State v. Hope , 2019 Ohio 2174 ( 2019 )

[Cite as State v. Hope a.k.a. Johnson, 2019-Ohio-2174.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
TRUMBULL COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2018-T-0053
- vs - :
SHAWN HOPE a.k.a SHAWN :
JOHNSON,
:
Defendant-Appellant.
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2017 CR
00252.
Judgment: Affirmed and remanded.
Dennis Watkins, Trumbull County Prosecutor, Christopher Becker, Assistant Prosecutor,
and Ashleigh Musick, Assistant Prosecutor, Administration Building, Fourth Floor, 160
High Street, N.W., Warren, OH 44481 (For Plaintiff-Appellee).
Wesley C. Buchanan, Buchanan Law, Inc., 195 South Main Street, Suite 202, Akron,
OH 44308 (For Defendant-Appellant).
MARY JANE TRAPP, J.
{¶1} Appellant, Shawn Hope a.k.a. Shawn Johnson (“Mr. Hope”), appeals his
convictions on aggravated murder, aggravated robbery, and kidnapping, each with a
firearm specification, having weapons while under disability, and tampering with
evidence, following a jury trial in the Trumbull County Court of Common Pleas, as well as
the consecutive sentences imposed on the three firearm specifications.
{¶2} We find: (1) the evidence was sufficient to support Mr. Hope’s convictions
for aggravated murder and tampering with evidence; (2) Mr. Hope’s convictions were
supported by the manifest weight of the evidence; (3) Mr. Hope did not establish
ineffective assistance of counsel as a result of his trial counsel’s failure to request a jury
instruction on involuntary manslaughter; (4) Mr. Hope did not establish his trial counsel
had an actual conflict of interest that resulted in ineffective assistance; (5) Mr. Hope did
not establish the prosecutor committed any misconduct during his comments at trial; (6)
a mistake in the jury verdict forms did not void Mr. Hope’s sentences on the firearm
specifications; and (7) the trial court properly utilized its discretion in imposing consecutive
sentences on the firearm specifications. Although we find the trial court properly made
the required statutory findings regarding consecutive sentences at the sentencing
hearing, one of the findings is missing from its sentencing entry.
{¶3} For the reasons that follow, we affirm the judgment of the Trumbull County
Court of Common Pleas but remand for the issuance of a nunc pro tunc entry.
Substantive History and Procedural Background
{¶4} On December 1, 2016, Mr. Hope was playing cards with Alicia Binion,
Tabitha Powell, and John Paul Kellar at a house located at 2313 Stephens Avenue, NW
in Warren, Ohio. Ms. Binion resided at the house with Mr. Kellar, whom she described
as her cousin, and Ms. Powell, who was engaged to Mr. Kellar. Ms. Binion was
acquainted with Mr. Hope because she had been a drug user and purchased drugs from
him.
{¶5} At some point, Mr. Hope made advances toward Ms. Powell and Ms. Binion,
and he and Mr. Kellar began arguing. The argument lasted only a few minutes and was
resolved. Ms. Binion eventually asked Mr. Hope to leave the residence, which he did.
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{¶6} The following day, Ms. Binion, Ms. Powell, and Mr. Kellar were at the
Stephens Avenue residence. Ms. Powell was in the back bedroom with Mr. Kellar rubbing
his feet. Ms. Binion was getting ready to leave the residence to obtain money for the
purchase of drugs.
{¶7} At approximately 6:30 p.m., Mr. Hope knocked on the door. Ms. Binion did
not want to answer the door, but Mr. Kellar told her to do so. After Ms. Binion answered
the door, Mr. Hope came inside and asked where Mr. Kellar and Ms. Powell were located.
He began walking toward the back bedroom. Mr. Kellar walked out into the hallway to
meet him. Mr. Hope had his hands in his coat pockets. Suddenly, Mr. Hope removed a
gun from his coat pocket and shot Mr. Kellar twice in the chest area at close range. Mr.
Hope then said, “Who’s the bitch now?” and kicked Mr. Kellar.
{¶8} Mr. Hope then pointed the gun at Ms. Powell and demanded she give him
the keys to her van. He grabbed her by the hair and threw her against the wall. Ms.
Binion eventually gave the keys to Mr. Hope.
{¶9} Mr. Hope forced the two women into the van by gunpoint. He ordered Ms.
Powell to drive the van a few streets over and had the two women get out, walk through
some backyards, and lie down on their stomachs on the porch of a house on Ward Street.
{¶10} Mr. Hope knocked on the window of the house, and Rashaan Shipp came
to the door. Mr. Hope asked him for “another clip,” and Mr. Shipp refused.
{¶11} The trio returned to the van, and Mr. Hope drove them to a drive-thru to
purchase cigarettes. He then drove to a gas station on Market Street. Mr. Hope and Ms.
Binion entered the gas station while Ms. Powell stayed in the back seat. Ms. Powell
seized the opportunity to escape the van and hide underneath a vehicle parked across
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the street. She eventually ran to a residence, where a woman placed a 9-1-1 call on her
behalf.
{¶12} Officer Mason Henline of the Warren Police Department was dispatched to
Market Street and met with Ms. Powell. She got in his cruiser and took him to the
Stephens Avenue residence. In securing the residence, Officer Henline found Mr. Kellar
inside the house. He was not breathing and had no pulse. According to the coroner’s
report, Mr. Kellar died from multiple gunshot wounds.
{¶13} Detectives Carney and Laprocina were dispatched to the Stephens Avenue
residence to investigate. Detective Carney also issued a country-wide alert for Mr. Hope
and the van. At the residence, there were no signs of a fight or a struggle. The detectives
discovered and collected two fired cartridge cases and two fired bullets.
{¶14} Meanwhile, back at the gas station, Mr. Hope realized Ms. Powell had
escaped from the van. Mr. Hope decided he and Ms. Binion had to go to Detroit,
Michigan, his hometown.
{¶15} Mr. Hope drove the van as he and Ms. Binion traveled from Warren, Ohio
toward Detroit, Michigan via the turnpike. Mr. Hope attempted to exit the turnpike in the
Toledo area but was unable to pay the toll and had no driver’s license. The toll booth
attendant informed Mr. Hope she was required to call the state highway patrol. Mr. Hope
pulled off near a rest area, left the vehicle, and kicked the gun under a salt bin.
{¶16} Mr. Hope and Ms. Binion eventually arrived in Detroit via a different route.
They stayed there for ten days and moved from place to place doing drugs. They
eventually left the van on the side of the road, and it was never recovered. Mr. Hope also
asked Ms. Binion to write a letter saying he shot Mr. Kellar in self-defense.
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{¶17} At some point, Mr. Hope permitted Ms. Binion to leave, and they separated.
She walked to a store, and a couple bought her a bus ticket back to Warren, Ohio. The
next morning, on December 14, 2016, she went to the Warren Police Department.
{¶18} Ms. Binion took Detectives Carney and Laprocina to the area on the
turnpike where Mr. Hope had disposed of the gun. A toll booth collector, however, had
discovered the gun under the salt bin on December 5, 2016 and gave it to Trooper Cheryl
Myers of the Ohio State Highway Patrol. Detective Laprocina eventually retrieved the
gun from the Ohio State Highway Patrol.
{¶19} Michael E. Roberts, a forensic scientist at the Ohio Bureau of Criminal
Investigation (“Ohio BCI”), examined the gun, bullets, and cartridge cases that were
submitted for analysis. Mr. Roberts concluded the gun was operable and the submitted
bullets and cartridge cases were fired from the submitted gun.
{¶20} Hallie Dreyer, a forensic scientist at Ohio BCI, conducted DNA analysis on
the gun, the two fired cartridge cases, and the front exterior screen door handle. Using
Y-STR DNA testing, Ms. Dreyer obtained a partial DNA profile from one of the cartridge
cases that was consistent with Mr. Hope.
{¶21} An arrest warrant for murder was issued for Mr. Hope. On March 30, 2017,
Officer Jason Matter of the Michigan State Police and the Fugitive Apprehension Team
was assisting the Northern Ohio Violent Fugitive Task Force in locating and apprehending
Mr. Hope in Detroit, Michigan. A male fitting Mr. Hope’s description was seen getting into
a vehicle leaving the location they were observing. Officer Matter requested that Mr.
Hope stop, but he fled instead. The officers set up a perimeter of the area and conducted
house-to-house searches. Officer Michael Knox eventually apprehended Mr. Hope, who
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was hiding under a porch. Detectives Carney and Crites subsequently transported Mr.
Hope back to Warren, Ohio.
{¶22} The Trumbull County Grand Jury indicted Mr. Hope on two counts of
aggravated murder, each with a firearm specification (Counts 1 and 2)1, aggravated
robbery with a firearm specification (Count 3), two counts of kidnapping, each with a
firearm specification (Counts 4 and 5), having weapons while under disability (Count 6),
and tampering with evidence (Count 7).
{¶23} Mr. Hope pleaded not guilty, and after a number of continuances to permit
additional discovery, the case proceeded to a jury trial.
{¶24} The state presented testimony from Ms. Powell and Ms. Binion regarding
the events prior to, during, and following the shooting. The state also introduced the
surveillance footage from the gas station on Market Street and from the toll both on the
turnpike.
{¶25} Rashaan Shipp testified regarding Mr. Hope’s visit to his residence after the
shooting when Mr. Hope asked him for additional bullets.
{¶26} Officer Henline testified regarding his interactions with Ms. Powell following
her 9-1-1 call and the police department’s securing of the Stephens Avenue residence.
{¶27} Detectives Carney and Laprocina testified regarding their investigation and
the collection of evidence.
{¶28} Eva Linver of the Ohio Turnpike Commission testified about her interaction
with Mr. Hope at the toll booth when he was attempting to drive to Detroit, Michigan. Ms.
1. The indictment contained alternative theories of aggravated murder. Count 1 charged murder with “prior
calculation and design” under R.C. 2903.01(A), and Count 2 charged “felony murder” under R.C.
2903.01(B).
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Linver, as well as her co-worker, Linda Haar, also testified regarding the discovery a few
days later of Mr. Hope’s gun behind the salt bin near the Ohio Turnpike Commission
building. Trooper Cheryl Myers testified regarding her collection of the gun.
{¶29} Michael E. Roberts and Hallie Dreyer from Ohio BCI testified regarding their
examination and analysis of the evidence.
{¶30} Dr. Humphrey Germaniuk, the Trumbull County Coroner, testified regarding
his autopsy of Mr. Kellar.
{¶31} Finally, Officers Matter and Knox testified regarding their team’s ultimate
apprehension of Mr. Hope in Detroit, Michigan.
{¶32} The defense rested without calling any witnesses.
{¶33} The jury found Mr. Hope guilty on all the counts and specifications contained
in the indictment.
{¶34} The trial court determined Counts 1 and 2 and Counts 3 and 4 merged for
purposes of sentencing. The state elected to proceed on Counts 2 and 3.
{¶35} The trial court subsequently sentenced Mr. Hope to an aggregate prison
term of 44 years to life. Specifically, the trial court imposed (1) 25 years to life on Count
2, plus three years for the firearm specification to be served prior to and consecutive to
the life sentence, (2) five years on Count 3, plus three years for the firearm specification,
to be served prior to and consecutive to the sentence imposed on Count 2, (3) five years
on Count 5, plus three years for the firearm specification, to be served prior to and
consecutive to the sentences imposed on Counts 2 and 3, and (4) 36 months each on
Count 6 and 7, to be served concurrently with the sentence imposed on Count 2.
{¶36} Mr. Hope now appeals, asserting the following six assignments of error:
{¶37} “[1.] The evidence against Shawn was insufficient to support his convictions.
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{¶38} “[2.] Shawn’s convictions were not supported by the manifest weight of the
evidence.
{¶39} “[3.] Shawn’s sentence was contrary to law.
{¶40} “[4.] Shawn received ineffective assistance of counsel.
{¶41} “[5.] The jury verdict forms were incorrect.
{¶42} “[6.] The Prosecutor committed misconduct by characterizing Shawn as a
monster.”
Sufficiency of the Evidence
{¶43} In his first assignment of error, Mr. Hope claims the state failed to produce
sufficient evidence to sustain his convictions for aggravated murder and tampering with
evidence. With respect to aggravated murder, Mr. Hope argues the state did not produce
sufficient evidence of prior calculation and design. With respect to tampering with
evidence, Mr. Hope argues the state did not produce sufficient evidence that he knowingly
tampered with evidence.
{¶44} “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.” State v. Jenks, 61 Ohio St. 3d 259 (1991),
paragraph two of the syllabus. “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.” Id.
{¶45} A sufficiency challenge requires this court to review the record to determine
whether the state presented evidence on each of the elements of the offense. State v.
Muncy, 11th Dist. Ashtabula No. 2011-A-0066, 2012-Ohio-2830, ¶13. This test involves
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a question of law and does not permit us to weigh the evidence. Id., citing State v. Martin,
20 Ohio App. 3d 172, 175 (1st Dist.1983).
Aggravated Murder
{¶46} To convict Mr. Hope of aggravated murder, the state was required to prove
beyond a reasonable doubt that Mr. Hope did purposely, and with prior calculation and
design, cause the death of Mr. Kellar. R.C. 2903.01(A). Mr. Hope argues the state did
not produce sufficient evidence of the element of prior calculation and design to support
his conviction for aggravated murder.
{¶47} Under prior Ohio law, “murder in the first degree” required proof of
“deliberate and premeditated malice.” State v. Taylor, 78 Ohio St. 3d 15, 18 (1997) citing
former R.C. 2901.01. Under this standard, “a killing could be premeditated even though
conceived and executed on the spur of the moment. The only requirement was that the
malicious purpose be formed before the homicidal act, however short in time.” State v.
Cotton, 56 Ohio St. 2d 8, 11 (1978).
{¶48} Effective January 1, 1974, the General Assembly reclassified first-degree
murder as “aggravated murder” and substituted a requirement of “prior calculation and
design” in place of “deliberate and premeditated malice.” Taylor at 18. According to the
Supreme Court of Ohio, “prior calculation and design” is a more stringent element. Id. at
19, citing Cotton at paragraph one of the syllabus. The General Assembly’s apparent
intention “was to require more than a few moments of deliberation * * * and to require a
scheme designed to implement the calculated decision to kill.” Id., quoting Cotton at 11.
{¶49} The phrase “prior calculation and design” is not defined in the Revised
Code. Cotton at 10. By its own terms, the phrase suggests “advance reasoning to
formulate the purpose to kill. Evidence of an act committed on the spur of the moment or
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after momentary consideration is not evidence of a premeditated decision or a studied
consideration of the method and the means to cause a death.” State v. Walker, 150 Ohio
St.3d 409, 2016-Ohio-8295, ¶18.
{¶50} There is also no bright-line test to determine whether prior calculation and
design are present. Taylor at 20. Rather, each case must be decided on a case-by-case
basis. Id.
{¶51} The Supreme Court of Ohio has held, “[w]here evidence adduced at trial
reveals the presence of sufficient time and opportunity for the planning of an act of
homicide to constitute prior calculation, and the circumstances surrounding the homicide
show a scheme designed to implement the calculated decision to kill, a finding by the trier
of fact of prior calculation and design is justified.” Cotton at paragraph three of the
syllabus.
{¶52} The Supreme Court of Ohio has also considered three factors in
determining whether a defendant acted with prior calculation and design: “(1) Did the
accused and victim know each other, and if so, was that relationship strained? (2) Did
the accused give thought or preparation to choosing the murder weapon or murder site?
and (3) Was the act drawn out or ‘an almost instantaneous eruption of events?’” Walker
at ¶20, quoting Taylor at 19.
{¶53} Mr. Hope argues that the consideration of these three factors does not
support a finding of prior calculation in design. We disagree.
{¶54} With respect to the first factor, Mr. Hope claims the relationship between
Mr. Kellar and himself was not strained. In support, Mr. Hope cites the testimony of Ms.
Powell describing the night before the shooting. According to the testimony, Mr. Kellar
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and Mr. Hope had argued but stopped after a few minutes and began joking with each
other.
{¶55} Mr. Hope fails to acknowledge the testimony regarding the shooting itself,
which indicated Mr. Hope arrived unexpectedly and uninvited at the Stephens Avenue
residence, almost immediately shot Mr. Kellar twice in the chest area at close range, said
“Who’s the bitch now?,” and kicked Mr. Kellar. These actions created a strong inference
Mr. Hope was harboring some type of grudge against Mr. Kellar from the night before or
from another event, which is evidence of a strained relationship. See State v. Worley, 8th
Dist. Cuyahoga No. 103105, 2016-Ohio-2722, ¶18 (evidence defendant harbored a
grudge against the victim inferred prior calculation and design).
{¶56} With respect to the second factor, Mr. Hope argues there was no evidence
presented that demonstrated he “had picked the house for the killing or a gun for any
specific purpose.”
{¶57} The testimony establishes Mr. Hope apparently armed himself and,
uninvited and unannounced, went to the Stephens Avenue residence where he knew Mr.
Kellar lived. Upon entering the house, he immediately proceeded toward the room where
he knew Mr. Kellar was present. He then shot Mr. Kellar prior to any conversation taking
place between the two men.
{¶58} When a person takes a gun to a place where he knows the victim frequents,
this creates a reasonable inference that a person carried the gun with an intention to use
it. See Taylor, supra, at 22 (defendant took a gun into a bar where he knew victim
frequently drank). In this case, it is difficult to infer anything from the evidence other than
Mr. Hope armed himself and arrived at the house specifically to commit murder.
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{¶59} With respect to the third factor, Mr. Hope argues that since “the killing
happened almost instantaneously” after he entered the house, he did not act with prior
calculation and design.
{¶60} This evidence actually supports an opposite inference. The killing itself may
have been an “almost instantaneous eruption” after Mr. Hope entered the residence.
However, the events between Mr. Hope and Mr. Kellar began at least as early as the
previous evening. After Mr. Hope left the house the night before, the testimony
establishes no one had any contact with him until he appeared at the house the next
evening. The presence of sufficient time and opportunity for the planning of a murder
between these events creates a reasonable inference of prior calculation and design.
See State v. Braden, 98 Ohio St. 3d 354, 2003-Ohio-1325, ¶64 (sufficient time for
reflection following an argument showed deliberation and planning).
{¶61} When this evidence is taken together and viewed in a light most favorable
to the state, a rational trier-of-fact could reasonably conclude Mr. Hope acted with prior
calculation and design.
Tampering with Evidence
{¶62} To convict Mr. Hope of tampering with evidence, the state was required to
prove beyond a reasonable doubt that Mr. Hope, (1) knowing an official proceeding or
investigation was in process, or was about to be or likely to be instituted, (2) altered,
destroyed, concealed, or removed any record, document, or thing, and (3) with purpose
to impair its value or availability as evidence in such proceeding or investigation. R.C.
2921.12(A)(1).
{¶63} The charge of tampering with evidence arose from Mr. Hope’s disposal of
his gun under a salt bin near a turnpike exit in the Toledo area. Mr. Hope argues that
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since he was “proceeding on a self-defense theory,” which is “not a crime in Ohio,” it was
possible he “did not know he was tampering with evidence.”
{¶64} It appears Mr. Hope is arguing the state did not produce sufficient evidence
to prove the first element of the charge, i.e., that he had knowledge of an official
proceeding or investigation, and perhaps the second element, i.e., that he had a purpose
to impair the gun’s availability as evidence in that proceeding or investigation.
{¶65} With respect to the first element, the likelihood of an investigation is
measured at the time of the alleged tampering. State v. Straley, 139 Ohio St. 3d 339,
2014-Ohio-2139, ¶19. To have knowledge, Mr. Hope must have been “aware that
conduct will probably cause a certain result or will probably be of a certain nature or that
circumstances probably exist.” (Emphasis sic.) State v. Barry, 145 Ohio St. 3d 354, 2015-
Ohio-5449, ¶24, citing R.C. 2901.22(B).
{¶66} The Supreme Court of Ohio has determined “Ohio law does not impute
constructive knowledge of an impending investigation based solely on the commission of
an offense, and therefore, the fact that an act was unmistakably a crime does not, by
itself, establish that the accused knew of an investigation into that crime or that such an
investigation was likely to be instituted.” Id. at ¶2.
{¶67} The court has further held “knowledge of a likely investigation may be
inferred when the defendant commits a crime that is likely to be reported.” (Emphasis
sic.) State v. Martin, 151 Ohio St. 3d 470, 2017-Ohio-7556, ¶116-117 (“As a matter of
common sense, we can infer that a person who had shot two people and left them for
dead in a residential neighborhood would know that an investigation was likely”).
According to the court, “[h]omicides are highly likely to be discovered and investigated.
Certainly, a jury may reasonably believe that a murderer knows this.” Id. at ¶118.
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{¶68} Although Mr. Hope claims he killed Mr. Kellar in self-defense, the same
principles apply. Under Ohio law, self-defense is an affirmative defense which privileges
the defendant “to use that force which is reasonably necessary to repel the attack.” State
v. Fambro, 11th Dist. Trumbull No. 2016-T-0063, 2017-Ohio-5646, ¶66, quoting State v.
Williford, 49 Ohio St. 3d 247, 249 (1990). Just because Mr. Hope may have believed he
could establish an affirmative defense to murder at trial does not mean he did not know
the shooting would be investigated.
{¶69} A person is aware a crime will likely be investigated where it “involves
crimes with persons likely to complain or where discovery and investigation is almost
certain to occur due to the death of or severe injury to the victim.” State v. Wilson, 4th
Dist. Lawrence No. 16CA12, 2018-Ohio-2700, ¶39, citing State v. Crocker, 4th Dist.
Scioto No. 14CA3640, 2015-Ohio-2528, ¶36. There can be no dispute Mr. Hope shot
and killed a person. According to the Supreme Court of Ohio, Mr. Hope’s knowledge of
a likely investigation was therefore inferred by law. See Martin at ¶117-118.
{¶70} Even if Mr. Hope’s knowledge was not inferred by law, the evidence in the
record created a strong inference he was aware of a likely investigation. For example, in
Wilson, supra, the defendant “shot [the victim] inches from his face in front of two
witnesses, ran from the residence, immediately fled the state, and was eventually
apprehended by the U.S. Marshals Service in West Virginia. Wilson knew that two
acquaintances saw him shoot [the victim].” Id. at ¶39. Thus, the Fourth District
determined that when Wilson disposed of the gun, he “was aware that his conduct would
probably result in a murder investigation.” Id.
{¶71} Mr. Hope shot Mr. Kellar twice in the chest area while two acquaintances
were present, including one eyewitness who was the victim’s fiancé and another witness
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who described herself as the victim’s cousin. He then kidnapped them at gunpoint, fled
the residence, and stole Ms. Powell’s van. Once he discovered Ms. Powell had escaped
from the van at the gas station, Mr. Hope “freaked out” and immediately fled the state with
Ms. Binion. Mr. Hope was eventually apprehended by the Michigan State Police and the
Fugitive Apprehension Team.
{¶72} According to the Supreme Court of Ohio, “the fact of an accused’s flight
* * * [is] admissible as evidence of consciousness of guilt, and thus of guilt itself.”
(Citations omitted.) State v. Williams, 79 Ohio St. 3d 1, 11 (1997). As in Wilson, the
evidence created a strong inference that when Mr. Hope disposed of his gun on his way
to Detroit, he was well-aware his conduct from that evening would result in a murder
investigation.
{¶73} With respect to the third element of tampering with evidence, the state must
prove Mr. Hope had purpose to impair the gun’s value or availability as evidence in the
proceeding or investigation. R.C. 2921.12(A)(1). “A person acts purposely when it is the
person’s specific intention to cause a certain result[.]” R.C. 2901.22(A). “Purpose * * *
can be established by circumstantial evidence from the surrounding facts and
circumstances in the case.” State v. Peak, 11th Dist. Lake No. 2004-L-124, 2005-Ohio-
6422, ¶39.
{¶74} Mr. Hope kicked the gun under a salt bin, miles away in the opposite part of
the state from the location of the shooting, while he was in the process of fleeing the state.
Given these circumstances, it is difficult to infer Mr. Hope intended anything other than to
purposefully hide the weapon from police, who were likely investigating the shooting. See
State v. Shaw, 8th Dist. Cuyahoga No. 105111, 2018-Ohio-403, ¶27 (defendant’s
concealing of a gun inside a hole in the wall of his basement was sufficient to indicate an
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intent to hide the weapon from the police); State v. Rankin, 10th Dist. Franklin No. 10AP-
1118, 2011-Ohio-5131, ¶19 (“Based upon the location of the gun and the difficulty in
discovering it * * *, a trier of fact reasonably could conclude that defendant was actively
concealing the gun with the purpose to impair law enforcement efforts to investigate the
shooting”).
{¶75} When the evidence is taken together and viewed in a light most favorable
to the state, a rational trier-of-fact could reasonably conclude Mr. Hope tampered with
evidence.
Manifest Weight of the Evidence
{¶76} In his second assignment of error, Mr. Hope claims the jury’s guilty verdicts
were against the manifest weight of the evidence.
{¶77} The Supreme Court of Ohio explained the criminal manifest-weight-of-the-
evidence standard in State v. Thompkins, 78 Ohio St. 3d 380 (1997). See State v. Wilson,
113 Ohio St. 3d 382, 2007-Ohio-2202, ¶25. In Thompkins, the court distinguished
between sufficiency of the evidence and manifest weight of the evidence, finding that
these concepts differ both qualitatively and quantitatively. Id., citing Thompkins at 386.
Sufficiency of the evidence is a test of adequacy as to whether the evidence is legally
sufficient to support a verdict as a matter of law, but weight of the evidence addresses
the evidence's effect of inducing belief. Id., citing Thompkins at 386-87. In other words,
a reviewing court asks whose evidence is more persuasive—the state's or the
defendant's? Id. Although there may be sufficient evidence to support a judgment, it
could nevertheless be against the manifest weight of the evidence. Id., citing Thompkins
at 387. When a court of appeals reverses a judgment of a trial court on the basis that the
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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. Id.
{¶78} A manifest weight challenge questions whether the state has met its burden
of persuasion. Thompkins at 390 (Cook, J., concurring). The weight to be given the
evidence and the credibility of the witnesses are primarily for the trier of the facts. State
v. DeHass, 10 Ohio St. 2d 230 (1967), paragraph one of the syllabus. A jury is free to
believe all, some, or none of the testimony of each witness appearing before it. State v.
Fetty, 11th Dist. Portage No. 2011-P-0091, 2012-Ohio-6127, ¶58. 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. Fritts, 11th Dist. No. 2003-L-
026, 2004-Ohio-3690, ¶23, citing Martin, supra, at 175.
{¶79} Mr. Hope first argues that the state did not meet its “burden of production.”
However, Mr. Hope has misstated the applicable standard. A sufficiency inquiry analyzes
whether the state met its burden of production, while a manifest-weight inquiry analyzes
whether the state met its burden of persuasion. Willoughby v. Taylor, 180 Ohio App. 3d
606, 2009-Ohio-183, ¶26 (11th Dist.). As demonstrated in our discussion of Mr. Hope’s
first assignment of error, the state met its burden of production at trial. In the event Mr.
Hope means “burden of persuasion,” he has failed to cite any portion of the record or
legal authority to support this argument, in violation of App.R. 16(A)(7).
{¶80} Mr. Hope further argues that the weight of the evidence did not support Mr.
Hope’s convictions based on the credibility of Ms. Powell and Ms. Binion.
{¶81} With respect to Ms. Powell, Mr. Hope states that she was a heroin addict at
the time of these events and was in a romantic relationship with Mr. Kellar for at least
three years. Therefore, she had motive to not be as truthful as possible.
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{¶82} With respect to Ms. Binion, Mr. Hope states that she purchased drugs from
him in the past, on the night of the shooting she was leaving to obtain money for drugs,
and she never saw the firearm used to kill Mr. Kellar.
{¶83} Mr. Hope’s trial counsel cross-examined Ms. Powell and Ms. Binion as to
their statuses as drug addicts and their relationships with Mr. Kellar. He also drew
attention to inconsistencies in their testimony. Despite this evidence, the jury obviously
chose to believe Ms. Powell's and Ms. Binion’s version of the events. The jury was in a
better position to view these witnesses and determine their credibility. We find no reason
to second guess the jury’s decision in this case.
{¶84} Having reviewed the record, we cannot conclude the jury, in assessing the
credibility of the witnesses and resolving any conflicts in the evidence, clearly lost its way
and created such a manifest miscarriage of justice warranting reversals of the findings of
guilt.
{¶85} Mr. Hope’s second assignment of error is without merit.
Ineffective Assistance of Counsel
{¶86} We will address Mr. Hope’s remaining assignments of error out of order for
ease of discussion.
{¶87} In his fourth assignment of error, Mr. Hope claims he received ineffective
assistance of counsel in two ways. First, Mr. Hope’s trial counsel did not request a jury
instruction on a lesser included offense of involuntary manslaughter. Second, Mr. Hope
alleges his trial counsel had a conflict of interest.
{¶88} To establish a claim of ineffective assistance of counsel, Mr. Hope must
demonstrate (1) his counsel was deficient in some aspect of his representation, and (2)
there is a reasonable probability, were it not for counsel’s errors, the result of the
18
proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 669
(1984).
{¶89} A threshold issue in a claim of ineffective assistance of counsel is whether
there was actual error on the part of trial counsel. State v. McCaleb, 11th Dist. Lake No.
2002-L-157, 2004-Ohio-5940, ¶92. In Ohio, every properly licensed attorney is presumed
to be competent, and therefore a defendant bears the burden of proof. State v. Smith, 17
Ohio St. 3d 98, 100 (1985). “Counsel’s performance will not be deemed ineffective unless
and until counsel’s performance is proved to have fallen below an objective standard of
reasonable representation and, in addition, prejudice arises from counsel’s performance.”
State v. Bradley, 42 Ohio St. 3d 136, 142 (1989).
{¶90} Furthermore, decisions on strategy and trial tactics are generally granted
wide latitude of professional judgment, and it is not the duty of a reviewing court to analyze
the trial counsel’s legal tactics and maneuvers. State v. Gau, 11th Dist. Ashtabula No.
2005-A-0082, 2006-Ohio-6531, ¶35, citing Strickland at 689. Debatable trial tactics
generally do not constitute ineffective assistance of counsel. State v. Phillips, 74 Ohio
St.3d 72, 85 (1995).
Jury Instruction
{¶91} Mr. Hope argues that his trial counsel was ineffective by failing to request a
jury instruction on involuntary manslaughter.
{¶92} Involuntary manslaughter is a lesser included offense of aggravated murder
with prior calculation and design. State v. Thomas, 40 Ohio St. 3d 213 (1988), paragraph
one of the syllabus. The only distinguishing factor is the mental state involved in the act.
Id. at 216.
19
{¶93} An essential element of the offense of aggravated murder with prior
calculation and design is purpose. Id. at 217. “A person acts purposely when it is the
person’s specific intention to cause a certain result[.]” R.C. 2901.22(A). By contrast, a
person is guilty of involuntary manslaughter when he causes the death of another as a
proximate result of committing or attempting to commit a felony. R.C. 2903.04(A); State
v. Smith, 11th Dist. Ashtabula No. 2015-A-0027, 2016-Ohio-8420, ¶44.
{¶94} The Supreme Court of Ohio has held that the “[f]ailure to request
instructions on lesser-included offenses is a matter of trial strategy and does not establish
ineffective assistance of counsel.” State v. Griffie, 74 Ohio St. 3d 332, 333 (1996), citing
State v. Clayton, 62 Ohio St. 2d 45 (1980), certiorari denied 449 U.S. 879 (1980).
{¶95} The defense Mr. Hope’s trial counsel articulated at trial was the state had
failed to meet its burden of proof because Ms. Powell and Ms. Binion were not credible
witnesses. Thus, it would appear the decision of Mr. Hope’s trial counsel not to request
an instruction on a lesser offense was part of the trial strategy. See Clayton at 47 (trial
counsel’s decision to seek acquittal rather than to invite conviction on a lesser offense
was a matter of trial strategy). We will not second-guess trial strategy decisions that
backfired. State v. Powell, 11th Dist. Lake No. 2007-L-187, 2009-Ohio-2822, ¶90, citing
State v. Mason, 82 Ohio St. 3d 144, 157 (1998).
{¶96} Further, the evidence in the case did not warrant an instruction for
involuntary manslaughter as a lesser included offense. As the Supreme Court of Ohio
has held, “[e]ven though an offense may be statutorily defined as a lesser included
offense of another, a charge on such lesser included offense is required only where the
evidence presented at trial would reasonably support both an acquittal on the crime
charged and a conviction upon the lesser included offense.” State v. Wine, 140 Ohio
20
St.3d 409, 2014-Ohio-3948, ¶21, quoting Thomas, supra, at paragraph two of the
syllabus. “[T]he quality of the evidence offered * * * determines whether a lesser-included-
offense charge should be given to a jury. Id. at ¶26.
{¶97} The state presented ample evidence Mr. Hope purposely caused Mr.
Kellar’s death. According to the testimony, as soon as Mr. Hope entered the Stephens
Avenue residence, he walked toward the bedroom where Mr. Kellar was located and
immediately shot him twice at close range. He also kicked Mr. Kellar and said, “Who’s
the bitch now?” This evidence supports an inference of purpose rather than some type
of accidental or unintentional death.
{¶98} In addition, “[a] jury may infer a purpose to cause death from a defendant
inflicting a wound upon a person with a deadly weapon in a manner calculated to kill.”
State v. Smith, 2016-Ohio-8420, at ¶53, quoting State v. Wilson, 10th Dist. Franklin No.
05AP–277, 2006-Ohio-643, ¶38. “In making such an inference, the jury may consider the
places where bullets entered the victim and the resulting wounds.” Id., quoting Wilson at
¶38.
{¶99} Mr. Hope shot Mr. Kellar twice at close range with a .45 caliber handgun.
According to the coroner, one shot went right in the center of his chest, perforating the
right chamber of his heart. The other shot entered the left abdomen and perforated his
aorta. This evidence is more than sufficient to create an inference of purpose.
{¶100} According to Mr. Hope, there was also evidence in the record to support a
conviction for involuntary manslaughter.
{¶101} First, Mr. Hope references a letter from Ms. Binion stating Mr. Hope acted
in self-defense. This letter cannot reasonably be construed as evidence of involuntary
manslaughter. Involuntary manslaughter and self-defense are separate and distinct
21
concepts. Involuntary manslaughter is murder without the element of purpose. Thomas,
supra, at 216. A person’s use of force in self-defense is necessarily a purposeful act.
State v. Florence, 2d Dist. Montgomery No. 20439, 2005-Ohio-4508, ¶49. As such, self-
defense is factually inconsistent with involuntary manslaughter. State v. Stout, 10th Dist.
Franklin No. 92AP-911, 1992 WL 385892, *3 (Dec. 22, 1992).
{¶102} In any event, this letter does not reasonably support a theory of self-
defense. Ms. Binion testified that after Mr. Hope forced her to travel to Detroit with him,
he made her write the letter. She further testified she only wrote it out of fear and
disavowed its contents at trial. Therefore, Mr. Hope presented no threshold evidence of
self-defense.
{¶103} Second, Mr. Hope references Ms. Binion’s and Ms. Powell’s testimony that
Mr. Hope and Mr. Kellar had engaged in an argument. However, evidence of the
argument does not reasonably support a conviction for involuntary manslaughter. Both
Ms. Binion and Ms. Powell testified that the argument happened the day before the
shooting and was rather brief. When Mr. Hope arrived the next day, there was no fighting
or arguing before the shooting.
{¶104} No evidence was presented that would reasonably support both an acquittal
of aggravated murder and a conviction of involuntary manslaughter. Mr. Hope was
therefore not entitled to an instruction on involuntary manslaughter.
{¶105} Accordingly, the failure of Mr. Hope’s trial counsel to request an instruction
on a lesser-included offense of involuntary manslaughter did not amount to ineffective
assistance of counsel.
Conflict of Interest
22
{¶106} Mr. Hope argues his trial counsel was ineffective because he had a conflict
of interest.
{¶107} “The term ‘conflict of interest’ bespeaks a situation in which regard for one
duty tends to lead to disregard of another. The obvious example of this is representation
of clients with incompatible interests.” State v. Manross, 40 Ohio St. 3d 180, 182 (1988).
“A lawyer represents conflicting interests when, on behalf of one client, it is his duty to
contend for that which duty to another client requires him to oppose.” Id., citing Columbus
Bar Assn. v. Grelle, 14 Ohio St. 2d 208, 211 (1968).
{¶108} “Where there is a right to counsel, the Sixth Amendment to the United
States Constitution also guarantees that representation will be free from conflicts of
interest.” State v. Dillon, 74 Ohio St. 3d 166, 167 (1995). To establish a Sixth Amendment
violation due to a conflict of interest, a defendant “must demonstrate that an actual conflict
of interest adversely affected his lawyer’s performance.” State v. Getsy, 84 Ohio St. 3d
180, 187 (1998), quoting Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
{¶109} A possible conflict of interest is insufficient. Id., citing Cuyler at 350. “A
possible conflict of interest exists where the ‘interests of the defendants may diverge at
some point so as to place the attorney under inconsistent duties.’” State v. Gillard, 78
Ohio St. 3d 548, 552-53 (1997), quoting Cuyler at 356. “[A]n actual conflict exists if ‘during
the course of representation, the defendants’ interests do diverge with respect to a
material fact or legal issue or to a course of action.’” Id. at 553, quoting Cuyler at 356.
{¶110} To establish an actual conflict, a defendant must show two elements. Id.
First, he must demonstrate some plausible alternative defense strategy or tactic might
have been pursued. Id. Second, he must demonstrate the alternative defense was
23
inherently in conflict with or not undertaken due to the attorney’s other loyalties or
interests. Id.
{¶111} Mr. Hope first argues that his trial counsel had a conflict of interest because
he previously represented the victim, Mr. Kellar, in an unrelated criminal matter several
years ago.
{¶112} Prior representation of a victim in the past does not, in and of itself,
constitute a conflict of interest. State v. Peoples, 10th Dist. Franklin No. 02AP-945, 2003-
Ohio-4680, ¶39, citing State v. Lorraine, 66 Ohio St. 3d 414 (1993). In fact, courts that
have considered the issue have determined an attorney’s prior representation of a
defendant’s murder victim did not constitute an actual conflict of interest.
{¶113} In State v. Radford, 2d Dist. Greene No. 85-CA-72, 1987 WL 18528 (Oct.
16, 1987), the Second District found no actual conflict of interest existed as a result of
trial counsel’s prior representation of the murder victim in a criminal case because
Radford was well-aware of the prior representation. Id. at *2.
{¶114} Similarly, in State v. Russell, 4th Dist. Washington No. 94 CA 1, 1994 WL
419614 (Aug. 5, 1994), the Fourth District found no actual conflict of interest existed as a
result of trial counsel’s prior representation of the murder victim in a traffic case because
the attorney did not represent Russell and the murder victim at the same time or in related
matters. Id. at *5. See also State v. Dukes, 34 Ohio App. 3d 263, 264 (8th Dist.1986) (no
actual conflict of interest existed where trial counsel’s law partner previously represented
the victim of an attempted murder, because the partner was not representing the victim
at the time of trial); Lorraine, supra, at 426 (defendant did not demonstrate on record how
he was prejudiced by the Public Defender Commission’s prior representation of a
prosecution witness).
24
{¶115} Mr. Hope’s trial counsel represented Mr. Kellar several years ago in an
“escape case.” Mr. Hope has not demonstrated his trial counsel had an actual conflict of
interest as a result of this prior representation of Mr. Kellar.
{¶116} Prof.Cond.R. 1.9(a) governs a lawyer’s duty to a former client, which states
“a lawyer who has formerly represented a client in a matter shall not thereafter represent
another person in the same or a substantially related matter in which that person’s interest
are materially adverse to the interests of the former client.” (Emphasis sic). A
“substantially related matter” includes “one in which there is a substantial risk that
confidential factual information that would normally have been obtained in the prior
representation of a client would materially advance the position of another client in a
subsequent matter. (Emphasis added.) Prof.Cond.R. 1.0(n).
{¶117} There is no indication Mr. Hope’s trial counsel obtained confidential factual
information regarding Mr. Kellar in the “escape case” that would have materially advanced
Mr. Hope’s defense. Although Mr. Hope references Mr. Kellar’s alleged “propensity to
violence,” it is not clear that he is referring to anything other than Mr. Kellar’s prior criminal
convictions, which are a matter of public record and which were raised tangentially by the
cross-examination of Mr. Kellar’s fiancé in an unavailing effort to create evidence of self-
defense. There simply was no evidence in this record of self-defense.
{¶118} Further, Mr. Hope was well-aware of the prior representation. The record
indicates Mr. Hope’s trial counsel informed him of the prior representation on their very
first meeting, and Mr. Hope did not object.
{¶119} In support of his argument, Mr. Hope cites an advisory opinion from the
Ohio Board of Professional Conduct (then known as the Board of Commissioners on
Grievances and Discipline). See Advisory Opinion 2013-4 (Oct. 11, 2013). As Mr. Hope
25
correctly notes, the Board sought to answer the following question: “Does a lawyer’s
representation of a criminal defendant create a conflict of interest if the lawyer will be
required to cross-examine a former client during the defendant’s trial in a matter unrelated
to the representation of the former client?” Mr. Hope seems to imply the answer is an
unconditional “yes.”
{¶120} As a preliminary issue, it is not clear the advisory opinion even applies in
this case. Given Mr. Kellar’s death, Mr. Hope’s trial counsel was obviously not able to,
much less required to, cross-examine him.
{¶121} In any event, the Board actually concluded “[w]hen a lawyer learns that a
current representation may require the cross-examination of an adverse witness who is
a former client, the lawyer must analyze the potential conflict under Prof.Cond.R. 1.7 and
1.9.” Advisory Opinion 2013-4 at 12. In other words, the cross-examination of a former
client does not automatically constitute a conflict of interest. Rather, the lawyer must
determine whether an actual conflict exists under the Professional Rules of Conduct.
Whether a conflict exists must be determined by the facts of each case. Columbus Bar
Assn. v. Ross, 107 Ohio St. 3d 354, 2006-Ohio-5, ¶26. As demonstrated above, Mr. Hope
has not established that his trial counsel had an actual conflict under Prof.Cond.R. 1.9(a).
{¶122} Mr. Hope also argues that his trial counsel had an actual conflict of interest
because Mr. Hope had filed a grievance against him. There is no legal authority holding
that a defendant’s filing of a grievance against his counsel automatically creates an actual
conflict of interest. While Mr. Hope’s filing of a grievance might have given rise to a
possible conflict of interest, there was no indication an actual conflict did exist. See State
v. Heyward, 4th Dist. Pickaway No. 96CA42, 1998 WL 290238, *3 (May 18, 1998). In
addition, courts “must be wary of defendants who employ complaints about counsel as
26
dilatory tactics or for another invidious motive.” State v. Ahmed, 103 Ohio St. 3d 27, 2004-
Ohio-4190, ¶33.
{¶123} In this case, the trial court held a hearing on trial counsel’s motion to
withdraw as a result of the grievance Mr. Hope filed against him. The trial court noted it
had held 17 previous pretrial hearings in the case and the jury trial was scheduled in less
than a month, which had been reset several times. The trial court further noted that
permitting the withdrawal of trial counsel would result in an additional continuance, and
Mr. Hope had complained in his grievance of the numerous delays in his case.
{¶124} Mr. Hope acknowledged his concerns could be resolved prior to the trial
date. Therefore, the trial court appointed a senior attorney from the public defender’s
office to act as lead counsel in the case with trial counsel as second chair. The trial court
expressly asked Mr. Hope if this was acceptable, and Mr. Hope expressly stated it was.
{¶125} Reviewing courts have found similar colloquies to be sufficient to diffuse
difficult situations involving defendants and their trial counsel. See Heyward at *3 (trial
court held a hearing and conducted inquiries after defendant filed a grievance against his
trial counsel); Ahmed at ¶34 (trial court held a hearing and conducted inquiries after
defendant filed a federal civil rights lawsuit against his trial counsel). Therefore, Mr. Hope
has not established his trial counsel had an actual conflict of interest as a result of the
grievance.
{¶126} Mr. Hope further argues the fact that the trial court appointed an additional
attorney demonstrates there was an actual conflict of interest. However, a review of the
hearing transcript indicates the trial court only appointed additional counsel because the
grievance against his trial counsel was still pending. The trial court explicitly rejected Mr.
Hope’s claim that his trial had a conflict of interest.
27
{¶127} Finally, even if an actual conflict did exist, Mr. Hope has not demonstrated
his trial counsel’s performance was deficient in some way. Mr. Hope claims he “wanted
to pursue a theory of self-defense,” which would require his trial counsel to demonstrate
Mr. Kellar’s “propensity to violence and having a felony criminal history.” Mr. Hope then
admits his trial counsel “did attempt to use text messages to impeach Kellar’s credibility
and his character.” In addition, the trial transcript reflects Mr. Hope’s trial counsel also
elicited testimony to establish Mr. Kellar’s prior criminal history.
{¶128} Since Mr. Hope’s trial counsel actively pursued Mr. Hope’s desired defense
strategy, there is no evidence his trial counsel’s performance was adversely affected by
any conflict of interest. See State v. Wilson, 5th Dist. Stark No. 2013 CA 00078, 2014-
Ohio-461, ¶22 (there was no indication the grievance a defendant filed against his trial
counsel affected trial counsel’s professional judgment or quality of representation).
{¶129} Accordingly, Mr. Hope has not established his trial counsel had an actual
conflict of interest which resulted in ineffective assistance of counsel.
{¶130} Mr. Hope’s fourth assignment of error is without merit.
Prosecutorial Misconduct
{¶131} In his sixth assignment of error, Mr. Hope claims the prosecutor’s conduct
was sufficiently improper to merit reversal of his convictions. Specifically, Mr. Hope
alleges the prosecutor characterized him as a “monster.”
{¶132} “The test for prosecutorial misconduct is whether remarks were improper
and, if so, whether they prejudicially affected substantial rights of the accused.” State v.
Smith, 87 Ohio St. 3d 424, 442 (2000), citing State v. Smith, 14 Ohio St. 3d 13, 14 (1984).
The focus is “the fairness of the trial, not the culpability of the prosecutor.” Id., citing Smith
v. Philips, 455 U.S. 209, 219 (1982). Thus, prosecutorial misconduct is not grounds for
28
reversal unless it so taints the proceedings that a defendant is deprived of a fair trial.
State v. Henderson, 11th Dist. Trumbull No. 99-T-0001, 2000 WL 1459858, *3 (Sept. 29,
2000).
{¶133} Mr. Hope argues that the prosecutor characterized him as a “monster,” and
such comments were “improper and permeated the trial.” In support, he cites two pages
from the sentencing hearing transcript where Mr. Hope, not the prosecutor, addressed
the trial court. During his remarks, Mr. Hope stated the prosecutor “very much
disrespected me and turned me into a monster.”
{¶134} Mr. Hope has failed to cite any portion of the record containing the alleged
prosecutorial misconduct, in violation of App.R. 16(A)(7). It is not an appellate court’s
duty to guess the arguments of an appellant. Reel v. Reel, 11th Dist. Trumbull No. 2014-
T-0023, 2014-Ohio-5079, ¶8.
{¶135} In addition, since Mr. Hope has not pointed to any specific statements, he
has not demonstrated he objected to the alleged misconduct about which he now
complains. See State v. Kish, 11th Dist. Lake No. 2001-L-014, 2002-Ohio-7130, ¶49.
Therefore, he has waived all but plain error. Id.; Crim.R. 52(B).
{¶136} In the event Mr. Hope is referring to the prosecutor’s closing argument, the
prosecution is entitled to a certain degree of latitude in summation. Smith, 87 Ohio St. 3d
at 442-43, citing State v. Liberatore, 69 Ohio St. 2d 583, 589 (1982). “In the tension and
turmoil of a trial, both the prosecution and the defense have wide latitude in summation
as to what the evidence has shown and what reasonable inferences may be drawn
therefrom.” State v. Lott, 51 Ohio St. 3d 160 (1990), quoting State v. Stephens, 24 Ohio
St.2d 76, 82 (1970). A review of the transcript fails to reveal any prosecutorial misconduct
during closing argument.
29
{¶137} Mr. Hope’s sixth assignment of error is without merit.
Verdict Forms
{¶138} In his fifth assignment of error, Mr. Hope claims the trial court improperly
sentenced him on the firearm specifications because the verdict forms were incorrect.
Specifically, Mr. Hope notes that the jury wrote “guilty” instead of “did” on the three firearm
specification forms.
{¶139} Mr. Hope is correct the verdict forms for the firearm specifications contain
this mistake. After the jury returned its verdicts to the trial court, the trial court recognized
the issue and specifically inquired of the jury:
{¶140} “Where the directions indicated that you were to place the word ‘did’ or the
words ‘did not’ have a firearm, you used the word ‘guilty.’ Is that in place of ‘did’?”
{¶141} The jury foreperson responded “Correct.”
{¶142} At a side bar with counsel, the following exchange occurred:
{¶143} “[TRIAL COURT]: Again, gentlemen, as to the firearm specification, they
did not answer ‘did’ or ‘did not.’ They answered ‘guilty’ or ‘not guilty.’ Now, I can send
them back to correct them, or we can all agree to accept ‘guilty’ is ‘did,’ and ‘not guilty’ is
‘did not.’ From defense perspective?
{¶144} “[DEFENSE COUNSEL]: That’s fine. No objection.
{¶145} “[THE STATE]: No objection.”
{¶146} Mr. Hope appears to argue the mistake on the verdict forms renders the
verdicts on the firearm specifications void because the trial court did not send the jury
back to correct them before discharging the jury.
{¶147} However, Mr. Hope’s trial counsel not only did not object to the trial court’s
proposed resolution of the issue, but he affirmatively consented to it. The doctrine of
30
invited error holds that a litigant may not “take advantage of an error which he himself
invited or induced.” Hal Artz Lincoln–Mercury, Inc. v. Ford Motor Co., 28 Ohio St. 3d 20
(1986), paragraph one of the syllabus. In fact, the Supreme Court of Ohio has held that
invited error exists when a party has affirmatively consented to a procedure the trial judge
proposed. State v. Campbell, 90 Ohio St. 3d 320, 324 (2000). The invited error doctrine
prevents Mr. Hope from now assigning as error the trial court’s failure to have the jury
correct the verdict forms.
{¶148} In any event, the verdict forms do not render the verdicts void. The
Supreme Court of Ohio has held that “[j]ury verdicts in criminal cases are to have
reasonable constructions and are not to be declared void unless from necessity
originating in doubt of their import or irresponsiveness to the issue submitted, or unless
they show a manifest tendency to work injustice.” State v. McNicol, 143 Ohio St. 39
(1944), paragraph two of the syllabus.
{¶149} Despite the mistake, the intended meaning of the jury’s verdict is clear—the
jury found Mr. Hope had a firearm in his possession or under his control at the time he
committed certain charged offenses. See State v. Robinson, 9th Dist. Summit No. 27480,
2015-Ohio-2376, ¶5. In addition, any lack of clarity was resolved when the jury foreperson
confirmed the trial court’s very reasonable and obvious construction of the verdict forms’
intended meaning – “guilty” meant “did.” See State v. Ferguson, 11th Dist. Lake No.
2015-L-031, 2015-Ohio-5217, ¶19. Therefore, the trial court did not err in accepting the
verdict forms and sentencing Mr. Hope accordingly.
{¶150} Mr. Hope also argues the verdict forms did not comply with Crim.R. 31(A)
or R.C. 2945.171. Crim.R. 31(A) requires a verdict be unanimous, in writing, signed by
all concurring jurors, and returned to the judge in open court. R.C. 2945.171 requires the
31
jury’s verdict in criminal cases be in writing and signed by each of the concurring jurors.
The record reflects a unanimous verdict signed by all the jurors, and the jury returned the
verdict to the judge in open court. Therefore, the verdict complies with Crim.R. 31(A) and
R.C. 2945.171.
{¶151} Finally, Mr. Hope takes issue with the fact the jury was not polled. Crim.R.
31(D) provides that “the jury shall be polled at the request of any party or upon the court’s
own motion.” R.C. 2945.77 provides that “the jury may be polled at the request of either
the prosecuting attorney or the defendant.” There is nothing in the record reflecting any
party’s request to poll the jury. Therefore, polling was not required.
{¶152} Mr. Hope’s fifth assignment of error is without merit.
Sentencing
{¶153} In his third assignment of error, Mr. Hope claims his sentence was contrary
to law. Specifically, Mr. Hope argues the trial court failed to make the necessary findings
to impose consecutive sentences for the three firearm specifications and abused its
discretion in imposing the third consecutive sentence.
{¶154} Our consideration of a felony sentence is governed solely by R.C.
2953.08(G)(2). State v. Lough, 11th Dist. Trumbull No. 2015-T-0093, 2016-Ohio-3513,
¶10. Thus, we may only vacate or modify a felony sentence on appeal if we determine
“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.” State
v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, ¶1.
{¶155} R.C. 2929.14(B)(1)(b) generally provides that multiple prison terms for
firearm specifications are not permissible when the underlying felonies were “committed
as part of the same act or transaction.” State v. Lewis, 11th Dist. Lake No. 2012-L-074,
32
2013-Ohio-3974, ¶102. An exception to this rule is set forth in R.C. 2929.14(B)(1)(g),
which provides:
{¶156} “If an offender is convicted of or pleads guilty to two or more felonies, if one
or more of those felonies are aggravated murder, murder, attempted aggravated murder,
attempted murder, aggravated robbery, felonious assault, or rape, and if the offender is
convicted of or pleads guilty to a specification of the type described under division
(B)(1)(a) of this section in connection with two or more of the felonies, the sentencing
court shall impose on the offender the prison term specified under division (B)(1)(a) of
this section for each of the two most serious specifications of which the offender is
convicted or to which the offender pleads guilty and, in its discretion, also may impose on
the offender the prison term specified under that division for any or all of the remaining
specifications.”
{¶157} Under this exception, “the sentencing court must impose a prison term for
two specifications * * * but may also choose to impose a term for remaining specifications.”
State v. Fortune, 11th Dist. Lake No. 2014-L-117, 2015-Ohio-4019, ¶18. The same act
or transaction requirement does not apply under such circumstances. Id.
{¶158} Mr. Hope was convicted of multiple felonies, one of which was aggravated
murder and another of which was aggravated robbery. Therefore, the trial court was
required to impose consecutive sentences for two separate firearm specifications. See
id. While the trial court was not required to sentence Mr. Hope to a third term of
imprisonment for the third specification, it had discretion to do so. See id.
Necessary Findings
{¶159} Mr. Hope first argues that the trial court failed to make the necessary
findings before imposing consecutive sentences on the three firearm specifications.
33
{¶160} “On appeals involving the imposition of consecutive sentences, R.C.
2953.08(G)(2)(a) directs the appellate court ‘to review the record, including the findings
underlying the sentence’ and to modify or vacate the sentence ‘if it clearly and
convincingly finds * * * [t]hat the record does not support the sentencing court’s findings
under division * * * (C)(4) of section 2929.14 * * * of the Revised Code.’” State v. Bonnell,
140 Ohio St. 3d 209, 2014-Ohio-3177, ¶28.
{¶161} R.C. 2929.14(C)(4) provides:
{¶162} “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:
{¶163} “(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentencing, was under a sanction imposed pursuant to
section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release
control for a prior offense.
{¶164} “(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.
34
{¶165} “(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the
offender.”
{¶166} “In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and incorporate its findings into its sentencing entry.” Bonnell at ¶37. However, “a word-
for-word recitation of the language of the statute is not required, and as long as the
reviewing court can discern that the trial court engaged in the correct analysis and can
determine that the record contains evidence to support the findings, consecutive
sentences should be upheld.” Id. at ¶29.
{¶167} The trial court made the following findings at Mr. Hope’s sentencing hearing:
{¶168} “[C]onsecutive sentences are necessary to punish you as the defendant and
protect the public and are not disproportionate, as your criminal history shows that the
consecutive sentences are necessary to protect the public.”
{¶169} Thus, the record reflects that the trial court made all the required findings:
the two findings required under R.C. 2929.14(C)(4) relating to protecting the
public/punishing Mr. Hope and proportionality, as well as a third finding under (C)(4)(c)
relating to Mr. Hope’s criminal history.
{¶170} The sentencing entry states:
{¶171} “[T]he Court finds that consecutive service is necessary to protect the public
from future crime and to punish the Defendant, and that consecutive sentences are not
disproportionate to the seriousness of the Defendant’s conduct and to the danger the
Defendant poses to the public.”
35
{¶172} The sentencing entry is missing the finding under (C)(4)(c) regarding Mr.
Hope’s criminal history. According to the Supreme Court of Ohio, however, “[a] trial
court’s inadvertent failure to incorporate the statutory findings in the sentencing entry after
properly making those findings at the sentencing hearing does not render the sentence
contrary to law; rather, such a clerical mistake may be corrected by the court through a
nunc pro tunc entry to reflect what actually occurred in open court.” Bonnell at ¶30; see
also State v. Olp, 11th Dist. Ashtabula Nos. 2015-A-0033 & 2015-A-0034, 2016-Ohio-
3508, ¶23.
{¶173} Accordingly, we determine that the imposition of consecutive sentences
was not contrary to law, but we remand this matter to the trial court for the limited purpose
of issuing a nunc pro tunc entry incorporating the findings from the sentencing hearing.
Abuse of Discretion
{¶174} Mr. Hope also argues that the trial court abused its discretion in imposing a
third term of imprisonment for the third firearm specification pursuant to R.C.
2929.14(B)(1)(g).
{¶175} An abuse of discretion is the trial court’s “failure to exercise sound,
reasonable, and legal decision-making.” State v. Beechler, 2d Dist. Clark No. 09-CA-54,
2010-Ohio-1900, ¶62, quoting Black’s Law Dictionary 11 (8th Ed.2004).
{¶176} During the sentencing hearing, the trial court determined: (1) Mr. Hope’s
criminal record demonstrated he was a “habitual criminal,” (2) Mr. Hope had been
incarcerated for lengthy periods of time on ten occasions at the jail level and four times in
prison, (3) Mr. Hope’s course of criminal conduct had spiraled into taking a person’s life,
(4) the kidnapping and robbery were an attempt to escape, and (5) Mr. Hope was a danger
to society and needed to be taken off the streets to protect the public.
36
{¶177} In light of the above findings, we cannot say the trial court's decision to
impose the additional firearm specification term was an abuse of discretion. See State v.
Isreal, 12th Dist. Warren No. CA2011-11-115, 2012-Ohio-4876, ¶74 (the trial court did
not abuse its discretion in imposing a third term of imprisonment for a third firearm
specification when it considered the defendant’s lengthy criminal past, that the
defendant’s actions caused death and danger, and that the defendant possessed a gun
on his person during a car chase).
{¶178} Mr. Hope’s third assignment of error is without merit.
{¶179} Based on the foregoing, the judgment of the Trumbull County Court of
Common Pleas is affirmed, but we remand for the issuance of a nunc pro tunc entry.
THOMAS R. WRIGHT, P.J.,
MATT LYNCH, J.,
concur.
37