[Cite as State v. Barnes,

.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Sheila G. Farmer, P.J. Plaintiff-Appellee Hon. W. Scott Gwin, J. Hon. William B. Hoffman, J. -vs- Case No. CT2015-0013 DANIEL L. BARNES III.

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2013-0199

JUDGMENT: Affirmed in part; Vacated in part and Remanded

DATE OF JUDGMENT ENTRY: March 17, 2016

APPEARANCES:

For Defendant-Appellant For Plaintiff-Appellee

TONY A. CLYMER D. MICHAEL HADDOX 1420 Matthias Drive Prosecuting Attorney Columbus, Ohio 43224 Muskingum County, Ohio

By: GERALD V. ANDERSON II. Assistant Prosecuting Attorney 27 North Fifth St., P.O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2015-0013 2

Hoffman, J.

{¶1} Defendant-appellant Daniel L. Barnes III appeals his convictions entered by

the Muskingum County Court of Common Pleas on one count of aggravated robbery, with

a gun specification; one count of felonious assault, with a gun specification; and one count

of having weapons under disability. Plaintiff-appellee is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On July 8, 2013, James Martin visited the Cozy Corner Bar with his friend,

James Ricket, also known as “Hub.” While at the bar, Martin saw Appellant, Daniel

Barnes III, and Eric Thornton, also known as “Louie” and “Fats” respectively. Appellant

and Thornton asked Martin for a ride from the bar.

{¶3} Upon arriving at a neighborhood in Zanesville, Martin testified Appellant

asked him to drive around the city block one time. Martin stated he drove around the

block and returned to the same spot. Upon parking, Martin felt his seat belt tighten and

something, he believed to be a gun, at the back of his head. He testified he then saw

Appellant leaning up with his arm and putting a gun to the back of Ricket’s head, telling

him to “just chill.” He noted the gun was black, and had a beam on it.

{¶4} Martin testified he threw his hands in the air, and told Appellant and

Thornton they could have everything. He stated he emptied his pockets on the armrest

in the middle of the car. Appellant and Thornton took everything, including cash monies.

Appellant told Martin to pop the trunk of the car and to get inside of the trunk. Martin

testified he observed the trunk of the car had an emergency release, and after being

ordered into the trunk at gun point, he waited until the car turned into the alley and then

activated the emergency release. Muskingum County, Case No. CT2015-0013 3

{¶5} Martin escaped and took off running along Cliffwood Avenue. He ran onto

a porch, banging on the door. Appellant caught up with him, and pointed the gun at

Martin. A struggle ensued over the gun. Appellant engaged in a fight with Martin,

inserting his fingers into Martin’s eyeball socket and biting Martin.

{¶6} Appellant testified at trial on his own behalf. He maintains Martin drove to a

neighborhood in Zanesville to pick up crack cocaine he intended to sell. Appellant testified

Martin went into a crack house to purchase the crack. Appellant waited outside smoking

a cigarette with the car door kicked open, when Martin returned. As Martin got back inside

the car, he was angry and the car door jammed causing damage. Martin then got out of

the car, cussing about the door and became upset. Ricket and Thornton also exited the

vehicle during the incident. Ricket stepped on the side panel and onto the hood of the

car, observing and watching.

{¶7} Appellant maintains a fight ensued, during which Martin’s glasses were

knocked off into the street. The fight lead to a chase ending on the front porch of Roberta

Jones’ residence. Appellant maintains he told Jones to call the police, using her name,

as he was familiar with her from the past.

{¶8} Both Appellant and Martin testified a shot was fired on the porch of Roberta

Jones. Appellant then hit Martin with the gun several times. Martin then ran from the

porch to the police cruiser of Patrolman Chris Andrews. Patrolman Andrews testified at

trial as to the incident, and the relation of the events as told to him by Martin in his cruiser.

{¶9} Patrolman Groves of the Zanesville Police Department testified he was

responding to an assault with a handgun, when he observed a subject run between two

houses. He and his K-9 officer responded, and chased the subject. His K-9 alerted to Muskingum County, Case No. CT2015-0013 4

something dropped by the subject, which turned out to be a Glock 23 handgun with a

laser. The firearm was later tested and introduced into evidence as the firearm involved

in the incident.

{¶10} As a result of the incident, Appellant was indicted on two counts of

kidnapping, in violation of R.C. 2905.01(A)(2) and R.C. 2905.01(A)(3), felonies of the third

degree; one count of aggravated robbery, in violation of R.C. 2911.01(A)(1), a felony of

the first degree, with an attendant gun specification, in violation of R.C. 2941.145; one

count of felonious assault, in violation of R.C. 2903.11(A)(2), a felony of the second

degree, with a gun specification under R.C. 2941.145; and one count of having a weapon

under disability, in violation of R.C. 2929.13(A)(3), a felony of the third degree.

{¶11} Following a jury trial, Appellant was found guilty of the aggravated robbery

charge, with a gun specification; felonious assault, with a gun specification; and having

weapons under disability. Appellant was found not guilty of the kidnapping charges.

{¶12} A sentencing hearing was held on February 17, 2015. Appellant was

sentenced to eleven years on the aggravated robbery charge, eight years on the felonious

assault charge, thirty-six months on the having weapons under disability charge, and two

three year mandatory sentences on the gun specifications.

{¶13} Appellant appeals, assigning as error:

{¶14} “I. THE GUILTY VERDICTS FOR AGGRAVATED ROBBERY WITH A

FIREARM SPECIFICATION, FELONIOUS ASSAULT WITH A FIREARM

SPECIFICATION AND HAVING A WEAPON WHILE UNDER DISABILITY AGAINST

APPELLANT WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE AND

CONTRARY TO LAW. Muskingum County, Case No. CT2015-0013 5

{¶15} “II. THE APPELLANT WAS DEPRIVED OF THE EFFECTIVE

ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND FEDERAL

CONSTITUTIONS.

{¶16} “III. THE TRIAL COURT ERRED IN ANSWERING A QUESTION FROM

THE JURY DURING DELIBERATIONS WITHOUT THE PRESENCE OF APPELLANT

THEREBY DEPRIVING HIM OF A FAIR TRIAL AS GUARANTEED BY THE STATE AND

FEDERAL CONSTITUTIONS.

{¶17} “IV. THE TRIAL COURT VIOLATED APPELLANT’S STATE AND

FEDERAL DOUBLE JEOPARDY PROTECTIONS, STATE AND FEDERAL RIGHTS TO

DUE PROCESS, AND R.C. 2941.25 BY FAILING TO MERGE THE ALLIED OFFENSES

OF AGGRAVATED ROBBERY AND FELONIOUS ASSAULT WHICH WERE BASED ON

THE SAME ACT OF VIOLENCE.

{¶18} “V. THE TRIAL COURT PLAINLY ERRED IN IMPOSING MAXIMUM

CONSECUTIVE SENTENCES FOR APPELLANT’S SEPARATE CONVICTIONS

RENDERING THE SENTENCES CONTRARY TO LAW.”

I.

{¶19} In the first assignment of error, Appellant maintains his convictions for

aggravated robbery, with a gun specification; felonious assault, with a gun specification;

and having weapons under disability, are against the manifest weight of the evidence and

contrary to law.

{¶20} Manifest weight of the evidence claims concern the amount of evidence

offered in support of one side of the case, and is a jury question. We must determine

whether the jury, in interpreting the facts, so lost its way that its verdict results in a Muskingum County, Case No. CT2015-0013 6

manifest miscarriage of justice, State v. Thompkins (1997),

, citations

deleted. On review for manifest weight, a reviewing court is “to examine the entire record,

weigh the evidence and all reasonable inferences, consider the credibility of the 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 judgment must be

reversed. The discretionary power to grant a new hearing should be exercised only in the

exceptional case in which the evidence weighs heavily against the judgment.” State v.

Thompkins,

, 387,

, citing State v. Martin (1983),

. Because the trier of fact is in a better position to observe the witnesses'

demeanor and weigh their credibility, the weight of the evidence and the credibility of the

witnesses are primarily for the trier of fact. State v. DeHass (1967),

,

syllabus 1.

{¶21} In State v. Cobb, Stark App. No. 2014CA00218,

, this Court

held,

A fundamental premise of our criminal trial system is that ‘the jury is

the lie detector.’ United States v. Barnard,

(C.A.9 1973)

(emphasis added), cert. denied,

,

,

(1974). Determining the weight and credibility of witness testimony,

therefore, has long been held to be the ‘part of every case [that] belongs to

the jury, who are presumed to be fitted for it by their natural intelligence and

their practical knowledge of men and the ways of men.’ Aetna Life Ins. Co.

v. Ward,

, 11 S .Ct. 720, 724–725,

(1891)”. Muskingum County, Case No. CT2015-0013 7

United States v. Scheffer (1997),

,

, 1266–

1267.

The jury was free to accept or reject any and all of the evidence

offered by the parties and assess the witness's credibility. “While the jury

may take note of the inconsistencies and resolve or discount them

accordingly * * * such inconsistencies do not render defendant's conviction

against the manifest weight or sufficiency of the evidence”. State v. Craig

(Mar. 23, 2000), Franklin App. No. 99AP–739, citing State v. Nivens (May

28, 1996), Franklin App. No. 95APA09–1236 Indeed, the jurors need not

believe all of a witness' testimony, but may accept only portions of it as true.

State v. Raver, Franklin App. No. 02AP–604, 2003–Ohio–958, at ¶ 21, citing

State v. Antill (1964),

, 67,

.; State v. Burke,

Franklin App. No. 02AP1238, 2003–Ohio–2889, citing State v. Caldwell

(1992),

,

.

{¶22} Appellant was convicted of aggravated robbery, in violation of R.C.

2911.01(A)(1), which reads,

(A) No person, in attempting or committing a theft offense, as defined

in section 2913.01 of the Revised Code, or in fleeing immediately after the

attempt or offense, shall do any of the following:

(1) Have a deadly weapon on or about the offender's person or under

the offender's control and either display the weapon, brandish it, indicate

that the offender possesses it, or use it; Muskingum County, Case No. CT2015-0013 8

{¶23} Appellant was further convicted of felonious assault, in violation of R.C.

2903.11(A)(2), which reads,

(A) No person shall knowingly do either of the following:

***

(2) Cause or attempt to cause physical harm to another or to

another's unborn by means of a deadly weapon or dangerous ordnance.

{¶24} Both the aggravated robbery and felonious assault charges carried

attendant gun specifications, in violation of R.C. 2941.145, which reads,

(A) Imposition of a three-year mandatory prison term upon an

offender under division (B)(1)(a) of section 2929.14 of the Revised Code is

precluded unless the indictment, count in the indictment, or information

charging the offense specifies that the offender had a firearm on or about

the offender's person or under the offender's control while committing the

offense and displayed the firearm, brandished the firearm, indicated that the

offender possessed the firearm, or used it to facilitate the offense. The

specification shall be stated at the end of the body of the indictment, count,

or information, and shall be stated in substantially the following form:

“SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT).

The Grand Jurors (or insert the person's or the prosecuting attorney's name

when appropriate) further find and specify that (set forth that the offender

had a firearm on or about the offender's person or under the offender's

control while committing the offense and displayed the firearm, brandished Muskingum County, Case No. CT2015-0013 9

the firearm, indicated that the offender possessed the firearm, or used it to

facilitate the offense).”

***

{¶25} Finally, Appellant was convicted of having weapons under disability, in

violation of R.C. 2923.13(A)(3), which reads,

(A) Unless relieved from disability under operation of law or legal process,

no person shall knowingly acquire, have, carry, or use any firearm or dangerous

ordnance, if any of the following apply:

***

(3) The person is under indictment for or has been convicted of any felony

offense involving the illegal possession, use, sale, administration, distribution, or

trafficking in any drug of abuse or has been adjudicated a delinquent child for the

commission of an offense that, if committed by an adult, would have been a felony

offense involving the illegal possession, use, sale, administration, distribution, or

trafficking in any drug of abuse.

{¶26} At trial herein, James Martin, the alleged victim herein, testified,

Q. What happened when you got back?

A. As I stopped to let them out, and I believe put the car in park and

was telling them bye or whatever, as I did that I felt my seat belt tighten and

I felt a - - something come to the back of my head. And I looked over. And

at that same time I seen Mr. Barnes leaning up with his arm and putting a

gun to the back of Hub’s [Ricket’s] head, was telling him to just chill.

Q. Okay. Now, you felt something to your head? Muskingum County, Case No. CT2015-0013 10

A. Uh-huh.

Q. What did you believe was to your head?

A. It was a gun.

Q. Okay. And then you saw Mr. Barnes with a gun. What did the

gun look like?

A. It was black. Had a beam on it.

Q. Okay. When you say a beam, what do you mean a beam?

A. A laser site.

Q. Okay. Was it a revolver-type gun, or semi-automatic-type gun?

A. Semi-automatic.

Q. Okay. And he said be easy?

A. Be easy, just chill.

Q. Okay. At some point did he- - did you end up giving him some of

your property?

A. Yeah. Yeah.

Q. Can you explain to the ladies and gentlemen how that came

about.

A. Well, when he said be easy he was more or less saying just chill,

it’s a robbery, don’t do anything stupid. And, you know, I just throw my

hands up and say, you know, it’s good, you can have everything, you can

have whatever. And I just emptied by pockets and that was about it, put

everything in the middle of the car. Muskingum County, Case No. CT2015-0013 11

Q. When you said you were putting it in the middle of the car, where

was - -

A. Just on the - - the armrest, just right there in the middle.

Q. And as you - -

A. Just laid it on top of it.

Q. I’m sorry. Continue.

A. I just laid it on top of the armrest right there.

Q. As you set the property there on the armrest what happened to it?

A. He started reaching for it, grabbing it, and that was it.

***

A. I waited for him to take off - - for the car to start moving and I kind

of waited for him to make that turn out of the alley before I popped it. And I

popped the trunk and I got out and took off running.

Q. Okay. And if you were looking at State’s Exhibit A2 again there

in front of you, which direction did you run?

A. I ran toward Cliffwood, towards the - - I got out right here and I ran

over towards Cliffwood, which is up there.

***

Q. Okay. Did you get up?

A. I got up and ran up on a porch to a door and banged on the door.

And by this time when I turned around Mr. Barnes was right - - running up

on the porch right behind me with the gun pointed at me. And as he came

up on the porch, just grabbed the gun, and there was - - we were struggling Muskingum County, Case No. CT2015-0013 12

over the gun, fighting for the gun, and I’m trying to keep it from him. And

after a minute we’re fighting and he’s got his fingers halfway in my eyeball

socket, just - - just all the way in there, and he’s - - I’m - - still got ahold of

the gun. So then he bites me. And I don’t - - as he bit me I went to bite his

arm, too, but he let go as soon as I went to bite him. And then we’re still

just struggling over the gun fighting.

Whoever’s house, porch we were on, opened the door and closed it

immediately. And so, we’re still fighting over the gun, and the gun goes off.

And it got my hand, from where my gun (sic.) was on top of the gun, cut my

hand up. And we’re still fightin’ over the gun. He finally get the gun and

then starts hit - - he hit me with the gun a few times then proceeds to grab

me and try to drag me back out into the street and back up towards where

my car was parked originally. I’m telling him I can’t see, my eyes are

messed up. He says, F your eyes and all this and then hits me again with

the gun. I fall. I like get my balance and then I take off running again. But

by this time we had heard police sirens coming, so I ran around the building.

But as soon as I got around the building to the other side I seen the police

car coming down the hill and I came between the houses and the officer got

out and seen me and started maybe to draw on me, but I just told him open

your back door, just open your back door. He opens the back door and I

sat down and I couldn’t breathe, was throwing up profusely and all that. And

then I believe I passed out after that.

Q. Okay. Muskingum County, Case No. CT2015-0013 13

A. I woke up and the ambulance was there.

Tr. at 158-164.

{¶27} James Ricket, Martin’s passenger, also known as “Hubs,” testified on direct

examination,

Q. Okay. What happened then after the car stopped?

A. That’s when there was - - there was words exchanged between

Louie [Barnes] and Jimmy [Martin].

Q. Okay.

A. Something about - - I can’t quite remember what it was about. It

was something about something bad happening, and he - - what - - he - -

something about he owed him some money or something. I can’t remember

for what or why, but it was something about some money. And Jimmy

[Martin] was denying it. And then at that point then that’s when he said to

give me - - that’s when he told him to give me his money, get out the car.

Q. Okay.

A. I don’t know what the - - what - - what the conversation was about

or why he said something bad would - - had happened before, but

something happened and they was - - had got into a little confrontation, and

that’s when Louie [Barnes] told him give him his money, get out the car.

Tr. at 199-200.

{¶28} Roberta Jones, whose front porch the altercation ensued upon, testified on

direct examination at trial as to the events of the evening as she witnessed them. She

testified she heard one of the individuals call her out by name, and say, “June, call the Muskingum County, Case No. CT2015-0013 14

police.” Tr. at 217. However, she acknowledged she did not know the individuals involved

in the fight, and had no idea how they knew her. Tr. at 218.

{¶29} Appellant then testified at trial as to the incident. He stated the fight

stemmed from Appellant’s anger over damage caused to his car door. He testified he,

Thornton and Ricket got out of the car after Martin returned from buying crack at a crack

house, and was angry over damage to the car door. An argument ensued during which

Martin spit in Appellant’s face, and they “squared up” in the street. Martin’s glasses were

knocked off into the street as a result. Appellant testified,

A. He start reaching in his pants pocket.

Q. Okay.

A. He start reaching in the middle of his pants.

Q. Were you concerned at that point?

A. Yes.

Q. Why?

A. Because I knew what he had.

Q. What did he have?

A. He had a semi-automatic handgun.

Q. Okay. What did he do with his hand at that point?

A. He didn’t - - he- - he- - by the time he put it in his pants and he

was coming out I grabbed his wrist so fast - - that it was just a natural

reaction - - I grabbed his wrist like with a death grip, and as I’m grabbing his

wrist I’m running him back and I run him into the door.

Q. Okay. So you - - this is now leaving the street? Muskingum County, Case No. CT2015-0013 15

A. Yeah. We’re up like on that entryway going into that residence.

We’re on - - we’re on that sidewalk.

Q. Okay.

A. We’re a few feet away from the door by then.

Q. Okay.

A. But it - - but before I ran - - like we was scuffling a little bit before

we got to that door. We was scuffling like in the yard. I remember we both

was kind of like on our knees on the bushes right in front, right by the side

of the car.

Q. Uh- - huh.

A. And when we both got up to our - - I used my weight, my

momentum, and ran him into the door. And my back was to the door. And

as we’re scuffling Ms. Jones open her door.

Q. And she testified that one of those men called her out by name?

A. Yes. That was me.

Q. Okay. How did you know June Jones?

A. I’ve known Ms. June since 2000. I stayed right next door to her

daughter. Her daughter was Crystal Jones, was in the back seat of the

courtroom the other - - when she testified, with my fiancé. And - -

Q. Okay.

A. - - and I know Sierra Jones. That’s Ms. June’s daughter’s

daughter, which is Ms. June’s granddaughter.

Q. Does she have a nickname? Muskingum County, Case No. CT2015-0013 16

A. Yeah, Nicky. We called her barefoot Nicky because she never

really wore shoes.

Q. Okay. So you’ve known Ms. Jones for a long time?

A. For a long period. A long time.

Tr. at 479-488.

{¶30} Patrolman Chris Andrews testified on direct examination he was on patrol

on the night of June 8, 2013, when a call came in of a fight between two males. Patrolman

Andrews testified he responded to the call, and as he approached the area a male, later

identified as James Martin, approached his cruiser and opened the back door to let

himself in. He told Patrolman Andrews to “get him out of here, that somebody was out to

kill him.” Tr. at 227. Patrolman Andrews testified Martin was distraught, “throwing up” and

“scared.” He told Patrolman Andrews he had been robbed by “Fats [Thornton] and Louie

[Barnes].” Patrolman Andrews recounted Martin’s description of the events,

Q. Okay. What - - what did he say next?

A. I then had - - had him identify Fats [Thornton] and Louie [Barnes].

He identified Fats as being Eric Thornton and Louie being Daniel Barnes. I

then asked him what had happened. He then - - once again, me talking to

him as he’s throwing up, shaking, and very upset, he advised me that earlier

in the night he had been at the Cozy Corner. He told me that him and his

friend, James Ricket, had been at the Cozy Corner and that Eric Thornton

and Daniel Barnes had approached him about getting a ride to an address

on Matthews Street.

*** Muskingum County, Case No. CT2015-0013 17

A. He then - - James Martin then gave Eric Thornton and Daniel

Barnes, along with James Ricket, a ride to an address on Matthews Street.

James told me that he didn’t know the address, was just giving a ride.

James was in the driver seat, James Martin. The front seat passenger was

James Ricket. Behind James Ricket, in the passenger side back, was

Daniel Barnes, and behind James Martin was Eric Thornton.

***

A. He advised that as they pulled onto Matthews Street he was

advised to stop the car, and it was at this time that Daniel Barnes and Eric

Thornton then pulled guns on them - - being Eric Martin and - - correction,

James Martin and James Ricket - - advising them to empty their pockets

and robbed them.

Martin did advise me that he was then ordered out of the car by Eric

Thornton, advised to empty his pockets, and then gave him approximately

three to $400. After giving Thornton his money he was then ordered into

the trunk of the car. Martin then told me that after he was in the trunk of the

car the trunk was shut and that he then felt the car start to move. As he felt

the car start to move forward a little bit he then hit the release button getting

out of the vehicle.

***

A. Martin then advised me that he then started running towards

Cliffwood, through this little wooded area here. He advised me that Daniel

Barnes then took off running after him and caught up to him in front of the Muskingum County, Case No. CT2015-0013 18

residence that he later identified as being 607 Cliffwood. He told me that

Barnes then had a gun on him. They then started fighting and struggling

over the gun. As they were fighting and struggling over the gun they were

on the front porch to the residence at 607 Cliffwood Avenue.

James told me that he then got somewhat of a control over the gun

and that the gun went off once. And then after they kept struggling and

fighting on the porch, that Daniel Barnes then got control over the gun then

ordering him back into the woods behind 607. So in between ordering him

into this wooded area back here.

Martin told me that as he was walking back with Barnes, as he was

being held at gunpoint back to the woods, that he then broke free from Mr.

Barnes, coming and flagging me down in my patrol car.

Tr. at 228-231.

{¶31} Upon review of the evidence, we find there was competent, credible

evidence offered at trial to establish Appellant engaged in a theft offense, and while

committing the offense had a deadly weapon. Appellant then chased Martin on foot and

engaged in a fight which resulted in Appellant physically injuring Martin, while in

possession of and with the use of a firearm. The weighing of the evidence and judging

the credibility of the witnesses rests within the sound discretion of the trier of fact.

Accordingly, we do not find Appellant’s convictions were against the manifest weight of

the evidence.

{¶32} The first assignment of error is overruled. Muskingum County, Case No. CT2015-0013 19

II.

{¶33} In the second assignment of error, Appellant argues he was denied the

effective assistance of trial counsel.

{¶34} The standard for reviewing claims for ineffective assistance of counsel was

set forth in Strickland v. Washington,

,

,

(1984). Ohio adopted this standard in the case of State v. Bradley,

,

(1989). These cases require a two-pronged analysis in reviewing a claim

for ineffective assistance of counsel.

{¶35} First, we must determine whether counsel's assistance was ineffective; i.e.,

whether counsel's performance fell below an objective standard of reasonable

representation and violates any of his essential duties to the client. If we find ineffective

assistance of counsel, we must then determine whether the defense was actually

prejudiced by counsel's ineffectiveness such that the reliability of the outcome of the trial

is suspect. This requires a showing there is a reasonable probability but for counsel's

unprofessional error, the outcome of the trial would have been different. We apply the

Strickland test to all claims of ineffective assistance of counsel, either trial counsel, or

appellate counsel. State v. Blacker, 5th Dist. No.2005–CA–41, 2006–Ohio–5214.

{¶36} A reviewing court “need not determine whether counsel’s performance was

deficient before examining the prejudice suffered by the defendant as a result of the

alleged deficiencies.”

, quoting

.

{¶37} Appellant maintains his trial counsel was ineffective in failing to object to

witness testimony presented at trial. Appellant cites the testimony offered by James

Ricket on cross-examination. Specifically, Appellant argues the State’s questioning was Muskingum County, Case No. CT2015-0013 20

leading and beyond the scope of direct examination. During the testimony, Ricket testifies

he heard Appellant demand “stuff” from Martin, and then Appellant took it. Tr. at 213.

However, upon review of the transcript cited supra in our analysis and disposition of the

first assignment of error, Ricket had testified on direct examination there were words

exchanged between Appellant and Martin, and Appellant had told Martin to give him his

money and to get out of the car. Tr. at 200. Therefore, the testimony elicited on cross-

examination by the State was not beyond the scope of direct examination. We do not find

trial counsel was ineffective for failing to object to the testimony. Further, Appellant has

not demonstrated prejudice as a result of any alleged error.

{¶38} Appellant further cites testimony offered by Patrolman Andrews as to events

Martin had told him, which should have been objected to as hearsay. Appellant maintains

the testimony of the law enforcement officer bolstered allegations made by Martin.

{¶39} Patrolman Andrews testified at trial as to Martin opening the door of his

cruiser and relating the incident to him. The evidence was not offered for the truth of the

matter asserted, but rather as cumulative evidence to the testimony offered by Martin and

Ricket previously as cited above. Therefore, Appellant has not demonstrated prejudice

as a result of the testimony.

{¶40} In addition, Appellant maintains his trial counsel failed to object to testimony

offered by Patrolman Groves regarding statements made by Patrolman Andrews, which

he asserts also constituted hearsay. Patrolman Groves testified Patrolman Andrews

radioed him and informed him the subject who assaulted Martin was Appellant.

{¶41} Upon review of the record, and as set forth above, Patrolman Groves

testified he responded to a call of an assault with a handgun with his K-9 officer. He Muskingum County, Case No. CT2015-0013 21

observed a suspect run between two houses, and exited his vehicle to chase on foot,

following the human scent. His K-9 alerted to something dropped by the suspect, which

later was identified as a Glock 23 handgun with a laser. Patrolman Andrews testified

Martin was on foot, and entered his cruiser. Martin told him he had been robbed by

Appellant and assaulted. Andrews reported the incident to Groves.

{¶42} We find the information was not offered for the truth of the matter asserted

but offered to demonstrate the reasoning as to why Patrolman Groves chased a suspect.

Moreover, the information was cumulative to the testimony of Martin who testified at trial

he told Patrolman Andrews he had been assaulted by Appellant. Therefore, Appellant

has not demonstrated, but for the alleged error, the outcome of the trial would have been

otherwise, pursuant to the second prong of Strickland.

{¶43} In addition, Appellant notes his counsel elected not to cross-examine

George Guy, a witness at trial, despite the discrepancy in his testimony as to the time of

day. Appellant argues his counsel could have shown the jury Guy could not have seen

Appellant get out of the car after the alleged incident since the incident occurred two hours

after Guy testified the two persons exited the vehicle.

{¶44} Upon review of Guy’s testimony, he testified he was walking his dog and

observed two males exit the vehicle, one with braids. He testified it was around eleven in

the evening, as when he returned the news was coming on. He called 9-1-1. Patrolman

Barnhart responded to the call, and testified at trial.

{¶45} Upon review of the entire record, we find Appellant has not demonstrated,

but for any presumed error, the outcome of the trial would have been otherwise.

Therefore, Appellant has not met the second prong of Strickland. Muskingum County, Case No. CT2015-0013 22

{¶46} Further, Appellant maintains his counsel failed to object to speculative

testimony offered by Detective Moore regarding how the damage occurred to Martin’s

vehicle. Martin testified the door could have been pushed too far in one direction. Tr. at

322-323. Appellant maintains hearing the testimony from a law enforcement official on

behalf of the State permitted the jury to lend truth and value to the testimony.

{¶47} Appellant has not demonstrated but for the alleged error, the outcome of

the trial would have been otherwise. Damage to the car door was not an issue at trial,

and both parties stipulated a fight took place between them. Appellant has not

demonstrated prejudice as a result of the testimony and therefore has not satisfied the

second prong of Strickland.

{¶48} Appellant also argues his trial counsel erred in not requesting a jury

instruction on the lesser included offenses of assault and theft. We find Appellant has not

demonstrated ineffective assistance of counsel in not requesting the lesser included

offenses because Appellant completely denied not only having a firearm but also

completely denied committing any theft offense. Therefore, we find it was a tactical

decision of trial counsel to pursue an outright acquittal on the charges rather than

attempting to mitigate the seriousness of the offenses.

{¶49} As to the failure to request the instructions, a trial court must give all

instructions which are relevant and necessary for the jury to weigh evidence and

discharge its duty as the trier of fact. State v. Comen,

(1990). Even

though an offense may be statutorily defined as a lesser-included offense of another, a

charge on such a 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 Muskingum County, Case No. CT2015-0013 23

upon the lesser-included offense. State v. Thomas,

(1988). The court

must view the evidence in a light most favorable to the defendant. State v. Smith,

(2000).

{¶50} Nevertheless, an instruction is not warranted every time any evidence is

presented on a lesser-included offense. There must be sufficient evidence to allow a jury

to reasonably reject the greater-offense and find the defendant guilty on the lesser-

included offense. State v. Conway,

,

.

{¶51} Here, had the jury accepted Appellant’s presentation of the facts stating

Martin engaged him in a fight over damage to the car door, during which neither he, nor

Martin, possessed a firearm,1 the jury would not have convicted Appellant on the lesser-

included offenses of theft or assault. We do not find trial counsel ineffective in failing to

request the instructions on the lesser-included offenses of theft and assault.

{¶52} Appellant also maintains the trial court’s instruction to the jury following the

jury’s question as to whether or not they could have a transcript of the recorded interview

of Appellant by Detective Hill was prejudicial error. Specifically, the trial court instructed

the jury they must rely on their collective memories, and the court instructed the jury

without Appellant being present in the courtroom.

{¶53} Pursuant to our analysis and discussion of Appellant’s fourth assignment of

error, we find counsel’s failure to object error, but harmless error. Appellant had a right

to be present in the courtroom, but the trial court’s instruction to the jury was not

substantive; therefore, Appellant was not prejudiced by the trial court’s instruction.

1 Appellant initially denied either he or Martin possessed a firearm during the incident. Appellant only upon subsequent questioning by law enforcement officers admitted to a firearm being present and stated Martin possessed/owned the firearm. Muskingum County, Case No. CT2015-0013 24

{¶54} Finally, Appellant maintains trial counsel failed to offer witnesses at trial to

corroborate the testimony as to how Appellant knew Roberta Jones. Appellant testified

on direct examination he knew June Jones as he stayed right next door to her daughter.

Tr. at 488. He testified he knew her granddaughter also. Tr. at 488. He testified he knew

Ms. Jones for a “long period” and she’s elderly. Tr. at 488. Appellant introduced testimony

as to his knowledge and familiarity with Ms. Jones at trial. Any witnesses offered to

corroborate his testimony would merely be cumulative.

{¶55} Further, we find any presumed error on behalf of trial counsel would be

harmless error. Appellant has not demonstrated but for the alleged error, the outcome of

the trial would have been otherwise. Appellant was able to offer evidence of his

relationship and knowledge of Ms. Jones at trial through his own testimony and the jury

could consider the information.

{¶56} The second assignment of error is overruled.

III.

{¶57} In the third assignment of error, Appellant maintains the trial court erred in

answering a question from the jury without the presence of Appellant.

{¶58} During deliberations, the jury questioned the trial court as to whether they

could review a transcript of the recorded interview of Appellant by Detective Hill. The

record reflects:

Thereupon, the jury had a question at 4:42 p.m. and the following

occurs outside their presence.

--- Muskingum County, Case No. CT2015-0013 25

THE COURT: We would like to request a transcript from Detective

Hill and Mr. Barnes’ interview.

Answer: You must rely upon your collective memories as to what the

evidence was or was not.

MR. SAMS: Yep, I agree.

MR. LITLE: (Nods affirmatively.) Sounds fine with me.

Tr. at 605.

{¶59} The Ohio Supreme Court has held that a communication concerning

instructions between the judge and jury without the presence of the defendant or his

counsel does not constitute grounds for reversal where the defendant's right to a fair trial

was not prejudiced by the communication and the error was harmless beyond a

reasonable doubt. See State v. Abrams (1974),

,

. If the

communication is not “substantive,” the error is harmless. State v. Jenkins (1984),

, 236–237,

. In Bostic v. Connor (1988),

,

, the court held that the trial court's ex parte communication with the

jury was harmless error because there was no “possibility that the jury's conclusion was

influenced by the court's reply.”

{¶60} Here, the trial court instructed the jury they would have to rely on their

collective memories regarding the interview Detective Hill conducted of Appellant. We

find, the trial court’s instruction to the jury was not substantive, and there was no

possibility the jury’s conclusion was influenced by the court’s reply. Therefore, any

presumed error was harmless beyond a reasonable doubt.

{¶61} The third assignment of error is overruled. Muskingum County, Case No. CT2015-0013 26

IV.

{¶62} In the fourth assignment of error, Appellant maintains the trial court erred in

failing to merge the allied offenses of aggravated robbery and felonious assault which

were based on the same offense of violence.

{¶63} R.C. 2941.25 sets forth,

(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.

(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.”

{¶64} The Ohio Supreme Court, in State v. Johnson,

, 2010–

Ohio–6314, modified the test for determining whether offenses are allied offenses of

similar import. In Johnson, the Ohio Supreme Court directed us to look at the elements

of the offenses in question and determine whether or not it is possible to commit one

offense and commit the other with the same conduct. If the answer to such question is in

the affirmative, the court must then determine whether or not the offenses were committed

by the same conduct. If the answer to the above two questions is yes, then the offenses

are allied offenses of similar import and will be merged. If, however, the court determines

that commission of one offense will never result in the commission of the other, or if there Muskingum County, Case No. CT2015-0013 27

is a separate animus for each offense, then the offenses will not merge according to

Johnson, supra.

{¶65} More recently, in State v. Ruff,

,

, the

Ohio Supreme Court held,

When the defendant's conduct constitutes a single offense, the

defendant may be convicted and punished only for that offense. When the

conduct supports more than one offense, however, a court must conduct an

analysis of allied offenses of similar import to determine whether the

offenses merge or whether the defendant may be convicted of separate

offenses. R.C. 2941.25(B).

A trial court and the reviewing court on appeal when considering

whether there are allied offenses that merge into a single conviction under

R.C. 2941.25(A) must first take into account the conduct of the defendant.

In other words, how were the offenses committed? If any of the following is

true, the offenses cannot merge and the defendant may be convicted and

sentenced for multiple offenses: (1) the offenses are dissimilar in import or

significance—in other words, each offense caused separate, identifiable

harm, (2) the offenses were committed separately, or (3) the offenses were

committed with separate animus or motivation.

At its heart, the allied-offense analysis is dependent upon the facts

of a case because R.C. 2941.25 focuses on the defendant's conduct. The

evidence at trial or during a plea or sentencing hearing will reveal whether

the offenses have similar import. When a defendant's conduct victimizes Muskingum County, Case No. CT2015-0013 28

more than one person, the harm for each person is separate and distinct,

and therefore, the defendant can be convicted of multiple counts. Also, a

defendant's conduct that constitutes two or more offenses against a single

victim can support multiple convictions if the harm that results from each

offense is separate and identifiable from the harm of the other offense. We

therefore hold that two or more offenses of dissimilar import exist within the

meaning of R.C. 2941.25(B) when the defendant's conduct constitutes

offenses involving separate victims or if the harm that results from each

offense is separate and identifiable.

{¶66} As set forth above, Appellant was convicted of aggravated robbery in

violation of R.C. 2911.01(A)(1), and felonious assault, in violation of R.C. 2903.11(A)(2).

{¶67} The evidence demonstrates Appellant committed aggravated robbery when

he held a gun to Martin’s head in the vehicle, demanding he give him money. He then

took the money, and ordered Martin out of the vehicle and into the trunk of the car. By

then, the aggravated robbery was completed.

{¶68} Appellant started driving in the car with Martin inside the trunk of the vehicle.

Martin then used the release mechanism in the trunk of the car to escape, and was

chased on foot by Appellant. An altercation ensued on the front porch of Ms. Jones’

residence, during which Appellant physically harmed Martin, with the use of the firearm.

We find this separate conduct constitutes the charge of felonious assault.

{¶69} Accordingly, we find the trial court did not err in finding the charges herein

were not allied offenses as the offenses were committed with separate conduct.

{¶70} The fourth assignment of error is overruled. Muskingum County, Case No. CT2015-0013 29

V.

{¶71} In the fifth assigned error, Appellant maintains the trial court erred in

imposing maximum, consecutive sentences for Appellant’s separate convictions; thereby,

rendering the sentences contrary to law. Specifically, Appellant asserts the trial court did

not consider the purposes and principles of sentencing required by R.C. 2929.11 and

R.C. 2929.12 and did not make the required findings necessary to support consecutive

sentences under R.C. 2929.14.

{¶72} O.R.C. 2929.14(C) reads,

(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 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) The harm caused by the multiple offenses was so great or

unusual that no single prison terms for any of the offenses committed as

part of a single course of conduct adequately reflects' the seriousness of

the offender's conduct. Muskingum County, Case No. CT2015-0013 30

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶73} This Court recently addressed the requirements necessary to impose

consecutive sentences in State v. Williams, Stark App. No.2013CA00189, 2013–Ohio–

3448,

In 2003, the Ohio Supreme Court held in State v. Comer,

, 2003–Ohio–4165, a court may not impose consecutive

sentences unless it ‘finds' three statutory factors enumerated in then

2929.14(E)(4). The statutory factors were the same as those now

enumerated in the revised version of R.C. 2929.14(C)(4) following

enactment of H.B. 86. The revised version of the statute again requires the

trial court to “find” the factors enumerated.

The Court in

read R.C. 2929.14(E)(4), as it existed

then, in conjunction with then R.C. 2929.19(B), to reach its conclusion the

trial court must also state its reasons for the sentence imposed. Then R.C.

2929.19(B) stated the trial court ‘shall impose a sentence and shall make a

finding that gives its reasons for selecting the sentence imposed in any of

the following circumstances ... (c) if it imposes consecutive sentences under

R.C. 2929.14.’

2011 Am.Sub.H.B. No. 86, which became effective on September

30, 2011, revived the language provided in former R.C. 2929.14(E) and

moved it to R.C. 2929.14(C)(4). The revisions to the felony sentencing Muskingum County, Case No. CT2015-0013 31

statutes under 2011 Am.Sub.H.B. No. 86 now require a trial court to make

specific findings when imposing consecutive sentences.

The trial court must therefore make the required findings in

compliance with State v. Comer,

, 2003–Ohio–4165. We

have consistently stated the record must clearly demonstrate consecutive

sentences are not only appropriate, but are also clearly supported by the

record. See, State v. Fauntleroy, 5th Dist. No. CT2012–0001, 2012–Ohio–

4955; State v. Bonnell, 5th Dist. No. 12CAA3022, 2012–Ohio–515.

In other words, in reviewing the record we must be convinced the

trial court imposed consecutive sentences because it had found

consecutive sentences were necessary to protect the public or to punish the

offender, they are not disproportionate to the seriousness of his conduct

and the danger the offender poses to the public. In addition, in reviewing

the record we must be convinced that the trial court found the offender's

history of criminal conduct demonstrated consecutive sentences were

necessary to protect the public from future crime, or 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, or 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 Muskingum County, Case No. CT2015-0013 32

courses of conduct adequately reflects the seriousness of the offender's

conduct. R.C. 2929.14(C)(4).

{¶74} At sentencing herein, the trial court stated,

Therefore, the Court will impose, in regards to the felony of the first

degree, a 11 year mandatory prison sentence. In regards to felony of the

second degree, the Court will impose an 8 year mandatory prison sentence.

In regards to felony of the third degree, the Court will impose a 36 month

sentence.

The Court will order that all those sentences be served consecutively

and consecutively to the sentence you’re currently serving.

***

THE COURT: There is one thing I need to do which I set out to do

and did not do. In order be given consecutive sentences, the Court must

abide by the Ohio Revised Code that deals with that, and that section would

be Section 2929.14.

And it states if multiple prison terms are imposed on an offender for

convictions on multiple offenses, the Court may require the offender to

serve the prison term consecutively if the Court find that the consecutive

service is necessary to protect the public from future crime or to punish the

offender and the consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses

to the public, and the offender either committed one or more of the multiple Muskingum County, Case No. CT2015-0013 33

offenses while the offender was awaiting trial or sentencing or under a

sanction imposed by post-release control. That does not apply.

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.

That does apply.

The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future

crimes by the offender.

As I indicated before in regards to your prior criminal history, it’s –

the Court requires that the consecutive sentences are necessary because

of your history of committing these type of offenses and the propensity to

continue to commit such offenses and the propensity to continue to conduct

is so serious that these multiple - - the consecutive sentences are necessary

to protect the public.

Tr. at 13; 19-20.

{¶75} Here, the trial court’s February 20, 2015 Judgment Entry of sentence reads,

The Court made judicial findings that the Defendant has previous

felony convictions, including a prior felony of the first degree; and a felony

of the second degree. Therefore, pursuant to O.R.C. §2929.13(F)(6), the

Court finds that sentences in regard to Counts One and Four in the within Muskingum County, Case No. CT2015-0013 34

case are mandatory sentences. Further pursuant to O.R.C. §2929.14, the

Court finds that the imposition of consecutive sentences herein are

necessary to protect the public from future crimes.

{¶76} Upon review of the record, we do not find the trial court made all the

requisite findings necessary to support the imposition of consecutive sentences either

during sentencing or in its sentencing entry.2

{¶77} Appellant’s fifth assignment of error is sustained.

{¶78} Appellant's sentence in the Muskingum County Court of Common Pleas is

therefore vacated, and the matter remanded for resentencing.

By: Hoffman, J.

Gwin, J. concurs,

Farmer, P.J., dissents

2Notably missing is any finding consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and the danger the offender poses to the public. Muskingum County, Case No. CT2015-0013 35

Farmer, P.J., dissents

{¶79} I respectfully dissent from the majority opinion on the sentencing issue

under Assignment of Error V.

{¶80} The majority finds the trial court did not meet the requirements of R.C.

2929.14(C), specifically, "missing is any finding consecutive sentences are not

disproportionate to the seriousness of the offender's conduct and the danger the offender

poses to the public." Fn. 1.

{¶81} In State v. Bonnell,

,

, the

Supreme Court of Ohio explained the following regarding R.C. 2929.14(C): "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."

{¶82} As noted by the majority in ¶ 74, during the sentencing hearing, the trial

court found the harm caused by the crimes "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." The trial court also noted appellant's

prior criminal history and his propensity to continue to commit such offenses and in

conduct "so serious" that "consecutive sentences are necessary to protect the public."

{¶83} In State v. Santiago, 8th Dist. Cuyahoga No. 102280,

, our

brethren from the Eighth District reviewed a consecutive sentence and concluded as the

majority sub judice. In a dissenting opinion, Judge Gallagher stated at ¶ 14: "If no single

term adequately reflects the seriousness of the offender's conduct, then, logically, the Muskingum County, Case No. CT2015-0013 36

consecutive service of prison sentences is not disproportionate to the offender's conduct."

I concur with this statement.

{¶84} While the trial court did not use a "talismanic incantation of the words of the

statute," I find it can be discerned from the record that the trial court engaged in a proper

analysis under R.C. 2929.14(C).

.

{¶85} I would deny the assignment of error.