State v. Fuller

[Cite as State v. Fuller, 2014-Ohio-1351.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
)
PLAINTIFF-APPELLEE, )
) CASE NO. 12 MA 185
V. )
) OPINION
DAWAN FULLER, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common
Pleas of Mahoning County, Ohio
Case No. 11CR1359A
JUDGMENT: Affirmed in part. Reversed in part and
Remanded.
APPEARANCES:
For Plaintiff-Appellee Paul Gains
Prosecutor
Ralph Rivera
Assistant Prosecutor
21 W. Boardman St., 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant Attorney Rhys Cartwright Jones
42 North Phelps Street
Youngstown, Ohio 44503-1130
JUDGES:
Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
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Dated: March 27, 2014
[Cite as State v. Fuller, 2014-Ohio-1351.]
DONOFRIO, J.
{¶1} Defendant-appellant, Dawan Fuller, appeals from a Mahoning County
Common Pleas Court judgment convicting him of two counts of attempted murder,
with accompanying firearm specifications, following a bench trial.
{¶2} In the early evening of November 23, 2011, Robert Shaffer and his
mother, Michele Holmes, were each shot several times while in their home on
Youngstown’s west side. They both survived the assault.
{¶3} According to Shaffer and Holmes, two men came into their home and
shot them. They identified one of the men as Sherrick Jackson. They both knew
Jackson. Shaffer later identified appellant in court as the other man, although he
could not positively identify appellant in a photo lineup.
{¶4} According to Shaffer’s next-door neighbors, Brandon Randall and
Jamie Seaman, appellant and Jackson were visiting at their house just prior to the
shooting along with appellant’s son and Jackson’s girlfriend. And when Seaman
heard gunshots, Randall went to Shaffer’s house and saw appellant and Jackson
standing over Shaffer and Holmes.
{¶5} According to Jackson, however, he acted alone in the shooting. He
claimed that appellant did not even go with him to Shaffer’s house. Appellant is
Jackson’s younger brother.
{¶6} A Mahoning County Grand Jury indicted both appellant and Jackson on
two counts of attempted murder, first-degree felonies in violation of R.C.
2903.02(A)(D) and R.C. 2923.02(A), and two counts of felonious assault, second-
degree felonies in violation of R.C. 2903.11(A)(2)(D). Firearm specifications
accompanied all counts. Both men pleaded not guilty to the charges in the
indictment.
{¶7} Jackson eventually entered a guilty plea just prior to trial to all counts in
the indictment.
{¶8} The case against appellant proceeded to a bench trial. The trial court
found appellant guilty of all charges and specifications. At a later sentencing hearing,
the court merged the felonious assault counts with the attempted murder counts and
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also merged the specifications for those counts. The court then sentenced appellant
to ten years on each of the attempted murder counts and three years on each of the
firearm specifications and ordered that the sentences run consecutively. Thus, the
court sentenced appellant to a total of 26 years in prison.
{¶9} Appellant filed a timely notice of appeal on October 16, 2012.
{¶10} Appellant raises three assignments of error, the first of which states:
THE TRIAL COURT ERRED IN ENTERING JUDGMENTS OF
CONVICTION ON THE COUNTS OF THE INDICTMENT, INSOFAR
SUFFICIENT EVIDENCE DID NOT SUPPORT THE ELEMENTS OF
IDENTITY, AND THE MANIFEST WEIGHT OF THE EVIDENCE DID
NOT SUPPORT THE ELEMENT OF IDENTITY.
{¶11} Appellant argues his conviction is against the manifest weight of the
evidence because the trial court ignored the testimony of the only eyewitness. He
asserts Jackson was the only person who actually saw what happened on the night
in question and he testified that appellant was not there.
{¶12} Additionally, appellant asserts that Jackson’s testimony is the only
testimony that makes sense in this case. He contends that to believe Randall, one
would have to believe that Randall was in Shaffer’s house or that he saw the
exchange through draped windows. And appellant contends that to believe Shaffer,
one would have to account for the fact that he was unable to identify appellant until
he was in court, after having read articles implicating appellant.
{¶13} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and
all reasonable inferences and determine whether, in resolving conflicts in the
evidence, the jury clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial ordered. State v.
Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 668 (1997). “Weight of the evidence
concerns ‘the inclination of the greater amount of credible evidence, offered in a trial,
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to support one side of the issue rather than the other.’” Id. (Emphasis sic.) In
making its determination, a reviewing court is not required to view the evidence in a
light most favorable to the prosecution but may consider and weigh all of the
evidence produced at trial. Id. at 390.
{¶14} Yet granting a new trial is only appropriate in extraordinary cases where
the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d
172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of the
facts who sits in the best position to judge the weight of the evidence and the
witnesses' credibility by observing their gestures, voice inflections, and demeanor.
State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶49, citing State v. Hill, 75
Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230,
227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[w]hen there exist two
fairly reasonable views of the evidence or two conflicting versions of events, neither
of which is unbelievable, it is not our province to choose which one we believe.”
State v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152.
{¶15} The trial court found appellant guilty of two counts of attempted murder
in violation of R.C. 2903.02(A) and R.C. 2923.02(A). Pursuant to those sections, no
person shall purposely engage in conduct that if successful would cause the death of
another. It also found appellant guilty of two counts of felonious assault in violation of
R.C. 2903.11(A)(2), which provides that no person shall knowingly cause serious
physical harm to another.
{¶16} The testimony was uncontroverted that Shaffer and Holmes were shot
multiple times and that Jackson was one of the shooters. The only question at trial
was whether appellant was with Jackson at the time and also shot the victims. The
evidence at trial was as follows.
{¶17} Youngstown Police Officer Ronald Jankowski was one of the first
responders to the scene. (Tr. 23). He stated that when he arrived he found Shaffer
and Holmes on the floor bleeding. (Tr. 24-25). He also saw Randall there. (Tr. 24).
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Officer Jankowski asked Shaffer who shot him. (Tr. 26). He testified that Shaffer
pointed to Randall and said, “Ask him. It was his cousin.” (Tr. 26). Officer
Jankowski then asked Randall. (Tr. 26). Officer Jankowski testified that at first
Randall did not want to say anything, but he then told the officer it was Jackson and
appellant. (Tr. 26).
{¶18} Michele Holmes testified that on the day in question she was about to
go out the back door to get her dog when a man put his hand around her mouth and
brought her into the kitchen. (Tr. 38). She stated that she called to Shaffer, who was
in the dining room, and he came to see what was happening. (Tr. 39-40). Holmes
testified that the two men, one of whom she identified as Jackson, pulled out their
guns and started shooting Shaffer. (Tr. 40-41). Holmes knew Jackson. (Tr. 53).
She stated that Jackson shot her and both Jackson and the other man shot Shaffer.
(Tr. 41). She was shot four times. (Tr. 46). Holmes stated that both men were
wearing dark coats or hoodies. (Tr. 42).
{¶19} Shaffer testified that earlier that day Jackson and appellant had been to
his house talking about a woman, who had been at Shaffer’s house to buy drugs,
stealing their wallet. (Tr. 64-65). He stated that the two men then left his house. (Tr.
67). Shaffer testified that less than an hour later, the two men came back. (Tr. 67-
68). Shaffer stated that when they came back, he was doing a line of cocaine, his
mother was taking the dog out, and his brother, William Shaffer, was in the house.
(Tr. 68-69). He heard his mother cry for help from the kitchen and went to see what
was going on. (Tr. 69-70). Shaffer found Jackson holding Holmes with one hand
and a gun with the other hand. (Tr. 71). He also saw appellant in the kitchen. (Tr.
73). Shaffer testified that when he walked into the kitchen, appellant shot him
repeatedly. (Tr. 74). He stated the neighbors began coming to his house, so
appellant and Jackson ran out. (Tr. 76). Shaffer testified they stole approximately
$1,000 worth of marijuana, $1,000 worth of cocaine, and over $1,000 cash from his
house. (Tr. 76-77).
{¶20} On cross examination, Shaffer stated that he learned appellant’s name
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from the “paper,” although he stated it was not the newspaper. (Tr. 86, 123). And he
admitted that when the police showed him photo lineups, although he positively
identified Jackson, he did not positively identify appellant. (Tr. 116). Instead, he
stated that one photo might be him or could be him and another photo looked like
him. (Tr. 116-119).
{¶21} William Shaffer corroborated Shaffer’s account of what happened
earlier that day. He stated that Shaffer had a woman over earlier in the day and then
appellant and Jackson came over and told Shaffer that the woman stole their money.
(Tr. 128). William stated that appellant and Jackson then left. (Tr. 129). Later, while
he was upstairs, William heard a knock at the door, followed by an argument, and
then gunshots. (Tr. 129-130). When he came downstairs, William stated he saw
someone with a hat and black coat shooting at the ground. (Tr. 130-131). He then
found his mother and brother on the ground. (Tr. 132). He grabbed some rags and
put pressure on their wounds. (Tr. 132). William stated that he did not have a gun
and no guns were in the house. (Tr. 133).
{¶22} Brandon Randall testified that on the day in question, appellant and
Jackson, whom he referred to as his “God-brothers,” were at his house “hanging out”
along with appellant’s son, Jackson’s girlfriend, and Randall’s girlfriend and their
children. (Tr. 144-145). Randall stated that eventually he fell asleep on the couch
until he was awoken by his girlfriend telling him she heard gunshots next door at
Shaffer’s house. (Tr. 145). He testified that he ran to Shaffer’s house and opened
the door. (Tr. 146). Randall saw appellant and Jackson standing over Shaffer and
Holmes. (Tr. 146). He then went back to his house, waited a few minutes, and then
went to see if Shaffer and Holmes were okay. (Tr. 147). When he returned, Shaffer
found William, who asked to use his phone. (Tr. 148). When the police arrived and
asked Shaffer who shot him, Randall testified, Shaffer told the police to ask Randall
because “they was his brothers.” (Tr. 148). Randall stated that he initially resisted
identifying appellant and Jackson because they were his family. (Tr. 149).
{¶23} On cross examination, Randall admitted that during his police interview
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he never stated that he walked into Shaffer’s house. (Tr. 157). Instead, he stated
that he looked through Shaffer’s door, which has a curtain over it. (Tr. 157-158).
Randall tried to clarify his statements by saying he just stepped in the doorway. (Tr.
158).
{¶24} Jamie Seaman is Randall’s girlfriend. She corroborated Randall’s
testimony about appellant and Jackson “hanging out” at their house that day. (Tr.
177). She stated that Jackson left briefly and went to Shaffer’s to talk about money
missing from his wallet and then he returned to her house. (Tr. 179). Seaman
testified that Randall fell asleep and appellant and Jackson put on their black jackets
and hats and left. (Tr. 180). She did not ask where they were going. (Tr. 181).
Approximately half an hour later, Seaman heard gunshots and woke Randall. (Tr.
181-182). She stated Randall got up and went out the back door, came back in, and
then went out once more. (Tr. 182). Detective-Sergeant Ronald Rodway
administered the photo lineups to Shaffer and Holmes. He testified that when Shaffer
looked at appellant’s photograph, Shaffer stated that it looked like him “a little bit.”
(Tr. 204). Det. Rodway stated that Holmes failed to make any identification of
appellant. (Tr. 205).
{¶25} Jackson testified in appellant’s defense. He stated that on the day in
question, he was at appellant’s house with appellant and appellant’s son when he
called Randall for a ride to go get drugs. (Tr. 222). Randall picked Jackson up and
brought him to Randall’s house. (Tr. 222). Jackson stated that he “hung out” at
Randall’s house for a while and they smoked some marijuana. (Tr. 224). He then
went to Shaffer’s house to buy some cocaine, which he had bought from Shaffer in
the past. (Tr. 225, 227). He stated he knocked on the door and Shaffer answered.
(Tr. 227). Jackson and Shaffer went into the dining room and were “talking about
business.” (Tr. 227). Jackson thought that the cocaine Shaffer was selling him was
not the correct weight for the price. (Tr. 227-229). He testified this led to a verbal
argument between him and Shaffer. (Tr. 229). While they were yelling at each other,
Jackson stated, William came down the steps shooting. (Tr. 229). Consequently,
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Jackson pulled out his gun and began to shoot as he backed out of the house. (Tr.
229). He stated he shot approximately five times and then ran from the house. (Tr.
230). Jackson then “caught a ride” back to appellant’s house. (Tr. 231).
{¶26} Jackson testified that appellant was never with him at Shaffer’s house.
(Tr. 231). He stated appellant was home with his son during the entire incident. (Tr.
231).
{¶27} The state and defense also entered a stipulation that five of the six
shells recovered by the police were fired from the same gun, while the sixth shell did
not match the other five. (Tr. 207-208). Additionally, they stipulated that a gunshot
residue test performed on William was positive. (Tr. 207).
{¶28} The weight of the evidence supports appellant’s conviction. Appellant
claims that Jackson was the only eyewitness to testify, so we should believe his
version of the events. But that is not accurate. Both Shaffer and Holmes were
eyewitnesses. And while they were not able to identify appellant in the photo lineup,
they were both certain that two men came into their home and shot them. If we were
to believe Jackson, who stated that he went to Shaffer’s house alone, then both
Shaffer and Holmes would have to have been lying when they told the police that two
men shot them. Moreover, when Shaffer saw appellant’s photograph in the lineup,
he stated that it looked a little bit like the shooter.
{¶29} Additionally, Shaffer’s identification of appellant at trial was further
bolstered by Randall’s and Seaman’s testimony. Both Randall and Seaman stated
that appellant and Jackson were “hanging out” at their house prior to the shooting.
They both stated that Randall fell asleep. Seaman stated that appellant and Jackson
then left together. Within a half an hour later, she heard gunshots and woke Randall.
Randall stated he ran to Shaffer’s house where he saw appellant and Jackson
standing over Shaffer and Holmes. There was some inconsistency between
Randall’s initial statement to police and his testimony in court as to whether he
actually entered Shaffer’s house or just looked through the door. But his testimony
was consistent with his statement to police just after the shooting that the culprits
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were appellant and Jackson. Randall identified appellant and Jackson even though
they were his “God-brothers.”
{¶30} Jackson’s testimony, however, was inconsistent with the testimony of
all of the other witnesses. According to Jackson, appellant never left home on the
day in question, not even to go to Randall’s house. This contradicts Randall’s and
Seaman’s testimony that appellant and Jackson were at their house for some time
that day before the shooting. Additionally, Jackson stated that William began
shooting, which caused him to open fire. This contradicts William’s testimony.
William testified he did not have a gun and he did not come downstairs until the
shooting was almost over. And according to Jackson he went alone to Shaffer’s
house. This contradicts Shaffer’s and Holmes’ testimony that two men entered their
house and shot them.
{¶31} As an appellate court, we are permitted to independently weigh the
credibility of the witnesses when determining whether a conviction is against the
manifest weight of the evidence. State v. Wright, 10th Dist. No. 03AP-470, 2004-
Ohio-677, ¶11. But we must give great deference to the fact finder's determination of
witnesses' credibility. Id. The policy underlying this presumption is that the trier of
fact is in the best position to view the witnesses and observe their demeanor,
gestures, and voice inflections, and use these observations in weighing the credibility
of the proffered testimony. Id.{¶32} In this case, the trier of fact must have found Jackson’s testimony
lacked credibility. This is likely because the great majority of the evidence weighed
against his testimony. Appellant’s conviction is supported by the weight of the
evidence.
{¶33} Accordingly, appellant’s first assignment of error is without merit.
{¶34} Appellant’s second assignment of error states:
THE TRIAL COURT ERRED IN TAKING EVIDENCE OF AN
OVERLY-SUGGESTIVE IN-COURT IDENTIFICATION.
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{¶35} Here appellant contends the trial court should not have allowed Shaffer
to make an in-court identification of him, given that Schaffer was unable to previously
identify him. He contends Schaffer learned his name from the press.
{¶36} We review a trial court's decision to admit an in-court identification for
an abuse of discretion. State v. Mikolaj, 7th Dist. No. 05-MA-157, 2007-Ohio-1563,
¶14. Abuse of discretion connotes more than an error of law or of judgment; it
implies the trial court's decision is unreasonable, arbitrary, or unconscionable. State
v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980).
{¶37} Det. Rodway testified that when he showed Shaffer the photo lineup
with appellant’s picture Shaffer stated that it “looks like him a little bit.” (Tr. 198).
{¶38} Appellant does not take issue with the photo array nor did he argue that
Shaffer’s ambiguous quasi-identification of him should have been suppressed.
{¶39} During his testimony, Shaffer identified appellant as the man that shot
him. (Tr. 66, 124-125). Appellant objected. (Tr. 66, 124-125).
{¶40} Shaffer also identified appellant by name at trial. But he was not
entirely clear how he had learned appellant’s name. When asked by defense
counsel where he learned appellant’s name, Shaffer stated, “I seen it in the paper. I
identified him right off the grid before I knew his name.” (Tr. 86). But later when
defense counsel mentioned that Shaffer learned appellant’s name from the
newspaper, Shaffer stated, “I ain’t say the newspaper. I didn’t see the newspaper. I
seen it in the paper. My cousin showed me the paper.” (Tr. 122). Shaffer stated it
was not a newspaper but “a paper I was seeing from my family” where he “knew who
it was by his face.” (Tr. 123).
{¶41} In addressing potentially tainted photo arrays, it has been held that
“witness exposure to photographs of the suspect shown on television prior to
identification does not require suppression of the identification.” State v. Monford,
190 Ohio App.3d 35, 2010-Ohio-4732, 940 N.E.2d 634 (10th Dist.), ¶55. Moreover, if
no state action was involved in the pretrial exposure to a newscast showing the
defendant's picture, any suggestiveness goes to the weight and credibility of the
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witness's testimony, not to its admissibility, and is best addressed on cross
examination. State v. Ware, 10th Dist. No. 00AP-43, 2004-Ohio-6984, ¶55.
{¶42} Here it is unclear exactly where Shaffer saw appellant’s picture or
learned his name. But if it was from a newspaper article or other news source, this
would not require the court to exclude his identification of appellant. Instead, it would
go to the weight and credibility to be given to the identification.
{¶43} Moreover, the trial court, as the finder of fact in this case, was in the
best position to observe Shaffer and judge the reliability of his identification. And
given that this was a bench trial, we can presume the court, when considering the in-
court identification, also took into consideration the fact that Shaffer failed to
positively identify appellant in the photo lineup. Thus, we cannot find that the trial
court abused its discretion in allowing Shaffer’s in-court identification of appellant.
{¶44} Accordingly, appellant’s second assignment of error is without merit.
{¶45} Appellant’s third assignment of error states:
THE TRIAL COURT ERRED PLAINLY IN MERGING FULLER’S
SENTENCES, RATHER THAN REQUIRING THE STATE TO ELECT
THE CHARGE AS TO WHICH THE CONVICTION WOULD ATTACH,
AND IN SENTENCING FULLER TO 10 YEARS ON HIS SECOND-
DEGREE FELONY CONVICTIONS.
{¶46} Finally, appellant takes issue with his sentence. He argues that
because he was convicted of allied offenses of similar import, the trial court was only
to sentence him on one of the allied offenses instead of sentencing him on both and
then merging the sentences. He claims this violated R.C. 2941.25. Additionally,
appellant argues the trial court erred in sentencing him to ten years on each of the
felonious assault counts because the maximum sentence for these second-degree
felonies was eight years. Therefore, he contends his sentence is contrary to law.
Appellant asserts we must reverse his sentence and remand the matter for a new
sentencing hearing.
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{¶47} R.C. 2941.25(A) provides: “Where the same conduct by defendant can
be construed to constitute two or more allied offenses of similar import, the indictment
or information may contain counts for all such offenses, but the defendant may be
convicted of only one.”
{¶48} “[F]or purposes of R.C. 2941.25, a ‘conviction’ is the combination of a
guilt determination and a sentence or penalty.” State v. Damron, 129 Ohio St.3d 86,
2011-Ohio-2268, 950 N.E.2d 512, ¶17, citing, State v. Whitfield, 124 Ohio St.3d 319,
2010-Ohio-2, 922 N.E.2d 182, ¶12.
{¶49} In this case, the offenses of attempted murder and felonious assault
were allied offenses of similar import. The trial court made such a finding at
sentencing. (Sen. Tr. 16). Thus, while the state was able to indict and bring
appellant to trial on two counts of attempted murder and two counts of felonious
assault, appellant could only be convicted of one of each of the allied offenses.
{¶50} The trial court complied with R.C. 2941.25 at the sentencing hearing.
At the sentencing hearing, before imposing sentence, the trial court found that count
one (attempted murder) and count two (attempted murder) merged with count three
(felonious assault) and count four (felonious assault) and that the firearm
specifications for those counts merged also. (Sen. Tr. 16). The court then sentenced
appellant to ten years on count one, consecutive to three years on that firearm
specification, and ten years on count two, consecutive to three years on that firearm
specification, for a total of 26 years. (Sen. Tr. 17).
{¶51} The trial court’s sentence, however, was not correctly set out in its
judgment entry of sentence.
{¶52} The judgment entry states that appellant is sentenced to ten years in
prison on count one (attempted murder), ten years in prison on count two (attempted
murder), ten years in prison on count three (felonious assault), and ten years in
prison on count four (felonious assault). It then states for sentencing purposes
counts three and four are to merge with counts one and two for a total of 20 years.
Additionally, counts three and four of the gun specifications are to merge with counts
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one and two for a total of six years. The judgment entry states the total prison term is
26 years.
{¶53} There are two errors in the judgment entry. First, the court should have
stated that the felonious assault counts merged with the attempted murder counts
before setting out the sentence. Second, the court could not sentence appellant to
ten years on felonious assault because it is a second-degree felony for which the
maximum sentence is eight years, not ten. See R.C. 2929.14(A)(2).
{¶54} These errors, however, are clerical in nature. This is because the
sentencing judgment entry does not accurately reflect the merger by the trial court or
the sentence it imposed at the sentencing hearing. At the sentencing hearing, the
trial court correctly merged the offenses and entered a lawful sentence on only the
attempted murder counts and specifications. Because the errors with the sentencing
judgment entry are clerical errors, the trial court may simply issue a new judgment
entry to correct them. Crim.R. 36 provides that a court may correct clerical mistakes
in judgments at any time.
{¶55} Appellant argues the trial court committed plain error by sentencing him
to multiple sentences for allied offenses of similar import. He cites to decisions of this
court in support of his position. See State v. Robinson, 7th Dist. No. 12-MA-128,
2012-Ohio-1686; State v. Gardner, 7th Dist. No. 10 MA 52, 2011-Ohio-2644. But
those cases are distinguishable. In neither Robinson nor Gardner did the trial court
correctly merge the allied offenses and impose the correct sentence at the
sentencing hearing as the trial court did in the case at bar. Instead, they sentenced
the defendants on both of the allied offenses and ordered the sentences to run
concurrently. Thus, there could be no clerical error in those cases. But here, as
stated above, the trial court complied with the merger statute at the sentencing
hearing and sentenced appellant only on the attempted murder counts and
accompanying specifications. It did not sentence him on the felonious assault counts
and order the sentences to run concurrently.
{¶56} We are compelled, however, to raise a plain error with appellant’s
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consecutive sentences. Appellant’s co-defendant, Jackson, raised the issue in his
appeal. See State v. Jackson, 7th Dist. No. 12-MA-199, 2014-Ohio-777. In neither
appellant’s case, nor in Jackson’s, did the trial court make the statutorily-required
findings before imposing consecutive sentences.
{¶57} R.C. 2929.14(C)(4) provides:
4) If multiple prison terms are imposed on an offender for convictions of
multiple offenses, the court may require the offender to serve the prison
terms consecutively if the court finds that the consecutive service is
necessary to protect the public from future crime or to punish the
offender and that consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the offender
poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 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.
{¶58} Although the trial court is not required to recite the statute verbatim or
utter “magic” or “talismanic” words, there must be an indication that the court found
(1) that consecutive sentences are necessary to protect the public from future crime
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or to punish the offender, (2) that consecutive sentences are not disproportionate to
the seriousness of the offender's conduct and to the danger posed to the public, and
(3) one of the findings described in R.C. 2929.14(C)(4)(a), (b), or (c). State v.
Bellard, 7th Dist. No. 12-MA-97, 2013-Ohio-2956, ¶17. The court need not give its
reasons for making those findings. State v. Power, 7th Dist. No. 12 CO 14, 2013-
Ohio-4254, ¶38.
{¶59} In sentencing appellant, the trial court stated:
Defendant Fuller was found guilty after a trial. The Court has
also considered the principles and purposes of sentencing for
Defendant Fuller, together with the recommendation contained in the
pre-sentence investigation report that was prepared. The Court has
considered both factors under 2929.11 and 2929.12.
* * * The Court finds the defendant should be sentenced to the
Department of Rehabilitation and Corrections because he is not
amenable to community control; that prison is consistent with the
principles and purposes of sentencing.
(Sentencing Tr. 16-17).
{¶60} The judgment entry of sentence does not add any other findings by the
trial court. It simply repeats the findings the court made at the sentencing hearing.
{¶61} The trial court failed to comply with R.C. 2929.14(C)(4) in sentencing
appellant to consecutive sentences. The court did not make a finding that
consecutive sentences were necessary to protect the public from future crime or to
punish appellant. The court did not make a finding that consecutive sentences were
not disproportionate to the seriousness of appellant’s conduct and to the danger
posed to the public. And the court did not find any of the three situations set out in
R.C. 2929.14(C)(4)(a)(b)(c).
{¶62} We have found that even more comprehensive findings than those
made here were insufficient to impose consecutive sentences. See Bellard, 2013-
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Ohio-2956 (general statements about the seriousness of the defendant's conduct and
his juvenile criminal history were not sufficient to comply with R.C. 2929.14(C)(4));
State v. Esmail, 7th Dist. No. 11-CO-35, 2013-Ohio-2165 (statement in judgment
entry that court considered purposes and principles of sentencing and all other
relevant factors pursuant to R.C. 2929.11 and R.C. 2929.12 along with statements at
sentencing hearing regarding the defendant’s criminal history and that sentence was
consistent with Senate Bill 86 were not sufficient to impose consecutive sentences).
{¶63} An appellate court may, but need not, recognize plain error if
substantial rights are affected, even if the error was not brought to the court’s
attention. Crim.R. 52(B). Yet before an appellate court can recognize plain error, it
must find obvious error affecting such substantial rights that the error was outcome
determinative. State v. Noling, 98 Ohio St.3d 44, 781 N.E.2d 88, 2002-Ohio-7044,
¶62. The failure of the trial court to make the required statutory findings before
imposing consecutive sentences is plain error. State v. Jirousek, 11th Dist. Nos.
2013-G-3128, 2013-G-3130 2013-Ohio-5267, ¶39; State v. Boynton, 10th Dist. Nos.
12AP-975, 12AP-976, 2013-Ohio-3794, ¶12.
{¶64} Accordingly, appellant’s third assignment of error has merit.
{¶65} For the reasons stated above, appellant’s conviction is hereby affirmed.
Appellant’s sentence is reversed and the matter is remanded for a new sentencing
hearing.
Vukovich, J., concurs.
Waite, J., concurs.