[Cite as State v. Henderson,

.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 27078

Appellee

v. APPEAL FROM JUDGMENT ENTERED IN THE ALFONZO HENDERSON COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 12 08 2452

DECISION AND JOURNAL ENTRY

Dated: December 31, 2014

WHITMORE, Judge.

{¶1} Appellant, Alfonzo Henderson, appeals from the judgment of the Summit County

Court of Common Pleas. This Court affirms in part and reverses in part.

I

{¶2} In September 2012, Henderson was indicted for possession of cocaine and having

weapons while under disability. These charges related to items found during the execution of a

search warrant of 110 West Miller Avenue in Akron. While these charges were pending, a

supplemental indictment was filed, charging Henderson with aggravated burglary, aggravated

robbery, felonious assault, and having weapons while under disability. The charges in the

supplemental indictment stemmed from an incident that occurred on January 2, 2013.

{¶3} On January 2, 2013, Richard Ellis was home with the flu when Henderson and

two other men kicked in his front door. According to Ellis, Henderson shot him multiple times

while asking him, “Where’s it at?” Ellis recognized Henderson as his brother’s first cousin. 2

After briefly searching Ellis’ apartment, the three men fled. The police responding to the scene

ultimately found large quantities of heroin, cocaine, and marijuana in Ellis’ apartment. Based on

Ellis’ identification, the charges in the supplemental indictment were filed against Henderson

and he was arrested.

{¶4} Henderson sought to sever his trial on the two indictments, but the court denied

his motion. A jury acquitted Henderson of the possession of cocaine and having weapons while

under disability charges from September 2012. However, the jury convicted Henderson of all

charges in the supplemental indictment. The court merged the aggravated robbery into the

aggravated burglary and sentenced Henderson to seven years on aggravated burglary. The court

further sentenced Henderson to seven years on felonious assault, one year on having weapons

while under disability, and three years for each of the two firearm specifications. The court

ordered the sentences for aggravated burglary and felonious assault to run consecutively, for an

aggregate prison term of 21 years.

{¶5} Henderson now appeals and raises three assignments of error for our review.

II

Assignment of Error Number One

ALFONZO HENDERSON’S CONVICTIONS FOR AGGRAVATED BURGLARY, AGGRAVATED ROBBERY, FELONIOUS ASSAULT, GUN SPECIFICATIONS, AND HAVING WEAPON WHILE UNDER DISABILITY WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE 1, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.

{¶6} In his first assignment of error, Henderson argues that his convictions are not

supported by sufficient evidence because the only evidence against him is the “uncorroborated

testimony of the victim.” We disagree. 3

{¶7} “‘[S]ufficiency’ is a term of art meaning that legal standard which is applied to

determine whether the case may go to the jury or whether the evidence is legally sufficient to

support the jury verdict as a matter of law.” State v. Thompkins,

(1997),

quoting Black’s Law Dictionary 1433 (6th Ed. 1990). “In essence, sufficiency is a test of

adequacy.”

. When reviewing a conviction for sufficiency, the evidence must

be viewed in a light most favorable to the prosecution. State v. Jenks,

(1991),

paragraph two of the syllabus. The pertinent question is whether “any rational trier of fact could

have found the essential elements of the crime proven beyond a reasonable doubt.”

{¶8} “Whether the evidence is legally sufficient to sustain a verdict is a question of

law.”

, citing State v. Robinson,

(1955). This Court,

therefore, reviews questions of sufficiency de novo. State v. Salupo,

,

(9th Dist.).

{¶9} “[I]dentity is an element that must be proven by the state beyond a reasonable

doubt * * *.” (Alterations sic.) In re C.A., 9th Dist. Summit No. 26690,

,

quoting State v. Minor, 9th Dist. Summit No. 26362,

. Henderson contends

that the State failed to prove that he was the one who broke into Ellis’ house and shot him.

Specifically, Henderson argues that Ellis’ uncorroborated testimony is insufficient to support his

convictions. Henderson, essentially, challenges Ellis’ credibility. “When a defendant challenges

the sufficiency of the evidence, we do not evaluate credibility.” State v. Delrossi, 9th Dist.

Summit No. 26943,

. Accord In re C.A. at ¶ 5 (“[W]hile identity is an

element that must be proven by the state beyond a reasonable doubt, the credibility of the

witnesses and their degree of certainty in identifying the defendant are matters affecting the

weight of the evidence.”). “The relevant inquiry is whether, after viewing the evidence in a light 4

most favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime proven beyond a reasonable doubt.” Jenks at paragraph two of the

syllabus. Because Henderson’s first assignment of error challenges sufficiency and not manifest

weight, this Court need not assess Ellis’ credibility. See State v. Brown, 9th Dist. Summit No.

25287,

, ¶ 14, citing State v. Porter, 9th Dist. Summit No. 24996, 2010-Ohio-

3980, ¶ 9 (“[A] sufficiency challenge tests the State’s production of evidence, not the

persuasiveness of the evidence produced.”).

{¶10} Ellis testified that Henderson and two other men kicked in his front door.

Henderson then shot Ellis and asked, “Where’s it at?” When Ellis replied that he did not know

what Henderson was talking about, Henderson shot him again. Henderson shot Ellis four times.

According to Ellis, after he was shot, Henderson instructed the two other men to search Ellis’

home. All three men fled shortly thereafter when Henderson threatened to shoot Ellis in the

forehead. Ellis told the police that his brother’s first cousin, Al, was the shooter. He further

identified a photograph of Henderson as the person he knew as Al. Ellis’ testimony, if believed,

is sufficient to support Henderson’s convictions.

{¶11} Henderson’s first assignment of error is overruled.

Assignment of Error Number Two

ALFONZO HENDERSON’S CONVICTIONS FOR AGGRAVATED BURGLARY, AGGRAVATED ROBBERY, FELONIOUS ASSAULT, GUN SPECIFICATIONS, AND HAVING WEAPON WHILE UNDER DISABILITY WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE, IN VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE 1, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.

{¶12} In his second assignment of error, Henderson argues that his convictions are

against the manifest weight of the evidence. We disagree. 5

{¶13} A conviction that is supported by sufficient evidence may still be found to be

against the manifest weight of the evidence. Thompkins,

. “Weight of the

evidence concerns ‘the inclination of the greater amount of credible evidence, offered in a trial,

to support one side of the issue rather than the other.’” (Emphasis sic.)

quoting Black’s at

1594.

In determining whether a criminal conviction is against the manifest weight of the evidence, an appellate court must review the entire record, weigh the evidence and all reasonable inferences, consider the credibility of witnesses and determine whether, in resolving conflicts in the evidence, the trier of fact 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. Otten,

(9th Dist. 1986). “When a court of appeals reverses a

judgment of a trial court on the basis that the verdict is against the weight of the evidence, the

appellate court sits as a ‘thirteenth juror’ and disagrees with the fact[-]finder’s resolution of the

conflicting testimony.”

, quoting Tibbs v. Florida,

(1982). An

appellate court should exercise the power to reverse a judgment as against the manifest weight of

the evidence only in exceptional cases.

.

{¶14} Henderson argues that his convictions are against the manifest weight of the

evidence because: (1) there is no forensic evidence tying Henderson to the shooting; (2) his cell

phone records indicate that he was across town at 7:17 p.m.; (3) Ellis is not credible; and (4) the

police improperly presented a photograph to Ellis for identification.

{¶15} Ellis testified that on the evening of January 2, 2013, he was home sick with the

flu. He heard a special knock at the door and thought it was one of his cousins but decided not to

answer. Ellis described the special knock as “[k]nock, knock, knock, knock, knock, knock-

knock.” Ellis testified that someone then kicked in his door and he jumped up to see three

intruders. Ellis recognized one of them as Henderson. Ellis described Henderson’s facial 6

expression as surprised. Ellis, then, picked up a piece wood from the broken door frame and

stepped out onto his enclosed front porch. Discovering the invaders still on the porch, Ellis

began swinging the piece of wood at them. According to Ellis, that is when Henderson shot him.

{¶16} Ellis stated that after he was shot, he fell back into the house and onto his knees.

Henderson stood over Ellis and asked him, “Where’s it at?” When Ellis replied that he did not

know what Henderson was talking about, Henderson shot him again. After Henderson shot Ellis

four times, Henderson instructed the others to search the house. Ellis was unsure how long the

men searched, but said that it was not long. According to Ellis, Henderson then told Ellis that

“the next [bullet] is going to be in your m***** f****** forehead.” One of the men then asked

Henderson, “[w]hat the f*** are you doing?”, and ran out of the house. Ellis said Henderson and

the other intruder followed. Ellis testified that after the men left he fell, crawled into his dining

room, and called his brother to tell him that Henderson had shot him. Ellis then called his sister

and asked her to call the police. Ellis explained that he called his family because he thought he

was going to die. He still thought he was going to die when the police arrived and he identified

Henderson as the person who shot him.

{¶17} According to Ellis, the special knock used that night is the one that is used by

some of his family members. Ellis could not explain how Henderson would have known about

the knock. Ellis admitted that the police officers responding to the scene ultimately found large

quantities of heroin, cocaine, and marijuana in his apartment. He testified that he had pleaded

guilty to trafficking in heroin, a felony of the second degree, and was awaiting sentencing. Ellis

said the State did not make any promises for his testimony in this case. Additionally, Ellis

acknowledged that he had a prior conviction for possession of cocaine. 7

{¶18} Officer Marvin Murphy testified that about 7:17 p.m. on January 2, 2013, he

responded to a call about shots fired. When Officer Murphy arrived he observed the front door

kicked in and a gunshot victim, later identified as Ellis, lying on the floor in the living room.

Officer Murphy called for EMS and conducted a protective sweep of the house. He observed

crack cocaine and a large bag of marijuana in the living room. Officer Murphy testified that

when he asked Ellis who shot him, Ellis replied, “Al.”

{¶19} Detective Glenn Payne testified that he interviewed Ellis at the hospital shortly

after the shooting and Ellis identified his shooter as his brother’s first cousin, Al. Detective

Payne was only able to speak to Ellis for a short time because he was “in grave danger of dying.”

Therefore, Detective Payne said he focused his questions on identifying the person who shot

Ellis. According to Detective Payne, Ellis told him that Al knocked on his door three times,

three knocks each time. Al then kicked in his front door and asked him “Where[’s] it at?” When

Ellis replied, “What the F you talking about?”, Al shot him. Ellis identified the gun used as a

semi-automatic 9 mm, dark in color.

{¶20} Detective Mildred Morris works for the Akron Police Department in its Crime

Scene Unit. Detective Morris testified that she responded to the scene of the shooting at

approximately 7:30 p.m. The Crime Scene Unit recovered four 9 mm shell casings on the

enclosed porch and two 9 mm casings in the living room. She noted that the blood throughout

the apartment indicated that the victim had moved about. Detective Morris testified that she did

not attempt to fingerprint the shell casings because fired ammunition is never tested. According

to Detective Morris, any DNA on a casing would be burned off when it is fired. Detective

Morris testified that a scuff mark was left on the front door, but no testing was done to determine 8

the source of that mark. Additionally, no attempt was made to collect trace evidence from the

broken door facing.

{¶21} Sergeant David Garro was the lead investigator in Ellis’ shooting. Sergeant Garro

testified that he responded to the scene of the shooting while Detective Payne interviewed Ellis

at the hospital. Sergeant Garro spoke with Officer Murphy who informed him that Ellis had

identified the shooter as a man named Al. He spoke with the two neighbors who had called 911,

but neither of them could provide a description of the shooter. Sergeant Garro testified that one

witness saw someone running eastbound, but could not tell “whether it was male, female, black,

white, young, old; nothing.” Because the witness told Sergeant Garro that the person was fleeing

eastbound, he determined that the footprints in the snow on the western part of the front yard

were of no evidentiary value.

{¶22} Sergeant Garro then went to the hospital and spoke with Detective Payne.

Detective Payne confirmed that Ellis had identified Al as the shooter. Sergeant Garro spoke with

Ellis’ family members at the hospital in an attempt to identify Al. Sergeant Garro testified that

he was unable to identify Al until he received an anonymous phone call at the police station the

following day. Sergeant Garro then took a photograph of Henderson to the hospital and Ellis

identified the person in the photograph as Al, the person who had shot him.

{¶23} Sergeant Garro testified that he spoke with Henderson after his arrest. According

to Sergeant Garro, Henderson told him that he was with his girlfriend, Ciera Moore, at her

apartment from 4:30 p.m. to 7:30 p.m. on the evening of the shooting. Henderson told Sergeant

Garro that around 7:30 p.m. he received a call from his cousin, Rudolph Patterson, telling him

that Ellis, Patterson’s brother, had been shot. Henderson told Sergeant Garro that he had met

Ellis through Patterson and was at Ellis’ home less than a week before the shooting. Sergeant 9

Garro testified that Henderson said “he would never shoot somebody, but maybe if it involved

crack or something.”

{¶24} Sergeant Garro also testified that a gunshot residue test was performed on

Henderson, at his request, when he was arrested. According to Sergeant Garro, the test, even if

positive, was of no evidentiary value because it was done two days after the shooting and the

only reason the test was performed was because Henderson insisted. Henderson’s gunshot

residue test was negative.

{¶25} In an attempt to corroborate Henderson’s alibi, Sergeant Garro obtained

Henderson’s cell phone records. Joseph Sierra a records custodian for T-Mobile testified to the

cell towers Henderson’s phone was using at various times on the night in question. According to

Sierra, Henderson’s cell phone was northeast of the Kenmore cell tower at 6:30 p.m., an area that

includes Moore’s apartment. However, his phone was moving from 6:43 p.m. to 7:05 p.m. At

6:43 p.m., Henderson’s phone was using the north-northeast quadrant of the Arlington Street

tower, an area that includes Ellis’ address. At 7:05 p.m., his phone was south of the Johnston

Street tower. After 7:05 p.m., there is no activity on Henderson’s phone until 7:11 p.m. when it

is back on the Kenmore tower. According to Sierra, Henderson’s cell phone was located south

of the Kenmore tower at 7:16 p.m. and 7:17 p.m. Moore’s apartment is northeast of the

Kenmore tower, and, according to Sierra, a phone at Moore’s address would not connect to the

south quadrant of the Kenmore tower.

{¶26} Sergeant Garro also spoke with Ciera Moore in an attempt to verify Henderson’s

alibi. Sergeant Garro testified that when he and Detective Payne went to speak to Moore at her

house a few days after the shooting, Moore fled out the back of the house and called 911 because

she thought they “were a hit squad from Detroit.” Moore testified that when two detectives 10

knocked on her door, she called 911 and ran out of the back of the house because she thought

someone was there to retaliate against her. Moore explained that she became frightened because

she did not see a police car and they did not respond to her questions asking who was there.

Sergeant Garro did eventually interview Moore. Moore told Sergeant Garro that Henderson was

at home with her around the time of the shooting.

{¶27} At trial, Moore testified that Henderson was home when she arrived about 5 p.m.

She explained that Henderson left for a short while to buy marijuana, but that he was home when

she went to pick the kids up just before 7 p.m. Moore testified that based on the daycare sign out

sheet she picked the kids up at 6:58 p.m. and that the daycare was only five minutes from her

house. According to Moore, Henderson was home when she returned with the kids and the two

were together at 7:17 p.m., when Henderson received a phone call telling him about the shooting.

Henderson’s cell phone records show a call was placed to Moore’s cell phone at 6:52 p.m. and

lasted two minutes. Moore agreed that, while the two were no longer dating, she cared about

Henderson and did not want to see him in trouble. Moore also testified that it is hard raising

three kids and that if Henderson is incarcerated he will not be able to help raise the child they

have together.

{¶28} The recording of two 911 calls made around the time of the shooting were also

played at trial. The first call, at 7:17 p.m., was made by Ellis’ next door neighbor. The neighbor

informed the 911 operator that his next door neighbor was being robbed. He explained that he

could not see anything, but heard the door get kicked in and three or four gunshots. 911 received

a second call shortly thereafter by another neighbor. This neighbor heard six gunshots and saw

three people run out of Ellis’ house and up the street. The persons got into a blue or black car

and “haul[ed] ass” toward Arlington Street. 11

{¶29} Henderson contends that the weight of the evidence does not support a conclusion

that he was at Ellis’ house at the time of the shooting because his cell phone was connected to a

cell tower across town at 7:17 p.m. The jury was presented with the evidence of his cell phone’s

location at various times between 6:30 p.m. and 7:17 p.m. It was fully aware that the phone was

in the area of Ellis’ home at 6:43 p.m. and across town from 7:11 p.m. to 7:17 p.m. The jury,

however, could have reasonably concluded that Henderson had given his phone to someone else

to create an alibi. While Moore testified that she was with Henderson at 7:17 p.m. when he was

notified of the shooting, the jury could have chosen to discredit her testimony. Moore testified

that she cared for Henderson and did not want to see him in trouble. Further, Moore admitted

that she was frightened of possible retaliation and that Henderson would not be able to help raise

their child if he were incarcerated.

{¶30} Henderson further argues that his convictions are against the manifest weight of

the evidence because there is no forensic evidence tying Henderson to the shooting and Ellis is

not a credible witness. To the extent that Henderson argues the police improperly presented a

photograph to Ellis for identification, he has not developed this argument beyond a general

attack on Ellis’ credibility.

{¶31} The lack of physical evidence is not dispositive, but merely a factor for the jury to

weigh, see State v. Horton, 9th Dist. Summit No. 26407,

, and evaluating

the evidence and assessing the credibility of the witnesses are primarily for the trier of fact, State

v. Persinger, 9th Dist. Lorain No. 13CA010397,

, quoting State v. Shue,

(9th Dist. 1994). Defense counsel questioned Detective Morris and

Sergeant Garro about evidence that was and was not collected at the scene. Additionally,

defense counsel thoroughly cross-examined Ellis and the jury was fully informed of his criminal 12

convictions. Ellis told Officer Murphy at the scene that “Al” shot him. Shortly thereafter, Ellis

told Detective Payne that his brother’s first cousin, Al, shot him. The following day, Ellis

confirmed, through a photograph, that Henderson was the person he was calling Al. Throughout

his testimony at trial, Ellis maintained that Henderson was his brother’s first cousin and was the

person that broke into his house and shot him.

{¶32} After a careful review of the record, we cannot conclude that this is the

exceptional case where 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. See Otten,

. Henderson’s second assignment of error is overruled.

Assignment of Error Number Three

THE TRIAL COURT ERRED IN IMPOSING A MAXIMUM AND CONSECUTIVE SENTENCES UPON ALFONZO HENDERSON, IN VIOLATION OF THE DUE PROCESS AND DOUBLE JEOPARDY CLAUSES OF THE FIFTH AMENDMENT OF THE U.S. CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION.

{¶33} In his third assignment of error, Henderson argues that the court erred in

sentencing him: (1) on allied offenses, (2) to the maximum for felonious assault, and (3) to

consecutive sentences.

Allied Offenses

{¶34} “R.C. 2941.25 codifies the protections of the Double Jeopardy Clause of the Fifth

Amendment to the United States Constitution and Section 10, Article 1 of the Ohio Constitution,

which prohibits multiple punishments for the same offense.” State v. Underwood,

,

. R.C. 2941.25 provides:

(A) 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. 13

(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

Thus, two or more offenses arising from the same conduct and similar import only may result in

one conviction. R.C. 2941.25(A). Two or more offenses may result in multiple convictions,

however, if: (1) they are offenses of dissimilar import; (2) they are separately committed; or (3)

the defendant possesses a separate animus as to each. R.C. 2941.25(B).

{¶35} A trial court’s determination of whether offenses are allied offenses of similar

import is reviewed de novo. State v. Williams,

,

.

{¶36} In determining whether two offenses are allied offenses of similar import, the

court first must determine “whether it is possible to commit one offense and commit the other

with the same conduct.” (Emphasis sic.) State v. Johnson,

, 2010-Ohio-

6314, ¶ 48. “If the multiple offenses can be committed by the same conduct, then the court must

determine whether the offenses were committed by the same conduct, i.e., ‘a single act,

committed with a single state of mind.’”

, quoting State v. Brown,

,

, ¶ 50 (Lanzinger, J., concurring in judgment only). If the answer to

both questions is yes, the offenses will merge.

.

{¶37} Henderson argues that the court erred in failing to find that his aggravated

burglary and felonious assault counts were allied offenses of similar import. Specifically,

Henderson argues that because he was charged with aggravated burglary under R.C.

2911.11(A)(1), it must be merged with the felonious assault.

{¶38} R.C. 2911.11(A)(1) provides, in relevant part, that “[n]o person, by force * * *

shall trespass in an occupied structure * * * when another person other than an accomplice of the 14

offender is present, with purpose to commit in the structure * * * any criminal offense * * * [and

t]he offender inflicts, or attempts or threatens to inflict physical harm on another.” Felonious

assault prohibits a person from knowingly causing serious physical harm to another or causing or

attempting to cause physical harm to another by means of a deadly weapon. R.C.

2903.11(A)(1)/(2).

{¶39} Henderson acknowledges that his indictment on aggravated burglary included the

alternative subsection of R.C. 2911.11(A)(2). R.C. 2911.11(A)(2) provides, in relevant part, that

“[n]o person, by force * * * shall trespass in an occupied structure * * * when another person

other than an accomplice of the offender is present, with purpose to commit in the structure * * *

any criminal offense * * * [and t]he offender has a deadly weapon * * * on or about the

offender’s person or under the offender’s control.” The jury verdict form on the aggravated

burglary count also included both subsections of R.C. 2911.11(A). Henderson, however, only

argues that his conviction under subsection (1) should merge with his felonious assault. He

advances no argument that a conviction under R.C. 2911.11(A)(2) should merge.

{¶40} Ellis testified that on the evening of the shooting his car was parked in the

neighbor’s driveway and not in front of his house. He heard someone knock a couple of times

on his door, but decided not to answer because he was sick with the flu. After the knocking,

Ellis testified that his door was kicked in and Ellis jumped up to see Henderson and two other

intruders. Ellis described Henderson’s facial expression as one of surprise. Ellis speculated that

Henderson was probably surprised to find him home because he did not answer the knocks at the

door and his car was not parked out front.

{¶41} Ellis testified that after the door was kicked in he thought the intruders had run

outside, off of the enclosed porch. Ellis stated that he “went slowly towards the front porch,” 15

picking up a piece of wood from the broken door frame on his way. When he stepped out of the

front door onto the enclosed porch, he began “hitting, swinging” the piece of wood at the

intruders. At that point, Ellis said, he was shot by Henderson.

{¶42} Under R.C. 2911.11(A)(2) the aggravated burglary was completed at the time

Henderson, having a firearm on his person, kicked in Ellis’ front door. Therefore, we conclude

that the aggravated burglary and the felonious assault were not committed by the same conduct.

See State v. Linde, 9th Dist. Summit No. 26714,

. Henderson’s third

assignment of error, as it relates to allied offenses, is overruled.

Maximum Sentence for Felonious Assault

{¶43} When reviewing a trial court’s sentence, this Court applies a two-step approach.

E.g., State v. Fernandez, 9th Dist. Medina No. 13CA0054-M,

. “First, [we]

must examine the sentencing court’s compliance with all applicable rules and statutes in

imposing the sentence to determine whether the sentence is clearly and convincingly contrary to

law.” State v. Kalish,

,

, ¶ 26. If the sentence is not contrary

to law, we review the trial court’s decision in imposing a term of imprisonment for an abuse of

discretion.

An abuse of discretion indicates that the trial court’s decision was unreasonable,

arbitrary, or unconscionable. Blakemore v. Blakemore,

(1983).

{¶44} “Although a sentencing judge must consider the principles and purposes of

sentencing in imposing a sentence, he or she is not required to make findings or give their

reasons before imposing a maximum sentence.” (Alterations omitted.) Fernandez at ¶ 7, quoting

Linde,

. “Unless the record shows that the court failed to consider the

factors, or that the sentence is ‘strikingly inconsistent’ with the factors, the court is presumed to 16

have considered the statutory factors if the sentence is within the statutory range.” Fernandez at

¶ 8, quoting State v. Boysel, 2d Dist. Clark No. 2013-CA-78,

.

{¶45} Henderson argues that the court erred in imposing a maximum sentence on his

felonious assault count because: (1) the court did not impose a maximum sentence for the

aggravated burglary despite finding that it was the worst form of that offense; and (2) the record

does not demonstrate the court considered the statutory factors, but, instead, imposed the

sentence to reach a specific number of years of incarceration.

{¶46} The judge conducting the sentencing hearing was the same judge that presided

over Henderson’s trial. At the sentencing hearing, defense counsel argued that Henderson had

only one prior conviction and that it was not an offense of violence. Henderson repeatedly

maintained that he did not shoot Ellis.

{¶47} The court initially imposed a ten-year sentence for aggravated burglary, an eight-

year sentence for felonious assault, and a one-year sentence for having weapons while under

disability. Additionally, the court imposed three years on each of the two firearm specifications;

one attached to the aggravated burglary and one attached to the felonious assault. The court

ordered the two firearm specifications to run concurrently, to be served prior and consecutive to

the sentences for aggravated burglary and felonious assault. The court further ordered the

aggravated burglary and felonious assault sentences to be served consecutively, but concurrent

with the having weapons while under disability. Henderson’s aggregate sentence of

incarceration was 21 years.

{¶48} The State, then, asked the court to reconsider its sentence because, by statute, the

firearm specifications must be served consecutively to one another and consecutive to the

sentences for the underlying offense. The court then revised its sentence and reduced 17

Henderson’s aggravated burglary sentence from ten years to seven years, keeping his sentence at

a total of 21 years.

{¶49} Having presided over the jury trial, the sentencing judge was familiar with the

evidence presented at trial. The crimes involved were violent. Ellis was shot four times and

sustained serious injuries. His medical records were admitted into evidence and he testified that

he had already had two surgeries and there were discussions about more in the future.

Photographs of the very bloody scene were also admitted into evidence. Ellis testified that all of

the blood in the photographs was his. Henderson had a prior drug conviction, and Moore

testified that she knew Henderson had been involved in drugs and she was trying to get him to

stop. Additionally, Henderson refused to accept responsibility.

{¶50} While the court did not specifically state at the sentencing hearing that it

considered the purposes and principles of sentencing, we cannot conclude that the sentences are

“strikingly inconsistent” with R.C. 2929.11 and R.C. 2929.12. See Fernandez,

. Nor can we conclude that the sentence imposed was unreasonable, arbitrary, or

unconscionable. Because Henderson’s sentence was not contrary to law or an abuse of the trial

court’s discretion, Henderson’s third assignment of error, as it relates to his maximum sentence

for felonious assault, is overruled.

Consecutive Sentences

{¶51} Lastly, Henderson argues that the court erred in failing to make the statutorily

required findings before imposing consecutive sentences.

{¶52} R.C. 2929.14(C)(4) states:

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 18

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.

Therefore, before a trial court may impose consecutive sentences, it must make three findings:

(1) that consecutive sentences are necessary to protect the public from future crime or to punish

the offender; (2) 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 (3) that one of the

three particular findings set forth in R.C. 2929.14(C)(4)(a)-(c) applies.

[While the] 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, [ ] it has no obligation to state reasons to support its findings. Nor is it required to give a talismanic incantation of the words of the statute, provided that the necessary findings can be found in the record and are incorporated into the sentencing entry.

State v. Bonnell,

,

.

{¶53} The court found that “the aggravated burglary, which someone is ultimately

seriously physically harmed, is the most extreme version of the offense. To give [Henderson] a

nonconsecutive sentence of the aggravated burglary and the felonious assault would demean the

seriousness of the offense, it would fail to protect the public, [and] * * * concurrent sentences

would not be sufficient.” We conclude that these findings satisfy two of the three findings 19

required by R.C. 2929.14(C)(4): that consecutive sentences are 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.

{¶54} As to R.C. 2929.14(C)(4)(a)-(c), at the hearing, the court appeared to rely on R.C.

2929.14(C)(4)(b). The court noted that Henderson had committed multiple offenses, that there

was serious physical harm, and to impose nonconsecutive sentences “would demean the

seriousness of the offense.” However, in the sentencing entry, the court relied on R.C.

2929.14(C)(4)(c) – Henderson’s criminal history. There is no evidence in the record that a pre-

sentence investigation report was ordered. Henderson’s attorney argued that while he had prior

offenses, those offenses were not ones of violence and he had only one felony. The court makes

no mention at the sentencing hearing of Henderson’s criminal history as basis for imposing

consecutive sentences.

{¶55} Because the court’s finding at the sentencing hearing is in conflict with its

judgment entry, we reverse and remand for resentencing. See Bonnell,

,

(when imposing consecutive sentences the court must make the

required findings at the sentencing hearing, yet, the court speaks through its journal entry).

Henderson’s third assignment of error, as it relates to his consecutive sentences, is sustained.

III

{¶56} Henderson’s first and second assignments of error are overruled. His third

assignment of error, as it relates to consecutive sentences, is sustained, and the remainder of that

assignment of error is overruled. The judgment of the Summit County Court of Common Pleas

is affirmed in part, reversed in part, and remanded for resentencing. 20

Judgment affirmed in part, reversed in part, and cause remanded.

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

BETH WHITMORE FOR THE COURT

HENSAL, P. J. CARR, J. CONCUR.

APPEARANCES:

JEREMY A. VEILLETTE, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee. 21