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BEFORE THE SUPREME COURT OF OHIO

STATE OF OHIO

-vs-

PLAINTIFF-APPEI.LEE

HATTIE GILBERT

DEFENDANT-APPELLANT

APPELLEE-STATE OF OHIO'S RESPONSE TODEFENDANT'S MEMORANDUM IN SUPPORT OF JURISDICTION

FRANCISCO E. LUTTECKE, 0082866 PAUL J. GAINS, 0020323ASSISTANT STATE:`PUBLIC DEFENDER MAHONING COUNTY I'ROSECUTOR

OFFICE OF THE OHIO STATE PUBLICDEFENDER250 EAST BROAD ST., SUITE 1400COLUMBUS, OH 43215PH: (614) 466-5394FX: (614) 752-5167francisco.luttecke(ci>,opd. ohio. gov

COUNSEI_. FOR DEFENDANT-APPELLANT

COUNSEL FOR PLAINTIFF-APPELLEE

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CLERK OF COURTSUPREME COURI OF OHIO

CASE NO.: 2013-1957

ON APPEAL FROM CASE NO. 08 MA 206BEFORE THE COURT OF APPEALS FORTHE SEVENTH APPELLATE DISTRICT

RALPH M. RIVERA, 0082063ASSISTANT PROSECUTORCounsel ofRecorcl

OFFICE OF THE MAHONING COUNTYPROSECUTOR21 W. BOARDMAN ST., 6Tx FL.YOUNGSTOWN, OH 44503PH: (330) 740-2330FX: (330) 740-2008rriveraa,mahonin gcountyoh. gov

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Table of Contents

CERTIFICATE OF SERVICE ............... .... . .........................................ii

TABLE OF CONTENTS.. .. ....................................................... .....iii

STATFMENT OF WHY THIS APPEAL IS NOTOF GREAT PUBLIC OR GENERAL INTEREST, AND DOESNOT PRESENT ANY SUBSTANTIAL CONSTITUTIONAL QUESTIONS ..............I

STATEMENT OF TI-IE CASE AND FACTS ...................................... ._ ......2

LA W AND ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 8

Defendant's Proposition of Law No. L• ...............................................8The State is judicially estopped from asserting inconsistent andcontradictory theories of a case to circumvent the doctrine of merger underR.C. 2941.25 and impede a Defendant's right for a meaningfulopportunity to present a complete defense. Sixth and FourteenthAmendments to the United States Constitution; Section 16, Article I of theOhio Constitution.

State's Response to Proposition of Law No. I: .. ..... ............................8The trial court properly sentenced Defendant to consecutive terms ofincarceration for the Felonious Assault and Attempted Murder of JosephKaluza, because Defendant and Helms' committed each offense with aseparate animus, which constituted separate offenses. .

CONCLUSI ON . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . ... .15

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..15

ii

Statement of Why This is Not a Case of Great Public or GeneralInterest, and Does Not Present aSubstantial Constitutional Question

This Honorable Court must decline jurisdiction over Defendant's discretionary

appeal, because this case does not present a substantial constitutional question and is of

little general or public interest.

Here, Defendant has essentially requested this Court revisit this Court's recent

decision in State v. Waslxington, Slip Opinion No. 2013 Ohio 4982, in which this Court

held that "[w]hen deciding whether to merge multiple offenses at sentencing pursuant to

R.C. 2941.25, a court must review the entire record, including arguments and information

presented at the sentencing hearing, to determ.ine whether the offenses were committed

separately or with a separate animus." See id at syllabus. Further, Defendant has

requested this Court to apply the doctrine of iudicial estoppel to prohibit the State from

arguing against merger in this case. See id at ¶ 22, citing State ex rel. Motor Carrier

Serv., Irzc. v. Rankin, 135 Ohio St.3d 395, 987 N.E.2d 670, 33 (2013). Thus, it is

unnecessary for this Honorable Court to accept jurisdiction, because Defendant is simply

seeking this Court to apply well settled principles of law to the specific facts of this case.

WHEREFORE, Appellee-State of Ohio hereby requests this Honorable Court to

Deny Defendant-Appellant Hattie Gilbert's Memorandum in Support of Jurisdiction,

becuase this case does not involve any substantial constitutional questions and is of little

general or public interest.

1

Statement of the Case, Facts, and Introduction

On the morning of March 24, 2008, Joseph Kaluza vvoke up and prepared himself

for the work day ahead. (Trial Transcript, September 8, 2008, before the Honorable

Timothy E. Franken, Vol. VIII of XI, at 1562.) Kaluza made his coffee, kissed his wife

and children goodbye, and headed off to the Kentucky Fried Chicken on South Avenue in

Youngstown, Mahoning Couiity, Ohio, where he was employed as the store manager.

(Trial Tr., Vol. VIII of XI, at 1562.) Kaluza arrived at the KFC at approximately 8:00

a.m. (Trial Tr., Vo1. VIII of XI, at 1563.)

At approximately 10:00 a.m. that same morning, Kaluza left the KFC with tl-ie

bank deposit.1 After Kaluza obtained the bank deposit, he exited the KFC parking lot and

headed south on South Avenue with approximately three-hundred ($300.00) on him.z

(Trial Tr., Vol. VIII of XI, at 1564.) As Kaluza headed towards the bank, Defendant-

Appellant Hattie Gilbert pulled her blue-gray Saturn pulled in front of his vehicle,

causing a minor accident between Hilton and Ravenwood Avenues. (Trial Tr., Vol. VIII

of XI, at 1566, 1595.)

1 (Trial Tr., Vol. VIII of XI, at 1563.) KFC had a procedure for making the daily bankdeposits. Either the manager or an assistant manager would walk out and get into his orher vehicle empty-handed. That person would then come through the drive-thru window,where an employee would hand them the bank deposit. And after receiving the deposit,he or she would then drive to the designated bank. This was the standard procedureadopted by KFC. (Trial Tr., Vol. VIII of XI, at 1563-1564.)

2 A typical deposit on Monday mornings would be between one-thousand ($1,000.00)and fifteen-hundred ($1,500.00) dollars. But, because this was the day after Easter,business was slower and the store closed earlier the day prior. (Trial Tr., Vol. VIII of XI,at 1564.)

2

Kaluza called his District Manager Jim Valero to report the accident, and then

called 911. Defendant then exited her vehicle and asked Kaluza to borrow his cell phone.

(Trial Tr., Vol. VIII of XI, at1566.)

Moments after Defendant returned his phone; co-Defendant Taran Helms

approached Kaluza's vehicle from Ravenwood. Helms came up from. behind the vehicle

and f red one shot into Kaluza's neck, paralyzing him instantly.3 (Trial Tr., Vol. VIII of

XI, at 1566-1567, 1606-1607.) Kandace Johnson testified that Helms never broke his

stride as he walked passed Kaluza's vehicle and fired the shot into his neck. (Trial Tr.,

Vol. VIII of XI, at 1610, 1634-1635.)

After Helms fired the shot, he continued to walk passed the vehicle and towards

Defendant. Helms and Defendant then engaged in a conversation that lasted

approximately forty (40) seconds to a minute. (Trial Tr., Vol. VIII of XI, at 1634.) Both

Johnson and Kaluza testified that during their conversation, Helms gestured to Defendant

to leave. (Trial Tr., Vol. VIII of X:[, at 1567, 1636.)

After Defendant fled the scene, Helms returned to Kaluza's vehicle, and reached

through the window and began "fumbling around in there." (Trial Tr., Vol. VIII of XI, at

1610-1611.) After "fumbling around" the vehicle, Helms opened the driver's side door

and began pushing Kaluza's vehicle around the corner and down Hilton Avenue. Helms

pushed the vehicle to the fourth house on Hilton, approximately three-hundred (300) feet

from South Avenue. (Trial Tr., Vol. VIII of XI, at 1567-1568, 1669.) When the vehicle

3 Helms was dressed in all black, and wore a black mask that covered his face. (Trial Tr.,Vol. VIII of XI, at 1609.) Helms was not identified by any of the witnesses, but wasproven to be the black male who shot and robbed Kaluza through the physical evidencecollected at the scene that contained large amounts of Helms's DNA.

3

came to a rest, Helms then walked over to the passenger side and continued to searc.h for

the deposit bag. (Trial Tr., Vol. VIII of XI, at 1568.) Helms then asked Kaluza, "Where's

the rest of the money, or I'm gonna shoot you in the head." (Trial Tr., Vol. VIII of XI, at

1569.)

Jeremy Vignon, a passerby, then approached I-lelms and asked if everyone was

okay. To which Helms responded in the affirmative. (Trial Tr., Vol. VIII of XI, at 1669.)

Helms stated that it was just a flat tire. (Trial T'r., Vol. VIII of XI, at 1670.) Vignon then

drove away, but he continued to circle the block, because he realized that the vehicle did

not have a flat tire and he observed Kaluza hunched over and bleeding from his tleck.

(Trial Tr., Vol. VIII of XI, at 1670.)

David White, a tow truck driver for Ludt's Towing, also arrived on the scene as

Appellant was fumbling around Kaluza's vehicle. (Trial Tr., Vol. VIII of XI, at 1642-

1643, 1646.) As White proceeded down Hilton, he and Vignon both observed Helms

"hop out" of Kaluza's vehicle and run through the backyard heading north, and carrying

an object in his hand. (Trial Tr., Vol. VIII of XI, at 1646-1647, 1665, 1673-1675.) Police

arrived on the scene shortly after, and realized that this was not merely a traffic accident,

but a potential homicide. (Trial Tr., Vol. VIII of XI, at 1712-1715.) Kaluza was later

taken by ambulance to St. Elizabeth's Hea1t11 Center.

Officer Justin Coulter and his K-9 Conan were called to the scene to search the

area. (Trial Tr., Vol. VIII of XI, at 1754-1757.) Coulter started the track near the

driveway where Kaluza's vehicle came to a rest, and Conan immediately began to track a

scent. Conan's track first led to a firearm. (Trial Tr., Vol. VIII of XI, at 1759-1760.)

Conan next led Coulter around a. fence to a black and orange jacket laying in the yard.

4

(Trial Tr., Vol. VIII of XI, at 1763.) Conan then tracked the scent to a footprint behind a

garage. Conan continued north and crossed Ravenwood, but lost the scent before the next

street after Ravenwood. (Trial Tr., Vol. VIII of XI, at 1765.) Coulter testified that it was

possible that the suspect (Helms) got into a vehicle, because of the fact that Conan lost

the track at the street. (Trial Tr., Vol. VIII of XI, at 1767.)

On Wednesday or Thursday of that week, Frank Harrison, who was einployed by

Western Reserve Transit Authority (WRTA), informed Rich McFadden that his bus

likely captured the accident that involved Kaluza.4 (Trial Tr., Vol. VIII of XI, at 1.583,

1591.) McFadden then downloaded the video footage from Harrison's bus on March 24,

2008, and turned it over to Youngstown Detective John Kelty. (Trial Tr., Vol. VIII of XI,

at 1585-1586.)

Kelty then viewed the videotape, and it was determined that the suspect's

(Gilbert) vehicle was a blue-gray 2001/2002 Saturn L series. A search through OIIL,EG

generated a list of 100-150 persons who resided in Mahoning County that owned a

2001/2002 Saturn. (Trial Tr., Vol. IX of IX, at 1826.) The list was further reduced to

persons who resided in Youngstown. (Trial Tr., Vol. IX of IX, at 1827.) By chance,

Defendant was the first person the Youngstown detectives investigated, because she most

closelv resembled the person in the video. (Trial Tr., XIII of IX, at 1738.) Their

investigation discovered a Saturn with visible damage that was consistent with the

accident that the video captured. (TrialTr., XIII of IX, at 1.738-1739.)

4 McFadden was the Human Resource Director for WRTA. McFadden was responsiblefor the camera surveillance systems that were installed on all the buses. (Trial Tr., Vol.VIII of XI, at 1581-1582.)

5

Youngstown Lieutenant Mark Milstead then knocked on the door to Defendant's

residence. (Trial Tr., Vol. VIII of XI, at 1741.) After the suspect identified herself as

Hattie Gilbert, Milstead asked her if she knew why he was there. To which Defendant

responded; "Yeah. It's probably that crash I got into on South Avenue." (Trial Tr., Vol.

VIII of XI, at 1741.) Gilbert then retrieved her pink coat. And she was soon placed under

arrest and taken to the Youngstown Police Department for questioning. (Trial Tr., Vol.

VIII of XI, at 1742-1743.)

After Defendant arrived at the station, she was read her 1Wit°anda rights, to which

she knowingly and voluntarily waived. (Trial Tr., IX of XI, at 1828.) Defendant soon

confessed to planning the robbery of Kaluza. (Trial Tr., IX of XI, at 1829.) Defendant

had watched Kaluza for several weeks prior, and even followed him to the bank to ensure

the route he would take. (Trial Tr., IX of XI, at 1829.) Defendant further admitted that

she had purchased bullets for a firearm two weeks before the robbery had occurred. (Trial

Tr., IX of XI, at 1830.)

I-lelms and Defendant were later indicted by the Mahoning County Grand Jury on

the following charges: Count One, Attempted Murder, in violation of R.C. 2923.02(A)

and 2903.02(A)(D), a felony of the first degree; Count Two, Felonious Assault, in

violation of R.C. 2903.11.(A)(2)(D), a felony of the second ciegree; Count Thr•ee,

Aggravated Robbery, in violation of R.C. 2911.01(A)(1)(C), a felony of the first degree;

and Count Four, Kidnapping, in violation of R.C. 2905.01(A)(2), a felony of the first

degree. And all four counts carried a three-year Firearm Specification, in violation of

R.C. 2941.145(A).

6

Individual voir dire began on September 8, 2008. A jury of twelve individuals

was later seated, along with two alternates. The jury convicted Defendant and Helms on

all counts, and the trial court sentenced them each to maximum-consecutive sentences for

a total of fifty (50) years in prison. Defendant filed a timely appeal.

On M:arch 30, 2011, this Court allowed both the State and Defendant to file briefs

addressing the application of Jvhnson. Defendant filed her brief on April 28, 2011. The

State now responds with its brief, applying Johnson to facts here.

On March 20, 2012, the Seventh District affirmed Defendant's convictions, but

vacated her sentence in-part. The Seventh District merged each firearm specification

pursuant to R.C. 2929.14(I3)(1)(b), formerly R.C. 2929.14(D)(1)(b). See State v. Gilbert,

7'h Dist. No. 08 MA 206, 2012 Ohio 1165, ¶ 115.

Thereafter on March 27, 2012, Defendant filed an Application for

Reconsideration. The Seventh District denied Defendant's Application for

Reconsideration on October 27, 2013. See State v. Gilbert, 7Ih Dist. No. 08 MA 206, 2013

Ohio 4783.

This timely Memorandum in Support of Jurisdiction followed. The State of Ohio

now responds with the following argument, and prays this Honorable Court Deny Deny-

Appellant Hattie Gilbert's Memorandum in Support of Jurisdiction.

7

Law and Discussion

Defendant's Proposition of Law No. I:The State is judiciallyestopped from asserting inconsistent and contradictory theories of a caseto circumvent the doctrine of inerger under R.C. 2941.25 and impede aDefendant's right for a meaningful opportunity to present a completedefense. Sixth and Fourteenth Amendments to the United StatesConstitution; Section 16, Article I of the Ohio Constitution.

State's Response to Defendant's Proposition of Law No. I: Thetrial court properly sentenced Defendant to consecutive terms ofincarceration for the Felonious Assault and Attempted Murder of JosephKaluza, because Defendant and Helms' coznmitted each offense with aseparate animus, which constituted separate offenses. .

As to Defendant's first proposition of law, he contends that the State is judicially

estopped from asserting inconsistent and contradictory theories of a case to circumvent

the doctrine of merger pursuant to R.C. 2941.25. To the contrary, the State simply asked

the trial court to sentence Defendant to consecutive terms of incarceration at sentencing.

Therefore, the trial court properly sentenced Defendant to consecutive terms of

incarceration for the Felonious Assault and Attempted Murder of Joseph Kaluza, because

Defendant and Helms' committed each offense with a separate animus, which constituted

separate offenses.

A. MULTIPLE OFFENSESCONSTITUTE ALLIED OFFENSES OFSIMILAR IMPORT AND REQUIRE MERGER ONLYWHERE THE OFFENSES WERE COMMITTED WITHTHE SAME CONDUCT WITH A SINGLE STATE OF MIND.

The law regarding the State's prohibition against prosecution for multiple

offenses involving the same conduct is well established. And the Seventh District applied

the well-established law to the facts here.

The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution "protects against a second prosecution for the same offense after acquittal. It

8

protects agaiiist a second prosecution for the same offense after conviction. And it

protects against multiple punishments for the same offense," State v. Barr, 0, Dist. No.

07CA34, 2008 Ohio 4754, ^j 9, quoting Brown v. Ohio, 432 U.S. 161, 165 (1977),

quoting Iv'orth Carolina v. Pearce, 395 U.S. 711, 717 (1969); see also Ohio Constitution,

Article I, Section 10. The Ohio Legislature has codified that protection in R.C. 2941.25.

See R.C. 2941.25; State v. Lovejoy, 79 Ohio St:3d 440 (1997).

That is, a defendant may not be punished for multiple offenses if the defendant's

actions constitute allied offenses of similar import. See State v. Bell, 7th Dist. No. 06 MA

189, 2008 Ohio 3959, ^,i 154, citing State v. Rance, 85 Ohio St.3d 632, 636 (1999), later

clarified by State v. Cabrales, 118 Ohio St.3d 54, ¶ 1 of the syllabus(2008). But, "ifa

defendant commits offenses of similar import separately or with a separate animus, he

may be punished for both." Bell, supra at ^ 154, citing Rance, 85 Ohio St.3d at 636, citing

State v. Jones, 78 Ohio St.3d 12, 13-14 (1997). This Court previously held that a two-

tiered analysis must be employed to determine whether two offenses are allied offenses

of similar import, in which the offenses were compared in the abstract. See Rance, 85

Ohio St.3d at 632; State v. Blankenshijl, 38 Ohio St.3d 116 (1988); State v. Brown, 119

Ohio St.3d 447, 452 (2008).

This Court, however, overruled its earlier test in Rance and lield "[w]hen

determining whether two offenses are allied offenses of similar import subject to merger

under R.C. 2941.25, the conduct of the accused must be considered." Stcrte v. Johnson,

128 Ohio St.3d 153, syllabus (2010), overruling Rance, 85 Ohio St.3d at 632.

In doing so, this Court "consistently recognized that the purpose of R.C. 2941.25

is to prevent shotgun convictions, that is, multiple findings of guilt and corresponding

9

punishments heaped on a defendant for closely related offenses arising from the same

occurrence." Johnson, supra at ¶ 43, citing State v. Geiger, 45 Ohio St.2d 238, 242

(1976). The purpose of R.C. 2941.25 is that "[w]hen `in substance and effect but one

offense has been committed,' the defendant may be convicted of only one offense."

Johnson, supra at ¶ 43, quoting State v. Botta, 27 Ohio St.2d 196, 204 (1971).

The Seventh District summarized this Court's test as follows: "1) can the two

offenses be committed by the same conduct; and if so, 2) looking at the facts of the case,

were the two offenses committed by the same conduct as a single act with a single state

of mind." State v. Helms, 7th Dist. No. 08 MA 199, 2012 Ohio 1147, ¶ 24, citing Johnson,

at syllabus. "If the answer to both questions is yes, then they are allied offenses of similar

import and must be merged. If the acts were committed separately or with a separate

animus, they are not allied offenses.'° Helrns, supra at ¶ 24, citing Johnson, supra at ¶ 51;

accord State v. Gardner, 7tl' Dist. No. 10 MA 52, 2011 Ohio 2644. The "allied offense"

test is now case and fact specitic, and "may result in varying results for the same set of

offenses in different cases." Johnson, supra at ¶ 52.

That is, Johnson altered the first prong that was previously set forth by this Court.

Instead of looking at the two offenses in the abstract, courts must now take into

consideration the offender's conduct in determining whether the offenses are allied

offenses. If they are allied offenses, courts must then determine whether the offender

committed each offense with a separate animus. And only where the offender committed

each otfense with a separate animus, may he be sentenced for both offenses.

Furthermore, this Court recently held that "[w]hen deciding whether to merge

multiple offenses at sentencing pursuant to R.C. 2941.25, a court must review the entire

10

record, including arguments and information presented at the sentencing hearing, to

determine whether the offenses were committed separately or with a separate animus."

Washington, at syllabus.

Contrary to Defendant's argument, this is precisely urhat the Seventh District did

before it concluded that her convictions for Felonious Assault and Attempted Murder

were not allied offenses of similar import. .S'ee Gilbert, supra at fiT 17-36. Thus, the

Seventh District properly applied the law pursuant to R.C. 2941.25.

1. DEFENDANT'S CONVICTIONSFOR ATTEMPTED MURl)ER ANDFELONIOUS ASSAULT DO NOT MERGE PURSUANTTO R.C. 2941.25, BECAUSE EACH WAS COMMITTEDWITH A SEPARATE ACT AND A SEPARATE ANIMUS.

As maintained throughout Defendant's appeal, the State does not contest the fact

that Helm. fired a single shot into Kaluza's neck, which paralyzed him instantly. The

analysis then turns of the application of Helms' subsequent act of threatening Kaluza that

he would shoot him in the head, shortly after he already fired a bullet into Kaluza.

"The law is well settled that when two or more people engage in a course of

criminal conduct and one does one part and the other another, each is responsible for the

acts of the other as though he had personally perfon-ned each of the acts." Gilbert, supra

at ¶ 59, quoting State v. Wynn, 131 Ohio App.3d 725, 729 (81, Dist. 1998), citing State v.

Chcru^tnan, 21 Ohio St.3d 41 (1986). Thus, "[b]y law, [CTilbert] is treated as if she herself

shot Kaluza, and the act of firing the shot directly at Kaluza through a car window in

order to facilitate the robbery is evidence enough to infer criminal intent to commit

attempted murder." Id. at ^11, 60.

11

The Seventh District then properly considered and applied this Court's decision in

State v. Green when it determined that the Felonious Assault and Attempted Murder do

not require merger.

In. State v. Green, this Court held that "[t]he 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, Green, 58 Ohio St.3d 239, syllabus (1991). In Green,

police officers entered the defendant's residence while investigating a domestic violence

call. Id. at 239. As the officers proceeded into the house and down a hallway, the

defendant yelled out, "If you don't have a warrant get the fuck out of my house." Id. The

defendant then met the officers while pointing a 30-30 rifle at the officers. See id.

Previously, in State v. Brooks, this Court upheld a defendant's conviction for

felonious assault after he pointed a handgun at a woman's face and stated, "Bitch, I will

kill you." Green, 58 Ohio St.3d at 241, citing State v. Brooks, 44 Ohio St.3d 185, 187

(1989). In Green, this Court concluded tl-iat the "defendant's actions were strongly

corroborative of his intent to cause physical harm to the officers by means of a deadly

weapon." Green, 58 Ohio St.3d at 242, citing Brooks, 44 Ohio St.3d at 192.

Here, the State concedes that there was no direct testimony that Helms pointed his

firearm when he uttered the subsequent threat-----"Where's the rest of the money, or I'ni

gonna shoot you in the head." ('I'rial Tr., Vol. VIII, at 1569.) The record, however, clearly

supports that Helms' subsequent act of threatening to shoot Kaluza in the head

constituted a separate act of felonious assault.

12

First, the Seventh District properly recognized that it was not the act of pointing a

firearm that was determinative in Byoolt;s and Green, but the accompanying threat. See

Gilbert, supra at T 33. Thus, the Seventh District was correct in concluding that "if

pointing a weapon combined with a general threat is sufficient to establish the necessary

intent to commit felonious assault, then it is even more persuasive to prove felonious

assault by showing that the defendant actually used the weapon to seriously injure the

victim, and then threatened to do it again a mere few minutes later." Id.

There is no doubt that Helms' threat evidenced his intention to use his firearm,

which, he still possessed, to support a conviction for felonious assault as defined by R.C.

2903.11(A)(2). See Green, 58 Ohio St.3d at 241-242. Helms threatened specific physical

harm to Kaluza-to shoot him in the head.

InBrooks, the defendant stated, "Bitch, I will kill you." See Brooks, 44 Ohio St.3d

at 187. While in Green, no specific harm was threatened: "If you don't have a warrant

get the fuck out of my house." See Green, 58 Ohio St.3d at 239. Here; Helms' threat

constituted a sufficient threat that evidenced his intention to use his firearm.

Second, while there was no direct testimony that Helms pointed his firearm when

he uttered the subsequent threat, the record adequately supports the fact that at a

minimum, Helms had the firearm on his person and ready at hand.

After Helms pushed Kaluza's vehicle down Hilton, approximately three-hundred

(300) feet from South Avenue, he continued to search for the deposit bag. (Trial Tr., Vol.

VIII, at 1567-1568, 1669.) Helms then threatened Kaluza: "Where's the rest of the

money, or I'm gonna shoot you in the head." (Trial. Tr., Vol. VIII, at 1669.) There is no

doubt that Helms still possessed his firearm, because Officer Coulter and his K-9 Conan

13

found the firearm a short distance away. (Trial Tr., Vol. VIII, at 1759-1760.) The firearm

was found in close proximity to Helms' black and orange jacket that he also left behind

as he fled the scene. (Trial Tr., Vol. VIII, at 1763.)

Furtlaermore, Helms' threat came just minutes after he shot Kaluza in the head,

which paralyzed him instantly. This is a critical fact that distinguishes this case from both

Brooks and Green.

Accordingly, the record establishes that Helms' subsequent threat to Kaluza

constituted a separate act of felonious assault, which is consistent with this Court's

previous decisions in Brooks and Green.

Therefore, Defendant's convictions for Felonious Assault and Attempted Murder

should not have merged pursuant to R.C. 2941.25(A), because Defendant and Helms

committed each offense with a separate animus. See Wynn, 131 Ohio App.3d at 729,

citing Chcrpntan, 21 Ohio St.3d at 41.

14

Conclusion

WHEREFORE, Appellee-State of Ohio hereby requests this Honorable Court to

Deny Appellant-Defendant Hattie Gilbert's Memorandum in Support of Jurisdiction.

Respectfully Submitted,

Office of the Mahoning County Prosecutor21 W. Boardman St., 6`h Fl.Youngstown, 01-I 44503-1426Phone: (330) 740-2330Fax: (330) 740-2008rrivera(cr^^mahoningcountyoh, ovCounsel for Appellee-State of Ohio

Certi#icate of Service

I certify that a copy of the State of Ohio's Response was sent by ordinary U.S.mail to counsel for Defendant, Francisco E. Lutteckc, Esq., atFrancisco.Luttecke,opd.ohzo.gov, on December ;0, 2013.

gD

So Certified

C Ralph Yvera, OQounsel for. ppellee-State of Ohio

15

PAUL J. GAINS, 0020323MAHONING COIJNTY PROSECUTOR BY: