State v. Patterson , 2018 Ohio 3348 ( 2018 )

[Cite as State v. Patterson, 2018-Ohio-3348.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-170329
TRIAL NO. B-1700253
Plaintiff-Appellee, :
vs. : O P I N I O N.
TAUREICE PATTERSON, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 22, 2018
Paula E. Adams, Assistant Hamilton County Prosecuting Attorney, for Plaintiff-
Appellee,
Michaela M. Stagnaro, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
DETERS, Judge.
{¶1} Defendant-appellant Taureice Patterson appeals his convictions for
felonious assault, having weapons while under a disability, and receiving stolen
property. Because we conclude that his eight assignments of error have no merit, we
affirm the trial court’s judgment.
Background
{¶2} The state indicted Patterson after a shooting in Avondale where the
victim had been struck in the knee by a bullet and left in the street. The victim had
identified Patterson and DeMarcio (“Marcio”) Peck as the assailants to police, and
the police eventually apprehended Patterson four months after the shooting while
driving a stolen vehicle. Prior to trial, Patterson moved to dismiss the charge for
having weapons while under a disability, and the trial court overruled his motion.
The matter proceeded to a jury trial.
{¶3} At trial, the victim testified that he had been walking down a street in
Avondale late at night on September 11, 2016, when Patterson, Peck, and a few
others he did not know, struck up a conversation with him. After exchanging a few
words, Patterson and Peck pulled out handguns and demanded the victim’s designer
pants. The victim refused. Patterson threatened to shoot him and then tried to
punch him. The victim ducked, and a gun discharged. The bullet struck the victim in
the knee, and the victim collapsed in the street. Patterson, Peck, and the others fled
in a vehicle.
{¶4} Officer Anthony Salyers testified that he had been the first police
officer on the scene after the shooting. The victim stated that two black males had
tried to rob him at gunpoint. The victim identified the shooter as “Marcio,” whom he
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knew from the neighborhood and from school. Officer Salyers followed the victim to
the hospital. Officer Salyers used Facebook to locate photographs of “Marcio” and
showed three or four photographs to the victim. The victim identified the person in
the photographs as “Marcio,” and police confirmed his identity as Peck. At the
hospital, the victim stated to Officer Salyers that the other person involved was
“Reese.” Officer Salyers relayed this information to Detective Michael Kaeser, who
investigated the shooting. Kaeser testified that police officers in the “Intelligence
Unit” had identified “Reese” as Patterson, and they had sent Kaeser a Facebook
photograph of Patterson. Kaeser showed the victim the photograph, and the victim
confirmed Patterson’s identity as “Reese.” The state issued an arrest warrant for
Patterson.
{¶5} Springfield Township Officer Pat Kemper testified that he had been
patrolling Hamilton Avenue in January 2017 when he noticed a vehicle that matched
the description of a vehicle that had been reported stolen that day. When Officer
Kemper activated the lights on his patrol car and made a U-turn, the vehicle veered
off of the side of the road and struck a post. The two occupants in the vehicle exited
and ran. Officer Kemper gave a description of the occupants to a K-9 unit. The K-9
unit found Patterson, whom Officer Kemper identified as the driver. At the police
station, Officer Kemper asked Patterson about the outstanding arrest warrant related
to the shooting. Patterson admitted that he had been present during the shooting,
but he maintained that he had not been the shooter.
{¶6} The jury found Patterson guilty on all counts. The trial court imposed
consecutive sentences for a total of 15½ years in prison. Patterson appeals.
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Use of Prior Juvenile Adjudication
{¶7} In his first assignment of error, Patterson argues that the trial court
erred by overruling Patterson’s motion to dismiss the having-weapons-while-under-
disability count. Patterson argues that the use of his prior juvenile adjudication as
the basis for his weapons-under-disability conviction violates due process, because
juveniles are not afforded the constitutional right to a jury trial. After submission of
Patterson’s appeal to this court, the Ohio Supreme Court decided that a prior
juvenile adjudication may be an element of a weapons-under-disability offense
without violating due process. See State v. Carnes, Slip Opinion No. 2018-Ohio-
3256. Therefore, we overrule Patterson’s first assignment of error.
Evidentiary Issues
{¶8} In his second assignment of error, Patterson argues that the trial court
erred as a matter of law by permitting the state to introduce irrelevant and
prejudicial evidence in violation of Patterson’s right to a fair and impartial trial.
Patterson attacks the introduction of the Facebook photograph used by the victim to
identify Patterson, and the introduction of recorded phone calls from the jail. A trial
court has broad discretion in admitting evidence, and this court should not reverse
unless the admission caused material prejudice. State v. Conway, 109 Ohio St. 3d
412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62.
{¶9} Facebook photograph. The state first introduced the Facebook
photograph of Patterson in direct examination of the victim. The prosecutor showed
the victim the photograph, and asked him if he knew the man in the photograph, to
which the victim replied that he did, and that it was Patterson. The prosecutor asked
if Patterson was holding anything in the picture, and the victim said, “A gun.” The
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prosecutor then asked: “You seem to be somewhat familiar with handguns, firearms.
Does that look like the gun that he had on September 11?” The victim answered, “I
would say so. Small handgun.” The prosecutor then asked the victim if he had seen
that photograph on Facebook, and he replied that he had. This entire exchange took
place without an objection by Patterson.
{¶10} The state used the same Facebook photograph during direct
examination of Detective Kaeser. Kaeser testified that he had given the street names
“Marcio” and “Reese” to the Intelligent Unit, which tracks down suspects using
police databases and social media. In response, Kaeser had received Patterson’s
name as “Reese,” as well as the Facebook photograph. Kaeser then showed
Patterson’s Facebook photograph to the victim, who confirmed that it was “Reese.”
{¶11} At the conclusion of the detective’s direct examination, the prosecutor
moved to admit the Facebook photograph into evidence, and Patterson objected on
the basis that the detective had no knowledge to verify that the photograph came
from Patterson’s Facebook account, and its admission would be more prejudicial
than probative. The trial court overruled the objection.
{¶12} On appeal, Patterson argues that the trial court erred in admitting the
Facebook photograph, because it was not properly authenticated under Evid.R.
901(A), and unduly prejudicial under Evid.R. 403.
{¶13} Authentication of evidence prior to its admission requires “evidence
sufficient to support a finding that the matter in question is what its proponent
claims.” Evid.R. 901(A). Testimony by a witness with knowledge, “that a matter is
what it is claimed to be,” is an acceptable method of authentication. Evid.R.
901(B)(1). Authentication is “a very low threshold, which is less demanding than the
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preponderance of the evidence.” State v. White, 4th Dist. Scioto No. 03CA2926,
2004-Ohio-6005, ¶ 61. Circumstantial evidence can be used to provide
authentication. State v. Paster, 2014-Ohio-3231, 15 N.E.3d 1252, ¶ 32 (8th Dist.).
{¶14} Here, the victim testified that he had seen the photograph of Patterson
on Facebook. Kaeser testified that he had received the photograph from the
Intelligence Unit, a unit of police officers who search social media in the course of
investigations, in order to get a name for “Reese.” The victim’s and Kaeser’s
testimony meets the low threshold required to authenticate the Facebook
photograph. Therefore, the trial court did not abuse its discretion in determining
that the low threshold for authentication had been met.
{¶15} Patterson also argues that the trial court erred in admitting the
photograph under Evid.R. 403, because the victim did not testify that the gun in the
picture was the same gun used in the commission of the crime, and therefore the
picture was used to depict Patterson as a gun-toting individual.
{¶16} Otherwise relevant evidence is not admissible if the probative value of
the evidence is substantially outweighed by the danger of unfair prejudice. Evid.R.
403(A). A trial court does not abuse its discretion in admitting a photograph of the
defendant with a gun where a witness testifies that a similar gun was used in the
commission of the crime. See State v. Scott, 2d Dist. Montgomery No. 27254, 2018-
Ohio-198 (no abuse of discretion in a trial court’s admission of two Facebook
photographs depicting the defendant holding a gun where two witnesses testified
that they had seen the defendant in possession of a gun the night of the shooting,
which roughly matched the gun in the Facebook photograph); compare State v.
Gordon, 8th Dist. Cuyahoga No. 106023, 2018-Ohio-2292, ¶ 72 (determining that
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the trial court erred in admitting a Facebook photograph under Evid.R. 404(B),
because the state “did not suggest that one of the guns in the photograph was the
murder weapon in the instant case.”).
{¶17} The victim knew “Reese,” but not his name, and therefore, the
detective used the photograph in the course of his investigation to confirm that the
person whom the victim knew as “Reese” was the person in the photograph. Thus,
the Facebook photograph was probative of “Reese’s” identity as Patterson. The
Facebook photograph also showed a “small gun” similar to the gun that the victim
had seen Patterson brandish. Thus, the photograph was probative of whether
Patterson had a gun that night, or was merely present at the scene, as the defense
suggested. Therefore, the trial court did not abuse its discretion in admitting the
photograph.
{¶18} Recorded Jail Calls. The state introduced testimony from a
representative of the company who provides the telephone service at the jail. The
representative testified in detail regarding how the phone system works, including
that each inmate has a unique identification number and creates a four-digit
passcode in order to place calls. The representative testified that the calls the state
sought to admit had been placed from Patterson’s inmate number. The
representative admitted on cross-examination that he could not be certain whether
Patterson had placed the phone calls or whether someone else using his unique
inmate number and passcode had placed the calls. The state then played an audio
recording of the phone calls for the jury. In the calls, a man can be heard discussing
a court case and “Marcio” with the recipients of the call.
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{¶19} Patterson argues that the trial court erred in admitting the jailhouse
calls because they were not properly authenticated, were irrelevant, contained
hearsay from third persons, and unfairly prejudiced Patterson by allowing the jury to
hear that Patterson had made the calls from jail.
{¶20} As to authentication, a sound recording of a telephone call can be
authenticated by evidence “describing a process or system used to produce a result
and showing that the process or system produces an accurate result.” State v.
Brown, 1st Dist. Hamilton No. C-120327, 2013-Ohio-2720, ¶ 17, quoting Evid.R.
901(B)(9). The testimony of the phone company representative laid the foundation
that the calls came from Patterson’s inmate number at the jail. From there, the jury
could infer that Patterson placed the calls. See Brown at ¶ 22.
{¶21} As to relevancy, evidence is considered relevant if it has “any tendency
to make the existence of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the evidence.”
Evid.R. 401. Admissibility of relevant evidence is low threshold, with a policy of
favoring admission for the trier of fact to weigh. State v. Morgan, 31 Ohio App. 3d
152, 154, 509 N.E.2d 428 (1st Dist.1986). In closing argument, the prosecutor told
the jury that the calls reflect a man named “Reese” talking about “Marcio” and the
court case. The caller discusses whether “Marcio” will testify for him. The
prosecutor argued that the calls reflect Patterson’s concern with mounting a defense
for trial, and not a concern with his innocence. Therefore, the jailhouse phone calls
were probative of Patterson’s role in the shooting as either an innocent bystander or
an active participant.
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{¶22} Patterson argues that the recorded phone calls contained inadmissible
hearsay. Patterson points out that a woman can be heard discussing an alibi and
whether the caller has one, and that the state relied on this comment in closing
argument. Hearsay must be offered for the truth of the matter asserted. See Evid.R.
801(C). Although the jail calls contained statements from people other than
Patterson, the state mainly relied on the statements made by Patterson to show that
Patterson’s actions were inconsistent with those of an innocent bystander.
{¶23} Patterson argues that the recorded jail calls unfairly prejudiced him
because it called attention to the fact that he was in jail. However, “a comment
referring to a defendant being in jail is not per se a prejudicial remark.” State v.
Ellis, 10th Dist. Franklin No. 05AP-800, 2006-Ohio-4231, ¶ 21. Here, the jury heard
that Patterson had been arrested by Officer Kemper after driving a stolen vehicle;
therefore, the fact that the jury heard that Patterson made calls from jail does not
equate to unfair prejudice.
{¶24} Moreover, the trial court provided the jury with a limiting instruction,
which stated that the jury “may not consider the fact that the defendant was an
inmate as evidence of guilt. The recorded phone calls contain statements made by
individuals other than the purported defendant. You may not consider the
statements made by others as evidence in the case * * *.” An appellate court assumes
that a jury follows the limiting instructions given by a trial court. See State v. Jones,
135 Ohio St. 3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 194. Therefore, the trial court
did not abuse its discretion in admitting the phone calls.
{¶25} We overrule Patterson’s second assignment of error.
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Motion for a Mistrial
{¶26} In his third assignment of error, Patterson argues that the trial court
erred as a matter of law by overruling his motion for a mistrial. Patterson moved for
a mistrial after Officer Salyers testified that he had searched for Facebook pictures of
Peck on his cellphone and had shown them to the victim. Patterson argued that the
officer had failed to save the Facebook photos and that the photos could have
contained Patterson, thus tainting the victim’s recollection of events.
{¶27} A mistrial is appropriate only when a fair trial is no longer possible.
State v. Garner, 74 Ohio St. 3d 49, 59, 656 N.E.2d 623 (1995). The trial court’s
decision whether to grant a mistrial is reviewed for an abuse of discretion. Id.
{¶28} Patterson argues that Peck’s Facebook photos “could have been
exculpatory.” Where evidence in the state’s possession is lost or destroyed, and the
evidence in question is “potentially useful,” its destruction does not violate due
process unless the police acted in bad faith. State v. Geeslin, 116 Ohio St. 3d 252,
2007-Ohio-5239, 878 N.E.2d 1, ¶ 9-10; Arizona v. Youngblood, 488 U.S. 51, 58, 109
S. Ct. 333, 102 L. Ed. 2d 281 (1988). The Due Process Clause does not “ ‘impos[e] on
the police an undifferentiated and absolute duty to retain and to preserve all material
that might be of conceivable evidentiary significance in a particular prosecution.’ ”
State v. Phelps, 1st Dist. Hamilton No. C-100096, 2011-Ohio-3144, ¶ 12, quoting
Youngblood.
{¶29} The Facebook photographs depicting Peck would be at most
potentially useful for Patterson’s defense. Nothing suggests that Patterson was also
in those photographs. Moreover, nothing in Officer Salyers’s testimony suggests that
he acted in bad faith, but merely attempted to get a detailed description of an alleged
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shooter in the minutes after a shooting. The trial court did not abuse its discretion in
refusing to grant a mistrial.
{¶30} We overrule the third assignment of error.
Prosecutorial Misconduct
{¶31} In his fourth assignment of error, Patterson argues that the trial court
erred as a matter of law by permitting the prosecutor to make improper remarks
during closing argument, prejudicing Patterson’s right to a fair trial. When a
defendant alleges prosecutorial misconduct during closing argument, courts must
keep in mind that prosecutors have some latitude in closing argument, and the test is
whether the remarks were improper and, if so, whether they prejudicially affected
the substantial rights of the defendant. State v. Smith, 14 Ohio St. 3d 13, 14, 470
N.E.2d 883 (1984); State v. Apanovitch, 33 Ohio St. 3d 19, 24, 514 N.E.2d 394
(1987).
{¶32} Patterson argues that the prosecutor improperly commented on his
notice of alibi in closing. Patterson’s counsel objected, and the trial court sustained
the objection with an instruction to the jury to disregard the statement. Thus, even if
the prosecutor’s statement was improper, we assume the jury followed the trial
court’s instruction and did not consider the statement. See Jones, 135 Ohio St. 3d 10,
2012-Ohio-5677, 984 N.E.2d 948, at ¶ 194.
{¶33} Patterson also argues that the prosecutor improperly relied on the jail
calls during closing argument to shift the burden of proof. The prosecutor
commented on the jail calls in order to show Patterson’s concern about his upcoming
trial, rather than his concern as an innocent bystander. The prosecutor’s conduct
was not improper with regard to the jail calls.
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{¶34} Patterson also argues that the prosecutor improperly characterized the
law on complicity. At the beginning of closing argument, the prosecutor told the jury
that mere presence at the scene of a shooting is not enough to prove complicity with
regard to the felonious-assault charge, and that active participation is required. The
prosecutor stated that once Patterson and Peck had pulled out their guns in the
course of the attempted robbery, “[i]f somebody gets shot and you are pointing a
gun, I don’t care if you don’t pull the trigger, you are just as responsible as the person
that did.” Patterson does not argue why these statements are an improper
characterization of the law on complicity.
{¶35} Finally, Patterson does not demonstrate how this alleged improper
conduct by the prosecutor deprived him of a fair trial.
{¶36} We overrule the fourth assignment of error.
Jury Instruction on Complicity
{¶37} In his fifth assignment of error, Patterson argues that the trial court
erred as a matter of law by improperly instructing the jury concerning the law on
complicity. Patterson argues that the trial court did not instruct the jury regarding a
mental state for the offense. This court reviews a trial court’s decision with respect to
requested jury instructions under an abuse-of-discretion standard. State v. Adams,
144 Ohio St. 3d 429, 2015-Ohio-3954, 45 N.E.3d 127, ¶ 240.
{¶38} In this case, the trial court instructed the jury regarding the elements
of felonious assault, as charged in Count 1 of the indictment. The trial court
instructed that the state must prove that the defendant knowingly caused serious
physical harm to the victim, and the trial court then defined knowingly. The trial
court also stated with respect to complicity that “the law provides that any person
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OHIO FIRST DISTRICT COURT OF APPEALS
acting with the culpability required for the commission of the offense who conspires
or aids another in the commission of a crime is regarded as if he was the principal
offender * * *.”
{¶39} Because the trial court had already instructed the jury regarding
felonious assault, including the mens rea, the trial court was not required to repeat
its earlier instruction when instructing on complicity. The trial court did not abuse
its discretion in instructing the jury in this manner.
{¶40} We overrule the fifth assignment of error.
Ineffective Assistance of Counsel
{¶41} In his sixth assignment of error, Patterson argues that he was denied
the effective assistance of counsel, because counsel failed to file a motion to suppress
his admission to Officer Kemper under Miranda v. Arizona, 384 U.S. 436, 479, 86
S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
{¶42} To succeed on a claim for ineffective assistance of counsel, a defendant
must prove that counsel’s performance was deficient, and that the deficient
performance deprived the defendant of a fair trial. Strickland v. Washington, 466
U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel’s actions are
presumed competent, and a defendant bears the burden to prove ineffective
assistance of counsel. State v. Hamblin, 37 Ohio St. 3d 153, 155-156, 524 N.E.2d 476
(1988). In order to demonstrate deficient performance, a defendant must show that
a motion to suppress would have been meritorious. State v. Adams, 103 Ohio St. 3d
508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 35.
{¶43} After Patterson had been arrested for driving the stolen vehicle and
taken into custody at the police station, Officer Kemper asked Patterson what the
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allegations were against him regarding the outstanding felonious-assault warrant.
Patterson then admitted that he had been at the scene that night, but was not the
shooter. Officer Kemper testified that he had not given Patterson his Miranda
warnings. He testified that, as a general matter, an officer gives a suspect Miranda
warnings upon arrest, but he did not know specifically whether this had been done in
this case. On this record, Patterson cannot meet his burden to show that a motion to
suppress would have been granted.
{¶44} We overrule Patterson’s sixth assignment of error.
Sufficiency and Weight of the Evidence
{¶45} In his seventh assignment of error, Patterson argues that his
convictions were not supported by sufficient evidence and were against the manifest
weight of the evidence.
{¶46} In a challenge to the sufficiency of the evidence, the question is
whether after reviewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found all the essential elements of the crimes
beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus. In reviewing a challenge to the weight of the
evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St. 3d 380, 387,
678 N.E.2d 541 (1997). We must review the entire record, weigh the evidence,
consider the credibility of the witnesses, and determine whether the trier of fact
clearly lost its way and created a manifest miscarriage of justice. Id.
{¶47} Felonious assault. Patterson argues that the state failed to prove he
was complicit in the felonious assault. The complicity statute prohibits a person
from aiding or abetting another in committing an offense. R.C. 2923.03(A).
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Felonious assault occurs when a person knowingly causes another serious physical
harm. R.C. 2903.11(A)(1). A person acts knowingly “regardless of purpose, when the
person is aware that the person’s conduct will probably cause a certain result or will
probably be of a certain nature.” R.C. 2901.22(B).
{¶48} Patterson argues that the state failed to prove the mens rea for
felonious assault, because, according to the victim’s testimony, the gun discharged,
and Peck and Patterson looked “surprised.” The evidence adduced by the state at
trial showed that Patterson and Peck pointed guns at the victim, Patterson
threatened to shoot him, and a gun discharged. From these circumstances, the
knowledge element required for felonious assault can be inferred.
{¶49} Patterson also argues that the state failed to prove that he was present
at the shooting. Patterson points out that the victim initially failed to mention
“Reese’s” involvement and mentioned only “Marcio,” accordingly, the police report
only mentioned “Marcio.” Although immediately after the incident the victim did
not tell Officer Salyers about Patterson’s involvement, the victim told him that two
black males had been involved. The victim then told police about Patterson shortly
thereafter at the hospital. Moreover, Patterson’s own admission to Officer Kemper
placed him at the scene of the shooting. The victim’s credibility with regard to
Patterson’s involvement was primarily an issue for the jury in this case. See State v.
DeHass, 10 Ohio St. 2d 230, 227 N.E.2d 212 (1967). Therefore, this conviction was
supported by sufficient evidence and was not against the manifest weight of the
evidence.
{¶50} Having Weapons While Under a Disability. R.C.
2923.13(A)(2) prohibits a person from carrying a gun if that person has been
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OHIO FIRST DISTRICT COURT OF APPEALS
adjudicated a delinquent child for the commission of an offense that, if committed by
an adult, would have been a felony offense of violence. The victim testified that
Patterson had a gun that night, and the state and Patterson stipulated that Patterson
was under a disability at the time of the shooting. Therefore, this conviction was
supported by sufficient evidence and was not against the manifest weight of the
evidence.
{¶51} Receiving Stolen Property. Receiving stolen property requires the
state to prove that a defendant received, retained, or disposed of another person’s
property when the defendant knew or had reasonable cause to believe that the
property had been stolen. R.C. 2913.51(A). Patterson does not dispute that the
vehicle he had been riding in when Officer Kemper pursued him had been stolen.
Patterson argues that the state failed to prove that he knew or had reasonable cause
to believe that the vehicle was stolen.
{¶52} Convictions can be based solely on circumstantial evidence. State v.
Franklin, 62 Ohio St. 3d 118, 124, 580 N.E.2d 1 (1991). In determining that a
conviction for receiving stolen property is supported by sufficient evidence and not
against the manifest weight of the evidence, courts have relied on the fact that a
witness saw the defendant in the car shortly after it was stolen, and that the
defendant abandoned the vehicle in fleeing from police. See State v. Reed, 10th Dist.
Franklin No. 08AP-20, 2008-Ohio-6082; In re Houston, 8th Dist. Cuyahoga No.
73950, 1998 WL 827608, *2 (Nov. 25, 1998).
{¶53} Here, the vehicle had been stolen from the owner’s driveway on the
same day that Officer Kemper spotted the vehicle on the road. Officer Kemper
testified that the vehicle veered off of the road and hit a post as soon as Officer
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Kemper turned around to follow the vehicle. Officer Kemper saw Patterson driving
the vehicle, and Patterson took off running after the crash. Police, with the
assistance of the K-9 unit, located Patterson a short time later hiding in someone’s
backyard. Therefore, this conviction was supported by sufficient evidence and was
not against the manifest weight of the evidence.
{¶54} We overrule the seventh assignment of error.
Sentencing
{¶55} In his eighth assignment of error, Patterson argues that the trial court
erred in sentencing him. Patterson argues that the court erred in imposing
maximum, consecutive sentences.
{¶56} When reviewing felony sentences, this court applies the standard
articulated in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-
1002, 59 N.E.3d 1231, ¶ 1 and 21-22; State v. White, 2013-Ohio-4225, 997 N.E.2d
629, ¶ 9-11 (1st Dist.). “Under R.C. 2953.08(G)(2), we may only modify or vacate [a
defendant’s] sentence if we ‘clearly and convincingly find’ that either (1) the record
does not support the mandatory sentencing findings or (2) that the sentence is
‘otherwise contrary to law.’ ” White at ¶ 9-11.
{¶57} Consecutive Sentences. R.C. 2929.14(C)(4) governs the imposition
of consecutive sentences. R.C. 2929.14(C)(4) requires the trial court to make certain
findings before imposing consecutive sentences. First, the trial court must find that
consecutive sentences are necessary either to protect the public from future crime or
to punish the offender. The court must then find the imposition of consecutive
sentences is not disproportionate to the seriousness of the offender’s conduct and the
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danger he poses to the public. Finally, the court must find that one of the following
conditions applies:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
{¶58} A trial court is required to make the findings in R.C. 2929.14(C)(4) at
the sentencing hearing and in the sentencing entry, but the trial court is not required
to provide reasons to support the findings. See State v. Bonnell, 140 Ohio St. 3d 209,
2014-Ohio-3177, 16 N.E.3d 659, syllabus; State v. McGee, 1st Dist. Hamilton No. C-
150496, 2016-Ohio-7510, ¶ 32. The trial court does not have to announce “a word-
for-word recitation of findings,” so long as this court can tell from the trial court’s
comments that it engaged in the requisite analysis. State v. Schwarm, 1st Dist.
Hamilton No. C-160677, 2017-Ohio-7626, ¶ 17. If a trial court imposes consecutive
prison terms without making the necessary findings, the sentence is clearly and
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convincingly contrary to law, it must be vacated, and the cause remanded to the trial
court for resentencing. Bonnell at ¶ 37.
{¶59} The trial court’s judgment entry tracks the necessary statutory
language for consecutive-sentencing findings. See R.C. 2929.14(C)(4) and
2929.14(C)(4)(c). At the sentencing hearing, the trial court orally announced that
consecutive sentences were necessary to protect the public, given Patterson’s
criminal history. The trial court also noted that he had “no successful rehabilitation,”
Patterson was a “true danger” to society, and Patterson showed no remorse. The
trial court stated, “You are willing to use a gun on another person, participate in that
kind of situation. No regard for human life whatsoever.” Although the trial court did
not recite the statutory language in R.C. 2929.14(C)(4), it was not required to do so,
and we can discern from the trial court’s comments that it engaged in the necessary
analysis. We hold that the trial court complied with Bonnell in making the necessary
findings for consecutive sentences.
{¶60} Patterson also argues that the trial court failed to “truly” consider the
purposes and principles of sentencing as set forth in R.C. 2929.11 and 2929.12 when
imposing maximum sentences for the offenses. This court has held that R.C. 2929.11
and 2929.12 are not “fact finding” statutes, and that we may presume a trial court
considered these factors absent an affirmative demonstration by a defendant to the
contrary. See State v. Hendrix, 1st Dist. Hamilton Nos. C-150194 and C-150200,
2016-Ohio-2697, ¶ 51. Patterson has not made any affirmative demonstration.
{¶61} DNA-Testing Notification. Finally, Patterson argues that the trial
court failed to notify him of the requirements in R.C. 2901.07(B)(1)(a) and (c) to
submit to DNA testing. Although the trial court did not orally notify Patterson
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OHIO FIRST DISTRICT COURT OF APPEALS
regarding DNA testing, the trial court included DNA-testing notification in
Patterson’s sentencing entry. Moreover, this court has held that R.C. 2901.07(B)
does not confer any substantive rights on a defendant, and therefore the court’s
failure to notify Patterson at his sentencing hearing regarding DNA testing was
harmless and did not prejudice him. See State v. Wright, 2017-Ohio-1568, 90
N.E.3d 162, ¶ 60 (1st Dist.).
{¶62} We overrule Patterson’s eighth assignment of error.
Conclusion
{¶63} Having overruled Patterson’s eight assignments of error, we affirm the
judgment of the trial court.
Judgment affirmed.
ZAYAS, P.J., and MYERS, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
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