State v. Williams , 2014 Ohio 1015 ( 2014 )

[Cite as State v. Williams, 2014-Ohio-1015.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 11 MA 185
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
DREON A. WILLIAMS )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 11 CR 760
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. John J. Dixon
Huntington Bank Bldg.
26 Market Street, Suite 610
Youngstown, Ohio 44503
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: March 11, 2014
[Cite as State v. Williams, 2014-Ohio-1015.]
WAITE, J.
{¶1} Appellant, Dreon Williams, appeals his conviction and sentencing for
murder, attempted murder, felonious assault, and tampering with evidence. The
charges stem from an incident in Campbell, Ohio where Appellant and his brother,
Dionte Robinson, allegedly shot two men and hid the weapons as they fled the
scene. Appellant now challenges the sufficiency and weight of the evidence against
him on each conviction and his consecutive maximum sentences; argues that the
prosecution was inappropriately allowed to try him for the shootings after his brother’s
acquittal using an inconsistent theory of prosecution; and alleges that the trial court
infringed on his Sixth Amendment right to confrontation by limiting his cross-
examination of an informant. Based on this record before us, Appellant’s six
assignments of error are without merit and are overruled. The judgment of the trial
court is affirmed.
Factual and Procedural History
{¶2} On August 6, 2010 at approximately 10:00 p.m., Anthony Harrison and
Eric VanCobb were walking to VanCobb’s house after spending time at the St. Lucy’s
festival. As the two neared the intersection of Tremble Ave. and Thirteenth St. in
Campbell, VanCobb was distracted by his phone. VanCobb looked up to see
Harrison, a little ahead of him, talking to two men. VanCobb saw the two men pull
out guns. He turned and ran down Thirteenth St. When VanCobb turned to look
behind him, he saw a man pointing a gun at him, heard a shot and felt pain in his leg.
VanCobb looked back toward the intersection and heard additional shots. He saw
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Harrison running away from the two men down Tremble Ave. The shooting
continued, but VanCobb could no longer see Harrison.
{¶3} The bullet that hit VanCobb shattered and the fragments remain in his
leg. Shots entered Harrison’s body in the left side of his back, near the spinal
column. The bullet traveled up through the body into the chest cavity and continued
along the back side of his heart, between the heart and lung, tearing open his heart
and perforating the upper portion of his left lung before exiting near the left shoulder.
It is unclear whether a fragment of this bullet was recovered at the scene. Harrison
died at the scene before the police arrived. According to the examining pathologist,
his injuries were consistent with being shot in the back while running away from the
shooter. The record reflects that seven spent shells consisting of both .38 and 9mm,
one complete bullet, and a bullet fragment were recovered from the scene.
{¶4} VanCobb, who survived, did not give a statement at the scene and
initially stated that his injury occurred when he was struck by a car. He was reluctant
to testify at trial, but ultimately testified that the two men he and Harrison encountered
at Tremble and Thirteenth were strangers to him. According to VanCobb, he could
not identify the man who shot him not only because he had not seen him before, but
because he was distracted by his phone immediately prior to the shooting.
{¶5} Ernest Rayford, a witness who knew not only Appellant and his brother,
but also Anthony Harrison, observed the men arguing near the corner of Tremble and
Thirteenth, but ran away when multiple shots were fired. He was able to identify
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Appellant as one of the two men shooting. Rayford also testified that he saw the
three men and VanCobb arguing at the St. Lucy festival prior to the shooting.
{¶6} Officer Joseph Pavlansky testified that at 10:23 p.m. he responded to a
report that a pedestrian had been hit by a car near the intersection of Tremble and
Thirteenth. When the officer arrived at the scene he found Harrison lying face down
on Tremble Ave., unresponsive. The officer was unable to detect a pulse. A small
group of people from the neighborhood were standing nearby and told him that they
thought the man had been shot. The officer radioed for an ambulance and for
Detective/Sergeant John Rusnak, who had been working security at the St. Rose
festival that day. After calling for assistance, the officer’s attention was drawn to a
car stopped on Thirteenth St., just south of Tremble. The officer approached the car
and saw a juvenile, clearly in pain, sitting with his legs hanging out of the car. The
juvenile, who was later identified as VanCobb, told the officer that he had been hit by
a car. The officer called for a second ambulance, but VanCobb left for the hospital in
the car, rather than wait for the ambulance. Prior to leaving the scene VanCobb also
encountered Detective Rusnak, who described him as uncooperative. VanCobb
refused to give a statement.
{¶7} Three additional officers responded and began to establish an
expanding perimeter around Harrison’s body to look for evidence. Officer Pavlansky
continued his search behind property at 91 Tremble Ave., where there was a path
through a wooded area between the backyards of the adjoining street. The path led
over to Bright Ave., to the former Croatian Hall. The officer found two loaded
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handguns and two sweatshirts underneath the porch of the hall. The officer radioed
the location of the weapons and waited until the weapons and shirts could be
documented and bagged. The weapons were identified as a Hi-Point 9 millimeter
pistol and a Lorcin model L-380 .380 caliber pistol.
{¶8} Detective Rusnak testified that he directed the investigation. No
suspects were developed until February of the following year when DNA samples
from the firearms matched a database sample for Appellant, Appellant’s brother, and
a third individual. Once the initial match was made, the detective requested a sample
from Appellant. When initial matches are made in the database, the Ohio Bureau of
Criminal Investigation (“BCI”) requests a biological sample to confirm the match.
Confirmation samples were also taken from Appellant’s brother. Appellant complied
with the request. The match to the DNA samples from the handle of the .38 was
confirmed as to Appellant.
{¶9} The investigation continued into April of that year, when the detective
met with Samuel Richards, who was Appellant’s cellmate in the Mahoning County
Jail. Richards was being held without bond at the time. Richards told the detective
that Appellant described shooting both VanCobb and Harrison as part of a robbery
gone wrong. Appellant told Richards that he and his brother had gone to the St.
Lucy’s festival looking for someone to rob and had fixed on Harrison and VanCobb.
They confronted the two near the intersection of Tremble Ave. and Thirteenth St.,
and began shooting. Appellant took credit for both shootings, although he said both
he and his brother fired, and described hiding the guns and discarding sweatshirts
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under bushes as they ran away from the scene. Richards confirmed this information
in his own testimony.
{¶10} Appellant was indicted on July 28, 2011 on one count of murder, in
violation of R.C. 2903.02(A), one count of attempted murder, a first degree felony
violation of R.C. 2903.02(A) and 2923.02(A), one count of felonious assault, a first
degree felony violation of R.C. 2903.11(A)(2), three firearm specifications (one each
for counts one, two and three) pursuant to R.C. 2941.145(A), and one count of
tampering with evidence, a third degree felony violation of R.C. 2921.12(A)(1).
Appellant was tried and found guilty on all counts on October 18, 2011. We note,
here, that because Appellant and his brother were both identified as shooters during
this incident, Appellant’s brother was separately charged and tried on similar
charges. Appellant’s brother was acquitted.
{¶11} At the sentencing hearing on October 19, 2011, the trial court merged
Appellant’s felonious assault conviction with his attempted murder conviction.
Appellant did not offer a mitigating statement or statements on his behalf. The trial
court did not order the preparation of a pre-sentencing report. Harrison’s sister spoke
on behalf of the decedent; VanCobb declined to appear or speak. On October 25,
2011 the trial court entered consecutive sentences of fifteen years to life and ten
years on counts one and two, murder and attempted murder. An additional three
years to be served prior to and consecutive with each sentence was imposed for the
firearm specifications included in each count. The court sentenced Appellant to two
years of incarceration for tampering with evidence (original count four in the
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indictment), to be served concurrently with his other sentences. Appellant received a
total sentence of thirty-three years to life. After unsuccessful motions to set aside the
verdict and for a new trial, filed October 21, 2011, Appellant filed a timely appeal.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ERRED BY DENYING DEFENDANT-
APPELLANT’S MOTION TO SET ASIDE THE JURY VERDICT AND
TO ENTER A VERDICT OF AQUITTAL [SIC], OR IN THE
ALTERNATIVE, MOTION FOR A NEW TRIAL PURSUANT TO OHIO
RULES OF CRIMINAL PROCEDURE 29(C).
{¶12} Appellant’s first assignment of error addresses his motion for acquittal
under Crim.R. 29, however, the substance of his argument addresses the weight and
sufficiency of the evidence against him. Appellant asserts that the court must be well
aware of the law pertaining to the sufficiency and manifest weight of the evidence,
and so does not supply relevant authority for either standard. Appellant also does
not address the standard of review appropriate when considering a trial court’s
decision to deny a post-verdict motion for acquittal or motion for new trial. Because
Appellant’s assignment of error addresses only the sufficiency and manifest weight of
the evidence against him, and not the trial court’s decision to deny his motion, our
analysis of his assignment will likewise address the sufficiency and manifest weight
of the evidence.
{¶13} In determining whether a criminal judgment is against the manifest
weight of the evidence, this Court acts as a “thirteenth juror” to determine whether,
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“the jury clearly lost its way and created such a manifest miscarriage of justice that
the conviction must be reversed and a new trial ordered.” State v. Thompkins, 78
Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), citing State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1983). The verdict is not against the weight of the
evidence when there is evidence which, if believed, will convince the average person
of the accused’s guilt beyond a reasonable doubt. State v. Eley, 56 Ohio St.2d 169,
172, 383 N.E.2d 132 (1978).
{¶14} “A verdict that is supported by sufficient evidence may still be against
the manifest weight of the evidence. ‘Weight of the evidence concerns “the
inclination of the greater amount of credible evidence, offered in a trial, to support
one side of the issue rather than the other. It indicates clearly to the jury that the
party having the burden of proof will be entitled to their verdict, if, on weighing the
evidence in their minds, they shall find the greater amount of credible evidence
sustains the issue which is to be established before them. Weight is not a question
of mathematics, but depends on its effect in inducing belief.” ’ (Emphasis sic.)”
(Internal citations omitted.) State v. Barnhart, 7th Dist. No. 09 JE 15, 2010-Ohio-
3282, ¶24, quoting Thompkins, supra, at 387. The weight to be given the evidence
and the credibility of the witnesses are primarily for the trier of fact to determine,
because the jury “is best able to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility
of the proffered testimony.” Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77,
-8-
80, 461 N.E.2d 1273, 1276 (1984) and State v. DeHass, 10 Ohio St.2d 230, 227
N.E.2d 212 (1967), paragraph one of the syllabus.
{¶15} Witness testimony and forensic evidence placed Appellant, his brother,
and two firearms on the corner of Thirteenth St. and Tremble Ave. in Campbell, Ohio
on August 6, 2010. A total of seven bullet casings were recovered from the scene in
addition to bullet fragments and a whole bullet found near the body of one of the
victims. Two firearms, a .38 and a 9mm, wrapped in sweatshirts and hidden under a
porch, were recovered near the scene. Prior to DNA testing, forensic examiners
were not able to conclusively establish which brother held which gun or which of the
shots fired from either gun resulted in the death of Harrison and injury to VanCobb.
The spent shell casings recovered indicate that both a .38 and a 9mm were fired at
the scene. While the firearms examiner who examined the recovered casings and
handguns could not conclusively state that the spent casings were from the weapons
recovered, the casings were the corresponding caliber to each weapon, and had
markings that were consistent with having been fired from each. The examiner
stated that he could not positively link the casings to the recovered firearms because
there were not enough unique markings to make a conclusive identification. The
firearms examiner did swab the firearms for DNA trace evidence.
{¶16} The swabs taken from the firearms were sent to a DNA examiner, who
processed all of the samples and was able to isolate multiple DNA profiles associated
with each weapon. The examiner also processed the two sweatshirts that were
found with the firearms. A DNA profile was recovered from one of the sweatshirts,
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but DNA from too many sources was recovered from the second sweatshirt for a
single profile to be conclusively established. When the examiner received a known
sample from Appellant and compared it to the profiles associated with each weapon,
Appellant’s DNA was a match for samples recovered from the handle of the .38.
While comparisons of Appellant’s profile with samples taken from the trigger and
magazine of the .38 were inconclusive, Appellant could not be excluded as the
source of those samples, either. Appellant’s DNA profile was not a match for
samples from the 9mm pistol or the sweatshirt with an identifiable DNA profile. As to
those items, Appellant’s brother, Dionte Robinson, could not be excluded as the
source of DNA traces. A third man, Sequan Clinkscale, also could not be excluded
as the source of additional DNA traces on the trigger of the 9mm.
{¶17} In addition to forensic evidence, the state presented the testimony of
multiple witnesses: VanCobb, who was shot in the leg fleeing from Appellant and his
brother; Ernest Rayford, who had known the murder victim all his life and knew
Appellant for several years; and Samuel Richards, who was held with Appellant prior
to trial.
{¶18} According to VanCobb, he and Harrison were headed from the St.
Lucy’s festival when the two were approached by two unfamiliar men. He was texting
on his phone and not paying close attention to what the two were saying to Harrison.
Neither VanCobb nor Harrison were armed at the time.
{¶19} After seeing the men draw weapons, VanCobb turned and ran. After he
was struck, VanCobb heard additional shots but could not remember how many.
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Harrison ran down Tremble Ave., out of his view, and he did not see Harrison fall. He
testified that he telephoned his girlfriend who was able take him to the hospital.
According to VanCobb, the bullet shattered in his leg and the pieces are still inside
his body. Nothing in the record establishes which gun fired the bullet that shattered
inside VanCobb’s leg.
{¶20} Rayford testified that he saw Appellant and his brother arguing with
VanCobb and Harrison at the St. Lucy festival. Rayford then spent some time with
Appellant and his brother before leaving to go to his girlfriend’s sister’s house. While
he was on the porch of the house, knocking on the door, he turned and saw
Appellant, Appellant’s brother, VanCobb, Harrison and possibly another man across
the street. He believed they were arguing. When he turned to knock again, he heard
three shots. Rayford did not see who was firing. In response to the gunfire he
ducked and ran. Initially he did not give a statement to police, but he stated that he
felt guilty and later gave a statement at the prompting of his mother. Rayford stated
that he did not receive anything in exchange for his testimony, although he was
incarcerated at the time he gave his statement. He did testify that he received a
reduced sentence prior to giving his statement, in part because it was his first
offense.
{¶21} Richards met Appellant while both were being held in Mahoning County
Jail. Richards had been convicted of carrying a concealed weapon and possession
of heroin, and was subsequently being held without bond on a parole violation.
Richards said he was not acquainted with any of the four men prior to meeting
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Appellant in jail. Appellant told Richards that he and his brother were at a fair looking
for someone to rob. According to Richards, Appellant said he found two victims.
After he approached them, he shot them when they put their hands up. Appellant
told Richards that he had a .38 and that his brother had a 9mm and that he shot one
of the victims in the back and the second in the leg before he and his brother ran
through a “cut,” wrapped the two guns in their sweatshirts, and concealed them. (Tr.
Vol. III, p. 450.) It was revealed during cross-examination that Richards, who was
being held without bond, was nevertheless released the day after he gave his
statement regarding Appellant.
{¶22} All the remaining testimony at trial was offered by the officers who
responded to and investigated the shooting and the medical and forensic staff who
examined and analyzed the victim and evidence collected at the scene. No
witnesses testified on behalf of Appellant, whose defense consisted of challenging
the credibility of the witnesses and attacking the laboratory conclusions. Appellant
concedes in his brief that the “testimony of these witnesses is probably enough” to
support Appellant’s conviction for the murder of Anthony Harrison. (Appellant’s Brf.,
p. 4.) Thus, he concedes the sufficiency of the evidence as to the murder conviction.
Appellant then inexplicably contends that VanCobb, however, was injured by a shot
from the 9mm handgun. (Appellant’s Brf., p. 4.) No evidence in the record supports
this second contention. However, ample material does appear in the record that, if
believed, conclusively supports Appellant’s convictions. The testimony of multiple
witnesses places Appellant on the street with a weapon in his hand firing at both
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Harrison and VanCobb. Forensic evidence links Appellant with the apparent murder
weapon. The state presented probative evidence on each element of the offenses
charged which, if believed, sufficiently supported conviction. Also, nothing in this
record suggests that the jury lost its way when concluding that Appellant was guilty.
While the evidence was by and large, circumstantial, the great weight of the evidence
against him clearly supports conviction, as well. The trial court’s ruling denying a
motion for new trial was not an abuse of discretion where the verdict is supported by
substantial evidence. Appellant’s first assignment of error is without merit and is
overruled.
ASSIGNMENT OF ERROR NO. 2
THE VERDICT OF GUILTY ON COUNT FOUR, TAMPERING WITH
EVIDENCE IS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE.
{¶23} Again, a conviction is not against the manifest weight of the evidence if
“the inclination of the greater amount of credible evidence, offered in a trial” supports
one side of the issue rather than the other. (Emphasis sic.) Barnhart, supra, at ¶24.
It indicates clearly to the jury that the party having the burden of proof will be entitled
to their verdict, if, on weighing the evidence in their minds, they shall find the greater
amount of credible evidence sustains the issue which is to be established before
them. Weight is not a question of mathematics, but depends on its effect in inducing
belief.” Id. The weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of fact to determine, because the jury “is best able to view
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the witnesses and observe their demeanor, gestures and voice inflections, and use
these observations in weighing the credibility of the proffered testimony.” Seasons
Coal Co., Inc., supra, at 80; DeHass, supra, at paragraph one of the syllabus.
{¶24} Pursuant to R.C. 2921.12(A)(1)(B): “No person, knowing that an official
proceeding or investigation is in progress, or is about to be or likely to be instituted,
shall * * * Alter, destroy, conceal, or remove any record, document, or thing, with the
purpose to impair its value or availability as evidence in such proceeding or
investigation.” R.C. 2901.22(B) states: “A person acts knowingly, regardless of his
purpose, when he is aware that his conduct will probably cause a certain result or will
probably be of a certain nature. A person has knowledge of circumstances when he
is aware that such circumstances probably exist.” Under R.C. 2901.22(A): “A person
acts purposely when it is his specific intention to cause a certain result, or, when the
gist of the offense is a prohibition against conduct of a certain nature, regardless of
what the offender intends to accomplish thereby, it is his specific intention to engage
in conduct of that nature.” Various Ohio appellate courts have found that it is
unnecessary for an offender to have actual notice of an impending investigation,
because when the offender “commits an unmistakable crime, the offender has
constructive knowledge of an impending investigation of the crime committed.” State
v. Brodbeck, 10th Dist. No. 08AP-134, 2008-Ohio-6961, ¶51 citing State v. Schmitz,
10th Dist. No. 05AP-200, 2005-Ohio-6617, ¶17; State v. Barnes, 6th Dist. No. WD-
07-024, 2008-Ohio-1854; State v. Kovacik, 11th Dist. No. 2010-L-065, 2012-Ohio-
219, 969 N.E.2d 322; State v. Nyugen, 4th Dist. 12CA-14, 2013-Ohio-3170.
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Convictions under this section have been upheld simply when a defendant told the
investigating detective she “threw the gun away” after the shooting. State v. Powell,
176 Ohio App. 3d 28, 39, 2008-Ohio-1316, 889 N.E.2d 1047, 1055 (2nd Dist.).
{¶25} At trial, the officer who recovered the weapons testified that he found
them under the back porch of the Croatian Hall on Bright Ave. after the perimeter of
the search was extended. The officer testified that the weapons were concealed by
the sweatshirts and by some leaf debris; additional testimony also suggests that
there were bushes around the porch. Richards testified that Appellant told him he hid
the weapons in sweatshirts under some bushes as he ran away after shooting two
men. Under these circumstances, and applying the language of R.C. 2901.22(A) and
(B), there was testimony in the record which, if believed, supports the conclusion that
Appellant knew that a criminal investigation into the shooting and killing would
commence and that he placed the guns under the porch in the bushes with the
purpose of preventing discovery, thus impairing the investigation. The record may
suggest that the trial court felt the tampering with evidence charge was redundant.
The record clearly does not suggest that the charge was against the weight of the
evidence. The fact that the weapons and sweatshirts were hidden while fleeing the
scene of a crime, the basis of the charge, is not in dispute. Nothing in this record
suggests that Appellant’s conviction for tampering with evidence is against the
manifest weight of the evidence. Appellant’s second assignment of error is without
merit and is overruled.
ASSIGNMENT OF ERROR NO. 3
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THE TRIAL COURT ERRED IN SENTENCING DEFENDANT-
APPELLANT TO CONSECUTIVE SENTENCES ON COUNTS ONE,
TWO AND THREE OF THE INDICTMENT.
{¶26} Appellant was sentenced to consecutive terms for convictions on two of
the four counts in the indictment: count one, the murder of Anthony Harrison; count
two, the attempted murder of Eric VanCobb. Appellant’s sentence on count four,
tampering with evidence, runs concurrently with his sentences on counts one and
two. No sentence was imposed for count three, felonious assault, which the trial
court merged with Appellant’s attempted murder conviction at the request of the state
and by the agreement of all parties. (Sentencing Tr., p. 4.) The trial court sentenced
Appellant to fifteen years to life on count one (murder); ten years on count two
(attempted murder); and two years for count four (tampering with evidence). The
court noted that Appellant had an extensive juvenile record and expressed the
opinion that prior sanctions had failed to curb Appellant’s criminal behavior. The
court indicated that it had considered the principles and purposes of sentencing, the
seriousness of the offenses, possibility of recidivism, the propriety of concurrent
sentences, and made R.C. 2929.14(C)(4) findings prior to reaching this decision.
(Sentencing Tr., pp. 20-27.) The court imposed the maximum allowable sentences
under the law applicable at the time of sentencing for counts one and two, the murder
and attempted murder charges, and a less than maximum sentence for the tampering
with evidence charge.
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{¶27} Upon review, an Ohio appellate court “must apply a two-step
approach”:
First [the court] must examine the sentencing court’s compliance with
all applicable rules and statutes in imposing the sentence to determine
whether the sentence is clearly and convincingly contrary to law. If this
first prong is satisfied, the trial court’s decision shall be reviewed under
an abuse of discretion standard.
State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶4. On appeal, Appellant
concedes that his sentences are within the permissible range for each offense.
Appellant also acknowledges that the trial court has authority, within the bounds of
discretion, to impose consecutive sentences. The record of the sentencing hearing
explicitly reflects the trial court’s consideration of applicable sentencing statutes
concerning sentencing principles and purposes and the identification of the correct
sentencing law applicable at the time of the offense. H.B. 86 took effect in
September 30, 2011, and has been applicable to all defendants at sentencing from
that date. Neither party disputes, here, the fact that the trial court applied the
amended version of R.C. 2929.14 which was current at the time of sentencing in this
matter. Because the parties do not question the applicable version of R.C. 2929.14,
no analysis of H.B. 86 is necessary. The sentence imposed on Appellant fell within
applicable sentencing ranges and was therefore not clearly and convincingly contrary
to law. The remaining question is whether the sentence amounted to an abuse of
discretion.
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{¶28} “Abuse of discretion” connotes more than an error of judgment; it
implies that the court's attitude is unreasonable, arbitrary or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, (1983), quoting State v. Adams, 62
Ohio St.2d 151, 157 (1980). The trial court in this instance, like the trial court in
Kalish, “gave careful and substantial deliberation to the relevant statutory
considerations.” Kalish, supra, ¶20. The trial court also considered Appellant’s prior
record and the fact that Appellant shot two men who were running away from him in
different directions. The court emphasized that the murder of Anthony Harrison was
a “cold-blooded” killing of a “truly innocent victim, gunned down in the streets for no
reason, no justification, no nothing” by Appellant who “shows no remorse.”
(Sentencing Tr., p. 23.) The court also indicated that, regardless of the fact that
VanCobb was wounded in the leg, discharging a firearm at the back of an individual
running away “is an attempt to cause them to die, especially under the circumstances
of this case.” (Sentencing Tr., pp. 24-25.) Appellant, however, contends that the
imposition of consecutive sentences in this instance was intended to penalize
Appellant for going to trial. In support of his argument, Appellant cites the trial court’s
statements concerning the severity of the offense and danger of recidivism that the
court is charged by statute to consider and attempts to suggest that the court was
being vengeful. (Appellant’s Brf., p. 9.)
{¶29} A trial court is required by the legislature to consider the “overriding
purposes of felony sentencing” which are:
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(A) * * * [T]o protect the public from future crime by the offender and
others and to punish the offender using the minimum sanctions that the
court determines accomplish those purposes without imposing an
unnecessary burden on state or local government resources. To
achieve those purposes, the sentencing court shall consider the need
for incapacitating the offender, deterring the offender and others from
future crime, rehabilitating the offender, and making restitution to the
victim of the offense, the public, or both.
(B) A sentence imposed for a felony shall be reasonably calculated to
achieve the two overriding purposes of felony sentencing set forth in
division (A) of this section, commensurate with and not demeaning to
the seriousness of the offender’s conduct and its impact upon the
victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.
R.C. 2929.11. In addition to the purposes of felony sentencing, the trial court is also
required to consider specific factors relevant to the purpose of sentencing, which
include:
(A) * * *In exercising that discretion, the court shall consider the factors
set forth in divisions (B) and (C) of this section relating to the
seriousness of the conduct, the factors provided in divisions (D) and (E)
of this section relating to the likelihood of the offender’s recidivism,* * *
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[and] any other factors that are relevant to achieving those purposes
and principles of sentencing.
***
(B)(2) The victim of the offense suffered serious physical,
psychological, or economic harm as a result of the offense.
***
(C) The sentencing court shall consider all of the following that apply
regarding the offender, the offense, or the victim, and other relevant
factors, as indicating that the offender’s conduct is less serious than
conduct normally constituting the offense:
(1) The victim induced or facilitated the offense.
(2) In committing the offense, the offender acted under strong
provocation.
(3) In committing the offense, the offender did not cause or expect to
cause physical harm to any person or property.
(4) There are substantial grounds to mitigate the offender’s conduct,
although the grounds are not enough to constitute a defense.
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(D) The sentencing court shall consider all of the following that apply
regarding the offender, and any other relevant factors, as factors
indicating that the offender is likely to commit future crimes:
***
(2) The offender previously was adjudicated a delinquent child * * * or
the offender has a history of criminal convictions.
(3) The offender has not been rehabilitated to a satisfactory degree
after previously being adjudicated a delinquent child * * * or the offender
has not responded favorably to sanctions previously imposed for
criminal convictions.
***
(5) The offender shows no genuine remorse for the offense.
(E) The sentencing court shall consider all of the following that apply
regarding the offender, and any other relevant factors, as factors
indicating that the offender is not likely to commit future crimes:
(1) Prior to committing the offense, the offender had not been
adjudicated a delinquent child.
(2) Prior to committing the offense, the offender had not been
convicted of or pleaded guilty to a criminal offense.
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(3) Prior to committing the offense, the offender had led a law-abiding
life for a significant number of years.
(4) The offense was committed under circumstances not likely to recur.
(5) The offender shows genuine remorse for the offense.
R.C. 2929.12. The statements Appellant identifies in his brief as evidence that the
trial court “imposed a trial tax on Appellant and sentenced him for the court’s own
subjective reasons” are actually explicit references to the seriousness and risk of
recidivism factors and reflect the complete absence of mitigating factors as to the
crimes committed by Appellant. (Appellant’s Brf., p. 11.)
{¶30} Appellant was found guilty of the unprovoked murder and attempted
murder of two unarmed young men who were fleeing confrontation. According to the
court, Appellant is a repeat offender for whom prior sanctions have not served as a
deterrence. Appellant’s offenses include the use of a firearm to exert deadly force,
resulting in the death of one victim and caused grievous physical harm to the other.
Nothing in this record suggests that the trial court failed to properly consider statutory
factors or abused its discretion when deciding to impose maximum consecutive
sentences in this matter.
{¶31} Appellant’s belief that these facts are analogous to the conclusions
reached by a plurality of the Eighth District Court of Appeals in State v. Moore, 8th
Dist. No. 02 CA 216, 2005-Ohio-3311 is wholly mistaken. Even if the cases were
factually similar, and they are not, the decision of a sister district does not control the
outcome in this instance. In Moore, which does not address the presence or
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absence of a sentencing report as Appellant suggests, a plurality of the Eighth
District concluded that the sentence imposed on a co-defendant who elected to
proceed to trial rather than enter a plea to kidnapping and attempted robbery charges
was excessive under the circumstances. The relevant fact in Moore was the lack of
deadly force; although a firearm was employed to facilitate the offenses, the
defendant who entered a plea was the armed perpetrator, not the defendant who
went to trial. In Moore, the shooter who pleaded guilty received a total sentence of
nine years while the defendant who sought trial received thirty-three years. This is
clearly not analogous to the matter at bar. Moreover, even if the facts were actually
similar, it is not clear, under the law, that consecutive maximum sentences would be
inappropriate in this case.
{¶32} Finally, Appellant’s belief that the trial court’s passing reference to his
decision not to make a statement at sentencing is a violation of his Fifth Amendment
right is misplaced. Appellant’s opportunity at sentencing to make a statement
concerning his remorse or to raise mitigating factors relevant to sentencing decisions
is not sworn testimony. As it is not sworn testimony, and occurs only after trial has
concluded and guilt has been established beyond a reasonable doubt, it does not
carry a risk of self-incrimination. State v. DePew, 38 Ohio St.3d 275 (1988).
Unsworn statements by a defendant made during the penalty phase of a prosecution
do not implicate or infringe on the defendant’s Fifth Amendment rights. Id.{¶33} Nothing in this record supports a conclusion that the trial court’s
decision to impose maximum consecutive sentences on a repeat offender, who shot
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two unarmed men in the back as they fled to avoid confrontation, was in any way an
abuse of discretion. Appellant’s third assignment of error is without merit and is
overruled.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE
SENTENCES FOR THE GUN SPECIFICATIONS CONTAINED IN
COUNTS ONE AND TWO OF THE INDICTMENT.
{¶34} Appellant contends that the trial court improperly sentenced him to
serve three year terms for each of the firearm specifications attached to his
convictions on counts one and two of the indictment. Appellant cites “R.C.
2929.14(D)(1)(b)” in support of his argument. Section (D) of R.C. 2929.14 does not
include a part (b). The language on which Appellant relies actually appears in R.C.
2929.14(B)(1)(b), which provides:
If a court imposes a prison term on an offender under division (B)(1)(a)
of this section, the prison term shall not be reduced pursuant to section
2967.19, section 2929.20, section 2967.193, or any other provision of
Chapter 2967. or Chapter 5120. of the Revised Code. Except as
provided in division (B)(1)(g) of this section, a court shall not impose
more than one prison term on an offender under division (B)(1)(a) of
this section for felonies committed as part of the same act or
transaction.
-24-
Part (B)(1)(a) of section 2929.14 specifies a mandatory three-year prison term for
offenses defined by R.C. 2941.145 if the indictment or information “specifies that the
offender had a firearm on or about the offender’s person or under the offender’s
control while committing the offense and displayed the firearm, brandished the
firearm, indicated that the offender possessed the firearm, or used it to facilitate the
offense.” R.C. 2941.145(A). Appellant’s July 26, 2011 indictment included the
appropriate specifications as to both counts one and two, aggravated murder and
attempted murder.
{¶35} The state construes Appellant’s merger argument as an objection to the
imposition of two firearm specifications, not to the imposition of consecutive
sentences for the firearm specifications. As the state correctly notes, part (g) of R.C.
2929.14(B)(1) provides:
If an offender is convicted of or pleads guilty to two or more felonies, if
one or more of those felonies are aggravated murder, murder,
attempted aggravated murder, attempted murder, aggravated robbery,
felonious assault, or rape, and if the offender is convicted of or pleads
guilty to a specification of the type described under division (B)(1)(a) of
this section in connection with two or more of the felonies, the
sentencing court shall impose on the offender the prison term specified
under division (B)(1)(a) of this section for each of the two most serious
specifications of which the offender is convicted or to which the offender
pleads guilty and, in its discretion, also may impose on the offender the
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prison term specified under that division for any or all of the remaining
specifications.
Under this section the trial court is required to impose the mandatory prison terms for
both of Appellant’s (B)(1)(a) firearm specifications because they were imposed due to
underlying aggravated murder and attempted murder convictions.
{¶36} In the interests of clarity and completeness, we note that R.C.2929.14
(C)(1)(a) provides:
Subject to division (C)(1)(b) of this section, if a mandatory prison term is
imposed upon an offender pursuant to division (B)(1)(a) of this section
for having a firearm on or about the offender’s person or under the
offender’s control while committing a felony,* * * the offender shall serve
any mandatory prison term imposed under either division consecutively
to any other mandatory prison term imposed under either division or
under division (B)(1)(d) of this section, consecutively to and prior to any
prison term imposed for the underlying felony pursuant to division (A),
(B)(2), or (B)(3) of this section or any other section of the Revised
Code, and consecutively to any other prison term or mandatory prison
term previously or subsequently imposed upon the offender.
Thus, under the applicable provisions of the Ohio Revised Code, the trial court was
required to sentence appellant for both of the firearm specifications and to
consecutively impose each specification sentence. R.C. 2929.14, (B)(1)(a), (B)(1)(g),
and (C)(1)(a).
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{¶37} Appellant’s argument omits any reference to or discussion of these
controlling statutes. Appellant ignores relevant existing law and contends, without
support, that “legal analysis” would result in the merger of multiple crimes committed
against multiple victims. Appellant claims that because one witness testified that
there were two shooters, only one firearm specification should be imposed on
Appellant. Appellant’s argument is contrary to law and does not reflect the facts in
this record. Appellant argues that because his brother was acquitted of the charges
against him for his role in this incident, a manifest injustice as to Appellant has
occurred. But Appellant’s claim that he should be sentenced for only one of his two
firearm specifications because he would have been responsible for only one of the
two if his brother (who was separately tried for his role in this incident) had been
convicted rather than acquitted, is wholly unsupported. Appellant was convicted on
both counts. If anything, his brother’s acquittal of these crimes and his own
conviction tend to support the jury’s decision, here. There was more evidence in this
record linking Appellant to these crimes because of the DNA match to the apparent
murder weapon and the testimony of the jailhouse informant. Regardless, the fact
that his brother was separately tried for these crimes (and acquitted) is irrelevant to
the trial court’s duty to sentence Appellant for each of his convictions and
specifications. Controlling law requires separate sentences for the specifications
attaching to both of Appellant’s serious felonies. R.C. 2929.14(B)(1)(g). Consecutive
sentences are mandated on each of Appellant’s specifications. R.C.
2929.14(C)(1)(a). Because, as the state notes, this issue is conclusively resolved by
-27-
relevant statutes, there is no further general merger analysis of the underlying facts
necessary. Appellant’s fourth assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 5
THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION
TO BAR THE STATE FROM PRESENTING INCONSISTENT
THEORIES OF PROSECUTION.
{¶38} Appellant contends that differing theories as to the motive underlying
his convictions resulted in a due process violation. Certain witnesses testified that
the two shooters and two victims argued over a woman. Other witnesses claimed the
motive for the shooting was simple robbery. Appellant argues that the trial court’s
decision denying defense counsel’s motion to require the state to choose only one
theory of motive “effectively denies Defendant his right of due process.” (Appellant’s
Brf., p. 13.) Appellant cites two federal circuit court cases and a law review article in
support of his argument. Appellant’s reliance on the sixth circuit’s decision in Stumpf
v. Mitchell, 367 F.3rd 594 (6th Cir.2004) is misplaced. Stumpf addressed the
situation where multiple people have been convicted of a single crime through the
use of contradictory evidence, not Appellant’s situation, where there may have been
different motives for a single defendant to commit a single crime.
{¶39} Appellant inexplicably sought at trial, and urges here, that the court
must require the state to identify a single specific motive for the crimes Appellant was
found guilty of committing. In support of his argument, Appellant refers to testimony
from two witnesses: Richards, the jailhouse informant, who testified that Appellant
-28-
told him the killing occurred during a robbery, and Rayford, who testified that prior to
the shooting he heard the group arguing over a girl. These may be inconsistent
motives. They are not, however, the type of inconsistent theories of prosecution that
the federal Fifth Circuit Court of Appeals found to be a due process violation in Smith
v. Groose, 205 F.3d 1045 (8th Cir. 2000) or the concern raised by the Sixth Circuit in
Stumpf, supra.
{¶40} In Groose, the State of Missouri convicted two different defendants from
two different groups of burglars of the same killing, on the strength of the
contradictory statements of a single witness. The witness, who was present and
involved in the burglaries that resulted in the death of the homeowners, gave two
conflicting statements identifying two different killers. In separate trials, the state
used both statements to convict two different people of killing the same victims. In
the first statement, proposed killer A was in the house at the time of the murder. On
the strength of this statement, proposed killer A was convicted of murder. In the
second statement, proposed killer A did not enter the house until after the murder
and another person was identified as the killer. This statement was used in a
subsequent trial to convict proposed killer B of the same murder. The use of directly
conflicting statements necessarily gave rise to due process concerns in Groose
because the two conflicting statements were probative of the elements of the offense
charged. As a result, the two conflicting convictions were obtained when, clearly,
only one person could be guilty of the crime.
-29-
{¶41} In the instant matter, Appellant contends that the suggestion of multiple
motives for the shooting similarly infringed on his due process rights. However, the
testimony to which Appellant objects is not probative of the elements of Appellant’s
conviction. None of the concerns raised in Groose are present in this record. Quite
simply, “[m]otive is not an element of the crime of murder and need not be
established to warrant a conviction; proof of motive does not establish guilt nor does
want of proof thereof establish innocence; and, where the guilt of the accused is
shown beyond a reasonable doubt, it is immaterial what the motive may have been
for the crime, or whether any motive is shown.” State v. Lancaster, 167 Ohio St. 391,
149 N.E.2d 157, paragraph two of the syllabus. Crimes, like any other human action,
may be (and very probably are) the result of multiple or mixed motives. Even in
instances when motive is relevant, the state is not required to create and adhere to a
single version of what may have transpired prior to and during the commission of a
crime. State v. Miller, 96 Ohio St.3d 384, 389, 2002-Ohio-4931, ¶30 (“the
prosecution is entitled to offer differing theories as to what actually transpired in the
commission of an offense.”) The testimony of the two witnesses, one saying he
observed Appellant and his brother arguing with the men at the festival over a woman
and the testimony of a second saying Appellant told him that he and his brother
planned a robbery, is not inconsistent. The two witnesses are not providing
conflicting versions of contemporaneous events, they are describing a sequence of
events. Neither witness’s testimony makes the other witness’s improbable or
-30-
impossible. Quite simply, the testimony offered in Appellant’s trial does not raise a
due process concern with regard to the consistency of a theory of prosecution.
{¶42} Appellant next claims that the testimony of the jailhouse informant
should not have been offered against Appellant, because it was not introduced in his
brother’s trial. The fact that the testimony of Richards, who was incarcerated with
Appellant, was not offered in the trial of Appellant’s brother does not have the
significance Appellant ascribes. Testimony concerning an inculpatory statement
made by Appellant to a third party outside the presence of his brother, who was also
implicated, may be admissible against Appellant as a statement against interest. It
would not, however, be admissible against his brother, who never endorsed the
statement or made similar admissions. Evid.R. 802 and 804; Bruton v. U.S., 391
U.S. 123, 125, 88 S.Ct. 1620 (1968) (“although Evans’ confession was competent
evidence against Evans it was inadmissible hearsay against [Evans’ co-defendant]
and therefore had to be disregarded in determining [the co-defendant’s] guilt or
innocence.”) In Bruton, the use of Evans’ confession also created a confrontation
clause concerns because Evans did not testify, denying his co-conspirator the
opportunity to cross-examine him with regard to inculpatory statements. Similarly, in
order for Richards’ statement to be used in Appellant’s brother’s trial, Appellant would
have been required to testify against his brother, subject to cross-examination and
without invoking his Fifth Amendment rights, to satisfy the requirements of the
confrontation clause. The fact that a witness who had relevant testimony to offer that
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was admissible against Appellant, alone, and testified only at Appellant’s trial and not
at his brother’s, is neither surprising nor a due process concern.
{¶43} Because Appellant has not identified conflicting theories of prosecution
but merely objects to testimony concerning multiple possible motives for the shooting
and motive is not an element of murder or attempted murder; and because the record
does not reflect any due process concerns created here, Appellant’s fifth assignment
of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 6
THE TRIAL COURT ERRED IN DENYING APPELLANT’S RIGHT OF
CONFRONTATION PURSUANT TO THE SIXTH AMENDMENT OF
THE U.S. CONSTITUTION BY MATERIALLY LIMITING THE CROSS-
EXAMINATION OF THE STATE INFORMANT.
{¶44} The Sixth Amendment to the United States Constitution provides, “[i]n
all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with
the witnesses against him.” Section 10, Article I of the Ohio Constitution provides
that “the party accused shall be allowed * * * to meet the witnesses face to face * * *;
but provision may be made by law for the taking of the deposition by the accused or
by the state, to be used for or against the accused, of any witness whose attendance
can not be had at the trial, always securing to the accused means and the
opportunity to be present in person and with counsel at the taking of such deposition,
and to examine the witness face to face as fully and in the same manner as if in
court.” “The Confrontation Clauses were written into our Constitutions ‘to secure for
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the opponent the opportunity of cross-examination. The opponent demands
confrontation, not for the idle purpose of gazing upon the witness, or of being gazed
upon by him, but for the purpose of cross-examination, which cannot be had except
by the direct and personal putting of questions and obtaining immediate answers.’
(Emphasis sic.)” State v. Self, 56 Ohio St.3d 73, 76-77, 564 N.E.2d 446 (1990),
citing 5 Wigmore on Evidence 150, Section 1395 (1974).
{¶45} Appellant contends that the trial court denied him his right of
confrontation when it sustained the state’s objection to the following question: “Were
you informed that the State was looking to send you to the penitentiary.” (Tr. Vol. III,
p. 456.) The record reflects that the trial court sustained the state’s objection to the
original wording of the question, and that the above reflects Appellant’s counsel’s
attempt to reword the original question. While Appellant was stopped from asking his
question as originally phrased, there was no objection to this question as it was
reworded. (Tr. Vol. III, pp. 456-457.) However, in the confusion over discussion of
the objection, counsel failed to pursue this question. Appellant claims that because
he was stopped from this line of questioning, he was prevented from suggesting that
Richards had received leniency in exchange for making a statement incriminating
Appellant. However, the record shows that his counsel succeeded in making this
point in his continuing cross-examination:
Q Would you please look at the exhibit one more time, Mr. Richards?
Does it say that your next hearing date would be on April 26?
A Yes, Sir.
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Q You were being held without bond until that day, correct?
A Yes, Sir.
Q Do you recall speaking to Det./Sgt. John Rusnak of the Campbell
Police Department?
A Yes, Sir.
Q Okay. Was that on April 7?
***
A I’m not sure. They just called me to court. I’m not sure what day it
was.
***
Q Is there a date on that document, Mr. Richards?
A Yes, Sir.
Q Is it April 8, 2011?
A Yes, Sir.
Q Would that be the day after you spoke to Detective Rusnak?
A I’m not sure because I don’t remember which day I talked to him.
Q You’re not sure if it was the same day or the day after, or what?
-34-
A Not sure.
***
Q So, you were being held without bond, and you’re released the day
after you speak to Detective Rusnak; is that correct?
A I told you I wasn’t sure it was the day I talked to the detective.
(Tr. Vol. III, pp. 457-459; 462.) Previously, Detective Rusnak testified that he
interviewed Richards in April of 2011. While the witness may not have provided
defense counsel with the precise statement he sought, the implication was clear
enough to allow the jury to draw its own conclusion. The testimony was sufficient to
suggest that Richards was being held without bond prior to giving a statement
against Appellant and released after giving his statement.
{¶46} Although Appellant professes that there is no evidentiary rule that would
prevent the witness from responding to the question “[w]ere you informed that the
State was looking to send you to the penitentiary,” it is apparent that any response to
the question would amount to hearsay. Evid.R. 802. The witness was not competent
to testify regarding the state’s intentions concerning his parole violations and the
question was not phrased to elicit his subjective belief. Appellant provides no legal
basis in support of his belief that the witness should have been allowed to respond to
the question. The record does not support his contention that he was prevented from
suggesting that Richards received leniency as a result of his statement. The jury
heard testimony that the witness was a convicted felon who was being held for a
-35-
second parole violation and was still on probation at the time of trial. The jury also
heard testimony that the witness knew nothing of the case before he met Appellant
and was not previously acquainted with Appellant. The jury was informed that
Richards was being held without bond but released after giving a statement
implicating Appellant. In sum, the jury heard sufficient testimony to allow it to
evaluate the witness’s possible motives to testify and his comparative lack of
knowledge about Appellant’s life and circumstances. Appellant’s Sixth Amendment
confrontation rights were not compromised or materially limited by the trial court’s
ruling. Appellant’s sixth assignment of error is without merit and is overruled.
Conclusion
{¶47} Appellant’s three convictions were supported by sufficient evidence and
are not against the manifest weight of the evidence. The state did not present
inconsistent theories of prosecution or otherwise compromise Appellant’s due
process rights. The sentence ordered by the trial court was compliant with applicable
law. Appellant’s Sixth Amendment right to confrontation was not impaired by the trial
court’s ruling during cross-examination. Appellant’s six assignments of error are
overruled and the judgment of the trial court affirmed.
Vukovich, J., concurs.
DeGenaro, P.J., concurs in judgment only; see concurring in judgment only opinion.
-36-
DeGenaro, P.J., concurring in judgment only with concurring opinion.
{¶48} Consistent with my dissent in State v. Hill, 7th Dist. Mahoning No.
13MA1, 2014-Ohio-____, post H.B. 86, the clearly and convincingly contrary to law
standard of review should be applied to felony sentences pursuant to R.C.
2953.08(G)(2). See also State v. White, 1st Dist. No. C-4225, 2013-Ohio-4225, 997
N.E.2d 629, ¶5-10; State v. Crawford, 12th Dist. No. CA2012–12–088, 2013-Ohio-
3315, ¶6; State v. Venes, 8th Dist. No. 2013-Ohio-1891, 992 N.E.2d 453, ¶10; State
v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶7; State v. Rodeffer, 2d Dist. No.
25574, 2013-Ohio-5759, ¶29. Thus, I respectfully disagree with the majority's
application of the Kalish standard of review, although I would affirm the sentence
under the R.C. 2953.08(G)(2) standard.
{¶49} As the majority notes, H.B. 86 does apply to Appellant. However, I
write separately to fully address Appellant's challenge to his consecutive sentence;
specifically whether the trial court considered the provisions contained in R.C.
2929.14(C)(4) before imposing consecutive sentences.
{¶50} R.C. 2929.14(C)(4) provides:
If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the
offender and that 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
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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.
{¶51} More concisely stated, now "the trial court is required to make three
findings before imposing consecutive sentences: 1) that consecutive sentences are
necessary to protect the public from the future crime or to punish the offender; 2) that
consecutive sentences are not disproportionate to the seriousness of the offender's
conduct and to the danger the offender poses to the public; and 3) that one of the
subsections (a), (b), or (c) apply." State v. Farnsworth, 7th Dist. No. 12 CO 10, 2013-
Ohio-1275, ¶ 8, citing R.C. 2929.14(C)(4).
{¶52} "Thus, the court is once again required to make findings," however,
"reasons are no longer required to support the findings." State v. Power, 7th Dist.
No. 12 CO 14, 2013-Ohio-4254, ¶38, citing State v. Galindo-Barjas, 7th Dist. No. 12
MA 37, 2013-Ohio-43, ¶16–17, 19; State v. Wilson, 2d Dist. No. 24978, 2012–Ohio–
4756, ¶18 (court need not specifically identify the factual bases for its findings); State
v. Frasca, 11th Dist. No. 2011–T–0108, 2012–Ohio–3746, ¶57 (reasons were
required by former R.C. 2929.19(B)(2), which was not reenacted). Further "the trial
court is not required to recite any 'magic' or 'talismanic' words when imposing
consecutive sentences, as long as it is 'clear from the record that the trial court
engaged in the appropriate analysis.'" (Citations omitted.) Power at ¶40.
{¶53} A review of recent consecutive sentencing case law from this district is
instructive. In State v. Esmail, 7th Dist. No. 11 CO 35, 2013-Ohio-2165, this court
reversed the trial court's sentence for failing to make sufficient findings pursuant to
R.C. 2929.14(C)(4), under the following scenario: the court stated in the sentencing
entry that it considered "the purposes and principles of sentencing, and all other
-38-
relevant factors, (O.R.C. 2929.11 and 12)." Id. at ¶ 22. And then during the
sentencing hearing the trial court, in addition to acknowledging the defendant's prior
drug trafficking convictions and stating that based on the PSI, Esmail was not
amenable to community control, said: "I do believe that this sentence today is
consistent with the terms of Senate Bill 86. Again, the primary purposes of which are
to protect the public and to punish the offender." Esmail at ¶ 21.
{¶54} This court held that the following findings were insufficient as a matter
of law:
The trial court did find that Esmail's sentence was necessary to protect
the public and to punish the offender, but this was the only one of the
three findings required by R.C. 2929.14(C)(4) the trial court made
before imposing consecutive sentences. The trial court did not find that
the consecutive sentences are not disproportionate to the seriousness
of Esmail's conduct and to the danger he poses to the public. And
although the trial court noted Esmail's prior record, it did so in the
context of community control; no finding was made with respect to
consecutive sentences in light of Esmail's record. While the trial court
did state that it believed the sentence was consistent with "Senate Bill
86." this was not enough to comply with R.C. 2929.14(C)(4). Although
the trial court was not required to use the exact words of the statute,
generally citing to H.B. 86 is not sufficient to show the court made the
required statutory findings.
Esmail at ¶23.
{¶55} In State v. Bellard, 7th Dist. No. 12 MA 97, 2013-Ohio-2956, this court
concluded that the trial court's findings in that case were even less comprehensive
than the findings in Esmail and accordingly reversed. In Bellard, the trial court made
only general statements about the defendant's conduct and his juvenile criminal
history. Bellard at ¶17. Further, in Farnsworth, supra, 7th Dist. No. 12 CO 10, this
-39-
court held that the trial court making only two of the three required findings warranted
reversal for resentencing. Id. at ¶10-12.
{¶56} By contrast, in this case, when considering both the sentencing hearing
and the sentencing entry, the trial court made all of the required findings. During the
sentencing hearing the trial court stated:
Under House Bill 86, the legislature has revived language regarding
what a court is to consider. The Court is to consider concurrent
sentences as a first consideration, but under 2929.14, the Court is
permitted to impose discretionary consecutive terms. The Court may
require the offender to serve prison terms consecutively if the Court
finds consecutive service is necessary to protect the public from future
crime or to punish the offender, that consecutive sentences are not
disproportionate to the seriousness of his conduct and to the danger the
offender poses to the public.
The Court would also have to find that 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.
***
I don't know if pointing a gun at two different people heading two
different directions could mean anything but that you are trying to kill
two separate people. * * * So, the statutory findings recited by the Court
and made by the Court justify a consecutive sentence of ten years on
the charge of attempted murder of Eric Van Cobb.
The Court also imposes three years of actual incarceration prior to and
consecutively to the charge of murder in Count 1. The Court finds that
-40-
these are separate offenses committed against separate victims, and a
merger of firearms specifications is repugnant to any sense of justice,
any sense of right and wrong, and any desire of the legislature to
reduce prison terms. * * * I believe the law justifies the finding that
these firearms are separate and should be punished separately. So, the
Defendant is ordered to serve a term of three years of maximum
incarceration prior to and consecutively to the sentence imposed for the
attempted murder of Eric Van Cobb. All of these sentences are to be
served consecutively to one another. (Sentencing Tr. 25-27.)
{¶57} In the judgment entry of sentence, the trial court stated:
The sentence imposed on Count Two is Ordered to be served
consecutively to the sentence imposed on Count One pursuant to
O.R.C. 2929.14(E)(4) and [Div. (C)(4) under House Bill 86], in that the
Court finds that "the consecutive service is necessary to protect the
public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender's
conduct and to the danger the offender poses to the public" and "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." (10/25/11 J.E.)
{¶58} These findings comport with R.C. 2929.14(C)(4) and they are supported
by the record. Therefore the trial court properly imposed consecutive sentences for
Appellant's murder and attempted murder convictions.
{¶59} Thus, while I disagree with the majority's use of the Kalish standard of
review, I would nonetheless affirm the judgment of the trial court. The sentence is
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not clearly and convincingly contrary to law, nor are the trial court's findings
unsupported by the record.