IN THE SUPREME COURT OF OHIO. APPEAL FROM THE COURT OF APPEALS FOR CUYAHOGA COUNTY, OHIO NO. go6i7 STATE OF OHIO, Plaintiff-Appellant.

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1 01 IN THE SUPREME COURT OF OHIO APPEAL FROM THE COURT OF APPEALS FOR CUYAHOGA COUNTY, OHIO NO. go6i7 STATE OF OHIO, Plaintiff-Appellant -vs- ANTONIO GOLDSMITH, Defendant-Appellee MEMORANDUM IN SUPPORT OF JURISDICTION Counsel for Defendant-Appellee Counsel for Plaintiff-Appellant WILLIAM D. MASON CUYAHOGA COUNTY PROSECUTOR KRISTEN L. SOBIESKI ( ) Assistant Prosecuting Attorneys The Justice Center 1200 Ontario-Street- Cleveland, Ohio (216) oo STEPHEN L. MILES 2o8oo Center Ridge Road #211 Rocky River, OH ANTONIO GOLDSMITH #A Mansfield Correctional Institution P.O. Box 788 Mansfield, Ohio STATE PUBLIC DEFENDER 8 East Long Street, 11th Floor, Columbus, OH ^^^LE' D JAN 0 2 ZOO CLERK OF COURT SUPREME COURT OF OHIO

2 TABLE OF CONTENTS WHY THIS FELONY CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL QUESTION OR ISSUE OF GREAT PUBLIC INTEREST... 1 STATEMENT OF THE CASE... 2 STATEMENT OF THE FACTS... 3 LAW AND ARGUMENT... 6 Proposition of Law No. I: R.C. 29o3.11(A)(i), Felonious Assault, is not an allied offense of similar_import. with R.C ii(A)(2), Felonious Assault. Therefore, a. defendant may be found guilty and sentenced separately for each Felonious Assault....6 CONCLUSION SERVICE Appendix State of Ohio v. Goldsmith, Cuyahoga App. No. go617, 20o8-Ohio-5990 i

3 WHY THIS FELONY CASE INVOLVES A SUBSTANTIAL CONSTITUTIONAL OUESTION OR ISSUE OF GREAT PUBLIC INTEREST This case presents a substantial constitutional question and an issue of great public importance: whether Felonious Assault under R.C (A)(i) and Felonious Assault under R.C i(A)(2) are allied offenses of similar import? The State of Ohio respectfully requests this Court grant jurisdiction over the Eighth District Court of Appeals decision in State of Ohio v. Goldsmith, Cuyahoga App. No. 9o617, 2oo8-Ohio Sua sponte, the Eighth District Court of Appeals found plain error in the trial court's sentencing of the defendant for both the Felonious Assault under subsection (A)(i), and under (A)(2). In Goldsmith the Eighth District determined that the two separate versions of Felonious Assault are allied offenses of similar import. The Eighth District vacated Goldsmith's sentences finding that he could not be convicted of both of the Felonious Assault counts. The Eighth District's decision sets dangerous precedent because it failed to properly apply the law this Court set forth in State v. Rance (1999), 85 Ohio St.3d 632, 71o N.E.2d 699, which was recently reiterated in State v. Cabrales, 118 Ohio St.3d 54, 886 N.E.2d 18l, 2oo8-Ohio-i I'his case-presents an issue-of greatpublic importance that mnsrysc acrdressed: It is the same issue that has been raised to this Court via an appeal out of the First District: State v. Smith, Ohio Supreme Court No. 2oo8-13o8. (Jurisdictional memoranda in that matter are presently pending.) The Eighth District's decision in Goldsmith undermines the Ohio Legislature's intent in creating separate Felonious Assault statutes because it prevents a defendant from being convicted under subsection (A)(i) in addition to (A)(2). Therefore, the State

4 respectfully requests jurisdiction so that this Court may determine whether the two separate Felonious Assault statutes are allied offenses of similar import. STATEMENT OF THE CASE This matter was presented to the Cuyahoga County Grand Jury and an indictment under criminal case number was returned charging Antonio Goldsmith with the following: Count One: Aggra_vated Murder of Jernel Walker in violation of R.C. 2W3 Q.I(A)_, with a three-year firearm specification; Count Two: Murder of Jernel Walker in violation of R.C (B) with a threeyear firearm specification; Count Three: Felonious Assault of Jernel Walker in violation of R.C ii(A)(i) with a three-year firearm specification; Count Four: Felonious Assault of Jernel Walker in violation of R.C ii(A)(2) with a three-year firearm specification; The case proceeded to a jury trial on September 26, As to Count One, Goldsmith was found guilty of the lesser-included offense of Murder, with the firearm specification. As to Counts Two, Three and Four, Goldsmith was found guilty as charged. On October 3, 2007 Goldsmith was sentenced to three years on the firearm specifications to be served prior and consecutive to his sentence of fifteen years to life on each of Counts One and Two, and eight years on each of Counts Three and Four-which were ordered to be served concurrently. Goldsmith's total term of incarceration is eighteen years to life. Goldsmith pursued a direct appeal to the Eighth District Court of Appeals. The appellate court affirmed the jury's findings of guilt but sua sponte found plain error in the trial court's sentencing of the Goldsmith to concurrent terms of eight years for the 2

5 Felonious Assault under subsection (A)(i) as charged in Count Three, and the Felonious Assault under subsection (A)(2) as charged in Count Four. The Eighth District remanded the matter for re-sentencing. The State of Ohio now seeks further review by this Honorable Court. STATEMENT OF THE FACTS Summary: On November 30, 2oo8, at a location in the City of East Cleveland, Antonio Goldsmith, who is also known as "Tone.G", used_a handgun to_fir.e_four rounds at Jernel Walker-striking him multiple times in the head and shoulder, killing him. Goldsmith was arrested on December 14, 2oo6 in the State of Florida. Trial Testimony: On the evening of November 30, 2oo6 Robert Thomas went to Sam's Deli in East Cleveland in order to purchase infant formula. As he exited the store, he saw one of his friend's Jernel Walker (the victim) sitting in a car in the parking lot. Jernel asked Robert to return some earrings that he had borrowed. Robert retrieved the earrings from his car and sat down in the passenger seat of Jernel's car. Robert charged his phone in Jernel's car as the two engaged in small talk. As they talked, Antonio Goldsmith pulled up in his black Maxima and parked on the driver's side of Jernel's vehicle. Derrick Boykins was seated in the passenger seat of the Goldsmith's vehicle. The four men had known one another for years and were all friends. Goldsmith exited his vehicle and grabbed Jernel's cell phone off of his lap. Jernel got out of his vehicle and told the Goldsmith to give him his phone back. Goldsmith pulled out a gun and asked the victim if he wanted to die over his phone. Goldsmith eventually gave the victim his phone back and the victim sat back down in the driver seat of his vehicle. Goldsmith subsequently asked the victim if he could have a drink of 3

6 the victim's his liquor. The victim refused to give Goldsmith a drink, to which the Goldsmith replied, "remember that," and he entered the store. Inside the store Goldsmith asked the clerk, Hazem Suleiman, for the winning lottery numbers and then exited the store. Goldsmith sat back down in the driver's seat of his vehicle and began bouncing up and down to music playing in the car. Goldsmith then had the victim roll down his car window and told the victim to leave the parking lot immediately. Jernel Walker rolled his window back up and ignored the warning from Goldsmith. Within seconds, Goldsmith fired multiple shots into Jernel Walker's vehicle striking him multiple times. Derrick Boykins saw Goldsmith holding a glove in front of his face, pointing towards the victim's vehicle, and saw sparks fly out of the end of the glove as he heard multiple gunshots. Hazem Suleiman stated that he heard four to five gunshots less than two minutes after Goldsmith exited the store. RobeitThomas jumped out of passenger side door of the victim's vehicle and hid underneath the car until the gunshots stopped. He was scared that Goldsmith would shoot him too. Goldsmith pulled his vehicle out of the parking lot and once he was gone Robert Thomas left in his vehicle. Robert Thomas called his girlfriend and she told him to return to the store to talk to the police about what had happened. After leaving the scene of the crime, Derrick Boykins and Goldsmith drove to Goldsmith's house where he called his cousin Howard Anderson. He asked Howard to meet him where they had grown up. Shortly thereafter, Howard Anderson met Derrick Boykins and Goldsmith in the area of 93rd and Yale. When Anderson arrived Boykins and Goldsmith were having words. Goldsmith appeared upset and was rocking back and forth. Goldsmith told his cousin that he and Boykins had been involved in 4

7 something and that the victim was dead. Goldsmith then asked Anderson for a ride and for some money. Anderson loaned Goldsmith approximately one-hundred dollars and drove him to his kids' mother's house. Patrolman Vargo arrived on scene and saw the victim sitting in a damaged vehicle bleeding from the side of his head. He stayed with the victim until the paramedics arrived and then roped off the area. He subsequently inventoried the vehicle, searched the_ar.ea for_evidence, and tookphotographs. Goldsmith turned himself in to the authorities on December 14 th in Daytona Beach, Florida. John Saraya testified that he examined the victim's vehicle and testified that the driver's side front and rear window were both shattered. He also found a bullet hole in the driver's side door with a trajectory that was consistent with someone shooting into the vehicle from a vehicle parked next to it. Further, there was another bullet hole located in the trunk of the vehicle. He testified that he recovered a bullet inside of the vehicle underneath the driver's seat. Dr. Erica Armstrong, a forensic pathologist for the Cuyahoga County Coroner's Office, testified that she performed the autopsy on Jernel Walker. She examined the victim and found two gunshot wounds to the head, one to his left arm, and some smaller injuries to the head, trunk, and right arm. She testified that she had recovered two bullets from the victim's head and one from his arm. Dr. Armstrong determined that the cause of death was a result of gunshot wounds to the head and gunshot wound to the left upper extremity. Michael Roberts, an employee of the Bureau of Criminal Identification and Investigation, examined the bullets and testified that three of the four came from the 5

8 same firearm. The fourth bullet was consistent with the other three bullets, however, it was too destroyed to make an identification. Lisa Przepyszny, a forensic scientist at the Cuyahoga County Coroner's Office testified that the hole in the t-shirt and sweatshirt worn by the victim matched the hole in his arm from the bullet. Martina Jones, the victim's girlfriend, explained that the bullet hole in the trunk appeared there in late October-a month prior to_jernel4l?alker's_death. LAW AND ARGUMENT Proposition of Law No. I: R.C. 29o3.rr(A)(1), Felonious Assault, is not an allied offense of similar import with R.C (A)(2), Felonious Assault. Therefore, a defendant may be found guilty and sentenced separately for each Felonious Assault. Felonious Assault under R.C (A)(1) is not an allied offense of similar import with the crime of Felonious Assault as defined in R.C. 29o3.ii(A)(2). The standard for comparison of offenses has been set forth: in determining whether offenses are allied, courts must compare the elements of the offenses in the abstract, without considering the evidence in the case-and an exact alignment of elements is not necessary State v. Cabrates,rr8-Ohio St:gd g4,-88fi N.E:2d r8r,-2oo8=ohio=^2s_,_1r27. Compared in the abstract and without consideration of the evidence in this case, the offense of Felonious Assault under subsection (A)(i) is not allied with Felonious Assault under subsection (A)(2). Therefore, this Court should review this matter, set forth this proposition of law, and affirm the trial court's sentence of eight years on each count. Ohio Revised Code Section is a codification of the merger doctrine. This statute provides: 6

9 (A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same of similar kind committed separately or with a separate animus to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them. This statute is used-to enforcq the constitutional protection against double jeopardy and to prevent multiple punishments for the same crime. The instant matter calls for a determination of whether Felonious Assault under (A)(1) is an allied offense of similar import with Felonious Assault under (A)(2). In State v. Rance (1999), 85 Ohio St.3d 632, 71o N.E.2d 699 this Supreme Court articulated the test for determining whether two offenses are allied under the statute. That test was recently clarified by this Court in State v. Cabrales, 118 Ohio St.3d 54, 886 N.E.2d i81, 20o8-Ohio At syllabus one of Cabrales this Court stated, In determining whether offenses are allied offenses of similar import under R.C (A), courts are required to compare the elements of offenses in the abstract without considering the evidence in the case, but ate-not-required to-finzban-exact-alignment-ofthe elements. Instearl, if, in - comparing the elements of the offenses in the abstract, the offenses are so similar that the commission of one offense will necessarily result in commission of the other, then the offenses are allied offenses of similar import. (State v. Rance (1999), 85 Ohio St.3d 632, 71o N.E.2d 699, clarified.) The Eighth District Court of Appeals failed to properly apply the law as set forth by this Court when it determined that Goldsmith's two separate Felonious Assaults are allied offenses of similar import. 7

10 In this case the Eighth District Court of Appeals determined "In the instant case, felonious assault pursuant to R.C i(A)(i) and R.C (A)(2) are allied offenses of similar import as well." State of Ohio v. Goldsmith, Cuyahoga App. No. 9o617, 2008-Ohio-599o. The Eighth District's analysis of this issue is incorrect. The jury found Goldsmith guilty of Felonious Assault under R.C ri(A)(i)-that Goldsmith did knowingly cause serious physical harm Jernel Walker. The jury also found Goldsmith guilty of Felonious Assault under R.C. 29o3.ii(A)(2)-that Goldsmith did knowingly cause or attempt to cause physical harm to Jernel Walker by means of a deadly weapon, a gun. As these offenses are not allied, the trial court properly issued Goldsmith a concurrent eight-year sentence for each. These offenses are not allied because, when the elements are compared in the abstract without consideration of the evidence in this case, they are not so similar that the commission of one offense will necessarily result in commission of the other. Goldsmith was found guilty of knowingly causing serious physical harm to Jernel Walker. He was also found guilty of knowingly causing or attempting to cause physical harm to Jernel Wallcer by means of a deadly weapon or dangerous ordnancein this case, a gun. Knowingly causing serious physical harm is not the same thing as knowingly causing (or attempting to cause) physical harm with a gun. Each crime is independent of one another and the commission of one does not automatically result in the commission of the other. Thus, these offenses are not allied offenses of similar import according to the first prong of the Cabrales test. The Eighth District's reasoning in Goldsmith is flawed in that the appellate court skipped the first prong of the Cabrales test and instead jumped right to consideration the factual evidence of the case when it determined that these offenses are 8

11 allied. State of Ohio v. Goldsmith, Cuyahoga App. No , 2oo8-Ohio-5990, ("This is so because Goldsmith fired multiple shots at one victim in rapid succession and did not have a separate animus for each.") Under syllabus one of Cabrales, courts must first evaluate the elements of the offenses in the abstract-without considering the facts of the case. Thus, the Eighth District failed to properly apply Cabrales. This Supreme Court must review this case in order to rectify the dangerous precedent and unsound reasoning of Goldsmith. The precedent of Goldsmith effectively undermines the Ohio Legislature's intent in creating the two separate Felonious Assault statutes because the precedent of Goldsmith dictates that defendants may only ever be sentenced for one and not both crimes. This Supreme Court should consider this matter of great public importance as it addresses a question that has arisen not only in the Eighth District, but also in the First District. In State v. Smith, Ohio Supreme Court No. 2oo8-13o8, this court is considering the following proposition of law "The Ohio Legislature expressed an intent to protect two different societal interests when it enacted separate Felonious Assault stati.ites under R.C (A)(i) and R.C i1(A)(2), and separate punishments should be allowed for the commission of one act that results in a violation of both offenses." (Jurisdictional memoranda in Smith are presently pending.) In Goldsmith the Eighth District did not reverse the jury's findings of guilt with respect to the two Felonious Assaults, but the appellate court sua sponte determined that Goldsmith could not be sentenced for each. The Eighth District's reasoning in Goldsmith is flawed in that it failed to properly apply the law this Court set forth in State v. Rance (1999), 85 Ohio St.3d 632, 71o N.E.2d 699, which was clarified in State v. Cabrales,li8 Ohio St.3d 54, 886 N.E.2d 181, 2oo8-Ohio

12 This case presents an issue of great public importance that must be addressed. The State respectfully requests jurisdiction in this Honorable Court and a determination as to whether Felonious Assault under subsections (A)(i) and (A)(2) are allied offenses of similar import. CONCLUSION Where two offenses are not allied offenses of similar import, a defendant may be found guilty, sentenced, and thereby convicted separately for each. R.C The State of Ohio respectfully requests this Honorable Court grant jurisdiction and find that Felonious Assault under R.C (A)(1) is not an allied offense of similar import with Felonious Assault under R.C i(A)(2). Respectfully submitted, WILLIAM D. MASON CiJYAHOGA COUNTY PROSECUTOR Kristen L. Sobieski ( ) Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, OH

13 SERVICE A true and accurate copy of the foregoing Memorandum in Support of Jurisdiction has been sent by regular United States Mail this 31st day of December, 2008 to the following: Stephen L. Miles Counsel for Defendant-Appellee Antonio Goldsmith Center Ridge Road, Suite 211 Rocky River, Ohio 4416 And Antonio Goldsmith Mansfield Correctional Institution Inmate No. A P.O. Box 788 Mansfield, Ohio And State Public Defender 8 East Long Street, lith Floor Columbus, OH Assistant Prosecuting Attorney 11

14 DEC I (tiaurt uf Ap1jexls nf (94iu EIGHTH APPELLATE DISTRICT COUNTY OP CUYAHOGA JOURNAL ENTRY AND OPINION No MICAH AULT ASST.COUNTY PROSECUTOR THE JUSTICE CENTER,9TH FLOOR 1200 ONTARIO STREET CLEVELANO.OH CA STATE OF OHIO PLAINTIFF-APPELLEE VS. ANTONIO GOI:.DSMI T H DEFENDANT-APPELLANT JUDGMENT: CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED FOR RESENTENCING Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR BEFORE: Kilbane, P.J., Blackmon, J., and Stewart, J. RELEASED: November 20, 2008 JOURNALIZE% EC I CA I I Illll II III IIHI III II ] 1111 IID voio 6 70 pao 8 (7

15 -i- ATTORNEYS FOR APPELLEE William D. Mason Cuyahoga County Prosecutor Micah Ault Assistant Prosecuting Attorney The Justice Center - 9' Floor 1200 Ontario Street Cleveland, Ohio ATTORNEY FOR APPELLANT Stephen L. Miles Center Ridge Road Suite 211 Rocky River, Ohio PILED AND JOURNALIZED PER APP. R. 22(E) DEC' AHNO'UliCEHIENT OF DECiSION PSR APP. R. 22(9). 22(D) AND 26(A) RECEIVED NOV CA0.ZQ406L &06n IIIII llifl Illl IIIII IIIII IIIII 11 IIII ERAL D E. FUERST CLERf THE C RT OF APPEALS 6Y DER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct. Prac.R. II, Section 2(A)(1). VPt't)570 P:s0818

16 -1- MARY EILEEN KILBANE, F.J.: Defendant-appellant, Antonio Goldsmith (Goldsmith), appeals his conviction for murder. After reviewing the parties' arguments and pertinent case law, we affirm Goldsmith's conviction, vacate his sentence and remand for merger of the allied offenses.. On December 21, 2006, a Cuyahoga County Grand Jury indicted Goldsmith with the following: one count of aggravated murder, one count of felony murder, and two counts offelonious assault. Each count included a threeyear firearm specification. The facts giving rise to the instant case occurred on November 30, 2006, at Sam's Deli, located at 1241 Hayden Avenue, East Cleveland, Ohio. At approximately 7:35 p.m., Goldsmith drove a black 1991 Nissan Maxima into the parking lot of Sam's Deli. His friend, Derrick Boykins (Boykins) sat in the front passenger's seat. -Gol7sinith parked to the left of a 1999 Chevy Malibu. Jernel Walker (Walker) sat in the driver's seat of the Malibu, and his friend, Robert Thomas (Thomas), sat in the front passenger's seat. Goldsmith, Boykins, Walker and Thomas all knew each other. Goldsmith approached Walker, whose car window was rolled down. Boykins remained seated in the Maxima. Goldsmith took Wafker's cellular 7 0 PG O$ 19 ^

17 -2- phone from him. Walker got out of the car, and the parties exchanged words. Walker retrieved his cellular phone and got back inside of his Malibu. Goldsmith noticed that Walker had a bottle of Hennessy and he asked for some. Walker refused. Goldsmith then showed Walker his firearm, asked Walker if he wanted to die, and told him to leave the parking lot. Goldsmith then proceeded inside Sam's Deli and Walker closed the driver's side window. Shortly thereafter, Goldsmith came out of Sam's Deli and got into the driver's seat of the Maxima. Goldsmith pulled out a gun with his gloved hand and pointed it across the passenger's seat in which Boykins was sitting. Goldsmith shot four rounds at Walker, killing him. One bullet struck the driver's side door, one bullet struck Walker's shoulder, and two bullets struck Walker in the head. Boykins saw Goldsmith's gloved hand reach across his seat and then he saw sparks fly. Thomas saw gunshots come from Goldsmith's location and quickly ducked out of the Malibu to avoid being shot. Ori September 26, 2007, the case proceec e^to a jury trial. On October 3, 2007, the jury returned the following verdict: not guilty of aggravated murder, however, guilty of the lesser included offense of murder; guilty of felony murder; and lastly, guilty of both counts of felonious assault. The jury also found Goldsmith guilty of the attached three-year firearm specifications. V01@67U P60820 q

18 -3- Also on October 3, 2007, the trial court sentenced Goldsmith to eighteen years to life in prison as follows: the trial court merged the three-year firearm specifications for sentencing to be served prior and consecutive to the balance of the sentence; fifteen years to life imprisonment for murder; fifteen years to life imprisonment for felony murder; and eight years of imprisonment for each count of felonious assault, to be served concurrently. Goldsmith appeals, asserting one assignment of error for our review. ASSIGNMENT OF ERROR evidence. "Appellant's conviction was against the manifest weight of the evidence." Goldsmith argues that the verdict is against the manifest weight of the The Ohio Supreme Court set forth the following standard for evaluating a claim that a verdict is against the manifest weight of the evidence: "The court, reviewing the entire record, weighs the evidence and all reasona e m ences, er considers the cre i i ity o witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a nianifest nziscarriage ofjustice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction." State u. Thomphins, 78 Ohio St.3d 380, 1997-Ohio-52. YO! O 6 I U 2G ^J i ^

19 -4- Goldsmith was convicted of murder as set forth in R.C (A): "No person shall purposely cause the death of another ***:" Pertaining to the mens rea for murder under R.C (A), "purposely" is defined as: "A person acts purposely when it is his specific intention to cause-a-certain result,-or, when--the-gist of-the offense-is a prohibition against conduct of a certain nature, regardless of what the offender intends to accomplish thereby, it is his specific intention to engage in conduct of that nature." R.C (A). "Intent can be established by circumstantial evidence." State v. Carter, Cuyahoga App. No , 2006-Ohio "Those surrounding facts and circumstances include the nature of the instrument used, its tendency to end life if designed for that purpose, and the manner in which any wounds were inflicted. A jury can infer intent to kill by the defendant's use of a firearm, an inherently dangerous instrumentality, the use of which is likely to produce death." State v. Mackey (Dec. 9, 1999), Cuyahoga App. No (Internal citations omitted.) -- - In applying thelaw tothe facts of this case, it is c e r that Goldsmith purposely caused Walker's death. As Goldsmith walked into Sam's Deli, he showed Walker his gun, asked him if he wanted to die, and told Walker to leave the parking lot. (Tr. 724, 769, 893.) When Goldsmith exited the store, he shot Walker three times at close range, killing him. ('iy , 642, 727, 771.) P:00822 (^

20 -5- Thus, Goldsmith possessed a firearm when he committed murder on November 30, A firearm is an inherently dangerous instrumentality, the use of which is likely to produce death. Goldsmith was also convicted of felony murder as set forth in R.C (B), which reads: "No person shall cause the death of another as a proximate result of the offender's committing or attempting to commit an offense of violence that is a felony of the first or second degree and that is not a violation of section or of the Revised Code." The Supreme Court of Ohio has held that: "Felony murder as defined in R.C (B), with the underlying offense of violence being felonious assault, is supported by evidence that establishes that the defendant knowingly caused physical harm to the victim." State v. Miller (2002), 96 Ohio St.3d 384, syllabus. Thus, pertaining to the mens rea for felony murder and felonious assault: "The critical issue is whether the defendant had the requisite culpable mental state-to suppor a conviction for the underlying-fe-lany offen e rshtate v. Kuitter, Cuyahoga App. No , 2006-Ohio-20. The initial underlying charge for felonious assault, as charged in count three of the indictment is set forth in R.C (A)(1): "No persoiri shall knowingly *** [c]ause serious physical harm to another ***." Further, R.C (A)(2) sets fourth felonious assault as charged in count four of the 1' E60823,7

21 -6- indictment and reads as follows: "No person shall knowingly *** [c]ause or attempt to cause physical harm to another *** by means of a deadly weapon or dangerous ordnance." "A person acts knowingly, regardless of purpose, when he is aware that his conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when-he is aware- that- such circumstances probably exist. R.C (B):" Miller at 131. Further, R.C (A)(5)(b) defines serious physical harm to persons as: "Any physical harm that carries a substantial risk of death ***." In the case sub judice, Goldsmith pointed his gun and fired four times at Walker, he was aware that his conduct would probably cause serious physical harm to Walker, namely, his death. As the Miller court found: "If the jury did not believe that the defendant intended to cause *** [the victim's] death, the evidence clearly supported the jury's conclusion that the defendant knew that physical harm to *** [the victim] was probable." Id. at 132. Further, Goldsmith not only caused serious physical harm but did so with a deadly weapon, namely, a firearm. Walker sustained serious physical harm when Goldsmith shot Walker three times: once in his left shoulder and twice near his left eye. Vs[G670 FoU824

22 -7- Boykins testified that Goldsmith, after returning to the car from Sam's Deli, reached across Boykins with a glove on his hand, and that Boykins next saw sparks in his face. (Tr ) Boykins heard about five shots and then saw Walker slumped over in the Malibu and Thomas trying to get out of the car. (Tr. 459.) Thomas testified that Goldsmith and Walker had a confrontation shortly before the shooting in which Goldsmith attempted to take Walker's cellular phone. ('i'r. 718, 751.) Goldsmith and Walker had problems before that day. (Tr. 752.) After Walker retrieved his cellular phone from Goldsmith, Goldsmith asked Walker for some of his Hennessy and he refused. (Tr. 720.) Thereafter, Goldsmith showed Walker his gun, asked him if he wanted to die, and told Walker to leave the parking lot. ('ir. 724, 769, 893.) Thomas saw Goldsmith's gun and described it as little, ugly, and rusty. (Tr. 771.) Thomas heard shots and ducked to get out of the car. (Tr. 727.) --- The^"irial element for oth counts of murder as charged requires that the offender "caused the death of another." R.C (A) and R.C (B). Here, Goldsmith caused the death of another in light of the aforementioned facts and, in addition, the Cuyahoga County Coroner's office determined that the three shots that Walker sustained caused his death. (Tr. 642.) The three bullets yro870 p^go825 q

23 -8- that struck Walker came from the same gun. (Tr. 665.) Tests run on the fourth bullet were inconclusive. (Tr. 665.) Regarding Goldsmith's conviction for the attached three-year firearm specifications, R.C requires: "[T]hat the offender had a firearm on or about the offender's person or under the offender's controljwhile comnuttingthe offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense." Goldsmith had a firearm on his person and used it to facilitate murder and felonious assault. Thus, in reviewing the entire record, in weighing the evidence and all reasonable inferences, in considering the credibility of witnesses, and in resolving conflicts in the evidence, we cannot find that the jury clearly lost its way and created a manifest miscarriage of justice. Goldsmith's sole assignment of error is overruled. ^Iowever, our anatis-iroes not end here - bcause w-- e find - - plain -- error regarding Goldsmith's conviction. Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." VO1G'670 P60826 /0

24 -9- Goldsmith is currently serving two concurrent terms of incarceration for killing one victim: one term of incarceration for murder pursuant to R.C (A), and the other for felony murder pursuant to R.C (B). Furthermore, Goldsmith is serving two concurrent terms of incarceration for felonious assault against one victim: one term of incarceration for felonious assault pursuant to R.C (A)(1) and the other for felonious assault pursuant to R.C (A)(2). According to R.C : "(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. (B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind comxnitted 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." According to the Supreme Court of Ohio: "In the first step, the elements of the two crimes are compared. If the elements of the offenses correspond to such a degree that the cornmission ofone crime will result in the commission of the other, the crimes are allied offenses of similar import and the court must proceed to the second step. In the second step, the defendant's conduct is reviewed to determine whether the defendant can be convicted of both offenses. If the court finds either that the crimes were V^lU67U P00827

25 10- committed separately or that there was a separate animus for each crime, the defendant may be convicted of both offenses." State v. Cabrales (2008), 118 Ohio St.3d 54. As it pertains to Goldsmith's murder convictions: "The Ohio Supreme Court has held that the conviction and sentence on two counts of murder for a single killing violated R.C and the Double Jeopardy Clauses of the 0hio and United States Constitutions." State v. Hudson, 9' Dist. No , Ohio-4075; See State v. Huertas (1990), 510hio St.3d 22. "[Where] a defendant who kills only one victim is convicted of two aggravated murder counts, the trial court may sentence on only one count." State v. Waddy (1992), 63 Ohio St.3d 424. In the instant case, felonious assault pursuant to R.C (A)(1) and R.C (A)(2) are allied offenses of similar import as well. State v. Smith, 18` Dist. No. C , 2008-Ohio This is so because Goldsmith fired multiple shots at one victim in rapid succession and did not have a separate animus -or each counto e onious assault. Thus, "although the aggregate sentence should remain the same, by law, the convictions should be merged." State v. Crowley (2002), 151 Ohio App.3d 249. Goldsmith's conviction is affirmed, sentence vacated and case remanded for resentencing PGD828 /^

26 -11- It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. MARY EACEEN KILBANE, PRESIDING JUDGE PATRICIA A. BLACKMON, J., and MELODY J. STEWART, J., CONCUR R0070 Pa0829