State v. Nelson , 2022 Ohio 1665 ( 2022 )

[Cite as State v. Nelson, 2022-Ohio-1665.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110593
v. :
GREGORY NELSON, JR., :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 19, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-19-645954-A and CR-19-646656-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and James Gallagher, Assistant Prosecuting
Attorney, for appellee.
Fred Middleton, for appellant.
JAMES A. BROGAN, J.:
Defendant-appellant Gregory Nelson, Jr. (“Nelson”) appeals from his
convictions and sentence for felonious assault and other charges following a bench
trial. For the reasons that follow, we affirm.
Factual and Procedural History
On December 17, 2019, a Cuyahoga County Grand Jury indicted
Nelson on various offenses in two separate cases stemming from three separate
incidents in October and November 2019. In Cuyahoga C.P. No. CR-19-645954,
Nelson was charged with two counts of discharge of firearm on or near prohibited
premises in violation of R.C. 2923.162(A)(3), felonies of the third degree, both of
which carried one- and three-year firearm specifications; five counts of aggravated
menacing in violation of R.C. 2903.21(A), misdemeanors of the first degree; one
count of felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second
degree, which carried one- and three-year firearm specifications; one count of
criminal damaging or endangering in violation of R.C. 2909.06(A)(1), a
misdemeanor of the first degree, with a furthermore specification; and one count of
having weapons while under disability in violation of R.C. 2923.13(A)(2), a felony of
the third degree.
In Cuyahoga C.P. No. CR-19-646656, Nelson was charged with one
count of felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second
degree, with one- and three-year firearm specifications; one count of assault in
violation of R.C. 2903.13(A), a misdemeanor of the first degree with a pregnant
victim specification; one count of abduction in violation of R.C. 2905.02(A)(2), a
felony of the third degree; one count of aggravated menacing in violation of R.C.
2903.21(A); and one count of having weapons while under disability in violation of
R.C. 2923.13(A)(2), a felony of the third degree.
On February 9, 2021, Nelson waived his right to a jury trial. On
March 2, 2021, the state moved to join the cases together for trial. Defense counsel
did not object to the joinder motion, and the court granted the motion.
On April 5, 2021, the case proceeded to a bench trial. The state called
the victim Asia Sparks (“Sparks”), Sparks’s mother Cinnamon Anderson
(“Anderson”), Brenda Walkerly (“Walkerly”), and Detective James Januszewski
(“Detective Januszewski”).
Sparks testified that she had known Nelson for four to five years and
had been romantically involved with him for the duration of their relationship. The
couple had one child together, a son who was born on May 18, 2020.
Anderson, Sparks’s mother, testified that on October 5, 2019, she was
in bed at her home in Shaker Heights, Ohio. Around 2:00 or 3:00 a.m., she heard
loud noises and came downstairs to find Sparks and Nelson. Anderson told Sparks
that she should take Nelson home. According to Anderson, Sparks did not want to
take Nelson home, so Anderson offered to drive Nelson to his grandmother’s house
in Cleveland, Ohio, where he was staying at the time. Anderson drove with Sparks
and Nelson to Nelson’s grandmother’s house.
Anderson testified that during the 15-minute car ride, she told Sparks
that Sparks should not be drinking or smoking because she was pregnant.
According to Anderson, Nelson was aware that Sparks was pregnant. Sparks denied
this in her testimony, testifying that although she was pregnant during all three of
the incidents, Nelson did not learn that she was pregnant until after his arrest for
these incidents.
Anderson testified that Nelson seemed fairly calm during the ride, but
as they got closer to his grandmother’s house, he got increasingly agitated and raised
his voice. Anderson testified that Nelson and Sparks were discussing an “incident”
but Anderson did not know what this incident was. According to Anderson, when
they arrived at Nelson’s grandmother’s house, Nelson “got out of the car and he just
started shooting a gun.” Anderson described Nelson shooting the gun up in the air
and down the street, and she testified that he shot the gun approximately four times
while standing in the middle of the street. In her initial statement to police,
Anderson stated that Nelson fired twice in the air and twice in the ground.
Sparks testified that Nelson had learned that she had cheated on him
and he was mad. Sparks testified that when they arrived at Nelson’s grandmother’s
house, Nelson got out of the vehicle and she and Anderson remained in the vehicle.
Nelson fired a gun in the air. After Nelson fired his gun, Sparks told Anderson to
drive away. Sparks testified that Anderson did not immediately drive away and
Nelson was shouting angrily at her about cheating. Ultimately, Nelson went inside
his grandmother’s house and Sparks and Anderson drove home. Sparks did not call
the police after this incident. Anderson testified that in the weeks following this
incident, Nelson texted her apologizing for shooting his gun and scaring her.
Anderson testified that she did not contact the police immediately after this incident
because she was scared and because she wanted to give Nelson “the benefit of the
doubt.”
The second incident occurred several weeks later. Sparks had let
Nelson borrow her car. Walkerly, who was dating Sparks’s brother Anthony at the
time, testified that on October 23, 2019, Sparks had spent the night at Walkerly’s
house. Walkerly testified that on October 24, Sparks was worried about going to get
her car, so Walkerly, Sparks, and Anthony went to pick up the car from Nelson’s
grandmother’s house. Walkerly testified that when they arrived at the house, Sparks
and Anthony went inside with Nelson to retrieve Sparks’s car keys, and Walkerly
waited outside by her car, which was parked in front of Nelson’s neighbor’s house.
Walkerly described Anthony, Sparks, and Nelson coming out of the house together.
She testified that Anthony came over to her and Sparks and Nelson were arguing
and walking towards Sparks’s car, which was parked directly in front of Nelson’s
house. Walkerly testified that Sparks told her and Anthony to get in the car and go.
Walkerly got in her car with Anthony and turned the car around so that she would
be facing Sparks’s driver side to communicate about where they were going next.
According to Walkerly, Sparks drove off as Walkerly pulled her car around and that
is when Nelson, standing in the middle of the street, pulled a gun out and shot first
at the ground and then at Sparks’s car. Walkerly testified that Nelson possibly fired
a third shot before running after Sparks’s car.
Sparks testified that when they arrived at Nelson’s grandmother’s
house, she asked Nelson if he was with another girl and he said no. Sparks testified
that she retrieved her car keys from him, got into her car, and was about to leave
when she heard “loud sounds.” The following exchange took place:
PROSECUTOR: Was there a firearm at that incident?
SPARKS: No.
PROSECUTOR: Okay.
SPARKS: I didn’t see no firearm.
PROSECUTOR: Okay. Did you hear any shots?
SPARKS: No.
PROSECUTOR: You didn’t hear any gunshots?
SPARKS: I heard gunshots. They told me that it was gunshots.
DEFENSE COUNSEL: Objection.
COURT: Sustained.
PROSECUTOR: So you heard loud sounds?
SPARKS: Yeah.
PROSECUTOR: And you testified —
SPARKS: Well, when I heard the shots I was on the next street.
PROSECUTOR: So you know what a gunshot is, right? What it sounds
like?
SPARKS: Uh-huh.
PROSECUTOR: So you heard gunshots?
SPARKS: Yeah.
PROSECUTOR: But you just heard gunshots, you didn’t see it?
SPARKS: I heard it, I didn’t see it.
PROSECUTOR: That was right after you were talking to the defendant
about who he was with?
SPARKS: Yeah.
Sparks went on to testify that she did not notice damage to her car, but she explained
that a detective subsequently came to review damage to her car.
Anderson testified that on October 24, 2019, Anthony and Walkerly
came to Anderson’s house, hysterical about what had just occurred. Anderson
testified that Anthony described Nelson shooting at Sparks. Anderson filed a police
report that day for both the October 5 and October 24 incidents.
The third incident occurred on November 28, 2019. Sparks testified
that it was her birthday that day and, after working all day, she went to see Nelson.
She testified that they were relaxing when she brought up another man. According
to Sparks, Nelson “brushed it off” but she “kept egging him on.” Sparks testified that
she hit Nelson and then they started fighting and hitting each other. Sparks testified
that they fought over a period of several hours and, at one point, they drove to a
nearby convenience store. The fighting continued while they were in the car. Sparks
testified that she was bruised as a result of this fight and she ultimately reported the
incident at Anderson’s insistence. Sparks also went to the hospital to be treated for
her injuries. At trial, Sparks testified that Nelson did not have a firearm during the
fight, but she acknowledged in her trial testimony that she initially told the police
and hospital personnel that Nelson had hit her in the head with a firearm. Similarly,
Sparks testified that if she had wanted to leave at any point during the fight, she
could have, but she had initially told police that Nelson was holding her against her
will because she was angry.
Anderson testified at trial that on November 29, 2019, her husband
came to her in the kitchen and informed her that Sparks was outside in an
ambulance. Anderson testified that Sparks “looked very bad” and said that her hair
was thinning and her face was swollen, and “it was terrible.” Anderson testified that
the ambulance transported Sparks to the hospital and Anderson picked her up from
the hospital later that day. Anderson testified that the next day, she filed a police
report
Anderson went on to testify that she subsequently went with Sparks
to pick up Sparks’s car from the impound lot. Upon noticing a gun and drugs in the
car, Anderson called the police.
Detective Robert Januszewski (“Detective Januszewski”) testified
that upon being assigned this case, he spoke with Sparks and Anderson. He
described Sparks as initially not being very cooperative, noting specifically that she
was supposed to have a formal interview and did not show up. Ultimately, Detective
Januszewski interviewed Sparks at her home. He also interviewed Anderson and
subsequently took Walkerly’s statement over the phone. Detective Januszewski
testified that he also took a statement from Sparks’s brother Anthony.1 Detective
1
Anthony did not testify at trial. Anderson testified that at the time of the trial,
Anthony had been in Mexico for approximately six months and had not received a
subpoena to appear as a witness at trial. Detective Januszewski’s testimony corroborated
this.
Januszewski testified that over the course of the case, Sparks had avoided his calls
and had signed a no prosecution form. Detective Januszewski also testified that in
the course of his investigation, he inspected Sparks’s vehicle, saw a small hole in the
right taillight, and intended to process the vehicle, but Sparks did not want her
vehicle to be formally processed. Detective Januszewski testified that the small hole
appeared to be a possible bullet hole.
At the close of the state’s case, Nelson’s counsel made a Crim.R. 29
motion for acquittal. The court granted Nelson’s motion as to one count of
aggravated menacing against Anthony and denied the motion as to the remaining
counts and specifications. Nelson did not call any witnesses or introduce evidence
on his behalf. Defense counsel renewed his Crim.R. 29 motion, which the court
denied.
The court found Nelson guilty of two counts of discharging a firearm
on or near prohibited premises, one count of aggravated menacing against
Anderson, one count of felonious assault against Sparks, one count of criminal
damaging or endangering, one count of aggravated menacing against Walkerly, two
counts of having weapons while under disability, one count of assault against
Sparks, and one count of aggravated menacing against Sparks, including the
corresponding firearm specifications for these offenses.
The court found Nelson not guilty of two counts of aggravated
menacing against Sparks, one count of felonious assault against Sparks, and one
count of abduction of Sparks, including the corresponding firearm specifications.
On May 20, 2021, the court held a sentencing hearing. The assistant
prosecuting attorney addressed the court, informing the court that Sparks had
submitted a letter to the court asking for Nelson to receive the minimum sentence.
The assistant prosecuting attorney went on to request a “mid-range” sentence.
Anderson addressed the court and asked the court to impose a minimum sentence
on Nelson and consider ordering anger management or other classes that might help
with impulsive behavior. The court read Sparks’s letter into the record. Finally,
defense counsel addressed the court and requested a minimum sentence for Nelson.
Defense counsel also objected to the application of the Reagan Tokes Law to the
case.
The court stated that it had reviewed the presentence investigation
report, considered the written and oral statements made by the victims and the
parties, and considered the principles and purposes of felony sentencing in R.C.
2929.11 and the sentencing factors in R.C. 2929.12. Ultimately, the court sentenced
Nelson to a total aggregate sentence of 10 to 12 years.2
Nelson appeals, presenting five assignments of error for our review:
2The court merged the one- and three-year firearm specifications on the two
discharge of a firearm offenses and the felonious assault offenses, and the state elected to
proceed with sentencing on the three-year firearm specification on those three counts.
The court found that the three-year firearm specifications corresponding to the felonious
assault and discharge of a firearm offenses that occurred on October 24, 2019 stemmed
from the same transaction and merged those firearm specifications for sentencing. The
court found that the remaining three-year firearm specification stemmed from a separate
transaction. The court ordered both three-year firearm specifications to be served
consecutive to the sentences on their respective underlying charges and consecutive to
each other. Beyond that, the sentences for all counts were order to be served concurrently.
I. Appellant maintains the court improperly failed to exclude the
testimony of the complaining witness when she denied any shots were
fired at her in regard to the aggravated assault charges or criminal
damaging charges.
II. Appellant maintains the court improperly denied the Crim.R. 29
motion to dismiss the charges of discharging of firearm on or near
prohibited premises.
III. Appellant maintains the sentence imposed by the court under the
Reagan Tokes Law is unconstitutional and the sentence should be set
aside and a pre-S.B. 201 sentence imposed.
IV. The convictions are against the manifest weight of the evidence.
V. The court erred by ordering the sentences to be served consecutively,
as the order was not supported by the R.C. 2929.14(C) factors, making
it contrary to law.
Legal Analysis
I. Sparks’s Testimony
Nelson’s first assignment of error asserts that the court’s failure to
exclude Sparks’s testimony when she denied that any shots were fired at her was
improper. Despite this framing, Nelson does not make any argument in support of
this assertion. Under App.R. 16(A)(7), an appellant must set forth in his brief “[a]n
argument containing the contentions of the appellant with respect to each
assignment of error presented for review and the reasons in support of the
contentions, with citations to the authorities, statutes, and parts of the record on
which appellant relies.” Where a party raising an assignment of error “fails to
identify in the record” the error on which a particular assignment of error is based
or “fails to argue the assignment separately in the brief, as required under App.R.
16(A),” the court may disregard an assignment of error presented for review. App.R.
12(A)(2).
Rather than present an argument in support of his evidentiary claim,
Nelson argues that the nature of Sparks’s testimony, which he characterizes as
“indecisive,” supports a conclusion that the elements of three of Nelson’s charges
were not proven beyond a reasonable doubt. This argument is not based on a lack
of evidence, but rather what Nelson characterizes as inconsistent evidence. To the
extent that Nelson’s arguments in his first assignment of error challenge that his
convictions were supported by sufficient evidence or were against the manifest
weight of the evidence, they will be addressed in our discussion of Nelson’s second
and fourth assignments of error. Nelson’s first assignment of error is overruled.
II. Crim.R. 29 Motion
In his second assignment of error, Nelson argues that the court
improperly denied his Crim.R. 29 motion to dismiss the charges of discharge of a
firearm on or near prohibited premises in violation of R.C. 2923.162(A)(3).
Specifically, Nelson argues that Crim.R. 29(A) provides that a court “shall order the
entry of the judgment of acquittal of one or more offenses * * * if the evidence is
insufficient to sustain a conviction of such offense or offenses.” “Because a Crim.R.
29 motion questions the sufficiency of the evidence, ‘[w]e apply the same standard
of review to Crim.R. 29 motions as we use in reviewing the sufficiency of the
evidence.’” Fairview Park v. Peah, 8th Dist. Cuyahoga No. 110128, 2021-Ohio-
2685, ¶ 37, quoting State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847
N.E.2d 386, ¶ 37.
A sufficiency challenge requires a court to determine whether the
state has met its burden of production at trial and to consider not the credibility of
the evidence but whether, if credible, the evidence presented would sustain a
conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997).
The relevant inquiry is whether, after viewing the evidence in a light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259,
273, 574 N.E.2d 492 (1991), citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct.
2781, 61 L.Ed.2d 560 (1979).
Nelson was convicted of two counts of discharge of a firearm on or
near prohibited premises in violation of R.C. 2923.162(A)(3), with one count related
to the October 5 incident and one count related to the October 24 incident. Pursuant
to R.C. 2923.162(A)(3), the state was required to prove that Nelson discharged a
firearm upon or over a public road or highway and the violation created a substantial
risk of physical harm to any person or caused serious physical harm to property.
With respect to the October 5 incident, testimony from Sparks and
Anderson was presented that Nelson was on the street outside of his grandmother’s
house, he was angry, he had a firearm, and he pointed the firearm into the air and
fired. Anderson specifically testified that Nelson was standing in the middle of the
street and fired his gun down the street. With respect to the October 24 incident,
Walkerly testified that Nelson came out of the house, fired a gun toward the ground,
and fired a gun at Sparks as she drove away down the street. With respect to both
incidents, witness testimony established that Nelson’s grandmother’s house is
located on a public road, in a residential area in which the houses were located close
together. Finally, testimony from Detective Januszewski indicated that the damage
to Sparks’s car was likely a bullet hole.
Viewing this evidence in the light most favorable to the state, any
rational trier of fact could have found that the elements of R.C. 2923.162(A)(3) were
proven beyond a reasonable doubt with respect to both the October 5 and
October 24 incidents. Therefore, the trial court properly denied Nelson’s Crim.R.
29 motion as to those charges. Nelson’s second assignment of error is overruled.
III. Reagan Tokes Law
In third first assignment of error, Nelson argues that his sentence is
invalid because it was imposed pursuant to Reagan Tokes, which violates the Ohio
and United States Constitutions. Specifically, Nelson argues that the law violates his
right to a jury trial, violates his due process rights, and violates the separation-of-
powers doctrine. Nelson’s arguments are overruled pursuant to this court’s en banc
decision in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-Ohio-470, which
overruled the challenges presented in this appeal to the Reagan Tokes Law enacted
through S.B. 201. Therefore, we find that Nelson’s sentence pursuant to Reagan
Tokes was not a violation of his constitutional rights. Nelson’s third assignment of
error is overruled.
IV. Manifest Weight
In his fourth assignment of error, Nelson argues that his convictions
are against the manifest weight of the evidence.
Unlike a challenge to the sufficiency of the evidence, a manifest
weight challenge attacks the quality of the evidence and questions whether the state
met its burden of persuasion at trial. State v. Hill, 8th Dist. Cuyahoga No. 99819,
2014-Ohio-387, ¶ 25, citing State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-
Ohio-3598, ¶ 13. In our manifest weight review of a bench trial verdict, we recognize
that the trial court is serving as the factfinder.
“‘Accordingly, to warrant reversal from a bench trial under a manifest
weight of the evidence claim, this court must review the entire record,
weigh the evidence and all reasonable inferences, consider the
credibility of the witnesses, and determine whether in resolving
conflicts in evidence, the trial court clearly lost its way and created such
a manifest miscarriage of justice that the judgment must be reversed
and a new trial ordered.’”
State v. Bell, 8th Dist. Cuyahoga No. 106842, 2019-Ohio-340, ¶ 41, quoting State v.
Strickland, 183 Ohio App.3d 602, 2009-Ohio-3906, 918 N.E.2d 170, ¶ 25 (8th Dist.),
quoting Cleveland v. Welms, 169 Ohio App.3d 600, 2006-Ohio-6441, 863 N.E.2d
1125 (8th Dist.), citing Thompkins, 78 Ohio St.3d 380 at 390, 678 N.E.2d 541.
Nelson’s primary argument in support of his manifest weight claim is
that the evidence at trial, specifically Sparks’s testimony, was inconsistent. Nelson
points out that at trial, Sparks “admitted she lied” when she initially told police and
hospital staff that Nelson hit her in the head with a firearm. We agree with Nelson
that Sparks’s testimony was inconsistent; however, this does not warrant a
conclusion that his convictions were against the manifest weight of the evidence.
Nelson claims that there was no evidence of Sparks being hit in the
head with a firearm. Nelson was convicted of two counts felonious assault in
violation of R.C. 2903.11(A)(2), which required the state to prove that Nelson
knowingly caused or attempted to cause physical harm to Sparks by means of a
deadly weapon or dangerous ordnance in the form of a firearm. One count related
to the October 24, 2019 incident, and one count related to the November 29, 2019
incident.
With respect to the October 24 incident, the state presented evidence
at trial, in the form of testimony from Sparks and Anderson, that Nelson was angry
at Sparks, had a firearm, and fired it into the air and down the street. With respect
to the November 29 incident, the state presented evidence at trial that Sparks and
Nelson were arguing and fighting and Sparks ultimately went to the hospital, telling
hospital staff that Nelson had struck her in the head with a firearm.
Although Sparks’s trial testimony differed from her earlier statements
to the police, much of her trial testimony corroborated the version of events
described by Anderson and Walkerly. Furthermore, the areas of Sparks’s testimony
that differed from her own earlier statements — such as her testimony that she did
not see Nelson with a firearm, that she was not afraid of Nelson, and that Nelson did
not hit her in the head with a firearm — are undermined by other evidence in the
record. Anderson and Walkerly both testified that they saw Nelson with a firearm
and saw him shoot down the street and/or towards Sparks’s vehicle on different
occasions. Furthermore, a firearm that did not belong to Sparks was found in her
vehicle, after she had allegedly been struck in the head with a firearm in the vehicle
earlier that day.
Finally, Sparks and Nelson had an ongoing romantic relationship and
shared a child together and Sparks was hesitant to participate in and testify at
Nelson’s trial. While our review empowers us to weigh the evidence and all
reasonable inferences and consider the credibility of witnesses, we are mindful that
“the credibility of the witnesses and the weight to be given the evidence are primarily
for the trier of fact to assess.” State v. Wiley, 8th Dist. Cuyahoga No. 99576, 2014-
Ohio-27, ¶ 70. The fact that Sparks described different behavior by Nelson at various
points in time goes to her credibility, but her inconsistent testimony does not negate
that she initially claimed that Nelson struck her in the head with a firearm.
Having reviewed the entire record, we cannot conclude that the trial
court clearly lost its way and created a manifest miscarriage of justice. Nelson’s
convictions were not against the manifest weight of the evidence. Therefore,
Nelson’s fourth assignment of error is overruled.
V. Consecutive Sentences
In his fifth and final assignment of error, Nelson argues that the court
erred by ordering Nelson’s sentences to be served consecutively because consecutive
sentences were not supported by the R.C. 2929.14(C) factors. Nelson refers to the
consecutive sentences imposed on Counts 1, 4, and 5 in Cuyahoga C.P. No. 19-
645954. Counts 1 and 5 were discharge of a firearm on or near prohibited premises
and Count 4 was felonious assault. Each count carried one- and three-year firearm
specifications. Following the merger of the one-year firearm specification into the
three-year firearm specification on each count, and the merger of the firearm
specifications for Counts 4 and 5, the court ordered that the two three-year firearm
specifications were to be served consecutive to each other and consecutive to the
sentences on their respective underlying offenses. The court did not otherwise
impose consecutive sentences. It is unclear whether Nelson is challenging the
court’s order that the firearm specifications be served prior and consecutive to the
sentence on their respective underlying offenses, or consecutive to each other, but
in either case, Nelson’s argument is not well-taken.
R.C. 2929.14(C)(1)(a) provides that:
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, if a mandatory prison
term is imposed upon an offender pursuant to division (B)(1)(c) of this
section for committing a felony specified in that division by discharging
a firearm from a motor vehicle, or if both types of mandatory prison
terms are imposed, 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.
Therefore, the court properly ordered the sentences on the firearm
specifications to be served consecutively to the underlying offenses and was not
required to make findings pursuant to R.C. 2929.14(C). State v. Brown, 8th Dist.
Cuyahoga No. 102549, 2015-Ohio-4764, ¶ 16. Furthermore, the imposition of
consecutive sentences for multiple firearm specifications is authorized by law as
described in R.C. 2929.14(B)(1)(g):
If an offender is convicted of or pleads guilty to two or more felonies, if
one or more of those felonies are * * * felonious assault, * * * 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 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 prison term specified under that
division for any or all of the remaining specifications.
Here, the trial court, as mandated by R.C. 2929.14(B)(1)(g), imposed consecutive
sentences on the firearm specifications attendant to the felonious assault and
discharge of a firearm on or near prohibited premises charges. We find no error by
the trial court. Id., citing State v. Vanderhorst, 8th Dist. Cuyahoga No. 97242, 2013-
Ohio-1785; State v. Isreal, 12th Dist. Warren No. CA2011-11-115, 2012-Ohio-4876(trial court commits no error in imposing multiple consecutive sentences on firearm
specifications). Finally, because the imposition of consecutive sentences for firearm
specifications is mandatory under R.C. 2929.14(B)(1)(g), the trial court was not
required to make R.C. 2929.14(C)(4) findings before imposing multiple and
consecutive firearm specifications. Id., citing State v. Young, 8th Dist. Cuyahoga
No. 102202, 2015-Ohio-2862, ¶ 7, 10. Accordingly, Nelson’s fifth assignment of
error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
JAMES A. BROGAN, JUDGE*
KATHLEEN ANN KEOUGH, P.J. and
MICHELLE J. SHEEHAN, J., CONCUR
(*Sitting by assignment: James A. Brogan, J., retired, of the Second District Court
of Appeals.)