hearing Burdette say “I got guns” and “I’ll call

my people” before being shot. (Id. at 678, 684.) House testified that Fox reported hearing

Burdette make these statements after being punched by Coleman and just before being

shot. (Id. at 685.)

{¶ 16} In his own interview at the police station, Coleman responded as follows

when detective House asked why he shot Burdette:

[Burdette] say he’ll pull up on me to my house and you know, he’ll

shoot me and do this and do that the third [sic]. And I’m like, well, you don’t
 -8-

make no threats to me because you might not never make it. You know

what I’m saying? Because you got to go get your shit.

***

You know? And I get tired of people making them type of threats to

me talking about what you gonna do to me. It’s not gonna work because I’m

gonna get you first.

Id. at 658.

{¶ 17} According to detective House, Coleman did not say anything about being in

a rage or losing control at the time of the shooting. (Id.) Witnesses at the scene also

reported that Coleman did not appear to be in a fit of passion or rage immediately before

or after the shooting.

{¶ 18} Even if we assume, arguendo, that before being punched Burdette did say

something to Coleman about having guns, calling his “people,” and showing up at

Coleman’s house, these comments did not come close to justifying a voluntary-

manslaughter instruction. Viewed objectively, any threat of harm to Coleman was not

reasonably sufficient to incite him to respond with immediate deadly force. The record

also does not suggest that Coleman subjectively was acting under a sudden passion or

in fit of rage. No eyewitnesses testified about seeing Coleman in such a condition, and

Coleman’s own police statement did not suggest a fit of passion or rage. Based on the

evidence before us, the trial court did not abuse its discretion in denying Coleman’s

request for a voluntary-manslaughter instruction. The first assignment of error is

overruled.

{¶ 19} In his second assignment of error, Coleman contends the trial court erred
 -9-

in entering a guilty verdict and sentencing him on the firearm specification accompanying

count six, which charged him with discharging a firearm on or near a prohibited premises.

Coleman argues that the record does not contain a jury verdict form addressing the

mandatory three-year firearm specification accompanying this count. Therefore, he

contends the trial court erred in entering a guilty verdict on the specification and

sentencing him on it.

{¶ 20} Upon review, we find Coleman’s argument to be unpersuasive. As an initial

matter, the trial court did not impose a separate sentence on the firearm specification

accompanying count six. The trial court found that the offense in count six (discharging a

firearm on or near a prohibited premises) and the accompanying firearm specification

merged into purposeful murder and the firearm specification associated with that count.2

We note too that the record does contain a jury verdict form for the firearm specification

accompanying count six. All of the original verdict forms signed by the jurors were filed

and made part of the record below as “Court’s Exhibit II” at docket number 200. We

examined those verdict forms and found among them the signed verdict form for the

firearm specification accompanying count six. Finally, we note that the jury’s verdict on

the firearm specification was read in open court. (Trial Tr. at 814.) Because the jury did

return a verdict form for the firearm specification, and that form was made part of the

record, we overrule Coleman’s second assignment of error.

{¶ 21} In its assignment of error on cross-appeal, the State challenges the trial

court’s merger of Coleman’s conviction for discharging a firearm on or near a prohibited

2 In fact, the trial court’s failure to impose a sentence for the firearm specification
accompanying count six is the subject of the State’s cross appeal.
 -10-

premises with his purposeful-murder conviction. The State objected to the merger below.

It argues on appeal that merger was not appropriate because the two offenses had a

dissimilar import or significance.

{¶ 22} We review the trial court’s merger ruling de novo. State v. Barnes, 2d Dist.

Montgomery No. 28613, 2020-Ohio-4150, ¶ 10. “ ‘As a practical matter, when determining

whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25,

courts must ask three questions when defendant’s conduct supports multiple offenses:

(1) Were the offenses dissimilar in import or significance? (2) Were they committed

separately? and (3) Were they committed with separate animus or motivation? An

affirmative answer to any of the above will permit separate convictions. The conduct, the

animus, and the import must all be considered.’ ” State v. Earley, 145 Ohio St.3d 281,

2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-

Ohio-995, 34 N.E.3d 892, ¶ 31.

{¶ 23} In the present case, the trial court attempted to distinguish State v. Williams,

2d Dist. Montgomery No. 27663, 2018-Ohio-1647, in which we applied plain-error review

and held that discharging a firearm on or near a prohibited premises and murder were not

subject to merger because they were of dissimilar import or significance. We recognized

in Williams that offenses may be of dissimilar import or significance when they involve

different victims, when they are not alike in their resulting harm, or when a defendant’s

conduct places more than one person at risk. The defendant in that case fired multiple

shots across a roadway in rapid succession, striking and killing the victim.

{¶ 24} Here the trial court found Williams distinguishable and determined that

Coleman’s convictions for discharging a firearm on or near a prohibited premises and
 -11-

purposeful murder were subject to merger. In support, it reasoned:

* * * The case is cited by the State and I think it’s a pretty applicable

case in the sense that it addresses this type of a charge. Discharge of a

firearm on or near prohibited premises in a murder case. There the Second

District Court of Appeals, and I think it was just a[s] recently as last year,

2018, found that discharge of a firearm on or near prohibited premises was

not an allied offense, in similar report [sic] to murder.

I think in case—it’s been argued, the facts of that’s been argued by

the lawyers. The Court has examined it. I think that the Bryson Williams,

that’s the Bryson Williams case is distinguishable from the facts in this case.

There you had someone shooting into a crowd might be an exaggeration.

A number of people across a street, people gathered in front of a store there.

And actually, I think the shot was intended for someone who did not strike,

struck another person and killed that other person.

In this case, the Court knows from the facts, of course presided at

trial. We have the video. This case involved the Defendant in very close

proximity to the victim firing the shot within—first the Defendant struck the

victim. The victim was staggering in the street. Then the Defendant shot at

close range the victim and probably no more than two or three feet away.

It’s not like it went clear across the roadway as in the Williams case.

It also—I noted in Williams that the Court analyzed that issue under

a plain error type doctrine. Which is, I think—here defense counsel has

raised this. It was not raised at that time. And the Court specifically
 -12-

mentioned that it was analyzing it under plain error doctrine. So given the

facts in this case, the Court finds that Count IV, discharge of a firearm on or

near a prohibited premises is a[n] allied offense to murder under the fact[s]

of this particular case.

(Trial Tr. at 822-823.)

{¶ 25} Upon review, we conclude that the purposeful murder and the discharging-

a-firearm offenses were not committed separately and were not committed with a

separate animus. The record reflects that Coleman fired a single shot at close range with

the singular motivation of killing Robert Burdette. In our view, however, the trial court’s

observations that the two men were in close proximity and that Coleman, who was

standing in the street, did not shoot completely across the roadway fail to adequately

address the first question above, namely whether the offenses were of dissimilar import

or significance.

{¶ 26} In Williams, 2d Dist. Montgomery No. 27663, 2018-Ohio-1647, we noted

that offenses may be of dissimilar import or significance when (1) they involve different

victims, (2) they are not alike in their resulting harm, or (3) a defendant’s conduct places

more than one person at risk. Upon review, we found that the defendant’s offenses were

not subject to merger, reasoning:

Williams was convicted and sentenced on one count of murder for

causing Terion Dixon’s death as a proximate result of committing felonious

assault. He also was convicted and sentenced on one count of discharging

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

which provides: “No person shall do any of the following: * * * Discharge a
 -13-

firearm upon or over a public road or highway.” Notably, “[t]he victim of the

offense of discharging a firearm upon or over a public road or highway is

the public. This is because it is the act itself that is prohibited. The offense

can be completed with no one remotely near the location where the firearm

is discharged upon or over the public road or highway. R.C. 2923.162(A)(3)

is a statute intended to benefit the public good[.]” State v. James, 2015-

Ohio-4987, 53 N.E.3d 770 (8th Dist.), ¶ 33; see also State v. Carzelle, 8th

Dist. Cuyahoga No. 105425, 2018-Ohio-92 (applying James). Although

Williams actually shot and killed Dixon, his act of firing a handgun across

the roadway itself violated the statute, placed numerous people at risk, and

harmed the public at large. [Footnote omitted.] Conversely, his murder

conviction required harm to a particular victim and differed in the

significance and the nature of the harm it addressed.

Id. at ¶ 24.

{¶ 27} As in the present case, we acknowledged in Williams that the defendant’s

act of shooting the victim “elevated the degree of the offense of discharging a firearm on

or near prohibited premises to a first-degree felony.” Id. at ¶ 24, fn. 4. We nevertheless

found merger not required because “the act of discharging a firearm over a public road or

highway itself constituted a violation of the statute.” Id. This court has followed Williams

on several occasions, finding that discharging a firearm on or near a prohibited premises

does not merge with murder or other offenses because the offenses are of dissimilar

import or significance. State v. Shoecraft, 2d Dist. Montgomery No. 27860, 2018-Ohio-

3920, In re T.P.-A., 2d Dist. Montgomery No. 28196, 2019-Ohio-2038, ¶ 17-18; State v.
 -14-

Ropp, 2d Dist. Champaign No. 2018-CA-44, 2020-Ohio-824, ¶ 26; see also State v.

Johnson, 10th Dist. Franklin No. 18AP-889, 2019-Ohio-4265, ¶ 19 (“Though we are

mindful that [the defendant’s] act of shooting [the victim] elevated the degree of the

offense of discharging a firearm on or near a prohibited premises to a first-degree felony

pursuant to R.C. 2923.162(C)(4), we nonetheless still find the offense of discharge of a

firearm on or near prohibited premises, under these specific facts, to cause separate and

distinct harm to the public.”). We recognize that Williams and some of the other cases

cited above involved plain-error review of a trial court’s failure to merge the offense of

discharging a firearm on or near a prohibited premises with another offense. Although the

procedural posture of Coleman’s case is different, insofar as the State objected below

and now challenges the trial court’s decision to apply merger, we find the substantive

analysis in Williams and the other cases equally applicable here.

{¶ 28} We accept that Coleman committed a single act with a single animus when

he shot Burdette in the face. Based on the case law set forth above, however, we

conclude that his offenses of murder and discharging a firearm on or near a prohibited

premises were of dissimilar import or significance. Even if we assume, arguendo, that

Coleman’s close-range shot did not place multiple people at risk, we recognized in

Williams that offenses also may be of dissimilar import or significance when they involve

different victims. Here the two offenses involved separate victims, as Coleman’s act of

firing on the roadway harmed the public at large and his act of murder harmed Burdette

personally. We note too that Coleman’s shot was not required to go entirely across a

roadway. In State v. Davison, 2d Dist. Montgomery No. 28579, 2021-Ohio-728, we found

that discharging a firearm on or near a prohibited premises and aggravated murder did
 -15-

not merge even though the defendant fired at his victims from point-blank range while

sitting in his vehicle on the road.

{¶ 29} For the foregoing reasons, we conclude that the trial court erred in merging

discharging a firearm on or near a prohibited premises into Coleman’s purposeful-murder

conviction. In light of this determination, the State next argues that the trial court is

obligated to impose an additional three-year sentence for the firearm specification

accompanying the discharging-a-firearm conviction.

{¶ 30} Although under R.C. 2929.14(B)(1)(b) a trial court ordinarily may impose

only one additional prison term for three-year firearm specifications attendant to felonies

committed as part of the same act or transaction, the State contends an exception applies.

In particular, the State claims R.C. 2929.14(B)(1)(g) obligates the trial court to impose two

separate prison sentences for three-year firearm specifications accompanying Coleman’s

discharging-a-firearm and purposeful murder convictions.

{¶ 31} In response, Coleman does not challenge the correctness of the State’s

argument. He argues only that the State waived the issue below. Colman notes that the

State opposed merger of the offenses of discharging-a-firearm and purposeful murder. At

the same time, however, the State did not address R.C. 2929.14(B)(1)(g) or dispute

whether the firearm specification accompanying the discharging-a-firearm offense was

subject to merger. Under these circumstances, Coleman maintains that the State may not

argue for separate sentences on the two firearm specifications now.

{¶ 32} Upon review, we conclude that the trial is required to impose a separate

three-year sentence for the firearm specification accompanying the discharging-a-firearm

offense. Under R.C. 2941.145, Coleman was found guilty of multiple three-year firearm
 -16-

specifications for having a firearm on or about his person while committing his offenses

and displaying, brandishing, indicating that he possessed, or using it to facilitate the

offenses. Although a trial court ordinarily may impose only one additional three-year

prison term for multiple firearm specifications committed as part of the same act or

transaction (see R.C. 2929.14(B)(1)(b)), an exception is created by R.C.

2929.14(B)(1)(g), which provides:

If an offender is convicted of or pleads guilty to two or more felonies,

if one or more of those felonies are aggravated murder, murder, attempted

aggravated murder, attempted murder, aggravated robbery, felonious

assault, or rape, and if the offender is convicted of or pleads guilty to a

specification of the type described under division (B)(1)(a) of this section in

connection with two or more of the felonies, the sentencing court shall

impose on the offender the prison term specified under division (B)(1)(a) of

this section for each of the two most serious specifications of which the

offender is convicted or to which the offender pleads guilty and, in its

discretion, also may impose on the offender the prison term specified under

that division for any or all of the remaining specifications.

{¶ 33} Here Coleman was convicted of two or more felonies, and one of those

felonies was murder. He also was convicted of three-year firearm specifications of the

type described under R.C. 2929.14(B)(1)(a) in connection with two or more of the felonies.

Therefore, the trial court is required to impose the three-year prison term specified under

R.C. 2929.14(B)(1)(a) “for each of the two most serious specifications” of which Coleman

was convicted. In short, the trial court is obligated by statute to impose separate prison
 -17-

terms for the three-year firearm specifications accompanying Coleman’s purposeful

murder and first-degree-felony discharging-a-firearm convictions.3

{¶ 34} We reject Coleman’s argument that the State waived the foregoing issue by

failing to raise it below. A sentence that violates a statutory mandate is by definition

contrary to law. In the present case, the trial court committed plain error when it

overlooked the statutory mandate in R.C. 2929.14(B)(1)(g) obligating it to impose a

separate three-year prison sentence for the firearm specification accompanying

Coleman’s discharging-a-firearm conviction. Therefore, we may correct the error on

appeal. The State’s assignment of error is sustained.

{¶ 35} Based on the reasoning set forth above, we reverse the trial court’s

judgment insofar as it merged Coleman’s conviction for discharging a firearm on or near

a prohibited premises into his conviction for purposeful murder. The doctrine of merger

did not apply because the two offenses were of dissimilar import or significance. We also

reverse the trial court’s judgment insofar as it merged the three-year firearm specifications

accompanying Coleman’s discharging-a-firearm and purposeful-murder convictions. The

matter is remanded for a limited resentencing to correct these errors. In all other respects,

the trial court’s judgment is affirmed.

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

TUCKER, P. J. and EPLEY, J., concur.

3Parenthetically, we note that the firearm specifications accompanying the felony-murder
and felonious-assault counts properly were merged into the firearm specification
accompanying the purposeful-murder count because the felony-murder and felonious-
assault counts themselves merged into the purposeful murder.
 -18-

Copies sent to:

Mathias H. Heck, Jr.
Heather N. Ketter
J. David Turner
Hon. Timothy N. O’Connell