State v. Smith , 2019 Ohio 5264 ( 2019 )

[Cite as State v. Smith, 2019-Ohio-5264.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-180151
TRIAL NOS. B-1507289
Plaintiff-Appellee, : B-1601998
vs. : O P I N I O N.
KENT SMITH, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed in Part, Reversed in Part, and Cause
Remanded
Date of Judgment Entry on Appeal: December 20, 2019
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Kent Smith, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendant-appellant Kent Smith committed a string of burglaries,
robberies, and felonious assaults in December 2015. Many of the crimes were violent
and caused serious harm to the victims, including a 14-year-old boy who was shot in
the chest by Smith, and a victim who suffered physical injuries and emotional
distress after being assaulted and robbed by Smith twice in a ten-day period. Smith
was charged with 19 counts in two indictments. After some of the counts were
merged, Smith was convicted of 15 counts and six accompanying firearm
specifications. The trial court then imposed the maximum sentence on each count
and firearm specification, and ordered all counts and specifications to run
consecutively to each other, for a total sentence of 101 years in prison.
{¶2} Smith has appealed, arguing in seven assignments of error that (1)
several of his convictions were based on insufficient evidence; (2) he was denied due
process of law when the trial court failed to give an accomplice jury instruction
concerning the testimony of codefendant Michele Brown; (3) he was denied a fair
trial and due process when the state solicited false testimony; (4) he was deprived of
the effective assistance of counsel; (5) his right to be free from double jeopardy was
violated when the trial court instructed the jury to convict him of burglary in counts
seven and eight in the case numbered B-1507289; (6) the trial court deprived Smith
of his right to counsel by imposing sentences outside of his presence and the
presence of his counsel; and (7) the trial court erred by imposing consecutive
sentences without making the required findings under R.C. 2929.14(C)(4) to support
consecutive sentences.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶3} There was insufficient evidence to support Smith’s convictions in
count two of the case numbered B-1507289A (“B-15”) and count nine of the case
numbered B-1601998 (“B-16”), and so we sustain Smith’s first assignment of error in
part, and overrule it in part. We sustain Smith’s sixth and seventh assignments of
error and remand the cause to the trial court for a new sentencing hearing. We
overrule the remainder of Smith’s assignments of error and affirm the judgment of
the trial court in all other respects.
The Duck Creek Apartment Crimes
{¶4} Smith committed a number of crimes at the same apartment complex
on Duck Creek Road. Bitwoded Gebregiorigis lived at the Duck Creek apartments.
He was assaulted and robbed twice by Smith. The first assault and robbery occurred
on December 8. Gebregiorigis testified that as he approached the front door to his
apartment, a man jumped out of the bushes, hit him in the head with a gun, and then
stole his ID, credit cards, and $500 before fleeing in a car. At trial, Gebregiorigis
testified that a picture of Michele Brown’s (Smith’s girlfriend and codefendant) car
looked like the car in which the robber had fled.
{¶5} The second assault and robbery occurred on December 18.
Gebregiorigis was approaching his apartment door when he noticed the lock broken
and a light on in his apartment. He started to run away, but a man came out of his
apartment, knocked him down, and pulled him into the apartment. He put a gun to
Gebregiorigis’s head and took $200 and a cell phone. The man’s face was uncovered.
Gebregiorigis selected Smith’s photo from a photo array. He told police that he was
60 percent certain that Smith was the man who robbed him, although his confidence
in his identification dipped to 40 percent when he testified at trial. State’s exhibit
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OHIO FIRST DISTRICT COURT OF APPEALS
eight depicted a white Samsung phone recovered from Smith’s house after police
executed a search warrant. Gebregiorigis identified the white phone in state’s exhibit
eight as the phone taken from him during the robbery. Also, Detective Joseph
Coombs testified that the white Samsung in exhibit eight had Gebregiorigis’s SIM
card in it.
{¶6} Christopher Fitch also lived at the Duck Creek apartments. He
testified that his apartment was burglarized, and that a television, Xbox, chess board
with a wooden case, and video games were stolen. Finch identified state’s exhibits
26-29 as photographs depicting video games that were stolen from him. The same
video games were recovered from Smith’s house when police executed a search
warrant.
{¶7} Samantha Herchik was another resident of the Duck Creek
apartments. She had asked her friend, Penelope Houk, to look after her cat while she
was out of town. Houk testified that when she went to Herchik’s apartment to check
on the cat, she found the apartment had been burglarized. She discovered that
Herchik’s guitar and some cat supplies were missing.
{¶8} The state alleged that Smith committed his crimes with the assistance
of his girlfriend Michele Brown, who was a key witness against Smith at trial. Brown
testified that she drove Smith to the apartment complex on Duck Creek Road several
times during December 2015 for the purpose of committing robberies and burglaries.
She could not remember dates for most of the offenses, but remembered many of the
items that were stolen.
{¶9} Brown testified that Smith robbed a man whom Brown described as
“Indian,” with a “long, weird name.” Gebregiorigis testified that he is from Ethiopia.
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OHIO FIRST DISTRICT COURT OF APPEALS
Brown testified that after she drove Smith to the Duck Creek apartments, Smith went
into the apartment after the “Indian guy” and was gone for a couple of minutes.
When Smith came back to the car, he told Brown that he had attacked the man as he
was walking into his apartment, and took his wallet and cell phone. Brown identified
the white Samsung phone in state’s exhibit eight as the phone stolen from the
“Indian guy.”
{¶10} Brown testified that after one of the robberies at the Duck Creek
apartments, Smith returned to the car with a television, crock pot, Xbox, and chess
board with a wooden case. On another occasion, Smith came back out with “some
cat items,” a television, and a guitar. As they were leaving the apartments, Brown
saw a lady on her balcony taking a photograph of them. Brown identified state’s
exhibit 41 as a photograph of her and Smith as they were carrying stolen items to her
car.
{¶11} Brown testified that after Smith was arrested and police searched his
house, Smith asked Brown to go to his house and clean out his room to get rid of
items from the burglaries that the police had not found during the search. Brown
testified that she got rid of “the Indian guy’s wallet, the one with the weird name,”
along with a chess board and other stolen items.
Victims Sam Abernathy, Andrew Smith, and Samuel Simpson
{¶12} Samuel Simpson testified that he returned to his home on Marshall
Avenue on December 19 after a friend told him his apartment had been broken into.
Simpson identified the camera, portable hard drive, computer, and the watches in
state’s exhibits 53, 57, 58, and 135 as items stolen from his home. Detective Coombs
testified that all of those items were recovered during the search of Smith’s house.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶13} Brown testified that on December 19, she drove Smith to a house on
Marshall Avenue. Smith went behind the house and returned ten minutes later with
stolen items which included a camera and a computer, which she identified in state’s
exhibits 53 and 58.
{¶14} Sam Abernathy and Andrew Smith lived together on East Eastwood
Circle. Andrew testified in his deposition1 that when he returned home he discovered
a large hole in the glass door in the back of the house and glass all over the ground.
He testified that two laptops, a hard drive, an AR-15 rifle, and two guitars, among
other items, had been stolen from the home. He later found one of the laptops at a
pawn shop. He testified that when he turned the laptop on he saw a Google account
of Smith’s on it. The account included a photo, and during his deposition Andrew
identified Smith as the man in the photo on the Google account. Andrew also
identified state’s exhibits 46 and 48 as the stolen AR-15 and its case. Detective
Coombs testified that the AR-15 and case in exhibits 46 and 48 were recovered
during the search of Smith’s house.
{¶15} Brown testified that she drove Smith to a house on East Eastwood
Circle. Smith told Brown that he broke into the house by throwing a spark plug
through a glass door in the back of the house. He returned with a long, black case,
which Brown identified at trial as state’s exhibit 48. After the burglary, Brown
became aware that there was a rifle in the case.
Victims Tony Graves and His Son
{¶16} Tony Graves testified that when he returned home on December 19,
his back door had been kicked in. His sons were in the house at the time, but did not
1 Due to living and working out of state, Andrew was permitted to give a deposition pretrial in lieu
of testifying at trial.
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OHIO FIRST DISTRICT COURT OF APPEALS
hear anything because they were upstairs wearing headphones. Graves testified that
he walked across the street to his aunt’s house to see if his aunt or uncle had seen
anything. After talking with his aunt and uncle, he started to walk back across the
street to his house with his Uncle Luther Gilbert when he ran in to Smith on the
street. Smith asked Graves and Gilbert if they had seen anybody run down the street,
because, as he claimed, someone had kicked in his mother’s door. Then, Smith ran
away. Graves drove around the block, but did not see anyone, and so he went back
into his house. He was on his phone preparing to call the police when his son came
downstairs. His son saw the doorknob twisting on the back door, and reached for it.
Graves heard a gunshot and his son scream. He turned around to catch his son as he
was falling to the floor with a gunshot wound to his chest.
{¶17} Gilbert testified at trial that shortly before the shooting he was walking
his dog and saw a man and a woman arguing in a gray SUV parked in the church
parking lot behind Graves’s house. When shown a picture of Brown’s vehicle, Gilbert
identified it as the one he saw in the church parking lot, noting the leopard print
steering wheel cover. Gilbert identified Smith as the man who was arguing with the
woman in the church parking lot, and as the man who approached him and Graves
on the street.
{¶18} Brown testified that she and Smith drove to Graves’s house with the
intent to steal money from Graves. They parked in a church parking lot directly
behind Grave’s house. Brown testified that Smith always carried a gun. Smith went
to Graves’s house with his gun, kicked in the door, but then returned to the car
because dogs started barking. While they were sitting in the car, they started arguing
because Brown wanted to leave, but Smith wanted to go back to Graves’s house to
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OHIO FIRST DISTRICT COURT OF APPEALS
attempt the robbery again. Smith returned to Graves’s house, and this time Brown
heard a gunshot while he was gone. She drove off, and texted Smith to meet her at a
nearby store. Smith met her at the store and got into the car, telling Brown, “I think
I popped that n-----,” and that he shot through the door of the house. Brown also
testified that she remembered a guy walking his dog through the church parking lot
while she and Smith were parked there.
{¶19} Brown was questioned by police, and initially stated she had nothing
to do with the crimes. She eventually confessed to being involved when the police
told her that they had evidence against her. Once Brown was forthcoming with
police, she drove around with them and showed them where the crimes occurred.
{¶20} Brown called Smith on a recorded line with detectives listening in. She
told Smith that she had talked to police and that they had collected shell casings from
the gun used to shoot Graves’s son. Smith told her that the shell casings don’t come
out of the gun he used, and that he had already gotten rid of the gun anyway. Brown
also told Smith that police had told her that there were video cameras in the church
parking lot, and that she was concerned that the cameras had recorded them. Smith
told her that he did not think there were any cameras in the church parking lot, and
not to worry.
{¶21} Brown testified regarding text messages sent between her and Smith.
When Smith found out that the police had asked Brown to speak with them, he
texted her and urged her not to talk. Smith told Brown that the police did not know
anything, and that he would give her money for her bills if she did not talk to the
police. They also texted about future robberies. In Facebook messages, Smith
discussed various items stolen in the burglaries and how to sell them. After Smith
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OHIO FIRST DISTRICT COURT OF APPEALS
was arrested, Brown and Smith talked over a recorded jail phone line, when Smith
mentioned something about “when I shot that dude,” but did not name who was shot
or when it happened.
{¶22} Brown was arrested for her part in the burglaries, and was detained in
the county jail at the time of trial. She testified that while detained, Smith and
Smith’s father contacted her and told her not to testify. At trial, Brown read several
letters from Smith in which he urged her not to testify and told her that the police
cannot prove anything. She also read two notes Smith snuck to her in jail in which
he again urged her not to testify, and told her that the police do not have enough
evidence against them.
First Assignment of Error
{¶23} Smith argues that six of his convictions were based on insufficient
evidence. The test for determining whether the evidence was sufficient to sustain a
conviction is if “after viewing the probative evidence and inferences reasonably
drawn therefrom in the light most favorable to the prosecution, any rational trier of
fact could have found all the essential elements of the offense beyond a reasonable
doubt.” State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). It
is a question of law for the court to determine, the court is not to weigh the evidence.
Id.
1. Count One in B-15—Aggravated Burglary (R.C. 2911.11(A)(2))
{¶24} We do not address Smith’s sufficiency challenge to count one of B-15
because Smith does not actually stand convicted of count one due to the fact that
count one was merged with count two by the trial court, and Smith was sentenced on
count two. See State v. Cooper, 1st Dist. Hamilton No. C-180401, 2019-Ohio-2813, ¶
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15 (where the court merged count three with count two, the defendant was not
convicted of count three and so the appellate court did not consider the defendant’s
sufficiency challenge as to count three).
2. Count Two in B-15—Aggravated Burglary (R.C. 2911.11(A)(1))
{¶25} As charged in the indictment, to convict Smith of aggravated burglary,
the state was required to prove that by force, stealth, or deception, he trespassed in
an occupied structure when another person other than an accomplice was present,
with purpose to commit any criminal offense in the structure, and he inflicted, or
attempted or threatened to inflict, physical harm on another. See R.C. 2911.11(A)(1).
{¶26} Count two was based upon Smith returning to Graves’s house a second
time to attempt to steal from Graves. The state argues that Smith committed a
trespass when he twisted the doorknob, but it fails to cite any case law in support. In
fact, our case law indicates that twisting the doorknob is not sufficient to establish a
trespass under R.C. 2911.11. See In re M.B., 1st Dist. Hamilton Nos. C-140405 and
C-140406, 2015-Ohio-1912, ¶ 9 (the defendant’s conviction for breaking and entering
was based upon insufficient evidence where the only evidence presented was that the
defendant damaged the door by attempting to pry it open; no evidence was presented
indicating that any part of the defendant’s body trespassed into the structure).
{¶27} There is no indication that any part of Smith’s body trespassed into the
house when he returned to the house a second time to attempt to rob Graves. Our
decision in In re M.B. indicates that merely attempting to gain entry, without
actually entering or crossing the threshold, does not satisfy the trespass element of
R.C. 2911.11(A). Therefore, we find that the trespass element was not proved as to
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OHIO FIRST DISTRICT COURT OF APPEALS
count two of B-15. Smith’s conviction on count two of B-15 is based upon insufficient
evidence.
3. Count Three in B-15—Aggravated Robbery (R.C. 2911.01(A)(1))
{¶28} As charged in the indictment, to convict Smith of aggravated robbery,
the state was required to show that Smith attempted to commit a theft offense, and
displayed, brandished, indicated that he possessed, or used a deadly weapon. See
R.C. 2911.01(A)(1).
{¶29} Smith argues that the state failed to prove that he committed or
attempted to commit a theft from Graves. It is undisputed that Smith did not
actually commit a theft from Graves. So the state was required to show that he
attempted to commit a theft.
{¶30} To show an attempt, the state must prove that the offender purposely
did or omitted to do something that constituted a substantial step in a “course of
conduct planned to culminate in the commission of the crime.” State v. Group, 98
Ohio St. 3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 95. To count as a substantial
step, the conduct need not be the last proximate act prior to commission of the
offense, but “must be strongly corroborative of the actor’s criminal purpose.” State
v. Elahee, 1st Dist. Hamilton No. C-160640, 2017-Ohio-7085, ¶ 16.
{¶31} Smith took a substantial step in his attempt to commit theft when he
returned to the house after his initial botched robbery attempt with the intent to try
again. He then went even further when he attempted to open the door, and shot
Graves’s son. The testimony from Brown, Graves, and Gilbert, and the recorded
phone calls between Brown and Smith, were sufficient evidence for the jury to find
Smith guilty of aggravated robbery in count three of B-15.
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OHIO FIRST DISTRICT COURT OF APPEALS
4. Count Six in B-16—Weapon Under Disability (R.C. 2923.13(A)(3))
{¶32} Smith argues that an error in the indictment means that the state
failed to prove count six in B-16. Count six reads “[Smith] knowingly acquired, had
carried, or used a firearm or dangerous ordnance, to wit: a firearm, and at the time
the defendant was under indictment for a felony offense * * *.” (Emphasis added.)
{¶33} Smith was not under indictment for a felony, rather the offense which
put him under disability was a 2007 conviction for possession of drugs. Since Smith
did not object to the defective indictment at trial, he has forfeited all but plain-error
review. State v. Biros, 78 Ohio St. 3d 426, 436, 678 N.E.2d 891 (1997). “Plain error
does not exist unless it can be said that but for the error, the outcome of the trial
would clearly have been otherwise.” Id.
{¶34} Smith stipulated at trial to having been under a disability due to the
2007 conviction. He has not shown that the outcome of his trial would have clearly
been otherwise had the indictment read that he had been convicted of the 2007
offense instead of being under indictment. Accordingly, there was sufficient
evidence to sustain a conviction for count six in B-16.
5. Count Nine in B-16—Burglary (R.C. 2911.12(A)(2))
{¶35} Count nine concerned the burglary of Christopher Fitch’s apartment.
As charged in the indictment, the state was required to prove that Smith, by force,
stealth, or deception, trespassed into Fitch’s apartment when any person other than
an accomplice was present or likely to be present, with the purpose to commit any
criminal offense inside. See R.C. 2911.12(A)(2). Smith argues that the state failed to
prove that someone was present or likely to be present in Fitch’s apartment at the
time of the burglary. Simply showing that a permanent or temporary habitation has
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OHIO FIRST DISTRICT COURT OF APPEALS
been burglarized does not give rise to the presumption that a person was present or
likely to be present. State v. Wilson, 58 Ohio St. 2d 52, 59, 388 N.E.2d 745 (1979).
{¶36} In a determination of whether a person was present or likely to be
present under R.C. 2911.12(A)(2), the question is not whether the offender
subjectively believed that someone was likely to be there, but whether it was
objectively likely. State v. Brown, 1st Dist. Hamilton No. C-980907, 2000 WL
492054, *2 (Apr. 28, 2000).
The significant inquiry is the probability or improbability of actual
occupancy which in fact exists at the time of the offense, determined by
all the facts surrounding the occupancy. Merely showing that people
dwelled in the residence is insufficient. Instead, the state must adduce
specific evidence that the people were present or likely to be present.
Id., quoting State v. Cravens, 1st Dist. Hamilton No. C-980526, 1999 WL 567098, *1
(June 25, 1999).
{¶37} When a resident is on vacation when the burglary occurs, courts have
looked at the schedule and intention of the resident, specifically circumstances
demonstrating whether it was likely that the resident could abruptly return, or
another person could have been present. State v. Cantin, 132 Ohio App. 3d 808, 813-
814, 726 N.E.2d 565 (8th Dist.1999). In Cantin, the Eighth District found that there
was not an objective likelihood that someone would be present in the home at the
time it was burglarized. Id. at 814. The homeowner had abruptly left town four days
before the burglary, had not asked anyone to look after the house while he was gone,
and had not given anyone keys to the house. Id. at 810.
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{¶38} On the other hand, where neighbors are given keys to the house and
enter periodically to check its condition, there is sufficient evidence that someone is
likely to be present. State v. Gulley, 1st Dist. Hamilton No. C-850179, 1986 WL 958,
*3 (Jan. 22, 1986); State v. Weber, 10th Dist. Franklin No. 97APA03-322, 1997 WL
798299, *3 (Dec. 23, 1997).
{¶39} Fitch testified that he left for vacation around December 22, and did
not return until January 2 or 3, when he discovered the burglary. The exact date of
the burglary is unknown. No evidence was presented that anyone but Fitch lived in
the apartment, that Fitch had left his key with anyone, or that anyone was allowed to
be in the apartment while he was gone.
{¶40} The state presented no evidence that someone was likely to be present
in Fitch’s apartment, and so Smith’s conviction for burglary in count nine in B-16
was based upon insufficient evidence.
6. Count Ten in B-16—Burglary (R.C. 2911.12(A)(2))
{¶41} Smith makes the same argument about count ten that he did about
count nine—that the state presented insufficient evidence that someone was likely to
be present at the time the home was burglarized. The victim in count ten, Samantha
Herchik, was visiting family for Christmas vacation on the day of the burglary.
Herchik had asked her friend, Penelope Houk, to take care of her cat while she was
gone. Houk testified that she would go to Herchik’s apartment to feed the cat, and
that she could stop over “whenever.”
{¶42} Pursuant to Gulley, Weber, and Cantin, evidence that Houk had
permission to enter the home, and was in fact asked to do so on a regular basis to
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OHIO FIRST DISTRICT COURT OF APPEALS
look after the cat, is sufficient to sustain the jury’s finding that someone was likely to
be present. Smith’s conviction of count ten of B-16 is based upon sufficient evidence.
Second Assignment of Error
{¶43} Smith argues in his second assignment of error that he was denied due
process under the Fourteenth Amendment to the United States Constitution when
the trial court failed to give an accomplice jury instruction under R.C. 2923.03(D)
concerning the testimony of codefendant Michele Brown.
{¶44} Smith did not object to the jury instructions at trial, and did not
request an accomplice instruction. Therefore, he has forfeited all but plain-error
review. State v. Hilliard, 1st Dist. Hamilton No. C-160263, 2017-Ohio-2952, ¶ 10.
Smith must show that an error occurred that affected the outcome of the trial. See
id. “Notice of plain error is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Bandy,
1st Dist. Hamilton No. C-160402, 2017-Ohio-5593, ¶ 70.
{¶45} Trial courts are required to give a special jury instruction where the
defendant is charged with complicity and an accomplice testifies against the
defendant. State v. Hinkston, 1st Dist. Hamilton No. C-000024, 2000 WL 1434153,
*2 (Sept. 29, 2000). Moreover, the Legislative Service Commission notes to R.C.
2923.03 make clear that the accused need not be specifically charged with complicity
in order for the instruction to apply (“[i]n charging complicity, the accused may be
charged specifically as an accomplice under this section, or he may be charged
simply as a joint offender in the offense committed.”). State v. Leonard, 6th Dist.
Lucas No. L-01-1420, 2003-Ohio-3100, ¶ 25.
{¶46} Specifically, the trial court must instruct the jury that:
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OHIO FIRST DISTRICT COURT OF APPEALS
The testimony of an accomplice does not become inadmissible because of
his complicity, moral turpitude, or self-interest, but the admitted or
claimed complicity of a witness may affect his credibility and make his
testimony subject to grave suspicion, and require that it be weighed with
great caution.
It is for you, as jurors, in the light of all the facts presented to you from
the witness stand, to evaluate such testimony and to determine its quality
and worth or its lack of quality and worth.
R.C. 2923.03(D). The state agrees that an instruction was warranted. However,
failure to provide the instruction is not necessarily plain error.
While R.C. 2923.03(D) does include mandatory language, a legislative
mandate does not necessarily prevent a defendant from waiving the
failure to give the instruction at all under appropriate circumstances.
Unlike instructions that the state has to prove all elements of the offense
charged or that a criminal defendant’s guilt must be proved beyond a
reasonable doubt, instructions that are essential to guarantee due process
and for which no other “general instructions” can be substituted, an
instruction under R.C. 2923.03(D) depends on the facts of the case and
whether the general instructions are sufficient to overcome the failure to
give the specific instruction. While it is error not to give the instruction
when the facts warrant, failure to provide the specific instruction does not
necessarily “create a manifest miscarriage of justice.”
Hinkston at *2. This court in Hinkston held that it was not plain error where the
trial court failed to provide the instruction because another witness, the victim,
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OHIO FIRST DISTRICT COURT OF APPEALS
corroborated the testimony of the accomplice by identifying Hinkston as the one who
put a gun to his head. Id. at *3. The trial court also provided a lengthy instruction
on the credibility of witnesses, including an admonition that the jury consider a
witness’s interest and bias. Id.
{¶47} This court held that where the trial court instructs the jury on
assessing the credibility of witnesses and where significant evidence other than the
accomplice’s testimony supports the defendant’s conviction, the failure to request or
give a jury instruction on accomplice testimony is not plain error. State v. Wilson,
1st Dist. Hamilton No. C-970397, 1998 WL 430462, *2 (July 31, 1998). In Wilson,
the victim identified the defendant and his car, thereby corroborating the
accomplice’s testimony, and the court instructed the jury on assessing the credibility
of witnesses. Id. at *1.
{¶48} In the present case, the trial court gave a general instruction to the jury
concerning the credibility of witnesses. Brown’s testimony as a whole was supported
by the recordings of phone calls, text messages, Facebook messages, and letters from
Smith. Also, her testimony was corroborated by other witnesses and evidence.
{¶49} Gebregiorigis identified Smith as his assailant and his cell phone was
recovered from Smith’s house when the police executed their search warrant. The
items which Herchik and Houk testified were stolen from Herchik match several of
the items Brown remembers Smith stealing during one of the burglaries at the Duck
Creek apartments.
{¶50} Several items that were stolen from Simpson were recovered during
the search of Smith’s house, and were identified by Simpson. The same is true for
Abernathy and Andrew. Also, Andrew testified that when he found one of his stolen
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laptops at a pawn shop and turned it on, Smith’s Google account was signed in.
During his deposition, Andrew identified Smith from the profile picture on the
Google account.
{¶51} Graves and Gilbert identified Smith as being present near Graves’s
home at the time of the burglary and the shooting. Gilbert also identified Smith as
the man he saw in a car in the church parking lot arguing with a female around the
time of the burglary and shooting. Brown’s testimony regarding the crimes against
Graves and his son was further supported by the recorded phone call with detectives
during which Smith made incriminating statements.
{¶52} Defense counsel cross-examined Brown regarding her role in the
burglaries and her bias. Brown admitted on cross-examination that she had lied to
police initially, and only started to tell the truth when she thought she was going to
get into trouble. She also admitted that she kept some of the stolen items for herself,
and that she wrote letters to Smith in jail in which she said that she would stay in a
relationship with him if he got out.
{¶53} Brown’s testimony was corroborated by other evidence, the trial court
instructed the jury generally on the credibility of witnesses, and Brown’s potential
bias was pointed out to the jury during cross-examination. Therefore, although it
was error for the trial court to fail to give the accomplice instruction under R.C.
2923.03(D), we cannot say that the outcome of the trial would have clearly been
otherwise if the instruction had been given. Smith’s second assignment of error is
overruled.
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Third Assignment of Error
{¶54} In his third assignment of error, Smith argues that he was denied due
process and a fair trial when the state solicited and failed to correct false testimony.
It is well-established that a conviction obtained through the use of false evidence
violates the Due Process Clause of the Fourteenth Amendment to the United States
Constitution. Napue v. People of State of Illinois, 360 U.S. 264, 269, 79 S. Ct. 1173, 3
L. Ed. 2d 1217 (1959).
The principal prosecution witness at Napue’s murder trial was an
accomplice then serving a sentence for the crime. He testified, in
response to an inquiry by the prosecutor, that he had received
no promise of consideration in return for his testimony. In fact, the
prosecutor had promised him consideration, but he did nothing to correct
the witness’ false testimony. This Court held that the failure of the
prosecutor to correct the testimony, which he knew to be false, denied
Napue due process of law, and that this was so even though
the false testimony went only to the credibility of the witness.
Moore v. Illinois, 408 U.S. 786, 797, 92 S. Ct. 2562, 33 L. Ed. 2d 706 (1972).
{¶55} “The knowing use of false or perjured testimony constitutes a denial of
due process if there is any reasonable likelihood that the false testimony could have
affected the judgment of the jury.” State v. Iacona, 93 Ohio St. 3d 83, 97, 752 N.E.2d
937 (2001), quoting United States v. Lochmondy, 890 F.2d 817, 822 (6th Cir.1989).
The defendant bears the burden of showing that (1) the statement was actually false,
(2) the statement was material, and (3) the prosecution knew it was false. Iacona at
97.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶56} Smith argues that the state solicited false testimony from Detective
Coombs, and then emphasized Coombs’s false testimony in its closing argument.
{¶57} At trial, Coombs admitted on cross-examination that he did not file
charges against Brown in B-16 because she was cooperating. Later, the following
exchange occurred between the prosecutor and Coombs:
PROSECUTOR PECK: All right. And on cross we talked about
cooperation of Michele Smith – or Michele Brown or Michele Rogers.
You haven’t made any promises regarding prosecution of her case?
DETECTIVE COOMBS: No, absolutely not. It’s not up to me to promise
her anything, it’s up to the judge what she shall receive.
PROSECUTOR PECK: And she’s been locked up the whole time, correct?
DETECTIVE COOMBS: She’s been locked up since January 4th of 2016
to currently.
PROSECUTOR PECK: And, to your knowledge, during the pendency of
the case, [have] any promises been made with regard to the outcome of
her case?
DETECTIVE COOMBS: No.
It is these statements of Coombs that Smith claims are false. In order to demonstrate
that Coombs’s testimony was false, Smith points to two pretrial hearings during
which Brown’s cooperation was discussed.
{¶58} At a hearing on May 30, 2017, during which the trial court was
considering Brown’s request for a reduction in bond, the following exchange
occurred:
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OHIO FIRST DISTRICT COURT OF APPEALS
THE COURT: You know, how much time are we talking about? We’re
working a deal out.
MR. PECK: For her?
THE COURT: How much time is she - -
MR. PECK: Oh yeah, yeah.
MR. GOLDBERG: We can talk about it because she [doesn’t] want to get
a promise, she has to be a viable witness.
THE COURT: That’s a good idea.
In denying Brown’s request for a reduction in bond at the May 30 hearing, the court
told Brown,
I know you are cooperating, which is good. What you did—although
you’re going to be given consideration, what you did, that’s pretty serious
because a 14-year-old boy ended up getting shot.
***
Depending on your level of cooperation, which has been good so far, if
you cooperate during the trial, I know they are going to give you a deal,
you know.
{¶59} During a pretrial hearing on September 18, 2017, Smith requested a
continuance. The court asked the attorneys for both Smith and Brown if they would
“waive time” for purposes of the continuance. The following exchange occurred
between the court and Brown’s attorney:
THE COURT: And you will all waive time, then? And your defendant,
she’s just waiting?
Mr. GOLDBERG: We are okay with it, right.
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OHIO FIRST DISTRICT COURT OF APPEALS
THE COURT: At the trial she’s going to be a witness, and as soon as she
testifies she was going to get - -
MR. GOLDBERG: Case consideration. We’re okay with that.
{¶60} Smith contends that Coombs’s answer of “no” to the prosecutor’s
question of whether any promises had been made about the prosecution or outcome
of Brown’s case was false. However, Smith has presented no evidence that Brown
had entered into a plea agreement or was promised a specific sentence in exchange
for her testimony. While one could certainly speculate from the discussions at the
pretrial hearings that some sort of oral agreement contingent on her trial testimony
had already been reached, we cannot hinge our decision on speculation. At most,
Smith has shown that Brown’s cooperation would be taken into consideration in the
negotiation of any future plea agreement and that, in exchange for her cooperation
against Smith, Coombs did not file charges against Brown in the B-16 case.
Receiving consideration in exchange for testimony is different than being promised a
certain outcome. On this record, the evidence is insufficient to conclude that
Coombs’s testimony was false, even when viewed in light of the statements made
during the pretrial hearings.
{¶61} Therefore, there was no prosecutorial misconduct for soliciting the
statements from Coombs, or discussing Coombs’s statements during closing
argument. Smith’s rights to due process and a fair trial were not infringed. His third
assignment of error is overruled.
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OHIO FIRST DISTRICT COURT OF APPEALS
Fourth Assignment of Error
{¶62} In his fourth assignment of error, Smith argues that he received
ineffective assistance of counsel in violation of the Sixth Amendment to the United
States Constitution.
{¶63} To establish an ineffective-assistance-of-counsel claim, an appellant
must show (1) that counsel's performance was deficient, and (2) that the deficient
performance prejudiced the defense, thereby depriving appellant of a fair trial.
Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984). Debatable trial tactics do not demonstrate deficient performance and “do not
constitute a deprivation of the effective assistance of counsel.” State v. Clayton, 62
Ohio St. 2d 45, 49, 402 N.E.2d 1189 (1980). “A defendant’s failure to satisfy one
prong of the Strickland test negates a court’s need to consider the other.” State v.
Madrigal, 87 Ohio St. 3d 378, 389, 721 N.E.2d 52 (2000).
{¶64} Smith argues that defense counsel was ineffective in six ways: (1) by
failing to adequately cross-examine Brown about the considerations she received in
exchange for her testimony; (2) by failing to object to false testimony and
prosecutorial misconduct; (3) by failing to request an accomplice instruction under
R.C. 2923.03; (4) for failing to move for the recusal of the judge; (5) for not moving
to dismiss various charges because the indictments did not provide adequate notice
of the charges against Smith so as to enable him to prepare his defense; and (6) for
not moving to have various offenses merged under the Double Jeopardy Clause and
R.C. 2941.25(A).
1. Failure to cross-examine Brown about the considerations she received in
exchange for her testimony.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶65} “The scope of cross-examination clearly falls within the ambit of trial
strategy, and debatable trial tactics do not establish ineffective assistance of counsel.”
State v. Hoffner, 102 Ohio St. 3d 358, 2004-Ohio-3430, 811 N.E.2d 48, ¶ 45.
{¶66} Smith’s counsel may have chosen not to cross-examine Brown on the
prospect of consideration in exchange for her testimony because, as discussed above,
no promises were made to Brown. Also, counsel discredited Brown in other ways by
emphasizing her role in the burglaries, her changing stories, and that she only
implicated Smith when she thought she would get in trouble. Moreover, counsel
cross-examined Detective Coombs about his decision not to charge Brown for the
offenses in B-16. Thus, the jury did hear evidence about consideration received by
Brown. Accordingly, we find that counsel’s decision not to cross-examine Brown
about whether she received case consideration was not deficient performance.
2. Failure to object to false testimony and prosecutorial misconduct.
{¶67} As discussed above, Coomb’s testimony that no promises were made to
Brown in exchange for her testimony was not false. It was not deficient performance
for defense counsel not to object to Coombs’s testimony or the prosecutor’s
discussion of Coombs’s testimony during closing argument.
3. Failure to request an accomplice instruction under R.C. 2923.03.
{¶68} As discussed above, when the trial court instructs the jury on assessing
the credibility of witnesses and when significant evidence other than the accomplice’s
testimony supports the defendant's conviction, the failure to request or give a jury
instruction on accomplice testimony is not plain error. Wilson, 1st Dist. Hamilton
No. C-970397, 1998 WL 430462, at *2. Although an ineffective-assistance-of-
24
OHIO FIRST DISTRICT COURT OF APPEALS
counsel claim comes with a more lenient standard of prejudice than plain-error
analysis, we find that Smith has failed to meet that standard.
{¶69} Demonstrating prejudice on a claim of ineffective assistance of counsel
requires appellant to demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” State
v. Bradley, 42 Ohio St. 3d 136, 146, 538 N.E.2d 373 (1989). “A reasonable probability
is a probability sufficient to undermine confidence in the outcome.” Id., quoting
Strickland, 466 U.S. at 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674.
{¶70} In Leonard, 6th Dist. No. L-01-1420, 2003-Ohio-3100, at ¶ 30, the
court held that defense counsel’s failure to request an accomplice instruction under
R.C. 2923.03(D) was ineffective assistance of counsel. But, the codefendant’s
testimony was uncorroborated and was the only evidence presented that connected
the defendant to the crimes. Id. at ¶ 3-7. In State v. Crawford, 10th Dist. Franklin
No. 01AP-1428, 2003-Ohio-1447, ¶ 35, the court held that defense counsel’s failure
to request an accomplice instruction was ineffective assistance of counsel where the
only evidence connecting Crawford to the crime outside of the accomplice’s
testimony was the victim’s testimony, which differed from the accomplice’s
testimony regarding Crawford’s level of culpability.
{¶71} In the present case, the court instructed the jury on the credibility of
witnesses generally, defense counsel cross-examined Brown regarding her bias, and
Brown’s testimony was corroborated by the testimony of other witnesses and the
recorded phone calls, messages, and letters between her and Smith. For these
reasons, we find that although counsel’s failure to request the R.C. 2923.03(D)
accomplice instruction may have been deficient performance, Smith has failed to
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OHIO FIRST DISTRICT COURT OF APPEALS
demonstrate a reasonable probability that requesting the instruction would have
changed the outcome of the trial.
4. Failure to move for the recusal of the trial judge.
{¶72} Smith claims that two statements made by the trial judge
demonstrated bias and prejudice. First, in the course of denying Brown’s request for
a reduction in bond during a May 2017 pretrial hearing, the judge said “the stuff she
did is pretty serious anyway. Somebody who knowingly set somebody up, somebody
is shot, that’s serious. I don’t like burglaries because it can result in stuff like that.
You know I hate burglaries, as everybody knows.”
{¶73} This statement was not even directed at Smith. Furthermore, it simply
demonstrated the judge’s personal feeling that burglary is a serious crime, and that
that was why he was denying Brown’s request for a reduction in bond.
{¶74} The second statement occurred during trial, when Smith had informed
his counsel that he intended to testify, and counsel had requested a continuance.
The following occurred at sidebar:
MS. UNDERWOOD: At this time, I probably need to advise the court
that he intends to testify, so I would ask for just a brief recess.
THE COURT: Why? We have to get this case done. We have waited so
much. I have been pretty easy, but we got to roll. We got to roll on this.
He kind of surprised you a little bit on this one, that’s his deal. We have
to get going on this case.
MS. UNDERWOOD: Judge, my only concern about that is, I know that
this is, you know, last minute, I didn’t expect him to testify. And there are
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OHIO FIRST DISTRICT COURT OF APPEALS
rules about when I can ask questions and when I can’t. I don’t know if I
can ask him any questions at all.
THE COURT: Oh, because he wants to lie about - -
MS. UNDERWOOD: I don’t know whether he will or not. And if he does,
I need to know what I’m allowed to do, what I’m supposed to do, what I’m
allowed to say.
THE COURT: Just real brief recess.
{¶75} Smith has failed to show how this statement shows bias or prejudice
on the part of the judge. It is clear from counsel’s statements that she was concerned
about Smith lying under oath. The judge did not demonstrate any bias by simply
confirming why counsel was requesting a recess. This becomes even clearer when
the court resumed proceedings and the judge again confirmed the reason for the
recess. “You need a few minutes to go over what can be presented and what can’t be
presented. Evidently he wants you to present some testimony you’re not sure of, and
you want to find out from co-counsel what to do on that, right?”
{¶76} The statements made by the judge do not present even an appearance
of bias or prejudice. It was not deficient performance for counsel to not move for the
recusal of the judge.
5. Failure to move to dismiss charges in the indictment.
{¶77} Smith argues that the indictments were insufficient as to several
counts because they did not charge the elements of the predicate offenses. He claims
that the indictment in B-15 failed to provide him with sufficient notice of the charges
against him for counts one and two for aggravated burglary, count three for
aggravated robbery, and counts seven and eight for burglary. For B-16, he claims
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OHIO FIRST DISTRICT COURT OF APPEALS
insufficient notice for count one for aggravated robbery, count four for aggravated
burglary, and counts five, nine, and ten for burglary.
{¶78} An indictment for aggravated burglary is sufficient where it tracks the
language of R.C. 2911.11. State v. Foust, 105 Ohio St. 3d 137, 2004-Ohio-7006, 823
N.E.2d 836, ¶ 31. The indictment need not allege the particular felony that the
defendant intended to commit. Id. Likewise, an indictment for aggravated robbery
that tracks the language of the statute is sufficient. See State v. Scott, 2d Dist.
Montgomery No. 22745, 2010-Ohio-1919, ¶ 47. The indictment need not name the
particular theft offense of which the defendant is suspected. Id.
{¶79} All counts in both indictments track the language of the relevant
statutory provisions and include the essential elements of those offenses. Therefore,
the indictments were sufficient to provide Smith with notice of the charges pending
against him. It was not deficient performance for Smith’s counsel to not file a
motion to dismiss the indictments.
6. Failure to move for the merger of various offenses.
{¶80} R.C. 2941.25 governs the merger of offenses.
(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 committed separately or with a separate animus
28
OHIO FIRST DISTRICT COURT OF APPEALS
as to each, the indictment or information may contain counts for all such
offenses, and the defendant may be convicted of all of them.
R.C. 2941.25.
{¶81} The Ohio Supreme Court, in State v. Ruff, 143 Ohio St. 3d 114, 2015-
Ohio-995, N.E.3d 892, clarified the test for when merger is required.
Under R.C. 2941.25(B), a defendant whose conduct supports multiple
offenses may be convicted of all the offenses if any one of the following is
true: (1) the conduct constitutes offenses of dissimilar import, (2) the
conduct shows that the offenses were committed separately, or (3) the
conduct shows that the offenses were committed with separate animus.
(Emphasis added.) Id. at paragraph three of the syllabus.
{¶82} First, Smith argues that the weapon-while-under-disability charges in
count five of B-15 and counts three and six in B-16 were allied offenses of similar
import because Smith used the same gun in all three offenses, a gun which Brown
testified Smith always carried.
{¶83} Count five of B-15 related to Smith’s possession of a gun during the
offenses at Graves’s house on December 19. Count three of B-16 related to Smith’s
possession of a gun during the robbery of Gebregiorigis on December 8. Count six in
B-16 related to Smith’s possession of a gun during the robbery of Gebregiorigis on
December 18. The weapon-while-under-disability offenses were all committed
separately. Merger would have been improper.
{¶84} Second, Smith argues that his counsel should have sought the merger
of counts two, three, and four in B-15. As discussed above, there was insufficient
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OHIO FIRST DISTRICT COURT OF APPEALS
evidence to support Smith’s conviction for count two, so we limit our review to
counts three and four.
{¶85} Counts three and four involve different victims. Count three charged
Smith with aggravated robbery relating to his return to Graves’s house to complete
the theft. Count four charged Smith with felonious assault for shooting Graves’s son
through the door of the house. As identified in the indictment, Graves was the victim
of the aggravated robbery in count three, and Graves’s son was the victim of the
felonious assault in count four. Thus, merger of those offenses would have been
improper. See Ruff, 143 Ohio St. 3d 114, 2015-Ohio-995, 34 N.E.3d 892, at ¶ 26
(“when a defendant’s conduct victimizes more than one person, the harm for each
person is separate and distinct, and therefore, the defendant can be convicted of
multiple counts”).
{¶86} Defense counsel’s failure to request merger of count five in B-15 and
counts three and six in B-16 was not deficient performance. The same applies to
counts two, three, and four in B-15.
{¶87} Finding no merit to any of Smith’s claims of ineffective assistance of
counsel, his fourth assignment of error is overruled.
Fifth Assignment of Error
{¶88} In his fifth assignment of error, Smith argues that the trial court
violated his right to be free from double jeopardy when it instructed the jury to
convict him of burglary in violation of R.C. 2911.12(A)(3) in counts seven and eight in
B-15.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶89} During trial, the prosecution moved to amend the indictment to
reduce the burglary charges in counts seven and eight from R.C. 2911.12(A)(1)
burglaries to (A)(3) burglaries. The following exchange occurred:
THE COURT: So on B1507289, on counts 7 and 8, it was an A1 burglary.
He reduced it to an A3 burglaries, Felony 3.
MR. PECK: Yeah.
MS. UNDERWOOD: Okay.
THE COURT: Because he couldn’t prove the issue of likely to be present.
MR. PECK: Yeah.
***
THE COURT: So they are now straight (A)(3) burglaries. And I’m going
to grant it because it actually benefits the defendant, it reduces them.
{¶90} Smith argues that the court’s statement that the prosecution could not
prove the elements of counts seven and eight as they were charged in the indictment
is the equivalent of an acquittal on those counts, and allowing the amended counts to
go to the jury subjected him to double jeopardy.
{¶91} The Double Jeopardy Clauses of both the Ohio and United States
Constitutions prohibit “(1) a second prosecution for the same offense after acquittal,
(2) a second prosecution for the same offense after conviction, and (3) multiple
punishments for the same offense.” State v. Gustafson, 76 Ohio St. 3d 425, 432, 668
N.E.2d 435 (1996).
{¶92} What constitutes an acquittal is determined by analyzing “whether the
ruling of the judge, whatever its label, actually represents a resolution, correct or not,
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OHIO FIRST DISTRICT COURT OF APPEALS
of some or all of the factual elements of the offense charged.” United States v.
Martin Linen Supply Co., 430 U.S. 564, 571, 97 S. Ct. 1349, 51 L. Ed. 2d 642 (1977).
{¶93} The court may, during trial, amend the indictment, “in respect to any
defect, imperfection, or omission in form or substance, or of any variance with the
evidence, provided no change is made in the name or identity of the crime charged.”
Crim.R. 7(D). Amending an indictment to decrease the degree of the offense does
not run afoul of Crim.R. 7(D). State v. Hooks, 3d Dist. Henry No. 7-15-10, 2016-
Ohio-5098, ¶ 20; State v. Simmons, 8th Dist. Cuyahoga No. 96208, 2011-Ohio-
6074, ¶ 49; State v. Washington, 9th Dist. Summit No. 24997, 2010-Ohio-3389, ¶
12; State v. Mobus, 12th Dist. Butler No. 2005-01-004, 2005-Ohio-6164, ¶ 11.
{¶94} In the present case, it is clear from the exchange that occurred on the
record that the court amended the charges in counts seven and eight to reduce them
from R.C. 2911.12(A)(1) burglaries to (A)(3) burglaries per the state’s request. The
court noted that the reason the state requested to amend the indictment was because
the state could not prove that someone was likely to be present in the house. The
trial court was permitted to amend the indictment during trial to decrease the degree
of the offense, and did not reach “a resolution of the factual elements of the offense.”
Accordingly, Smith’s fifth assignment of error is overruled.
Sixth Assignment of Error
{¶95} In his sixth assignment of error, Smith argues that the trial court
violated his due-process rights and his right to counsel when it sentenced him
outside his presence or the presence of his counsel in violation of Crim.R. 43(A) and
44(A).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶96} During the sentencing hearing, the court did not state the number of
years Smith would receive for counts four and nine in B-16, and the firearm
specification for count four. Rather, the court stated that it was going to impose
consecutive sentences and the maximum sentence overall.
{¶97} The sentencing entry included an 11-year sentence for count four, an
eight-year sentence for count nine, and a three-year sentence on the firearm
specification for count four. Because we find that count nine was based on
insufficient evidence, we limit our review to count four and its accompanying firearm
specification.
{¶98} An appellate court will not disturb a trial court’s felony sentencing
decision unless it determines by clear and convincing evidence that the record does
not support the trial court’s findings, or that the sentence is otherwise contrary to
law. R.C 2953.08(G)(2).
{¶99} Crim.R. 44(A) requires that for serious offenses defense counsel must
be present at all stages of a criminal proceeding from the defendant’s initial
appearance to his appeal as of right, including sentencing. In addition, Crim.R.
43(A) requires that the defendant be “physically present at every stage of the
criminal proceeding,” including sentencing.
{¶100} In State v. Railey, 2012-Ohio-4233, 977 N.E.2d 703, ¶ 22 (1st Dist.),
this court held that the trial court violated Crim.R. 43(A) where it imposed a 12-
month sentence at the hearing, but then modified the sentence to 18 months in the
sentencing entry. “A defendant has a due-process right, embodied in Crim.R. 43(A),
to be present when the court imposes sentence, and a trial court cannot abrogate a
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OHIO FIRST DISTRICT COURT OF APPEALS
defendant’s due-process rights by sentencing the defendant in his absence.” Id. at ¶
20.
{¶101} In State v. Gray, 8th Dist. Cuyahoga No. 83097, 2004-Ohio-1454, ¶
102, the trial court failed to state at the sentencing hearing the length of the prison
term imposed on one of the counts of which the defendant was found guilty, but
stated the length of the prison term imposed on that count in the sentencing entry.
Id. Nevertheless, the Eighth District held that the court’s failure to state at the
sentencing hearing the length of the term imposed was error, and remanded for a
new sentencing hearing. Id. In State v. Skatzes, 2d Dist. Montgomery No. 15848,
2003-Ohio-516, ¶ 366, the Second District held that the trial court’s failure to state at
the sentencing hearing the length of the sentence was error.
{¶102} By failing to state at the sentencing hearing the number of years Smith
would receive for count four and its accompanying firearm specification, the trial
court violated Smith’s due-process rights as embodied in Crim.R. 43(A) and 44(A).
Therefore, those sentences were contrary to law. Smith’s sixth assignment of error is
sustained.
Seventh Assignment of Error
{¶103} Smith argues in his seventh assignment of error that the trial court
imposed consecutive sentences without making the findings required by R.C.
2929.14(C)(4).
{¶104} Imposition of consecutive sentences is proper only when the trial court
makes the findings required by R.C. 2929.14(C)(4) at the sentencing hearing and
incorporates its findings into its sentencing entry. State v. Bonnell, 140 Ohio St. 3d
209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. No “talismanic incantation” is given to
34
OHIO FIRST DISTRICT COURT OF APPEALS
the words of R.C. 2929.14(C)(4). Id. As long as the appellate court can discern that
the trial court engaged in the correct analysis and the record contains evidence to
support the findings, consecutive sentences should be upheld. Id. at ¶ 29.
{¶105} R.C. 2929.14(C)(4) requires the trial court to make three findings
before imposing consecutive sentences.
Consecutive service is necessary to protect the public from future crime
or to punish the offender and consecutive sentences are not
disproportionate to the seriousness of the offender's conduct and to the
danger the offender poses to the public, and if the court also finds any of
the following:
(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.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶106} The court made all three of the findings in both of its sentencing
entries. At the sentencing hearing, the court made the first finding, stating “I’m also
going to impose not only the maximum sentence in this case, but consecutive
sentences, because it’s to protect the public and to punish the Defendant.” But failed
to make the second or third finding. The court said nothing about proportionality,
nor did it state anything which can be construed as a finding under subsections (a)-
(c).
{¶107} The findings need not word-for-word match the statutory text, but the
court’s statements in the present case do not even come close. See State v. Jackson,
1st Dist. Hamilton Nos. C-180245 and C-180246, 2019-Ohio-3299, ¶ 32-43.
{¶108} Where the trial court fails to make the required findings at the
sentencing hearing for consecutive sentences under R.C. 2929.14(C)(4), the proper
remedy is remand for a new sentencing hearing. Id. at ¶ 44. Smith’s seventh
assignment of error is sustained.
Conclusion
{¶109} Smith’s first assignment of error is sustained as to count two in case
B-15 and count nine in case B-16, and overruled as to all other counts. Smith’s sixth
and seventh assignments of error are sustained, and we reverse those portions of the
trial court’s judgments and remand the cause for the trial court to conduct a new
sentencing hearing consistent with the law and this opinion. The remainder of
Smith’s assignments of error are overruled, and the judgments of the trial court are
affirmed in all other respects.
Judgments affirmed in part, reversed in part, and cause remanded.
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OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, P.J., and BERGERON, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
37