State v. Bluhm , 2016 Ohio 7126 ( 2016 )

[Cite as State v. Bluhm, 2016-Ohio-7126.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 15AP-938
v. : (C.P.C. No. 14CR-2530)
Jacob F. Bluhm, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on September 30, 3016
On brief: Ron O'Brien, Prosecuting Attorney, and
Michael P. Walton, for appellee. Argued: Michael P.
Walton.
On brief: Samuel H. Shamansky Co., L.P.A., Samuel H.
Shamansky, Donald L. Regensburger, and Colin E. Peters,
for appellant. Argued: Colin E. Peters.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, P.J.
{¶ 1} Defendant-appellant, Jacob F. Bluhm, appeals from the judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas pursuant
to a jury verdict finding him guilty of two counts of aggravated vehicular homicide, six
counts of aggravated vehicular assault, and two counts of operating a motor vehicle while
under the influence of alcohol or a drug of abuse ("OVI"). After merger of various counts,
the trial court sentenced appellant to one count of aggravated vehicular homicide, in
violation of R.C. 2903.06, a felony of the second degree, three counts of aggravated
vehicular assault, in violation of R.C. 2903.08, each felonies of the third degree, and one
count of OVI, in violation of R.C. 4511.19, a first-degree misdemeanor. The trial court
No. 15AP-938 2
imposed prison terms of seven years, three years, three years, one year, and six months
respectively, running each term consecutively except for the OVI sentence, which would
be served concurrently. The court also imposed a lifetime license suspension with no
possibility of limited driving privileges.
I. Assignments of Error
{¶ 2} Appellant appeals and assigns the following four assignments of error for
our review:
[I.] Appellant's convictions for Aggravated Vehicular
Homicide, Aggravated Vehicular Assault, and OVI were
against the manifest weight of the evidence, in violation of
his right to due process as guaranteed by the Ohio
Constitution.
[II.] Trial Counsel's failure to object to the admissibility of
the State's evidence and preserve the issue for appeal
constitutes ineffective assistance of counsel and was in
violation of Appellant's rights as guaranteed by the United
States and Ohio Constitutions.
[III.] The trial court abused its discretion by communicating
with the foreperson of the jury, outside the presence of the
other jurors, after deliberations had commenced.
[IV.] The trial court committed plain error by imposing
sentence without considering mandatory factors and
ordering that the terms be served consecutively without
making required findings.
II. Trial Testimony
{¶ 3} All charges against appellant arise out of a drunk driving incident
culminating in a one-vehicle accident in which appellant's pickup truck left the road at
high speed and rolled into a farm field. The accident ejected all five occupants, injuring
four and killing one.
{¶ 4} The testimony generally established that on the night of November 27th and
early morning hours of the 28th, 2013, appellant and a group of friends, most of them in
their early twenties, gathered at a sports bar in Madison County to drink and socialize. At
approximately 12:30 a.m. on November 28th, some of the group left in appellant's 2006
Chevrolet truck. In the truck were appellant, brothers David and Rick Thompson, Daniel
No. 15AP-938 3
Toops, and Tiffany Eye. At approximately 12:40 a.m., the state highway patrol received a
call of a one-vehicle accident on State Route 161 in Franklin County. Emergency services
found Toops dead at the scene, Rick pinned under the truck with very severe leg injuries,
and all other occupants ejected and injured to some degree.
{¶ 5} David testified that on the night in question he left work around 10:00 p.m.
and went directly to Lee's Sports 'n' Spirits Bar ("Lee's Bar") in Plain City to meet a group
of friends, including his brother, appellant, Toops, and Eye, as well as others not involved
in the accident. They stayed at the Lee's Bar approximately one and one-half to two
hours, during which time David consumed approximately five beers and one shot of
alcohol. All the others were drinking as well, although in David's estimation Toops, who
was slightly older than the others, probably consumed the least. The group decided to
leave Plain City and go to a bar in downtown Columbus before closing time, a transition
they had undertaken several times in previous months. David, Rick, Eye, Toops, and
appellant got into appellant's truck in the parking lot. Their companion Josh Mink
decided to follow in his own vehicle with two passengers. Toops initially considered
driving his own vehicle separately as well, but was persuaded to ride in appellant's truck
with the others.
{¶ 6} David had known appellant for some time, and could not recall appellant
letting anyone else drive his truck during that period. Appellant sat in the driver's seat,
Toops sat in the front passenger seat, David sat in the left rear passenger seat, Eye in the
center, and Rick in the right rear passenger seat. Appellant at first drove conservatively as
they departed Plain City, but as they followed State Route 161 toward Dublin and
Columbus, he became "[r]eckless[,] * * * put it to the floor, never let off of it." (Tr. Vol. II
at 64.) Rick suggested, to no avail, that appellant slow down. David then tapped
appellant on the shoulder and asked him to "[s]low down" as well, and appellant replied
"[s]hut up, pussy." (Tr. Vol. II at 64.) Immediately thereafter, appellant lost control of
the truck going over a railroad crossing. David could tell that a wreck was inevitable from
the speed and sideways attitude of the truck. He saw a ditch approaching straight ahead,
felt "a big boom and then it was lights out." (Tr. Vol. II at 66.) He came to in a corn field,
his shoes missing, and feeling very disoriented.
No. 15AP-938 4
{¶ 7} As David regained his bearings, Mink, who had been following in his own
vehicle, approached him in the corn field. His initial confusion and impairment, David
felt, was primarily due to a concussion, rather than actual intoxication, based on his own
experience drinking alcohol. After Mink helped David back to Mink's truck, he observed
Mink running through the corn field looking for the others involved in the accident.
Shortly thereafter, paramedics arrived at the scene. Paramedics treated David at the
scene and then transported him to Riverside Methodist Hospital in Columbus. David
described his injuries as seven rib fractures, a fracture of his T-5 vertebra, a concussion, a
punctured left lung, and road rash. He was hospitalized for 2 days and took 12 weeks to
further recover at home. At the hospital, law enforcement officers came to interview him
but David was unable to speak with them at length because of his breathing difficulties.
Two further police officials spoke with him one day later, at which time he provided some
details regarding the accident, particularly who was driving the truck.
{¶ 8} During his testimony, David was shown a photograph taken in the truck.
He stated the picture was taken with a cell phone approximately 10 to 20 seconds before
the accident. It depicts him, his brother, and Eye bunched together in the back seat of the
truck. He also was shown a surveillance video recorded in the parking lot at Lee's Bar. He
confirmed that the video depicted, among other activity, himself and appellant walking to
the driver's side of the truck, and Toops, Rick, and Eye walking to the passenger side of
the truck. The video then depicts the truck leaving the parking lot.
{¶ 9} On cross-examination, David acknowledged that during the time in
question he took Adderall under a doctor's prescription. He stated that he was probably
legally drunk at the time they left the Lee's Bar. He acknowledged that he tested positive
for marijuana after the accident, but denied smoking any on the day of the accident. He
also acknowledged that at the scene, he may have incorrectly stated to an interviewing
police officer or state trooper that there were only two people in the back seat of the truck.
He agreed that he may have told the trooper that appellant had only one beer to drink, but
interpreted this as his observation that he had only seen appellant drink one beer at Lee's
Bar. He revisited his earlier testimony to state that, as they were leaving Lee's Bar,
appellant initially drove conservatively until they reached the open highway,
No. 15AP-938 5
approximately two miles, at which point appellant "ripped into it and never let up." (Tr.
Vol. II at 108.)
{¶ 10} The next witness for the state was Rick. His testimony largely corroborated
that of his brother on events preceding the accident. After getting off work on the day in
question, Rick and appellant went to Tuttle Mall where they bought clothes and matching
hats. They went to Lee's Bar in Plain City. His brother, David, arrived approximately one
hour after he and appellant were at Lee's Bar. Through the course of the night, Rick
observed David with a beer in his hand continuously. He also observed appellant on at
least one occasion with a beer in his hand. Rick could not recall accurately how much
alcohol he consumed himself. He saw Toops drinking at some point, but knowing Toops
not to be a heavy drinker, estimated that Toops consumed at most one or two light beers.
{¶ 11} When the groups left Lee's Bar to go to downtown Columbus, Rick at first
considered getting in Toops's truck. He was not concerned about Toops's ability to drive
at that point. After discussion, all five in the group got into appellant's truck. Rick
corroborated David's description of the relative seating position of driver and passengers
in the truck. The group was in high spirits, and, during a period in which appellant
initially drove conservatively, they laughed and took pictures of each other in the truck.
{¶ 12} Rick's testimony exhibited an exceptionally clear and detailed recollection of
the accident itself. Rick heard the truck exhaust noise increase in volume and leaned
forward to observe that the speedometer was approaching 100 m.p.h. Rick was
concerned because on the way to Lee's Bar, he had hit black ice and he knew that
appellant's tires were bald from doing burnouts. He also knew of a sharp curve
immediately following the railroad tracks they were approaching. He asked appellant to
"slow the F down." (Tr. Vol. II at 139.) David repeated the request and appellant
responded, "Shut the F up you pussies." (Tr. Vol. II at 139.) Appellant did not slow down.
When the truck hit the tracks, it went airborne and came down on an angle toward the
driver's side, spun, hit the roadside ditch, and began flipping. As the truck flipped, Rick
saw that some of the other passengers were no longer in the truck. As the truck flipped
multiple times, Rick attempted to restrain himself by gripping the passenger assist handle
with both hands, at one point letting go with one hand and reaching out to try and keep
No. 15AP-938 6
Toops in the truck, which he was unable to do, and he then saw Toops ejected as well.
Rick was then ejected himself, and the truck rolled to rest on top of him.
{¶ 13} Rick found that he was trapped in the ditch with the bed of the truck across
his pelvis and hips so that he could not see his legs. He began yelling for help, but none of
the other passengers responded. Mink soon pulled up to the scene and spoke to him.
Mink then proceeded to search back and forth across the area, looking for the others and
coming back to check on Rick occasionally. Shortly thereafter, emergency personnel
arrived at the scene and lifted the truck off Rick with an inflatable airbag. At that point,
Rick lost consciousness and did not come to until several days later in the hospital, where
he had been placed into a medically induced coma.
{¶ 14} Rick spent 89 days in the hospital. His primary injuries were a broken tibia
in his left leg, a broken femur in his right leg, broken bones in his hand, degloving injuries
to his legs and feet, and infections due to the contaminated open wound sites.
Reconstructive treatment consisted of rods in each leg, pins in an ankle, and skin grafts.
The severe pain caused by these injuries and multiple ensuing surgeries required Rick to
receive opiate pain medications for long enough to suffer significant withdrawal
symptoms when his doctors tapered off his dosage.
{¶ 15} Rick identified two hats presented as exhibits as those worn by himself and
appellant at the time of the accident. They were identical, custom-made hats. Based on
this and other items of clothing, he confirmed that the parking lot surveillance video at
Lee's Bar showed appellant entering the driver side of the truck.
{¶ 16} On cross-examination, Rick agreed that he had been drinking for
approximately five hours on the night in question. He stated that he had not given prior
statements to law enforcement in connection with the investigation.
{¶ 17} Mink testified on direct examination that on the night in question he left his
job at a bank at approximately 4:00 p.m. He had family in town for the holidays and
around 8:00 p.m. took two of the out-of-town relatives to Lee's Bar. He had grown up in
the Plain City area and knew Rick, Dave, and appellant from school or social activities.
{¶ 18} Appellant and Rick were already in a group when Mink arrived. They were
drinking and doing shots. Mink and his cousins intended to accompany the others to the
arena district in downtown Columbus. He observed the five others get into appellant's
No. 15AP-938 7
truck and followed, with his cousins, in his own truck. Because of the relative placement
of the two vehicles in the parking lot, he left Lee's Bar a couple minutes behind appellant.
He called Toops and learned the route that appellant would take toward Columbus, using
the same route himself.
{¶ 19} Traveling eastbound on State Route 161, Mink approached another vehicle
that had come to a complete stop in the road. As he moved to go around it, he saw a
wrecked truck in the ditch. The truck was lying on its roof with its front toward the road.
Mink immediately pulled over and ran to the accident scene. The driver of the other
vehicle obtained a flashlight and together they looked for the occupants of appellant's
truck both inside and around the truck.
{¶ 20} They first located appellant in front of his truck lying by the side of the
pavement. Appellant was just coming to, unable to stand, but coherent although in shock.
Mink kept searching and found Eye in the field next to the ditch. She was confused but
responsive. Mink's cousin wrapped her in a coat and stayed with her while Mink returned
to the truck. Moving to the field side of the wrecked truck, he found Rick trapped beneath
the tailgate. Rick was conscious and repeatedly asked where his brother David was, but
Mink did not yet know. Mink soon located David, who was attempting to stand with
difficulty. Mink walked David over to his truck and helped him into the passenger seat.
Mink then returned to appellant's truck to tell Rick that he had found David alive. At this
time, emergency personnel arrived at the scene and directed him to stop looking for
Toops and return to his own truck. Mink reluctantly did so.
{¶ 21} Trooper Timothy Ehrenborg, of the Ohio State Highway Patrol, testified
regarding his response to the accident scene and subsequent investigation. Trooper
Ehrenborg testified that he was tasked with supervising the ongoing investigation of the
November 28th accident, compiling information, and cleaning up the accident scene.
After the fact, this involved collection of evidence and coordination of the accident
reconstruction unit.
{¶ 22} On the night of the accident, Trooper Ehrenborg arrived to find that
emergency personnel and some good Samaritan bystanders were already at the scene. He
spoke with Mink and medical personnel. Because the accident was located near the
Franklin/Madison County line and adjoined several nearby municipalities or townships,
No. 15AP-938 8
personnel from several jurisdictions were on the scene. He established that the time of
the first call for assistance was at 12:40 a.m. on November 28th and noted that he arrived
at the scene at 1:12 a.m. Rick had already been freed by emergency personnel and either
placed in a squad or taken by squad to the hospital. With the more urgent aspects of the
situation under control, Trooper Ehrenborg ran the truck license plate to find that the
truck was registered to appellant. He then located Toops, who had been declared dead by
medical personnel and for the time being left where he lay.
{¶ 23} Trooper Ehrenborg identified several pictures he had taken at the scene
and described them. These included pictures of blood on the ground where Rick was
trapped under the truck, and documentation of the bald condition of one of appellant's
truck's tires. He documented the road conditions as cold but with a clean, dry roadway.
On questions addressing the more technical side of the accident reconstruction, Trooper
Ehrenborg deferred to the actual accident reconstruction specialist.
{¶ 24} Trooper Ehrenborg testified that later in his investigation, based on
information provided to another trooper who interviewed the truck occupants at the
hospital, he determined and charted the seating positions of the passengers and driver in
the truck, placing appellant behind the wheel. In doing so, he disregarded conflicting
information provided by Eye, who initially indicated that Toops was the driver. He relied
instead on other informants who were clear that appellant was in fact behind the wheel,
and Trooper Ehrenborg noted that appellant had himself indicated he was the driver.
{¶ 25} On cross-examination, Trooper Ehrenborg indicated he did not perform a
DNA analysis to determine who was at the wheel, or request a fingerprint analysis. He did
not consider it necessary to order any further measures, such as a foot pedal impression to
determine whose foot was last placed on the brake. He stated that he had no personal
indication of the level of blood alcohol for the various parties involved until he began
compiling information gathered by other investigators.
{¶ 26} Eye was called by the state to testify. On the day in question, Eye left work
around 9:00 p.m. and met the others at Lee's Bar. She was a high school classmate of
appellant and Mink, and had met the other members of the group more recently. She
estimated she consumed four beers and one shot of liquor before the group decided to
leave around 12:30 a.m. Eye corroborated the testimony of others that Toops consumed
No. 15AP-938 9
less alcohol than other members of the group on that evening. Although she had a clear
recollection of the arrangement of the passengers in the rear seat of the truck, she was not
sure of who was driving and who was in the front passenger seat, although she had the
impression that Toops was driving. She had no recollection of the accident proper, and
her first memory thereafter was of waking up on the ground in pain. She was transported
by emergency personnel to Dublin Methodist Hospital and released after one to two
hours. After this, she was taken to Riverside Methodist Hospital where she was kept for
three days. She suffered two broken clavicles, two spinal fractures, and a bruised lung.
{¶ 27} When shown the surveillance video of the parking lot at Lee's Bar, Eye
testified she could identify the various members of the group as they approached
appellant's truck. She was not asked, based on her view of the parking lot video, which
position the passengers took in the truck. Eye further testified on cross-examination that
Toops, who was in her experience not a heavy drinker, was the least intoxicated of the
group and that both appellant and Rick were very intoxicated. She could not confirm the
content of any conversation in the truck prior to the accident. Eye stated she was 90
percent sure that Toops was driving, and agreed that this made sense because he was the
least intoxicated and she would have considered this before she accepted a place in the
truck. She had no recollection of an interview taken by a state trooper on the morning of
the accident. She agreed that a blood alcohol test at the hospital showed she had a .156
blood alcohol level. She confirmed she had briefly dated appellant, and maintained a
social relationship with him and his family after the accident.
{¶ 28} Trooper W. Scott Davis, of the Ohio State Highway Patrol, testified for the
prosecution. After the accident, he was dispatched to Riverside Methodist Hospital to
interview the persons involved. He began by locating appellant as the registered owner of
the wrecked truck. Friends and family of the injured were already at the hospital, but
Trooper Davis had no difficulty locating appellant and interviewing him in his hospital
room with appellant's parents present. Due to appellant's injuries, which prevented him
from writing, appellant's mother produced a partial written statement dictated by
appellant. Trooper Davis then completed the balance of the statement in his own
handwriting based on a series of questions and answers, most crucially, appellant's
statement that he was driving the truck:
No. 15AP-938 10
A. I asked him if he had -- if he was driving a car or truck
that night.
Q. And what was his response to you.
A. "A truck."
Q. Did you ask him about -- well, I guess, let me ask you,
what other things did you ask him about?
A. I asked him whose struck [sic] he was driving; and he
stated, Mine.
(Tr. Vol. III at 252.) Appellant seemed coherent and aware of his circumstances
throughout the interview, despite his injuries and treatment.
{¶ 29} On cross-examination, Trooper Davis stated that, during the same series of
interviews at the hospital, Eye stated she was 90 percent sure that appellant was not the
driver of the truck at the time of the accident. Trooper Davis also acknowledged on cross-
examination that his written record of the interview reads, more accurately, "Were driving
a truck or car," with the reply "A truck." (Tr. Vol. III at 261.) He acknowledged that the
omission of the word "you" before "driving" in the question as written makes the answer
ambivalent when taken out of context. He nonetheless emphasized that the thrust of his
question was unmistakable; he believed that the written notes did not reflect how he
asked it and how he believed appellant to have understood the question and answered it.
On re-direct examination, he restated that the actual content of his question was as
follows: "I verbally stated to Mr. Bluhm, Were you driving a truck or car today?" (Tr. Vol.
III at 273-74.)
{¶ 30} Trooper Davis further testified on cross-examination that when he
interviewed David, the written statement provided at the hospital by David indicated that
he could not accurately recall the passengers in the truck. He acknowledged that in
contrast, Eye's statement did accurately list the passengers.
{¶ 31} Trooper Bradley, Long of the Ohio State Highway Patrol, testified as an
accident reconstruction specialist. Using an aerial image of the accident site, he pointed
out the truck's trajectory as it travelled eastbound on State Route 161 in Madison County,
lost control just at the Franklin County line, continued on into Franklin County and rolled
through a ditch and into a corn field. Using survey equipment and tire tracks, he was able
No. 15AP-938 11
to determine the truck's speed and trajectory. Commencing his analysis at the first sign of
"yaw" tire marks where the truck went out of control, and continuing through its final
resting place and gouge marks in the field, he calculated the truck's speed in a range of 95
to 103 m.p.h. After further analysis of information contained in the truck's airbag control
module, which records deceleration and speed based on wheel speed sensors, he
determined that this data was consistent with the lower end of his calculated estimate of
95 m.p.h. None of the other forensic evidence obtained at the scene supported any cause
for the accident other than excessive speed resulting in a one-vehicle rollover crash.
{¶ 32} On cross-examination, Trooper Long indicated that the investigating
officers had not undertaken fingerprint or DNA analysis to attempt to determine where
the various occupants were in the truck and who the driver was. He felt that such analysis
would have been futile in any case because all the occupants had been tossed around
inside the truck during the accident. He stated there was no evidence of application of
brakes on the truck before the accident, and that a brake pedal foot impression would not
have yielded useful results.
III. DISCUSSION
{¶ 33} Appellant's first assignment of error asserts that his convictions were
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.) State v. Thompkins, 78 Ohio St. 3d 380,
387 (1997), quoting Black's Law Dictionary 1594 (6 Ed.1990).
{¶ 34} Our review on appeal must acknowledge the superior position of the finder
of fact at trial in resolving evidentiary conflicts and assigning weight to testimony. As the
finder of fact, the jury is in the best position to weigh the credibility of testimony by
assessing the demeanor of the witnesses and the manner in which they testify, their
connection or relationship with the parties, and their interest, if any, in the outcome. The
jury can accept all, a part or none of the testimony offered by a witness, whether it is
No. 15AP-938 12
expert opinion or eyewitness fact, whether it is merely evidential or tends to prove the
ultimate fact. State v. McGowan, 10th Dist. No. 08AP-55, 2008-Ohio-5894, ¶ 13, citing
State v. Antill, 176 Ohio St. 61, 67 (1964).
{¶ 35} When a court of appeals reverses a judgment of a trial court on the basis
that the verdict is against the weight of the evidence, the appellate court sits as a
"thirteenth juror" and disagrees with the factfinder's resolution of the conflicting
testimony. Thompkins at 387. An appellate court should reverse a conviction as against
the manifest weight of the evidence in only the most "exceptional case in which the
evidence weighs heavily against the conviction," instances in which 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. Martin, 20 Ohio App. 3d 172, 175 (1st
Dist.1983).
{¶ 36} Appellant asserts that the weight of the evidence demonstrates that
appellant was not the driver of the truck at the time of the accident. This is based on Eye's
testimony that she was "90-percent sure" that Toops was driving. (Tr. Vol. III at 233.)
Appellant argues that the testimonies of David and Rick to the contrary must be
discounted because both admitted to drinking heavily on the night of the accident, and
David suffered a concussion that affected his memory and made him incapable of giving
an accurate account immediately after the accident.
{¶ 37} The state asserts to the contrary that the weight of the evidence in fact
overwhelmingly supports the jury's conclusion that appellant was the driver. Both David
and Rick gave detailed accounts on the moments preceding the accident, which Eye was
unable to do. Both David and Rick recalled details of the conversation with appellant as
appellant continued to drive the truck at excessive speed and refused to slow down for the
upcoming curve. Appellant's statement to Trooper Davis at the hospital, although
controverted to some extent as described above, constituted an admission, if believed,
that appellant was driving the truck. Mink, not personally involved in the accident and
with his memory therefore unaffected by physical trauma, testified he personally observed
appellant get into the driver's seat of the truck in the parking lot at Lee's Bar. Eye, in
contrast, was unable to recall events immediately preceding the accident or the accident
itself. While her testimony at trial was consistent with prior statements to law
No. 15AP-938 13
enforcement, she was herself as intoxicated on the night in question as Rick and David,
and admitted some confusion as to whose truck she was supposed to ride in. Mink, who
drank little that night, clearly recalled appellant taking the driver's seat in the parking lot
and Toops taking the front passenger seat. All witnesses who addressed the issue agreed
that appellant rarely, if ever, allowed anyone else to drive his truck.
{¶ 38} Faced with conflicting testimony on this pivotal issue, the jury was free to
disregard Eye's testimony and find credible the testimony of multiple other witnesses
stating that appellant was indeed the driver of the truck at the time of the accident. Given
the evidence presented, there is no indication that the jury lost its way and created a
manifest miscarriage of justice. We find that the jury verdict was not against the manifest
weight of the evidence and overrule appellant's first assignment of error.
{¶ 39} Appellant's second assignment of error asserts appellant did not receive the
constitutionally guaranteed effective assistance of trial counsel because trial counsel failed
to object to admissibility of certain evidence, particularly appellant's hospital statement to
investigating officers.
{¶ 40} In order to establish a claim of ineffective assistance of counsel, a defendant
must first demonstrate that his trial counsel's performance was so deficient that it was
unreasonable under prevailing professional norms. Strickland v. Washington, 466 U.S.
668, 687-88 (1984). The defendant must then establish that "there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a probability sufficient to
undermine confidence in the outcome." Id. at paragraph 2(b) of the syllabus.
{¶ 41} "A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at
the time. Because of the difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action 'might be considered sound trial
strategy.' " Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101 (1955). A verdict
No. 15AP-938 14
adverse to a criminal defendant is not of itself indicative that he received ineffective
assistance of trial counsel. State v. Hester, 45 Ohio St. 2d 71, 75 (1976).
{¶ 42} Appellant's trial counsel filed a pretrial motion to suppress evidence
collected during the investigation. At a pretrial status conference, defense counsel stated
that, while the motion to suppress was not withdrawn, counsel would not press the issue.
The trial court never ruled on the motion to suppress and appellant's statements to
Trooper Davis during his hospital interview were admitted without objection. On appeal,
appellant now argues that this failure to seek suppression of the hospital statement and
later failure to object at trial was crucial in light of the fact that counsel's principal defense
strategy was to dispute the identity of the driver at the time of the accident.
{¶ 43} Accepting, arguendo, that the failure to prosecute the motion to suppress or
object to admission of appellant's statement at trial fell below reasonable professional
norms for trial counsel, appellant fails to articulate on appeal a theory under which the
pretrial motion was meritorious, and further fails to argue any reasonable probability that
the result of the trial would have been different had the motion to suppress been granted.
See generally Kimmelman v. Morrison, 477 U.S. 365, 375 (1986); State v. Santana, 90
Ohio St. 3d 513 (2001).
{¶ 44} With respect to the merits of the motion to suppress, at the pretrial hearing,
trial counsel indicated that there was little basis to exclude statements made to Trooper
Davis in the hospital. On appeal, appellant asserts only that he was still physically "beat
up" as a result of the accident and still had alcohol in his system when he gave the
statement. (Tr. Vol. III at 249.) Trooper Davis testified to the contrary that, after being
read his Miranda rights, appellant answered appropriately and was cognizant of the
situation.
{¶ 45} With regard to the probable outcome of the proceedings, appellant's
admission that he was driving was, at best, cumulative to the detailed recollections of Rick
and David and the eyewitness testimony of Mink as to who took the wheel in the parking
lot at Lee's Bar. These were contradicted only by the somewhat less conclusive testimony
of Eye. Given the strength of the evidence on this issue, exclusion of the contested
statement would not have created a reasonable probability of a different outcome. In
No. 15AP-938 15
sum, appellant does not meet the standard to demonstrate ineffective assistance of trial
counsel, and appellant's second assignment of error is overruled.
{¶ 46} Appellant's third assignment of error asserts the trial court erred when it
communicated with the jury foreman during deliberations. During deliberations, the jury
sent the following question to the court: "What circumstances would cause a witness
statement to be disallowed? Did the court decide witnesses answered with clear
understanding?-After Miranda." (Tr. Vol. V at 5.) After conferring, counsel for both sides
agreed with the court that the question was not intelligible and that further
communication would be appropriate. The court convoked the jury foreperson in the
presence of counsel and engaged in a brief colloquy to clarify the meaning of the jury's
question. The court then dismissed the foreperson from the discussion and conferred
with counsel. All parties agreed on a response that would simply restate the written jury
instructions, generally telling the jury that it was the sole judge of credibility for witness
testimony.
{¶ 47} Pursuant to State v. Wade, 10th Dist. No. 03AP-774, 2004-Ohio-3974, ¶ 25,
appellant correctly argues that a deficiency in the procedure used to respond to jury
questions, if it influences the jury improperly, may require reversal. Appellant concedes
on appeal, however, that the content of the actual discussion with the foreperson, and the
written response ultimately sent to the jury, were appropriate. Appellant objects only to
the trial court's questioning of the jury foreperson alone. Citing United States v. United
States Gypsum Co., 438 U.S. 422, 460-62 (1978), appellant argues that conversation
during deliberations with a single member of the jury heightens the risk of injection of the
judge's personal views, even unintentionally, which can taint the otherwise objective jury
instructions. Appellant cites no other case law for the proposition that any in-person
communication by the judge with the jury foreperson, in the presence of counsel for both
sides, is improperly influential per se.
{¶ 48} We first note that the trial court here was careful to avoid the problems
inherent in ex-parte communications between court and jury. See generally State v.
Wilhelm, 5th Dist. No. 03-CA-25, 2004-Ohio-5522, ¶ 28, citing Rushen v. Spain, 464 U.S.
114 (1983), Remmer v. United States, 347 U.S. 227 (1954), and Bostic v. Connor, 37 Ohio
St.3d 144, 149 (1988) ("As a general rule, any communication with the jury outside the
No. 15AP-938 16
presence of the defendant or parties to a case by either the judge or court personnel is
error which may warrant the ordering of a new trial."). The judge made sure that counsel
for both sides were present1 and participated in the process as the foreperson was
convoked, the question explained, and the written answer to the jury elaborated.
{¶ 49} In contrast, U.S. Gypsum involved an ex-parte communication between
judge and foreperson that encouraged the jury to reach a verdict without a written
instruction. Counsel for the parties were not consulted or present. The communications
occurred in the context of an obviously deadlocked jury that had already received a charge
pursuant to Allen v. United States, 164 U.S. 492 (1896), encouraging the jurors to
reconsider their positions and reach a consensus. The United States Supreme Court in
U.S. Gypsum duly noted the risks associated with the judge undertaking such a meeting
during deliberations: "Any ex parte meeting or communication between the judge and the
foreman of a deliberating jury is pregnant with possibilities for error. This record amply
demonstrates that even an experienced trial judge cannot be certain to avoid all the
pitfalls inherent in such an enterprise." U.S. Gypsum at 460. "First, it is difficult to
contain, much less to anticipate, the direction the conversation will take at such a
meeting. Unexpected questions or comments can generate unintended and misleading
impressions of the judge's subjective personal views which have no place in his instruction
to the jury -- all the more so when counsel are not present to challenge the statements."
Id. The objectionable nature of such communication was heightened by "references by the
foreman to the jury's deadlock, as well as an exchange suggesting the strong likelihood
that the foreman carried away from the meeting the impression that the judge wanted a
verdict 'one way or the other.' " Id.
{¶ 50} Apart from the judge's care in consulting with counsel during the resolution
of the jury issue, the present case is further distinguishable from U.S. Gypsum because it
involves only the clarification of a question and formulation of an answer to be submitted
to the jury after consultation between counsel and court. Our review of the colloquy
between the trial court and jury foreperson discloses no indication of any statements that
might have influenced the foreperson and affected the outcome. The conversation was a
1While it is unclear from the record whether defendant was present or his presence was waived by his
counsel, we do not address the same as this was not raised as an assigned error.
No. 15AP-938 17
neutral attempt to establish the meaning of the jury question and determine, in the
absence of the foreman and after consultation with counsel, the appropriate answer to be
returned to the jury. In the present circumstances, there was no prejudice to appellant
from the procedure employed by the trial court to resolve the jury question, and
appellant's third assignment of error is overruled.
{¶ 51} Appellant's fourth assignment of error asserts the trial court failed to
comply with R.C. 2929.11 and 2929.12 when imposing sentence. Appellant further argues
the trial court did not make mandatory findings required by R.C. 2929.14(C)(4) before
imposing consecutive prison terms.
{¶ 52} The sentencing entry in the present case contains the following language:
The Court has considered the purposes and principles of
sentencing set forth in R.C. 2929.11 and the factors set forth
in R.C. 2929.12. The Court further finds that a prison term is
mandatory, as to Count One.
(Emphasis sic.) (Oct. 14, 2015 Jgmt. Entry at 1.)
{¶ 53} Where the sentencing entry contains express statement the court has
considered the statutory factors addressing the purposes of felony sentencing, it complies
with R.C. 2929.11 and 2929.12. State v. Reeves, 10th Dist. No. 14AP-856, 2015-Ohio-
3251, ¶ 7. The trial court did not err in this respect.
{¶ 54} With respect to application of R.C. 2929.14(C)(4), and the imposition of
consecutive prison terms, appellant's argument has merit. Pursuant to R.C. 2929.14(C),
terms shall be served concurrently unless the court makes the requisite statutory finding
as follows:
(4) 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,
No. 15AP-938 18
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.
{¶ 55} The sentencing court is not required to particularize its factual reasons for
finding that the conditions of R.C. 2929.14(C) are met, but merely state that it has found
so. State v. Sullivan, 10th Dist. No. 11AP-414, 2012-Ohio-2737, ¶ 24. "The trial court is
not * * * required to recite any 'magic' or 'talismanic' words when imposing consecutive
sentences." State v. Bass, 10th Dist. No. 12AP-622, 2013-Ohio-4503, ¶ 37, quoting State
v. Hubbard, 10th Dist. No. 11AP-945, 2013-Ohio-2735, ¶ 86. On appeal, we will find that
the trial court has properly made the requisite findings when we "can discern that the trial
court engaged in the correct analysis and can determine that the record contains evidence
to support the findings." State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, ¶ 29. The
court must make its R.C. 2929.14(C)(4) findings at the time of sentencing and incorporate
them into the sentencing entry. Id. at ¶ 26, 30; State v. Dixon, 10th Dist. No. 15AP-432,
2015-Ohio-5277, ¶ 20-23.
{¶ 56} Under the statute, the trial court must make three conjunctive findings. The
two initial findings are, first, that consecutive sentences are necessary to protect the public
from future crime or punish the offender, and, second that consecutive sentences are not
disproportionate to seriousness of the offender's conduct. Having so found, the court
must then find whether one or more of the additional factors under R.C. 2929.14(C)(4)(a)
through (c) apply. R.C. 2929.14(C)(4)(a) and (c) address, respectively, offenses
committed while the offender was awaiting trial or sentencing on other offenses, and
defendants who present a criminal history that demonstrates the necessity to protect the
public from future crime. The parties agree that these sections are not applicable here.
R.C. 2929.14(C)(4)(b) is the relevant factor in this case: the court must find that multiple
No. 15AP-938 19
offenses were committed as part of one or more courses of conduct, and that "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."
{¶ 57} Our review of the sentencing hearing and entry leads us to conclude that the
trial court did not make the requisite findings under R.C. 2929.14(C)(4). Even if we do
not hold the court to "talismanic words," the court's consideration of some aspects of the
crime is not sufficient to support findings required by R.C. 2929.14(C)(4). The court did
explicitly consider that "the horror of Mr. Thompson waking up with a car on top of him
and the long term physical effects that he will have to suffer as well as the fact that Mr.
Toops is dead," does reflect consideration of the harm caused by the offense. (Tr. Vol. V at
36.) The court did not, however, further articulate this harm in relation to the other
factors such as protection of the public or the adequacy of concurrent sentences. We find
that this is insufficiently precise to comply with R.C. 2929.14(C)(4). Furthermore, the
trial court did not incorporate R.C. 2929.14(C)(4) findings into the sentencing entry as
required by Bonnell.
{¶ 58} The state argues here, as it has in the past, that trial counsel did not object
to the trial court's failure to articulate the statutory findings, and that we can only review
the alleged error under a plain error standard, that is, appellant is held to demonstrate on
appeal that the outcome of the proceeding would have been different and that he would
not have received consecutive sentences if the trial court had complied with the statute.
This court has consistently held that when the record demonstrates that the trial court
failed to make the findings required by R.C. 2929.14(C)(4) before imposing consecutive
sentences on multiple offenses, the sentence is contrary to law and constitutes plain error.
State v. Ayers, 10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 15; State v. Phipps, 10th Dist.
No. 13AP-640, 2014-Ohio-2905, ¶ 57. "Although the state disagrees with the plain-error-
as-a-matter-of-law standard employed in [our] case[], we are bound by the doctrine of
stare decisis and will follow this court's precedent." Id. We accordingly sustain appellant's
fourth assignment of error in part and overrule in part.
No. 15AP-938 20
IV. Conclusion
{¶ 59} In accordance with the foregoing, appellant's first, second, and third
assignments of error are overruled. Appellant's fourth assignment of error is sustained in
part and overruled in part, and this matter is remanded to the Franklin County Court of
Common Pleas for resentencing in compliance with R.C. 2929.14(C)(4) and to incorporate
the same into the sentencing entry.
Judgment affirmed in part,
reversed in part, and cause remanded.
SADLER and HORTON, JJ., concur.