COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71244 STATE OF OHIO : : : Plaintiff-Appellee : : JOURNAL ENTRY v. : AND : OPINION DESHAWN TOWNS : : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 23, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-336369 JUDGMENT: Affirmed in Part, Reversed in Part, and Remanded for Re-Sentencing. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. THOMAS E. SHAUGHNESSY, ESQ. Cuyahoga County Prosecutor 11510 Buckeye Road Cleveland, Ohio 44104 RICHARD J. BOMBIK, ESQ. Assistant County Prosecutor The Justice Center 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 2 KARPINSKI, J.: Defendant-appellant, Deshawn Towns, appeals from the judgment of the trial court wherein a jury found defendant guilty of one count of murder and one count of attempted murder, both containing firearm specifications. Additionally, the trial court found defendant guilty of one count of having a weapon while under a disability. On appeal, defendant raises two assignments of error which argue (1) the trial court should have granted a mistrial after the prosecutor referred to defendant's post-arrest silence and (2) the sentence imposed by the trial court was in error. For the reasons that follow, we overrule the first assignment but find merit to the second. Accordingly, the judgment of the trial court is affirmed; however, the sentence is vacated and the case remanded for re-sentencing. The facts of this case arise from the Thanksgiving Day, 1995 fatal shooting of Latee Dudley, who was riding in a car with her cousin, Marquis Dudley. As a result of this incident, defendant was charged with one count of murder, one count of attempted murder, and one count of having a weapon while under a disability. All three counts contained firearm specifications. At trial, Reginald Essic, a cab driver who lived on Edgewood Drive, testified that between 2:00 and 3:00 p.m. he had to stop his vehicle on Edgewood Drive because two cars were blocking his way. The cars were side by side, both facing toward Essic. Each car had two people seated in the respective front seats. After the 3 occupants of the car talked for one and a half minutes, Essic saw the passenger of one car fire three gunshots into the other car. After the cars drove away, Essic went into his house on Edgewood. Marquis Dudley testified that on the day in question he was driving with his cousin Latee. As he drove, he noticed another car driven by Teddy Douglas with defendant in the front passenger's seat. Maquis Dudley had the impression that defendant was looking back as if to provoke Dudley. Dudley then pulled next to the other car. While stopped next to the car, Marquis Dudley reached over Latee and rolled down the passenger's side window. Marquis began arguing with defendant, at which point, Teddy Douglas leaned back and defendant reached over and, firing two or three shots into Marquis Dudley's car, hit Latee. Dudley drove his cousin to the hospital. When he spoke to the police, Dudley denied having any firearms. Teddy Douglas, the driver of the car carrying defendant, testified that he was indicted for murder but pled guilty to involuntary manslaughter on the condition that he testify as a witness against defendant. He was acquainted with both Marquis Dudley and defendant; they did not like each other. Douglas corroborated Dudley's testimony and added that he did not see any weapon in Dudley's car. When they drove away, they were not aware that Latee had been shot. Defendant never mentioned that either Dudley or Latee had a gun. Defendant, who was sixteen at the time of the incident, testified on his own behalf. He stated that a week prior to the 4 incident, he had a confrontation with Marquis Dudley, who had displayed a handgun and stated he intended to use it. Defendant testified that when the cars were next to each other, he saw a handgun in Marquis Dudley's possession. He fired into the car for fear of his life. The jury found defendant guilty of murder with a firearm specification and attempted murder with a firearm specification. Defendant having chosen to have the third count tried to the bench, the trial court found defendant guilty of having a gun while under a disability. Defendant timely appealed and filed two assignments of error. The first states as follows: I. APPELLANT WAS DENIED DUE PROCESS WHEN THE TRIAL COURT FAILED TO GRANT A MISTRIAL AFTER THE PROSECUTOR IMPROPERLY COMMENTED UPON APPELLANT'S POST-ARREST SILENCE. In this assignment of error, defendant argues that the trial court erred by denying his motion for a mistrial after the prosecutor made remarks about defendant's post-Miranda silence. At trial, defendant claimed he shot the victim in self-defense. In his closing argument, the prosecutor pointed out that this defense was not made until trial. The prosecutor stated in part as follows: So let's look at the circumstances. Let's look at the actions, and three people have a bird's-eye view, a worm's-eye view, and it is close, and nobody sees any weapon with Marquis. It is not there. It only exists in his imagination. It is an afterthought to escape responsibility for his actions. This is not difficult. If what he says was true, look at what he does afterwards. He goes home and puts up the gun. He goes to his aunt's house. He stays there for an hour. He is in company with three other 5 individuals: Teddy Douglas, Daryl Walker and Gene Turner. You heard from Daryl Walker, and you heard from Teddy Douglas, and neither one of these individuals testified that, at any point after this shooting took place, he ever said, Well, I did what I had to do. He had a gun; didn't you see the gun? Nobody testified, and they don't even talk about it. Is this reasonable not to talk about it? If, in fact, it was the truth? Of course not. This is nothing more than a figment of his imagination. That was developed well after he was charged with this crime, period. If what he said was true, he doesn't tell any other people that. He doesn't tell his aunt; he doesn't tell his guardians; he doesn`t tell anyone before he is arrested, and he doesn't tell the police. (Tr. 802-803.) Defendant argues that, in the last phrase, the state was impermissibly commenting on defendant's post-Miranda silence. Recently, the Lucas County Court of Appeals held that the trial court committed reversible error by not granting a mistrial after the prosecutor argued in closing arguments that the defendant, when she went to the police, did not tell them about any self-defense. State v. Saunders (1994), 98 Ohio App.3d 355. The state responds that it is permissible to comment on defendant's silence before being arrested. Jenkins v. Anderson (1980), 447 U.S. 237; State v. Pajevic (May 27, 1982), Cuyahoga App. No. 44141, unreported. The state argues that the statements made in closing arguments refer only to defendant's failure to go to the police immediately after the shooting as opposed to any post-arrest silence. The state points out, moreover, that defendant was specifically cross-examined about his failure to call the police after the shooting. 6 A trial court's decision to grant or deny a mistrial is reviewed under the abuse of discretion standard. State v. Glover (1988), 35 Ohio St.3d 18. In the case at bar, the trial court did not abuse its discretion in denying defendant's motion for a mistrial. The immediate context does not make entirely clear whether the prosecutor is referring to pre-arrest or post-arrest silence. Since the only earlier reference to defendant's silence to the police was specifically described as pre-arrest, the prosecutor's comments could reasonably be understood to refer only to that period. Therefore, we find that the trial court did not abuse its discretion in denying defendant's motion for a mistrial. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: II. THE TRIAL COURT ERRED IN SENTENCING APPELLANT TO TWO CONSECUTIVE TERMS OF ACTUAL INCARCERATION FOR COUNTS INVOLVING A SINGLE HANDGUN USED IN A SINGLE CRIMINAL ACT OR TRANSACTION, CONTRARY TO R.C. 2929.71(B). In this assignment of error, defendant argues that the trial court erred by sentencing defendant to two consecutive terms of actual incarceration pursuant to the firearm specification con- tained in counts one and two. Because this crime was committed before July 1, 1996, Ohio's new statutory sentencing framework does not apply. Therefore the case at bar is governed by former R.C. 2929.71(B)1, which states as follows: If an offender is convicted of, or pleads guilty to, two or more felonies and two or more specifications 1 This section of the Revised Code has been repealed. 7 charging him with having a firearm on or about his person or under his control while committing the felonies, each of the three-year terms of actual incarceration imposed pursuant to this section shall be served consecutively with, and prior to the life sentences or indefinite terms of imprisonment imposed pursuant to section 2907.02, 2907.12, 2929.02, or 2929.11 of the Revised Code, unless any of the felonies were committed as part of the same act or transaction. If any of the felonies were committed as part of the same act or transaction, only one three-year term of actual incarceration shall be imposed for those offenses, which three-year term shall be served consecutively with, and prior to, the life sentences or indefinite terms of imprisonment imposed pursuant to section 2907.02, 2907.12, 2929.02, or 2929.11 of the Revised Code. (Emphasis added.) Pursuant to this section, only one three-year term of actual incarceration can be imposed when the offenses charged are committed as part of the same act or transaction. State v. Wills (1994), 69 Ohio St.3d 690.2 In Wills, the Court explained transaction as follows: This court has never defined the word transaction as it is used in 2929.71(B). To do so, we adopt the test used by the Court of Appeals for Summit County, which defined transaction as `a series of continuous acts bound together by time, space and purpose, and directed toward a single objective.' State v. Caldwell (Dec. 4, 1991), Summit App. No. 14720, unreported, at 26-27, 1991 WL 259529. Willsat 691. In Wills the Court held that the two armed robberies of two boys were not part of a series of continuous acts. A group of boys, including Wills, first surrounded one boy and robbed him at gunpoint. Wills and the others then crossed the street and 2 Whether defendant's actions were part of the same act or transaction under R.C. 2929.71(B) is a question different from the separate animus test of R.C. 2941.25 and Newark v. Vazirani (1990), 48 Ohio St.3d 81. State v. White (1991), 71 Ohio App.3d 550, 554. 8 surrounded and robbed at gunpoint the second boy for his jacket. The Court pointed out that, Wills should serve no less time because of the coincidental proximity of his two victims. Id. at 691. In the case at bar, defendant fired two or three shots into a car and killed one occupant. More similar to the circumstances in the case at bar are the facts in State v. Gregory (1993), 90 Ohio App.3d 124. In Gregory the court held that under R.C. 2929.71(B), the defendant's actions of firing six to ten shots at a police car carrying two officers were committed as part of the same act or transaction. The defendant in Gregory, therefore, was sentenced to actual incarceration for only one of the firearm specifications. Similarly, the case at bar involves the single act or transaction of firing multiple shots into a car. The case at bar, moreover, contains only one victim. Accordingly, the trial court's sentence was contrary to the express language of R.C. 2929.71(B). This assignment is well taken. Judgment affirmed in part and reversed in part. The case is remanded for re-sentencing consistent with this opinion. 9 It is ordered that appellee and appellant shall bear their owns 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. Case remanded to the trial court for re-sentencing. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, P.J., and McMONAGLE, J., CONCUR. DIANE KARPINSKI JUDGE 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. 27. 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 .