State v. Scott , 2017 Ohio 9316 ( 2017 )

[Cite as State v. Scott, 2017-Ohio-9316.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27445
:
v. : Trial Court Case No. 2015-CR-1136
:
TONY L. SCOTT : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 29th day of December, 2017.
...........
MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
KIM BUI, Atty. Reg. No. 0078021, 8080 Beckett Center Drive, Suite 112, West Chester,
Ohio 45069
Attorney for Defendant-Appellant
.............
TUCKER, J.
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{¶ 1} Defendant-appellant Tony Scott appeals from his conviction and sentence
for tampering with evidence. Scott contends that the conviction must be reversed
because the State failed to present evidence sufficient to prove the elements of the
offense and because the conviction is not supported by the weight of the evidence. He
further contends that the trial court abused its discretion by permitting the introduction of
evidence he claims is prejudicial. Finally, he contends that the trial court erred in
sentencing.
{¶ 2} We conclude that the record demonstrates evidence sufficient to sustain the
conviction and that the jury did not lose its way in finding that Scott was guilty of tampering
with evidence. We further conclude that the trial court did not abuse its discretion with
regard to the admission of evidence. Finally, we find no error in sentencing.
{¶ 3} Accordingly, the judgment of the trial court is affirmed.
I. Facts and Procedural History
{¶ 4} This case arises from the September 30, 2013, shooting death of Dominque
Gentry. On that date, Gentry and his friend, David Banks, were in Gentry’s vehicle.
Gentry was driving a black Chevrolet Tahoe and Banks was in the passenger seat. At
approximately 7:28 p.m., they arrived at the All-in-One gas station located in Dayton.
Gentry went into the building, made a purchase, and then returned to the car. Banks
was helping another man jumpstart the man’s vehicle. At approximately 7:58 p.m.,
Gentry and Banks left the gas station with the intent to go to Gentry’s home.
{¶ 5} According to Banks, they pulled out of the rear of the parking lot onto
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Clemmer Street behind a black SUV and a red Cadillac. All three vehicles then turned
left onto Edison Street. As the vehicles approached Orchard Avenue, Banks observed
the Cadillac swerve toward the front of the black SUV. He then observed the driver’s
side door of the Cadillac open. He also saw a red beam of light shining out of the
Cadillac. He noted that the black SUV remained beside the Cadillac. Banks heard
gunshots which caused him to duck down underneath the dashboard. When the
shooting ended, Banks heard the squeal of tires as the SUV and Cadillac drove away.
Banks then saw that Gentry was dead from a gunshot to the head. Banks exited the car
and called 911.
{¶ 6} Dayton Police Officer Darryl Letlow was the first to arrive on the scene. He
observed Gentry’s vehicle which had run through a chain-link fence and into a home
located at the intersection of Orchard and Edison. Letlow also observed automobile
debris and shell casings in the roadway leading up to the vehicle. Letlow, after observing
Gentry in the driver’s seat, called for paramedics and backup officers. Letlow made
contact with Banks, placed him in a cruiser, and then began to secure the scene.
{¶ 7} Dayton Police Detective David House was assigned to investigate the
shooting. When he arrived on the scene, he observed the debris in the roadway
including the entire rear window of a vehicle. The window was shattered, but was held
together by the dark window tinting. The debris in the street, including specifically the
pieces of a broken taillight, led House to believe that a Pontiac G6 had been involved in
the crash.1
1
At that time, House was driving a Pontiac G6 as his City of Dayton vehicle. According
to House, the “G6 has a pretty distinctive rear taillight assembly in terms of the shape of
it * * * and a small circular portion [in the middle of the taillight].” Tr. p. 373.
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{¶ 8} House spoke to Banks which led him to direct Detective Rod Roberts and
other officers to obtain video surveillance from the gas station. Roberts obtained video
footage from the gas station for the hour prior to the shooting. Based upon his review of
the surveillance tape and his conversation with Banks, House determined that there were
three suspect vehicles; a black Ford Escape, a gray Pontiac G6 and a maroon two-door
Cadillac Eldorado with a sunroof.2
{¶ 9} The surveillance footage shows Gentry’s vehicle arriving in the gas station
lot at 7:28 p.m. Gentry enters the gas station store and returns to the lot. At 7:45 p.m.,
the three suspect vehicles enter the parking lot. The Ford Escape is followed by the
Pontiac with the Cadillac in the rear. The driver of the Escape exits the vehicle and
enters the store. The driver is wearing an orange t-shirt and a black camouflage baseball
cap with an emblem on the front and side as well as a shiny metallic emblem on the bill.
As the driver exits the store, an orange fastener can be seen on the back of the cap. The
driver then begins to put gas into the Escape. There is interaction between the Escape
driver and the occupants of the other two vehicles. The three suspect vehicles leave the
lot in the same order they arrived. Gentry’s vehicle leaves the lot at the same time and
pulls onto Clemmer behind the three vehicles.
{¶ 10} About a week after the shooting, during the course of his investigation,
House compiled a list of Cadillac Eldorados in the area along with the addresses attached
to the registrations for those vehicles. After finding approximately six vehicles of interest,
House used Google Maps to plot his route to the locations of each vehicle. He noted
2
Banks had described the Cadillac as a two-door with a sunroof.
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that one of the Cadillacs was registered to Richard Shoup. A Google Maps aerial view
of Shoup’s residence showed a Cadillac with a sunroof in front of the home. House made
contact with Shoup who indicated that he no longer owned the vehicle which he had sold
to Chon Automotive.
{¶ 11} House contacted the owner of Chon Automotive, Miguel Bernardino, who
indicated that during the summer of 2013 he had purchased the Cadillac from Shoup with
the intent to resell it. Shoup gave Bernardino the title to the vehicle, but Bernardino did
not transfer it into his name. Three days after purchasing it, Bernardino sold the Cadillac
to Scott. He gave the title, still in Shoup’s name, to Scott. A few months later, on
October 3, 2013 (three days after the shooting), Bernardino found the car, without the
title, sitting in his business parking lot. House had the Cadillac towed to the Dayton
Police Department’s evidence garage.
{¶ 12} Based upon his conversation with Bernardino, House then drove to Salem
Avenue to look for additional suspect vehicles. As he was driving south on Malvern
Avenue from Salem, he observed an individual in a black Volkswagen Jetta pull out
behind him from an alley. The Jetta followed House as he turned right onto Otterbein
Avenue and then right onto Elsmere Avenue heading back toward Salem. House, who
was driving slowly in order to check the vehicles on the street, pulled to the curb to permit
the Jetta to pass. The Jetta pulled up and stopped next to House’s unmarked car, and
the driver, identified as Scott, looked directly at House before proceeding.
{¶ 13} House continued his search and pulled into the alley that runs behind
houses on the 1800 block of Elsmere Avenue. This was the same alley that Scott had
pulled out of a few moments before. In the rear of 1824 Elsmere, House noted a vehicle
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covered with a gray tarp. After noting a damaged and flattened tire, House exited his
vehicle and touched the area of the tarp where the back window should be. He noted
that the back window was missing which he found “consistent with the window that was
left at the [shooting] scene * * *.” Tr. p. 386. House then lifted the tarp high enough to
observe that the vehicle was a Pontiac G6. House then contacted other detectives to
inform them of the vehicle. He then pulled out of the alley onto Elsmere at which time
he noted the Jetta coming back down the street. The Jetta slowed down as it pulled
alongside House’s vehicle, then continued its course of travel. House then parked at the
end of the alley in order to observe whether anyone approached the Pontiac. After a few
minutes, House noted the Jetta approaching his vehicle until the vehicles were “facing
nose to nose.” Tr. p. 388. The Jetta again drove away. These contacts led House to
believe the driver of the Jetta was involved with the Pontiac.
{¶ 14} At that point, Detective Kevin Phillips arrived on location. He and House
parked their vehicles and proceeded on foot to the Pontiac. As they approached the
Pontiac, Scott again drove toward them. The Detectives drew their weapons and
ordered Scott to exit the vehicle. Scott complied, was placed in handcuffs, and was
transported to the Detectives Section of the Dayton Police Department for questioning
where he was subsequently placed under arrest.
{¶ 15} House remained at the scene and called for an evidence technician to take
pictures of the Pontiac. At that time, Detective Ryan Halburnt made contact with
individuals in Apartment 3 of 1824 Elsmere Avenue. He was informed that Scott resided
in Apartment 4. House then obtained a search warrant for the apartment. During the
subsequent search of the apartment, the detectives found an orange tee shirt, a black
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camouflage Cincinnati Bengals cap, and a Bible which was found to contain the title for
the Cadillac, still in Shoup’s name. The shirt and cap were consistent with the garments
observed on the gas station surveillance video.
{¶ 16} At the scene, an inventory search was conducted on the Jetta. House
found two cellular telephones and a Certificate of Self-Insurance issued to Scott from
Enterprise Rent-a-Car for the Jetta. When he called the number on the certificate, he
determined that Scott had rented the Jetta from the Enterprise store located on North
Main Street in Dayton. It was determined that, at 5:40 p.m. on the day of the shooting,
Scott had rented a black Ford Escape from that rental store. According to the rental
agreement, Scott was to return the Escape on October 2. However, Scott returned the
Escape the day after renting it and replaced it with another vehicle.
{¶ 17} After pictures were taken of the Pontiac, it was transferred to the Dayton
Police Department evidence processing facility where it was held until a search warrant
could be obtained. A search warrant was also obtained for the Cadillac. The broken
left rear taillight assembly of the Pontiac was removed and sent to the Miami Valley
Regional Crime Laboratory where a forensic scientist was able to match it to the debris
collected at the scene of the shooting. The Detectives found that a protectant-type
substance had been sprayed over the interior of the Pontiac. There was so much of the
substance that its residue could be felt. According to Detective Gregory Moyer, the use
of the substance made it impossible to process the inside of the Pontiac for DNA or
fingerprints. It was determined during the investigation that the Pontiac was registered
to Scott.
{¶ 18} Within fifteen minutes of being booked into the Montgomery County Jail,
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Scott made a telephone call to an acquaintance whom he told to find his Bible. During
the call he made reference to a “title,” and a “mechanic on the Strip.” According to
House, the “Strip” is “a very well-known term for Gettysburg Avenue which is the location
of Chon Automotive. A short time later he made a second call and asked the
acquaintance whether she had been able to get the Bible. Later that evening, Scott
made a third telephone call instructing the acquaintance to “get the whip from up the way.”
According to House, “whip is a street term or a slang term for expensive or a fancy car.”
House interpreted the call as telling the acquaintance to check on the Cadillac.
{¶ 19} Scott was indicted on two counts of tampering with evidence (alter/destroy)
in violation of R.C. 2921.12(A)(1) as related to the Cadillac and the Pontiac. Following a
jury trial, he was convicted on both counts. A sentencing hearing was conducted on
January 26, 2017. The trial court imposed a twenty-four month sentence for each count
of tampering with evidence, and ordered the sentences to be served consecutively for an
aggregate term of 48 months. The trial court further ordered that the sentences would
run consecutively to a prison term imposed in September 2016 by the District Court for
the U.S. Southern District of Ohio.
{¶ 20} Scott has filed a timely appeal.
II. Sufficiency and Manifest Weight of the Evidence
{¶ 21} Scott’s first and third assignments of error are as follows:
THE STATE FAILED TO PROVE THAT MR. SCOTT COMMITTED
AN OVERT ACT AND/OR THAT HE ENGAGED IN ANY SUCH CONDUCT
WITH KNOWLEDGE THAT AN INVESTIGATION WAS FORTHCOMING.
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THE GUILTY VERDICT ON BOTH COUNTS WAS NOT
SUPPORTED BY SUFFICIENT, CREDIBLE EVIDENCE AND WAS
CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶ 22} Scott contends that the convictions must be reversed because the State
failed to prove any of the elements of the offense of tampering with evidence.
{¶ 23} When a criminal defendant challenges the sufficiency of the evidence, he
or she disputes whether the State has presented adequate evidence on each element of
the offense to allow the case to go to the jury or sustain the verdict as a matter of law.
State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v.
Thompkins, 78 Ohio St. 3d 380, 678 N.E.2d 541 (1997). “An appellate court's function
when reviewing the sufficiency of the evidence to support a criminal conviction is to
examine the evidence admitted at trial to determine whether such evidence, if believed,
would convince the average mind of the defendant's guilt beyond a reasonable doubt.
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.” (Citation omitted.) State v. Jenks, 61 Ohio St. 3d
259, 574 N.E.2d 492 (1991), at paragraph two of the syllabus.
{¶ 24} In contrast, when a defendant contests the weight of the evidence, the
argument “challenges the believability of the evidence and asks which of the competing
inferences suggested by the evidence is more believable or persuasive.” (Citation
omitted.) Wilson at ¶ 12. “Here the test is much broader. The court, reviewing the entire
record, weighs the evidence and all reasonable inferences, considers the credibility of
witnesses and determines whether in resolving conflicts in the evidence, the jury clearly
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lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered. The discretionary power to grant a new trial should
be exercised only in the exceptional case in which the evidence weighs heavily against
the conviction.” State v. Martin, 20 Ohio App. 3d 172, 175, 485 N.E.2d 717 (1st
Dist.1983).
{¶ 25} “Although sufficiency and manifest weight are different legal concepts,
manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that
a conviction is supported by the manifest weight of the evidence necessarily includes a
finding of sufficiency.” (Citations omitted.) State v. McCrary, 10th Dist. Franklin No. 10AP-
881, 2011-Ohio-3161, ¶ 11; accord State v. Robinson, 2d Dist. Montgomery No. 26441,
2015-Ohio-1167, ¶ 17. As a result, “a determination that a conviction is supported by
the weight of the evidence will also be dispositive of the issue of sufficiency.” (Citations
omitted.) State v. Braxton, 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15.
{¶ 26} “Because the factfinder * * * has the opportunity to see and hear the
witnesses, the cautious exercise of the discretionary power of a court of appeals to find
that a judgment is against the manifest weight of the evidence requires that substantial
deference be extended to the factfinder's determinations of credibility. The decision
whether, and to what extent, to credit the testimony of particular witnesses is within the
peculiar competence of the factfinder, who has seen and heard the witness.” State v.
Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997).
{¶ 27} Scott was convicted of tampering with evidence in violation of R.C.
2921.12(A)(1) which provides that “[n]o person, knowing that an official proceeding or
investigation is in progress, or is about to be or likely to be instituted, shall * * * [a]lter,
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destroy, conceal, or remove any record, document, or thing, with purpose to impair its
value or availability as evidence in such proceeding or investigation.” As the Supreme
Court of Ohio stated, “[t]here are three elements of this offense: (1) knowledge of an
official proceeding or investigation in progress or likely to be instituted, (2) the alteration,
destruction, concealment, or removal of the potential evidence, (3) the purpose of
impairing the potential evidence's availability or value in such proceeding or
investigation.” State v. Straley, 139 Ohio St. 3d 339, 2014-Ohio-2139, 11 N.E.3d 1175,
¶ 11.
{¶ 28} We turn first to the claim that the State failed to prove the element of
knowledge that an investigation is likely to be instituted. “A person acts knowingly,
regardless of purpose, when the person is aware that the person's conduct will probably
cause a certain result or will probably be of a certain nature. A person has knowledge of
circumstances when the person is aware that such circumstances probably exist.” R.C.
2901.22(B). “Commonly, there is no direct evidence of a defendant's state of mind so
the state must rely on circumstantial evidence to satisfy this element of its case. A
defendant's state of mind may be inferred from the totality of the surrounding
circumstances.” State v. Rodano, 2017-Ohio-1034, 86 N.E.3d 1032, ¶ 43 (8th Dist.),
quoting In re Horton, 4th Dist. Adams No. 04CA794, 2005-Ohio-3502, ¶ 23. In Ohio, it
is well-established that “a defendant may be convicted solely on the basis of
circumstantial evidence.” State v. Nicely, 39 Ohio St. 3d 147, 151, 529 N.E.2d 1236 (1988)
. “Circumstantial evidence and direct evidence inherently possess the same probative
value.” Jenks, paragraph one of the syllabus. “Circumstantial evidence is defined as
‘[t]estimony not based on actual personal knowledge or observation of the facts in
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controversy, but of other facts from which deductions are drawn, showing indirectly the
facts sought to be proved. * * *’ ” Nicely, at 150, 529 N.E.2d 1236, quoting Black's Law
Dictionary (5 Ed. 1979) 221.
{¶ 29} The Tenth District Court of Appeals has ruled that a defendant's knowledge
that he committed a criminal act may itself establish knowledge that an investigation is
likely. In State v. Schmidtz, 10th Dist. Franklin No. 05AP-200, 2005-Ohio-6617, ¶ 17,
the court explained: “Whether defendant had actual notice of an impending investigation
is irrelevant. When an offender commits an unmistakable crime, the offender has
constructive knowledge of an impending investigation of the crime committed.”
Additionally, in two other cases, the Tenth District affirmed tampering with evidence
convictions, determining that the defendants “surely knew” that official investigations
would likely commence after they had fired gunshots which, in both cases, resulted in
death. See State v. Cockroft, 10th Dist. Franklin No. 04AP-608, 2005-Ohio-748, ¶ 11;
State v. Jones, 10th Dist. Franklin No. 02AP-1390, 2003-Ohio-5994, ¶ 35.
{¶ 30} This court has stated that the holding in Schmidtz is too broad and should
not be “taken so literally.” State v. Cavalier, 2d Dist. Montgomery No. 24651, 2012-Ohio-
1976, ¶ 51. We further stated that a court should be aware that while it is reasonable to
conclude that a person involved in crimes like fatal shootings or gross sexual imposition
would be aware that the offense would likely be investigated, a lesser crime such as
“loitering to solicit, or even solicitation [is] a crime without anyone who was likely to
complain[, and thus a defendant would have] no great reason to suppose that she would
be the subject of an official investigation.” Id.
{¶ 31} In this case, there is evidence in the record upon which the jury could rely
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to find that Scott was present at Gentry’s murder. The video surveillance, along with the
clothing found in Scott’s apartment, is sufficient to place Scott in one of the three vehicles,
the Escape, that exited the gas station right in front of Gentry’s car. Banks testified that
the Cadillac pulled around the black SUV and that he observed a red light beam and
heard gunshots. He also observed that the SUV was beside the Cadillac when he
observed the red beam. Gentry’s car then crashed into the rear of Scott’s Pontiac after
which it ran through a fence and into a home. All three of the vehicles in front of Gentry’s
car were connected to Scott. Scott had interactions with the occupants of the other two
vehicles while at the gas station. The shooting occurred just minutes after the vehicles
left the gas station.
{¶ 32} Further, there is evidence in the record upon which the jury could conclude
that Scott altered, concealed or removed the Pontiac and the Cadillac. The Pontiac was
removed from the scene, despite its obvious damage, and concealed under a tarp.
Further, so much protectant had been used in the Pontiac that a residue could be felt.
The protectant made it impossible to collect fingerprints or DNA evidence from the
vehicle. A juror could conclude that an innocent bystander whose car is rear-ended by
another vehicle would not leave the scene of such an accident, and that they would
instead remain at the scene in order to make a claim against the person at fault.
However, Scott did not stay on the scene nor report that his car had been involved in an
accident. Instead, he hid the car under a tarp in an alleyway. Also, the Cadillac was
returned to Chon Automotive months after Scott had purchased it. Scott’s telephone
calls from the jail indicate that he was aware the car had been returned and that he wanted
his friend to retrieve the title from his home in order to avoid its discovery.
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{¶ 33} Based upon this record we conclude that a reasonable juror could find that
Scott knew an investigation of the shooting was likely, and concealed, removed and
altered the vehicles with the purpose to impair their availability as evidence to the law
enforcement investigation. We conclude that there is evidence sufficient to sustain the
convictions, and we further conclude that the jury did not lose its way in convicting Scott.
{¶ 34} The first and third assignments of error are overruled.
III. Evidentiary Rulings
{¶ 35} Scott’s second assignment of error states the following:
THE TRIAL COURT ERRED BY PERMITTING THE STATE TO
PRESENT IRRELEVANT EVIDENCE AND/OR INFLAMMATORY
EVIDENCE THAT SHOULD HAVE BEEN EXCLUDED PURSUANT TO
RULE 403 OF THE OHIO RULES OF EVIDENCE.
{¶ 36} Scott contends that the trial court erred by permitting Banks to testify about
Gentry’s murder, and by permitting the State to use its Exhibit 8 which is a photograph of
the scene of the murder. He claims that both raised issues that were irrelevant to the
charges of tampering with evidence and were highly prejudicial and inflammatory.
{¶ 37} This court, in State v. Jones, 2015-Ohio-4116, 43 N.E.3d 833 (2d Dist.),
stated:
Evid.R. 402 provides that “[a]ll relevant evidence is admissible * * *
[and that] [e]vidence which is not relevant is not admissible.” The term
“relevant evidence” is defined as “evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the
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action more probable or less probable than it would be without the
evidence.” Evid. R. 401. * * *.
“Although relevant, evidence is not admissible if its probative value
is substantially outweighed by the danger of unfair prejudice, of confusion
of the issues, or of misleading the jury.” Evid. R. 403(A). “This rule
‘manifests a definite bias in favor of the admission of relevant evidence, as
the dangers associated with the potentially inflammatory nature of the
evidence must substantially outweigh its probative value before the court
should reject its admission.’ ” In re S.A., 2d Dist. Montgomery Nos. 25994,
26001, 2014-Ohio-3063, ¶ 35, quoting State v. White, 4th Dist. Scioto No.
03CA2926, 2004-Ohio-6005, ¶ 50. Thus, “[w]hen determining whether the
relevance of evidence is outweighed by its prejudicial effects, the evidence
is viewed in a light most favorable to the proponent, maximizing its probative
value and minimizing any prejudicial effect to the party opposing
admission.” State v. Lakes, 2d Dist. Montgomery No. 21490, 2007-Ohio-
325, ¶ 20, citing State v. Frazier, 73 Ohio St. 3d 323, 333, 652 N.E.2d 1000
(1995). (Other citation omitted.)
Id., ¶ 85-86.
{¶ 38} In this case, as noted above, the State was required to prove that Scott
acted with knowledge that an investigation was likely to occur. Thus, the State had to
prove that an offense likely to trigger an investigation had occurred. We agree with the
State that Banks’ testimony was relevant to the jury’s understanding of that underlying
offense. While that offense was, unfortunately, a murder, its occurrence was essential
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to the charges of tampering with evidence. Further, Exhibit 8 is a picture of the displaced
rear window of the Pontiac located in the street where the underlying offense occurred.
While there were bullet casings in the picture, its focus was on the window which was
connected to the Pontiac owned by Scott. This evidence was relevant to establish that
the windshield came from Scott’s Pontiac with, of course, this vehicle being the focus of
one of the tampering counts.
{¶ 39} “[A] trial court has broad discretion in the admission of evidence, and unless
it has clearly abused its discretion and the defendant has been materially prejudiced
thereby, an appellate court should not disturb the decision of the trial court.” State v.
Issa, 93 Ohio St. 3d 49, 64, 752 N.E.2d 904 (2001). An abuse of discretion connotes an
attitude on the part of the court that is unreasonable, unconscionable, or arbitrary.
Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 40} We cannot say that the probative value of the evidence about which Scott
complains is substantially outweighed by its relevance. Thus, we conclude that Scott
has failed to establish that the trial court abused its discretion. Accordingly, the second
assignment of error is overruled.
IV. Trial Court’s Sentence
{¶ 41} The fourth assignment of error asserted by Scott is as follows:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
SENTENCING MR. SCOTT TO FORTY-EIGHT CONSECUTIVE
MONTHS.
{¶ 42} Scott contends that the trial court abused its discretion in sentencing
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because the sentence is excessive and because the trial court ordered the sentences to
be served consecutively.
{¶ 43} We first note that Scott’s assertion that our court applies an abuse of
discretion standard in reviewing sentences is incorrect. State v. Marcum, 146 Ohio St. 3d
516, 2016-Ohio-1002, 59 N.E.3d 1231. Instead, felony sentences are reviewed in
accordance with R.C. 2953.08(G)(2). State v. McCoy, 2d Dist. Clark No. 2016–CA–28,
2016–Ohio–7415, ¶ 6, citing State v. Marcum, 146 Ohio St. 3d 516, 2016–Ohio–1002, 59
N.E.3d 1231, ¶ 10, 16. Under the plain language of R.C. 2953.08(G)(2), “an appellate
court may vacate or modify a felony sentence on appeal only if it determines by clear and
convincing evidence that the record does not support the trial court's findings under
relevant statutes or that the sentence is otherwise contrary to law.” Marcum at ¶ 1. “This
is a very deferential standard of review, as the question is not whether the trial court had
clear and convincing evidence to support its findings, but rather, whether we clearly and
convincingly find that the record fails to support the trial court's findings.” State v.
Cochran, 2d Dist. Clark No. 2016–CA–33, 2017–Ohio–217, ¶ 7.
{¶ 44} Next, with regard to the claim that the sentences are excessive, we note
that a trial court may impose any sentence within the authorized statutory range, and the
court is not required to make any findings or give its reasons for imposing maximum or
more than minimum sentences. State v. King, 2013–Ohio–2021, 992 N.E.2d 491, ¶ 45
(2d Dist.). However, a trial court must consider the statutory policies that apply to every
felony offense, including those set out in R.C. 2929.11 and R.C. 2929.12. State v.
Leopard, 194 Ohio App. 3d 500, 2011–Ohio–3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing
State v. Mathis, 109 Ohio St. 3d 54, 2006–Ohio–855, 846 N.E.2d 1, ¶ 38. Here, the
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twenty-four month prison term imposed by the trial court for each count was within the
authorized statutory range of 9 to 36 months. R.C. 2929.14(A)(3)(b). Further, the trial
court stated at the sentencing hearing that it had considered the purposes and principles
of sentencing in R.C. 2929.11 and the seriousness and recidivism factors in R.C. 2929.12.
Tr. p. 543-544.
{¶ 45} The trial court found that the offense was more serious because Scott
attempted to cover up evidence of a murder rather than a lesser crime such as possession
of drugs or theft. The trial court further found no factors indicating that the offenses were
less serious. The trial court found that the likelihood of recidivism was high and that
there were no factors indicating that recidivism was less likely.
{¶ 46} The record supports a finding that Scott showed no remorse, that he was
on post-release control when the offenses were committed, that he has a lengthy criminal
history including juvenile and adult offenses, and that he has not responded favorably to
sanctions. In short, Scott has failed to demonstrate that the sentences imposed for each
count are contrary to law or that the record does not support the findings of the court.
{¶ 47} We next address Scott’s contention that the record does not support the
imposition of consecutive sentences. Pursuant to R.C. 2929.14(C)(4) , a trial court may
impose consecutive sentences if it determines that: (1) consecutive service is necessary
to protect the public from future crime or to punish the offender; (2) 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) one or more of the following three findings are
satisfied.
(a) The offender committed one or more of the multiple offenses while the
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offender was awaiting trial or sentencing, was under a sanction imposed
pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the
offender.
R.C. 2929.14(C)(4)(a)–(c).
{¶ 48} In this case, the trial court made all the necessary findings for imposing
consecutive sentences under R.C. 2929.14(C)(4). Specifically, the court found that Scott
has a lengthy criminal history with “a very disturbing pattern of committing crimes while
you’re on probation or on post-release control going back to when you were a juvenile.”
The court made the following findings with regard to Scott’s criminal record:
March 5th 2002, as a juvenile, theft for which you were placed on
probation; then February 10th, 2005, as a juvenile, carrying a concealed
weapon, placed on probation and while you were on probation for that
juvenile [offense], carrying a concealed weapon, you commit an assault,
August 25, 2005, placed on probation. And then the following month, an
unauthorized use of a vehicle, September 25, 2005, placed on probation.
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You turned 18 years old on November 4, 2005. Two weeks later,
November 22nd, 2005, you’re arrested and charged with a felony CCW.
And while the felony CCW charge is pending, in March 2006, you commit a
breaking and entering and you commit [in a separate case] another CCW
and * * * you are placed on intervention in lieu of conviction, May 4, 2006.
Later that year, December 1, 2006, there’s a revocation filed. Why?
Because five months after you were placed on ILC * * * you commit, on
October 23rd, an aggravated burglary with a firearm. * * * A prison
sentence [is imposed].
You’re released from prison [on] October 14th, 2011, you’re placed
on five years post-release control supervision and while you were on post-
release control supervision in 2013, you commit a weapons under disability;
[and on] May the 27th 2014, [the judge] imposes a nine-month prison
sentence.
And it’s also while you’re on that PCR for that aggravated burglary,
you commit * * * the two counts of tampering with evidence in connection
with this murder case that’s the subject of this trial.
So you’re released from prison December 10th, 2014 and you’re
again on post-release control supervision and you pick up the federal case
* * * you’re convicted of possession with intent to distribute a mixture or
substance containing a detectable amount of heroin, Schedule I controlled
substance, and possession of a firearm in furtherance of a drug trafficking
crime for which you receive a 7 ½ year sentence.
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So I should say lengthy record and very worrisome pattern of, even
while you’re on probation supervision, repeatedly committing crimes while
you are even under supervision.
Tr. p. 541-543.
{¶ 49} We conclude that this record supports the trial court’s findings with regard
to the imposition of consecutive sentences.
{¶ 50} Finally, we note that Scott implies that the trial court’s sentencing indicates
an intent to punish him for failing to accept a plea agreement and for his involvement in
the underlying murder. We disagree. The trial court specifically noted that neither the
lack of a plea agreement nor his involvement in the murder had an effect on sentencing.
We find nothing in the record to indicate to the contrary. Indeed, although the State
sought the maximum prison term of 36 months on each count, the trial court imposed
prison terms falling within the mid-range of the terms allowed by R.C. 2929.14(A)(3)(b).
{¶ 51} We conclude that the record supports the trial court's findings under
relevant statutes. We further conclude that the sentence is not otherwise contrary to law.
Finally, we find no merit in Scott’s claim that the trial court improperly considered Scott’s
failure to accept a plea agreement and/or the underlying murder when imposing sentence.
{¶ 52} Accordingly, the fourth assignment of error is overruled.
V. Conclusion
{¶ 53} All of Scott’s assignments of error being overruled, the judgment of the trial
court is affirmed.
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.............
DONOVAN, J. and WELBAUM, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Michael J. Scarpelli
Kim Bui
Hon. Dennis J. Langer