[Cite as State v. Ropp,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CHAMPAIGN COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2018-CA-44 : v. : Trial Court Case No. 2018-CR-123 : WARREN L. ROPP : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 6th day of March, 2020.

...........

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee

RICHARD L. KAPLAN, Atty. Reg. No. 0029406, P.O. Box 751192, Dayton, Ohio 45475 Attorney for Defendant-Appellant

.............

DONOVAN, J. [Cite as State v. Ropp,

.]

{¶ 1} Defendant-appellant Warren L. Ropp appeals his convictions for the

following offenses: Count I, improper handling of firearms in a motor vehicle, in violation

of R.C. 2923.16(B)(1) (transport of a loaded weapon), a felony of the fourth degree; Count

II, improper handling of firearms in a motor vehicle, in violation of R.C. 2923.16(A)(1)

(discharge firearm in a motor vehicle), a felony of the fourth degree; Count IV, discharge

of a firearm on or near prohibited premises (discharge over a public road), in violation of

R.C. 2923.162(A)(3)(C)(2), a felony of the third degree; and Count V, improperly

discharging a firearm at or into a habitation, in violation of R.C. 2923.161(A)(1)(C), a

felony of the second degree. He was also found guilty of several firearm specifications:

Count IV included two firearm specifications for one and three years respectively; and

Count V included three firearm specifications for one, three, and five years respectively.

Ropp filed a timely notice of appeal with this Court on December 11, 2018.

{¶ 2} The incident which formed the basis for Ropp’s convictions occurred at

approximately 9:30 a.m. on the morning of August 21, 2017, when Greg Ervin returned

to his residence in Rosewood, Ohio. Ervin was returning home from an overnight trip for

his job as a semi-truck driver when his friend, Chis Longstreath, called him with

information regarding Ervin’s live-in girlfriend, Barb Stickley. Longstreath informed Ervin

that Stickley had called him and said there was “somebody” in Ervin’s house. Tr. 139.

{¶ 3} Shortly thereafter, Ervin arrived at his residence with Longstreath and

Longstreath’s wife, Stacey. Ervin testified that he parked his vehicle across the street

from his main residence and in front of his other “house,” a separate residence that he

had previously bought and was in the process of renovating. Ervin testified that the other

house was furnished and had two working bathrooms. Ervin testified that he used the [Cite as State v. Ropp,

.]

other residence for family gatherings, and as a place for houseguests to sleep.

{¶ 4} Ervin testified that he exited his vehicle, entered his other residence, and

immediately observed Ropp lying on a loveseat in the front room. Ervin testified that he

knew the individual on his loveseat was Ropp because Ervin had previously sold him

motorcycle parts on two to three occasions. Ervin testified that Ropp appeared to be

asleep and was not wearing a shirt. Ervin also testified that Ropp’s pants were undone,

and his hands were stuck down his pants. In an effort to wake Ropp, Ervin placed an

ice tray from the freezer on Ropp’s stomach area. When this failed to awaken Ropp,

Ervin placed the ice tray on the kitchen counter, walked back to the loveseat, grabbed

Ropp by the arm, and pulled him into a standing position. Once standing, Ropp awoke.

Ervin told Ropp that he had to leave and guided him toward the front door.

{¶ 5} Ervin testified that he walked Ropp across the street to his vehicle, a white

Chevy pickup truck, which was parked in front of Ervin’s main residence. Ervin testified

that he told Ropp to leave because he (Ervin) “didn’t know what was going on.” Tr. 148.

At that point, Ropp got in his truck and drove away without saying anything to Ervin.

Ervin testified that he and the Longstreaths went inside his main residence to have coffee.

After approximately 30 minutes, Ervin testified that he heard a loud noise, which he

described as the sound of a high-powered rifle.

{¶ 6} Ervin ran out on his front porch, at which point his neighbor, Reva Wright,

approached him and informed him that the man who just left in the pickup truck had shot

at Ervin’s vehicle. Wright identified the man as Ropp. Wright testified that although she

did not see Ropp fire a gun at Ervin’s house, she observed him driving away from the

scene approximately ten seconds after shots were fired, and he was the only person in [Cite as State v. Ropp,

.]

the vicinity. Wright also testified that the area by Ervin’s residence smelled like a gun

had just been fired. Ervin testified that he owned two trucks (a blue Chevy and a black

Chevy), and both were parked by his renovated residence. When Ervin went over to his

vehicles, he observed glass all over the ground nearby, and he called 911. Once

deputies from the Champaign County Sheriff’s Office (CCSO) arrived, Ervin identified the

individual who shot at his trucks and residence under renovation as Ropp.

{¶ 7} In addition to breaking the vehicles’ windows, the police found a bullet hole

in Ervin’s blue truck. The police also located a bullet hole in a work storage space

attached to Ervin’s renovated residence. The bullet was found to have struck the siding

on the house, gone through the wall, and then come to rest in the opposite wall.

{¶ 8} Based upon the information received regarding the identity of the shooter,

the deputies obtained Ropp’s cell phone number and contacted him later in the morning

of August 21, 2017. Ropp informed the deputies that he was at an address in St. Paris,

Ohio. The deputies advised him to remain where he was and wait for their arrival.

Shortly thereafter, Ropp was taken into custody in St. Paris by deputies from the CCSO.

The deputies did not recover a firearm when Ropp was apprehended.

{¶ 9} On June 4, 2018, Ropp was indicted for the following offenses: Count I,

improper handling of firearms in a motor vehicle (transport of a loaded weapon); Count II,

improper handling of firearms in a motor vehicle (discharge firearm in a motor vehicle);

Count III, tampering with evidence; Count IV, discharge of a firearm on or near prohibited

premises (discharge over a public road); and Count V, improperly discharging a firearm

at or into a habitation. Count IV included two firearm specifications, and Count V

included three firearm specifications. At his arraignment on June 11, 2018, Ropp pled [Cite as State v. Ropp,

.]

not guilty to the charged offenses.

{¶ 10} On October 4, 2018, the parties filed a joint stipulation regarding the fact

that Ropp tested positive for the presence of gunshot residue. The matter proceeded to

jury trial on November 13-16, 2018. The jury found Ropp guilty of Counts I, II, IV, and V,

as well as all of the firearm specifications; it found him not guilty of Count III. At

sentencing on November 26, 2018, the trial court concluded that Count II, improper

handling of firearms in a motor vehicle (discharge firearm in a motor vehicle) merged with

Count IV, discharge of a firearm on or near prohibited premises (discharge over a public

road), and the State elected to proceed to sentencing on Count IV. Thereafter, the trial

court sentenced Ropp to 18 months in prison for Count I, 36 months in prison for Count

IV, and seven years for Count V. The trial court did not impose a sentence on the

specifications attached to Count IV or the first specification to Count V. With respect to

the second and third specifications attached to Count V, the trial court imposed a

sentence of three years for Specification 2 and five years for Specification 3, for a total of

eight years. The trial court then ordered the sentence for the specifications (eight years)

to be served consecutively to the sentence imposed for Count V (seven years). The trial

court ordered that the sentences for Counts I and IV be served concurrently to the

sentences imposed for Count V and the firearm specifications, for an aggregate sentence

of 15 years in prison.

{¶ 11} It is from this judgment that Ropp now appeals.

{¶ 12} Initially, we note that the jury verdict form finding Ropp guilty of Count IV,

discharge of a firearm on or near prohibited premises incorrectly referred to the offense

as a misdemeanor of the first degree. Additionally, Ropp’s judgment entry of conviction [Cite as State v. Ropp,

.]

incorrectly referred to Count IV as a felony of the fourth degree. As stated above, Count

IV was felony of the third degree. Accordingly, the trial court should issue a nunc pro

tunc order amending the judgment entry of conviction to reflect that Count IV was a felony

of the third degree.

{¶ 13} Ropp’s first assignment of error is as follows:

THE TRIAL COURT PREJUDICIALLY ERRED WHEN WARREN WAS

CONVICTED OF FOUR CHARGES WHICH ACCORDING TO R.C.

2941.25 ARE ALLIED OFFENSES OF SIMILAR IMPORT.

{¶ 14} In his first assignment, Ropp contends that the trial court erred when it failed

to merge Counts I, II, IV, and V, as he argues that they were allied offenses of similar

import.

{¶ 15} R.C. 2941.25, Ohio’s allied offenses statute, provides that:

(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.

{¶ 16} The Ohio Supreme Court clarified the applicable standard when

determining whether offenses merge as allied offenses of similar import in State v. Ruff, [Cite as State v. Ropp,

.]

,

,

:

Rather than compare the elements of two offenses to determine

whether they are allied offenses of similar import, the analysis must focus

on the defendant’s conduct to determine whether one or more convictions

may result, because an offense may be committed in a variety of ways and

the offenses committed may have different import. No bright-line rule can

govern every situation.

As a practical matter, when determining whether offenses are allied

offenses of similar import within the meaning of R.C. 2941.25, courts must

ask three questions when the defendant’s conduct supports multiple

offenses: (1) Were the offenses dissimilar in import or significance? (2)

Were they committed separately? and (3) Were they committed with

separate animus or motivation? An affirmative answer to any of the above

will permit separate convictions. The conduct, the animus, and the import

must all be considered.

Id. at ¶ 30-31.

{¶ 17} In State v. Wood, 2d Dist. Montgomery No. 26134,

, we

stated the following:

[T]he Ohio Supreme Court addressed the allied-offense issue again

in State v. Earley, [

,

,

].

There the majority characterized the analysis in its earlier [State v.]

Johnson[,

,

,

] lead

opinion as “largely obsolete.” Id. at ¶ 11. The Earley court instead [Cite as State v. Ropp,

.]

embraced Ruff, which, as noted above, considers a defendant’s conduct,

his animus, and the import or significance of his offenses. Applying Ruff,

the Earley court concluded that misdemeanor OVI and felony aggravated

vehicular assault “are offenses of dissimilar import and significance that are

to be punished cumulatively.” Earley at ¶ 20. For purposes of our analysis

here, we note that a defendant bears the burden of establishing entitlement

to merger, and we review a trial court’s ruling on the issue de novo. State

v. LeGrant, 2d Dist. Miami No. 2013-CA-44,

.

***

We reach the same conclusion under the Ruff standard, which the

Ohio Supreme Court applied in Earley. We see nothing in Ruff that alters

or undermines the foregoing analysis about [the defendant’s] commission

of murder and aggravated robbery involving the same conduct committed

with the same animus. For the reasons set forth above, we conclude that

the two offenses were not committed separately and were not committed

with a separate animus or motivation. These findings remain pertinent

under Ruff, which, as noted above, provides that offenses do not merge if

“(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.” Ruff at ¶ 25 [and] ¶ 30-31.

Id. at ¶ 54, quoting State v. McGail,

,

, ¶ 51, 60 (2d Dist.).

{¶ 18} An appellate court applies a de novo standard of review in reviewing a trial [Cite as State v. Ropp,

.]

court’s R.C. 2941.25 merger determination. State v. Williams,

, 2012-

Ohio-5699,

. “The defendant bears the burden of establishing his

entitlement to the protection provided by R.C. 2941.25 against multiple punishments for

a single criminal act.” State v. Washington,

,

,

, ¶ 18.

{¶ 19} As previously noted, Ropp was convicted in Count I of improper handling of

firearms in a motor vehicle (transport of a loaded weapon), in violation of R.C. 2923.16,

which states in relevant part:

(B) No person shall knowingly transport or have a loaded firearm in a motor

vehicle in such a manner that the firearm is accessible to the operator or

any passenger without leaving the vehicle.

{¶ 20} Ropp was also convicted in Count IV of discharge of a firearm on or near

prohibited premises (discharge over a public road), in violation of R.C.

2923.162(A)(3)(C)(2), which states in relevant part:

(A) No person shall do any of the following:

***

(3) Discharge a firearm upon or over a public road or highway.

{¶ 21} Lastly, Ropp was convicted in Count V of improperly discharging a firearm

at or into a habitation, in violation of R.C. 2923.161(A)(1)(C), which states in relevant part:

(A) No person, without privilege to do so, shall knowingly do any of the

following:

(1) Discharge a firearm at or into an occupied structure that is a permanent or

temporary habitation of any individual[.] [Cite as State v. Ropp,

.]

{¶ 22} A similar issue was recently addressed by the Eighth District Court of

Appeals in State v. Jenkins, 8th Dist. Cuyahoga No. 105881,

, wherein

the court stated as follows:

Under Ruff, Jenkins’s convictions under R.C. 2923.16 are not allied

offenses of similar import because they were committed separately and with

separate animus or motivation. Based on the evidence establishing that

Jenkins fired a firearm from his vehicle, we can infer that Jenkins had a

firearm that was loaded prior to his decision to shoot from inside of his

vehicle in violation of R.C. 2923.16(B). The conduct and animus

underlying that offense is different from the conduct and animus underlying

his conviction under R.C. 2923.16(A), which Jenkins committed when he

discharged that firearm while inside his vehicle. Put simply, Jenkins made

two separate decisions: first, to place a loaded firearm in his vehicle that he

had access to and, second, to fire that firearm into a crowd while driving his

vehicle. Those separate forms of conduct and motivations support the

conclusion that Jenkins’s convictions under R.C. 2923.16 are not allied

offenses of similar import.

(Emphasis added.) Id. at ¶ 66.

{¶ 23} Although the instant case differs from Jenkins insofar as R.C. 2923.16(A) is

not involved in our calculus, both R.C. 2923.162(A)(3)(C)(2) and R.C. 2923.161(A)(1)(C)

involve the discharge of a weapon, be it over a public roadway or into a habitation,

respectively. Count I, however, only involves Ropp’s separate initial decision to transport

or have a loaded firearm in a motor vehicle in such a manner that the firearm was [Cite as State v. Ropp,

.]

accessible to the operator or any passenger without leaving the vehicle. R.C. 2923.16(B).

The evidence adduced at trial established that Ropp possessed a loaded firearm in his

vehicle prior to his decision to shoot from the inside of his vehicle. Accordingly, Ropp’s

conduct and animus in having a loaded, readily available firearm in his vehicle (Count I)

is dissimilar and separate from his conduct in discharging the firearm across a public

roadway and into a habitation (Counts IV and V). Therefore, Count I was not an allied

offense of Counts IV and V and was not subject to merger with those counts.

{¶ 24} Upon review, we further conclude that Counts IV and V were not allied

offenses subject to merger. The instant case is similar to State v. Williams, 2d Dist.

Montgomery No. 27663,

. The defendant in that case fired multiple

shots in rapid succession across the road with the singular motivation of killing a targeted

victim. Thereafter, the defendant was convicted of murder and discharging a firearm on

or near prohibited premises. On appeal, the defendant argued that these offenses

should have been merged because the two offenses caused the same harm, namely, the

death of the victim, and they constituted one action and were committed with the same

animus. We found the two offenses to be of dissimilar import, citing the Eighth District

Court of Appeals’ opinion in State v. James,

,

, ¶ 33 (8th

Dist.) (the offense of discharging a firearm on a public road or highway is a strict liability

offense and the victim is the public). We concluded that the trial court did not commit

plain error when it failed to merge Williams’s convictions for discharge of a firearm on or

near prohibited premises with felony murder and/or felonious assault. We reasoned that

the defendant’s act of firing a gun across the roadway placed numerous people at risk

and harmed the public at large, while his murder conviction involved harm to a particular [Cite as State v. Ropp,

.]

victim; therefore, the offenses differed in significance and the nature of the harm caused.

Id. at ¶ 23-24.

{¶ 25} In Williams, we stated the following:

Williams was convicted and sentenced on one count of murder for

causing Terion Dixon’s death as a proximate result of committing felonious

assault. He also was convicted and sentenced on one count of discharging

a firearm on or near prohibited premises in violation of R.C. 2923.162(A)(3),

which provides: “No person shall do any of the following: * * * Discharge

a firearm upon or over a public road or highway.” Notably, “[t]he victim of

the offense of discharging a firearm upon or over a public road or highway

is the public. This is because it is the act itself that is prohibited. The

offense can be completed with no one remotely near the location where the

firearm is discharged upon or over the public road or highway. R.C.

2923.162(A)(3) is a statute intended to benefit the public good[.]” State v.

James,

,

(8th Dist.), ¶ 33; see also State v.

Carzelle, 8th Dist. Cuyahoga No. 105425,

(applying James).

Although Williams actually shot and killed Dixon, his act of firing a handgun

across the roadway itself violated the statute, placed numerous people at

risk, and harmed the public at large. Conversely, his murder conviction

required harm to a particular victim and differed in the significance and the

nature of the harm it addressed. At a minimum, we believe the offenses at

issue are dissimilar enough to preclude a finding of plain error. * * *

Id. at ¶ 24. Relying on our holding in Williams, we recently held in State v. Shoecraft, 2d [Cite as State v. Ropp,

.]

Dist. Montgomery No. 27860,

, that the victim of improper discharge

of a firearm on a roadway is the public at large.

{¶ 26} Based upon our holdings in Williams and Shoecraft, we find that Ervin and

the other occupants of the house were the victims of Count V, improperly discharging a

firearm at or into a habitation, and the public at large was the victim of the improper

discharge offense in Count IV. Although Count V did not involve anyone actually being

injured or killed, the same rationale applies here. Furthermore, similar to the defendants

in both Williams and Shoecraft, Ropp’s conduct placed other people at risk in addition to

the individual(s) in Ervin’s house. The evidence adduced in the instant case established

that Ropp's “act of firing a handgun across the roadway itself violated the statute, placed

numerous people at risk, and harmed the public at large.”

.

Accordingly, we find that the trial court did not err in failing to merge the offenses for the

purposes of sentencing.

{¶ 27} Ropp’s first assignment of error is overruled.

{¶ 28} Because they are interrelated, Ropp’s second and third assignments of

error will be discussed together:

THE TRIAL COURT PREJUDICIALLY ERRED WHEN THE STATE

OF OHIO FAILED TO PROVE EVEN A SINTILLA [sic] OF EVIDENCE THE

SHOT WAS FIRED FROM A PUBLIC ROAD[,] AN ESSENTIAL ELEMENT

OF R.C. 2923.162(A)(3). THEREFORE THE COURT SHOULD HAVE OF

ITS OWN MOTION ACQUITTED WARREN SINCE THERE WAS NO

EVIDENCE WARREN ROPP DISCHARGED A FIREARM OVER A

PUBLIC ROAD OR HIGHWAY. [Cite as State v. Ropp,

.]

THE TRIAL COURT ERRED TO THE PREJUDICE OF MR.

WARREN WHEN IT CONVICTED HIM IN SPITE OF THE STATE FAILED

[sic] TO PROVE THE CHURCH WAS AN OCCUPIED STRUCTURE

WHICH WAS THE TEMPORARY OR PERMANENT HABITATION OF

GREGORY ERVIN AS REQUIRED PURSUANT TO R.C.

2923.161(A)(1)(C) AS IT STATED IN THE BILL OF PARTICULARS.

{¶ 29} In his second assignment, Ropp argues that the State adduced insufficient

evidence to support his conviction for Count IV, discharge of a firearm on or near

prohibited premises. Specifically, Ropp contends that the State failed to establish that

the shooting occurred on a public road or that the roads leading to and around Ervin’s

residence were dedicated public roadways. In his third assignment, Ropp argues that

the State failed to adduce any evidence that the renovated “house” across the street from

Ervin’s main residence was an occupied structure for the purposes of R.C.

2923.161(A)(1)(C).

{¶ 30} Initially, we note that the State argues that Ropp has waived all but plain

error regarding his sufficiency argument because he failed to make a Crim.R. 29 motion

for acquittal after the State rested its case and after the defense rested its case. In State

v. Hibbler, 2d Dist. Clark No. 2001-CA-43,

, ¶ 23, we cited State v. Roe,

,

(1989) and State v. Knapp, 2d Dist. Montgomery No.

18457,

(Jan. 26, 2001), for the general rule that, when a criminal

defendant fails to make a Crim.R. 29 motion, the ability to challenge the sufficiency of the

evidence on appeal is waived. However, in two apparently little-recognized cases, the

Ohio Supreme court has held that a failure to timely file a Crim.R. 29(A) motion during a [Cite as State v. Ropp,

.]

jury trial does not waive an argument on appeal concerning the sufficiency of the

evidence. See State v. Jones,

,

(2001); State v.

Carter ,

,

(1992). In both Jones and Carter, the

Ohio Supreme Court stated that the defendant’s “not guilty” plea preserved his right to

object to the alleged insufficiency of the evidence.

Moreover, because “a conviction

based on legally insufficient evidence constitutes a denial of due process,” State v.

Thompkins

,

(1997), a conviction based upon

insufficient evidence would almost always amount to plain error. See State v. Hermann,

6th Dist. Erie No. E-01-039,

, ¶ 24; State v. Casto, 4th Dist. Washington

No. 01CA25,

; State v. Arrowood, 4th Dist. Pike No. 93CA505,

, at *6 (Sept. 27, 1993).

{¶ 31} When a defendant challenges the sufficiency of the evidence, he is arguing

that the State presented inadequate evidence on an element of the offense to sustain the

verdict as a matter of law. State v. Hawn,

,

(2d

Dist. 2000). “An appellate court’s function when reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial to determine

whether such evidence, if believed, would convince the average mind of the defendant’s

guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the

evidence in a light most favorable to the prosecution, any rational trier of fact could have

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

Jenks,

,

(1991), paragraph two of the syllabus.

{¶ 32} As previously stated, relative to the offense of discharging a firearm “on or

near prohibited premises,” R.C. 2923.162(A)(3) prohibits any person from “[d]ischarg[ing] [Cite as State v. Ropp,

.]

a firearm upon or over a public road or highway.” If a violation of that provision “created

a substantial risk of physical harm to any person,” the offense is a third-degree felony.

R.C. 2923.162(C)(2).

{¶ 33} In his second assignment of error, Warren Ropp claims that the State failed

to prove “even a scintilla of evidence the shot was fired from a public road.” He argues

that there “was absolutely no conclusive proof Warren was on either street[,] Archer

[Street] or Church Street[,] at the times [sic] the shots occurred,” and that “he could have

pulled the car onto the private property and fired at whatever he was shooting at from

private property without crossing a public road or highway.” The State’s response is

directed to whether there was sufficient evidence that Archer and Church Streets were

“public roadways,” not whether there was sufficient proof that Ropp discharged a firearm

“upon or over” the roads. As worded, however, this assignment alleges that the State

presented insufficient evidence not just as to the nature of the street, but as to whether

he discharged a firearm “upon or over” the road.

{¶ 34} A defendant may be convicted based on direct evidence, circumstantial

evidence, or both. State v. Donley,

,

, ¶ 178 (2d Dist.).

Circumstantial evidence has the same probative value as direct evidence. Jenks,

,

, citing State v. Nicely,

,

(1988); State v. Bennett, 2d Dist. Montgomery No. 24576,

. In fact,

in some cases, “circumstantial evidence may be more certain, satisfying, and persuasive

than direct evidence.” State v. Jackson,

,

(1991).

{¶ 35} “ ‘A conviction based on purely circumstantial evidence is no less sound

than a conviction based on direct evidence.’ ” State v. Pounds, 2d Dist. Montgomery No. [Cite as State v. Ropp,

.]

22469,

, quoting State v. Howland, 12th Dist. Fayette No. 2006-08-

035,

. “As long as the evidence would convince the average mind

of the defendant’s guilt beyond a reasonable doubt, circumstantial evidence is sufficient

to sustain a conviction.” State v. Whitehead, 2d Dist. Montgomery No. 28334, 2019-

Ohio-5141, ¶ 31, citing State v. McKnight,

,

,

.

{¶ 36} To convict Ropp of discharging a firearm on or near prohibited premises in

this case, the jury needed to find that Ropp discharged a firearm “upon or over” a public

road. See R.C. 2923.162(A)(3). No one saw Ropp fire a gun. However, five witnesses

were in the vicinity of Greg Ervin’s house around the time of the shooting, and their

testimony provided circumstantial evidence to support a reasonable inference that Ropp

discharged a firearm from his vehicle upon or over a public roadway.

{¶ 37} Teenager Jonathan Jester was riding his bicycle “around Church and

Archer Street” when he saw “the barrel of a rifle pointed out of” the driver’s side window

of a white Chevy Silverado driven by Ropp; the pick-up truck “was driving down Church

and Archer” Tr. 271-275. Jester rode his bike home and heard a shot about a minute

later. Reva Wright, who lived on the northwest corner of Church and Archer, testified

that she was sitting on her back porch when she “heard a gunshot,” “jumped up,” and

“stepped outside” within “10 seconds.” Tr. 219-228. Upon stepping off her porch, she

saw Ropp “really going slow,” slowly ease into the intersection, pause, look toward Ervin’s

house, and then speed off. Tr. 223, 232. Wright’s testimony indicated that Ropp drove

south on Church Street, crossed Archer Street, and then continued on Church Street

toward Kiser Lake Road. Tr. 238. [Cite as State v. Ropp,

.]

{¶ 38} Ervin and his friends, Chris and Stacey Longstreath, were at Ervin’s primary

residence on Archer Street when they heard a gunshot. Ervin stated that he was

standing “right by the front door when it happened,” and he stepped outside; the

Longstreaths followed Ervin out the door. By the time Ervin got outside “a few seconds”

after the shooting, the shooter had already left; neither Ervin nor the Longstreaths saw

the shooter or any vehicle leaving the scene. However, the group saw Wright running

up to them; Wright reported to them that Ropp had shot Ervin’s pickup.

{¶ 39} Although there was no direct evidence that Ropp fired a gun from the public

road, the evidence, viewed in the light most favorable to the State, indicated that Ropp

drove slowly down Church Street with a rifle sticking out of the driver’s window shortly

before the shooting, that he fired at Ervin’s house (located across the street from Ervin’s

primary residence), and then he sped off. Given that Ropp’s vehicle had cleared the

intersection of Church and Archer Streets and was not visible to Ervin and the

Longstreaths mere seconds after the shooting, the jury could have reasonably concluded

that Ropp had maintained his course along Church Street, a public roadway, when he

shot at the house. Accordingly, the State adduced sufficient evidence to establish the

public roadway element of R.C. 2923.162(A)(3) beyond a reasonable doubt.

Occupied Structure

{¶ 40} Ropp also argues that the State failed to adduce sufficient evidence to

establish that the renovated “house” across the street from Ervin’s main residence was

an occupied structure for the purposes of R.C. 2923.161(A)(1). As previously stated,

R.C. 2923.161 provides: “(A) No person, without privilege to do so, shall knowingly do

any of the following: (1) Discharge a firearm at or into an occupied structure that is a [Cite as State v. Ropp,

.]

permanent or temporary habitation of any individual.”

{¶ 41} An “occupied structure” is defined in part in the Revised Code as follows:

“any house, building, outbuilding, watercraft, aircraft, railroad car, truck, trailer, tent, or

other structure, vehicle, or shelter, or any portion thereof, to which any of the following

applies: (1) It is maintained as a permanent or temporary dwelling, even though it is

temporarily unoccupied and whether or not any person is actually present.” R.C.

2909.01(C).

{¶ 42} In State v. Johnson,

,

,

(2d Dist.), we stated the following:

“A structure which is dedicated and intended for residential use, and

which is not presently occupied as a person’s habitation, but, which has

neither been permanently abandoned nor vacant for a prolonged period of

time, can be regarded as a structure ‘maintained’ as a dwelling within the

meaning of R.C. 2909.01(A). That definition includes a dwelling house

whose usual occupant is absent on a prolonged basis or is receiving long-

term care in a nursing home, a summer cottage, or a residential rental unit

which is temporarily vacant.” State v. Green (1984),

,

[

,] at paragraph one of the syllabus. “ ‘Under division (A)

of the section, all dwellings are classed as occupied structures, regardless

of the actual presence of any person. Whether or not the dwelling is used

as a permanent or temporary home is immaterial, so long as it is maintained

for that purpose.’ ” State v. Bock (1984),

, [

,] quoting R.C. 2909.01 Committee Comment. Even homes [Cite as State v. Ropp,

.]

undergoing major renovations have been found to be occupied structures.

State v. Woodruff, Lucas App. No. L-04-1125,

;

State v. Charley, Cuyahoga App. No. 82944,

(owner was in nursing home, and house was empty and undergoing

renovation, but nonetheless it was an occupied structure); Green,

(term “maintained” “alludes more to the character or type

of use for which the dwelling is intended to be subjected”).

Johnson at ¶ 18.

{¶ 43} At trial, Ervin testified to the following regarding the renovated “house”

across the street from his main residence: 1) that it was sometimes used as part of his

living space; 2) that it was used by his family for gatherings at Thanksgiving and

Christmas; 3) that it had a table and a family room; 4) that it had indoor plumbing and two

bathrooms; 5) that it was furnished; 6) that it was finished with drywall and lighting; and

7) that it was used by visiting overnight houseguests. Ropp testified that the house also

had a pool table and a bar area.

{¶ 44} The mere fact that a residence has no actual tenant or owner living in it

does not establish that the structure is unoccupied within the meaning of the Revised

Code. Johnson at ¶ 20. There is nothing in the record that tends to show that the house

was being renovated for some use of a different character or type than as a residence.

See Green,

,

. Viewed in light most favorable

to the State, we conclude that sufficient evidence was adduced to establish that the

structure into which Ropp discharged a firearm was an occupied structure pursuant to

R.C. 2923.161(A)(1). [Cite as State v. Ropp,

.]

{¶ 45} Ropp’s second and third assignments of error are overruled.

{¶ 46} Ropp’s fourth assignment of error is as follows:

THE TRIAL COURT ERRED BECAUSE THE JURY VERDICT FORMS

WERE DEFECTIVE AS THEY DID NOT REFLECT THE STATUTORY

ELEMENTS OF THE CRIMES ALLEGED AND DID NOT ADEQUATELY

SET FORTH THE STATE’S BURDEN OF PROOF.

{¶ 47} In his fourth assignment, Ropp argues that the verdict forms were defective

because they did not list all the statutory elements of the offenses to which they pertained.

We note, however, that Ropp failed to object to the verdict forms at trial. Therefore, he

has waived all but plain error with respect to this assignment of error.

{¶ 48} “There is no requirement that the statutory definition of an offense be

included on the verdict form. To the contrary, the inclusion of statutory definitions on a

verdict form ‘invites confusion and error.’ ” State v. Martin, 2d Dist. Montgomery No.

22744,

, ¶ 8. Additionally, “there is no requirement that such [verdict]

forms reiterate the burden of proof in the case.” State v. Mobley, 2d Dist. Montgomery

No. 9856,

, *3 (June 8, 1987). The record establishes that the parties

discussed the State’s burden of proof in their arguments before the jury. Furthermore,

the trial court instructed the jury at length regarding the State’s burden of proof and the

elements of the offenses, and it provided an exhaustive definition of the reasonable doubt

standard. Tr. 621-622. Therefore, we conclude that the verdict forms were not defective.

{¶ 49} Ropp’s fourth assignment of error is overruled.

{¶ 50} Ropp’s fifth assignment of error is as follows:

THE TRIAL COURT ERRED TO THE PREJUDICE OF WARREN ROPP [Cite as State v. Ropp,

.]

WHEN IT FAILED TO MERGE THE FIREARM SPECIFICATION ON

COUNT V AND INSTEAD RAN THE 3 AND 5 YEAR SPECIFICATIONS

CONSECUTIVELY.

{¶ 51} In his fifth assignment, Ropp contends that the trial court erred when it failed

to merge the three- and five-year firearm specifications attached to Count V, and instead

ordered that the specifications be served consecutively. Ropp argues that that trial court

should have run the sentences on the firearm specifications concurrently because they

involved the same act or transaction.

{¶ 52} A trial court is required to impose a three-year prison sentence when the

offender is convicted of displaying, brandishing, or using a firearm to facilitate the offense

(R.C. 2941.145) and a five-year prison sentence when an offender is convicted of

discharging a firearm from a motor vehicle (R.C. 2941.146).

{¶ 53} R.C. 2929.14(B)(1)(b) states, in relevant part, as follows:

If a court imposes a prison term on an offender under division (B)(1)(a) of

this section, the prison term shall not be reduced pursuant to section

2967.19, section 2929.20, section 2967.193, or any other provision of

Chapter 2967. or Chapter 5120. of the Revised Code. Except as provided

in division (B)(1)(g) of this section, a court shall not impose more than one

prison term on an offender under division (B)(1)(a) of this section for felonies

committed as part of the same act or transaction.

{¶ 54} R.C. 2929.14(B)(1)(c) provides that when a defendant is convicted of or

pleads guilty to a violation of R.C. 2923.161 or a felony that includes, as an essential

element, purposely or knowingly causing or attempting to cause the death of or physical [Cite as State v. Ropp,

.]

harm to another, and also convicted of or pleads guilty to a specification of the type

described in R.C. 2941.146, the court “shall impose an additional prison term of five

years.” R.C. 2929.14(B)(1)(c). (Emphasis added.) This mandatory term is in addition to,

and not an alternative to, any mandatory term that may also be imposed for the same

offense pursuant to R.C. 2941.145. See R.C. 2929.14(B)(1)(c) (“If a court imposes an

additional prison term on an offender under division (B)(1)(c) of this section relative to an

offense [relating to specifications under R.C. 2941.146], the court also shall impose a

prison term under division (B)(1)(a) of this section [relating to specifications under R.C.

2941.141, 2941.144, or 2941.145] relative to the same offense, provided the criteria

specified in that division for imposing an additional prison term are satisfied relative to the

offender and the offense.”). (Emphasis added). See also State v. Gresham, 8th Dist.

Cuyahoga No. 81250,

, ¶ 16.

{¶ 55} Further, R.C. 2929.14(C)(1)(a) provides:

[I]f both types of mandatory prison terms are imposed [under R.C.

2929.14(B)(1)(a) and (c)], the offender shall serve any mandatory prison

term imposed under either division consecutively to any other mandatory

prison term imposed under either division [and] * * * consecutively to and

prior to any prison term imposed for the underlying felony * * *.

{¶ 56} Therefore, it is clear from the plain language of the statute that the

legislature intended that the mandatory prison terms contained in R.C. 2941.145 and R.C.

2941.146 be served consecutively to one another and to the prison term for the underlying

offense. Gresham at ¶ 16; see also State v. Coffman, 10th Dist. Franklin No. 09AP-727,

, ¶ 11, citing State v. Bates, 10th Dist. Franklin No. 03AP-893, 2004- [Cite as State v. Ropp,

.]

Ohio-4224, ¶ 8, 10 (interpreting former R.C. 2929.14(D)(1)(c) and finding that. if an

offense is properly accompanied with a specification under R.C. 2941.146 and another

under 2941.145, there is no merger of the specifications, and the court must impose a

sentence for each),; State v. Hudson, 2d Dist. Montgomery No. 23328,

,

¶ 8 (“When firearm specifications under both R.C. 2941.145 and 2941.146 accompany

the same offense and are both found true, a court must impose a 3-year term under R.C.

2929.14(D)(1)(a)(ii) and a 5-year term under R.C. 2929.14(D)(1)(c).”); State v. Dixson,

1st Dist. Hamilton No. C-030227,

(a defendant convicted of

felonious assault and firearm specifications under R.C. 2941.141, 2941.145, and

2941.146 must be sentenced to mandatory, consecutive 3-year and 5-year prison terms

for the firearm specifications); State v. Walker, 2d Dist. Montgomery No. 17678,

, *11 (June 30, 2000) (having found defendant guilty of a violation of R.C.

2923.161, the trial court imposed both a three-year mandatory prison term pursuant to

the firearm specification in R.C. 2941.145, and a five-year mandatory prison term

pursuant to the firearm specification in R.C. 2941.146; per R.C. 2929.14, “the Ohio

legislature has clearly authorized the imposition of such cumulative punishments and thus

the trial court did not commit error in failing to merge these two firearm specifications”).

{¶ 57} In the instant case, Ropp was found guilty of the three-year and five-year

firearm specifications under R.C. 2941.145 and R.C. 2941.146, governed by R.C.

2929.14(B)(1)(a) and (c), respectively, in connection with his conviction for Count V,

improperly discharging a firearm at or into a habitation. In light of the foregoing, the trial

court was precluded from merging the three-year and five-year firearm specifications

pursuant to R.C. 2929.14(B)(1)(c) and(C)(1)(a). [Cite as State v. Ropp,

.]

{¶ 58} Ropp’s fifth assignment of error is overruled.

{¶ 59} Ropp’s sixth assignment of error is as follows:

THE IMPROPER HANDLING OF A FIREARM IN A MOTOR VEHICLE

STATUTE (R.C. 2923.16(B)(1)) VIOLATES MR. ROPP’S SECOND

AMENDMENT TO THE UNITED STATES CONSTITUTION RIGHT BOTH

ON ITS FACE AND AS APPLIED. CONSEQUENTLY, THIS COURT

SHOULD HOLD THE STATUTE UNCONSTITUTIONAL AND VACATE

THE CONVICTION ON R.C. 2923.16(B)(1).

{¶ 60} In his sixth assignment, Ropp argues that R.C. 2923.16(B)(1) is

unconstitutional as applied in the instant case and unconstitutional “because it inhibits his

right to bear arms.”

{¶ 61} Upon review, we find that Ropp waived his challenge to the constitutionality

of R.C. 2923.16(B)(1) by failing to raise the issue at the trial court level. State v. Awan,

,

(1986), syllabus. While reviewing courts have

discretion to consider a waived constitutional challenge to a statute, State v. Quarterman,

,

,

, in exercising our discretion,

we decline to consider the constitutionality of R.C. 2923.16(B)(1) for the first time on

appeal.

{¶ 62} Nevertheless, even if Ropp’s argument had not been waived, we have held

that R.C. 2923.16(B) does not constitutionally infringe on an individual’s right to bear

arms. State v. King, 2d Dist. Montgomery No. 24141,

. In King,

the defendant was convicted of improperly handling firearms in a motor vehicle, in

violation of R.C. 2923.16(B)(1), which states: “No person shall knowingly transport or [Cite as State v. Ropp,

.]

have a loaded firearm in a motor vehicle in such a manner that the firearm is accessible

to the operator or any passenger without leaving the vehicle.” In King, we reasoned that

R.C. 2923.16(B) did not prohibit the transportation of all guns in a motor vehicle. “Instead,

the statute limits an individual's right to transport a loaded gun within reach of the driver

or any passenger. These limits are both appropriate and reasonable.” Id. at ¶ 23. If

Ropp’s argument were properly before us, the same rationale we set forth in King would

apply here.

{¶ 63} Ropp’s sixth assignment of error is overruled.

{¶ 64} Ropp’s seventh and final assignment of error is as follows:

TRIAL COUNSEL WAS INEFFECTIVE COUNSEL TO THE PREJUDICE

OF MR. ROPP SO AS THE TRIAL WAS UNFAIR. THE CONVICTIONS

AND SENTENCES FOR ALL COUNTS SHOULD BE OVERTURNED.

{¶ 65} In his final assignment, Ropp argues that he received ineffective assistance

of counsel based upon the following actions taken by his trial counsel: 1) the decision to

stipulate to the gunshot residue report; 2) the failure to object to the characterization of a

metal fragment recovered from Ervin’s other “house” as a bullet without proper analysis;

3) the failure to object to the “defective verdict forms regarding guilt;” 4) the failure to

object to the jury instruction regarding public roads; 5) the failure to argue in closing that

the road where the shooting occurred was not public; 6) the failure to make a Crim.R. 29

motion for acquittal at the close of the State case and at the close of the defense case;

7) the failure to argue that R.C. 2923.16(B)(1) was unconstitutional; and 8) an inadequate

cross-examination of Jonathan Jester.

{¶ 66} We review the alleged instances of ineffective assistance of trial counsel [Cite as State v. Ropp,

.]

under the two prong analysis set forth in Strickland v. Washington,

,

,

(1984), and adopted by the Supreme Court of Ohio in State

v. Bradley,

,

(1989). Pursuant to those cases, trial

counsel is entitled to a strong presumption that his or her conduct falls within the wide

range of reasonable assistance.

. “To reverse a conviction based on

ineffective assistance of counsel, it must be demonstrated that trial counsel's conduct fell

below an objective standard of reasonableness and that his errors were serious enough

to create a reasonable probability that, but for the errors, the result of the trial would have

been different.

Hindsight is not permitted to distort the assessment of what was

reasonable in light of counsel’s perspective at the time, and a debatable decision

concerning trial strategy cannot form the basis of a finding of ineffective assistance of

counsel. * * * ” State v. Mitchell, 2d Dist. Montgomery No. 21957,

.

{¶ 67} An appellant is not deprived of effective assistance of counsel when counsel

chooses, for strategic reasons, not to pursue every possible trial tactic. State v. Brown,

,

(1988). The test for a claim of ineffective

assistance of counsel is not whether counsel pursued every possible defense; the test is

whether the defense chosen was objectively reasonable. Strickland. A reviewing court

may not second-guess decisions of counsel which can be considered matters of trial

strategy. State v. Smith,

,

(1985). Debatable strategic

and tactical decisions may not form the basis of a claim for ineffective assistance of

counsel, even if, in hindsight, it looks as if a better strategy had been available. State v.

Cook,

,

(1992).

{¶ 68} Initially, we note that defense counsel’s decision to stipulate to the gunshot [Cite as State v. Ropp,

.]

residue report did not amount to ineffective assistance because the report would have

been admissible evidence regardless of the stipulation. Defense counsel’s decision to

enter into the stipulation was a “tactical decision” that fell “ ‘within the wide range of

reasonable professional assistance.’ ” State v. Green,

,

(1993), quoting

. Furthermore, the stipulation was ostensibly part

of a reasonable trial strategy to bolster Ropp’s credibility, so that the jury would focus on

his testimony denying his involvement in the charged offenses. Specifically, Ropp

testified at trial that he, his father, and his son had been shooting rifles from inside the

vehicle on the day before the shooting at Ervin’s property, thereby explaining the

presence of gunshot residue on Ropp’s person.

{¶ 69} With respect to counsel’s failure to object to the characterization of the metal

fragment as a bullet, it also did not amount to ineffective assistance. At trial, it was

basically undisputed that someone discharged a firearm near Ervin’s residence and

vehicles. Ropp’s defense at trial was that, although he was initially present on Ervin’s

property when Ervin arrived home on the morning of August 21, 2017, he did not return

to the scene of the shooting after leaving the first time and was therefore not the shooter.

Since Ropp claimed that he was not the shooter, he was not prejudiced by the State’s

characterization of the metal fragment as a bullet.

{¶ 70} Having already found that the verdict forms issued by the trial court and

signed by the jurors were not defective, counsel’s failure to object to the forms it did not

amount to ineffective assistance.

{¶ 71} We also find that counsel did not render ineffective assistance when he

failed to object to the trial court’s jury instruction regarding public roads. The definition [Cite as State v. Ropp,

.]

used in the jury instructions contained standard Ohio Jury Instruction language and was

otherwise proper. Furthermore, other than referring to the public road instruction as

“faulty,” Ropp provides no explanation regarding why the instruction was improper.

{¶ 72} Further, defense counsel was not ineffective for failing to argue in closing

that the road where the shooting occurred was not public. At trial, evidence was adduced

that Ervin’s residences were located on Archer Street, a roadway used by the public in

Rosewood, Ohio. In our view, it would have been a futile act for defense counsel to

argue in closing that Archer Street was not a public road. Furthermore, Ropp’s defense

at trial was that he was not the shooter, so whether the shooting occurred on a public

road was not critical to his defense.

{¶ 73} We also conclude that the failure of defense counsel to make a Crim.R. 29

motion at trial did not amount to ineffective assistance. There was no reasonable

possibility that a Crim.R. 29 motion would have made any difference. Crim.R. 29(A) states

that a court shall enter a judgment of acquittal “if the evidence is insufficient to sustain a

conviction” for the charged offense. On this record, the failure to make Crim.R. 29

motions was not prejudicial, because there was sufficient evidence of the crimes charged.

In the absence of prejudice, an ineffective assistance of counsel argument is without

merit.

{¶ 74} We further find that counsel was not ineffective in not filing a motion or

arguing in the trial court that R.C. 2923.16(B)(1) was unconstitutional. In our analysis of

Ropp’s sixth assignment of error, we noted that R.C. 2923.16(B)(1) does not

constitutionally infringe on an individual's right to bear arms. King, 2d Dist. Montgomery

No. 24141,

. Therefore, it would have been a futile act for [Cite as State v. Ropp,

.]

defense counsel to argue the unconstitutionality of R.C. 2923.16(B)(1).

{¶ 75} As previously stated, Jonathan Jester testified that while riding his bicycle

on Church Street and Archer Street near where Ervin lived, he observed Ropp driving a

white Chevy pickup truck and pointing a rifle out of the driver’s side window. Jester

testified that he had known Ropp for a few years prior to the shooting. Jester also

testified that his father had gone to school with Ropp. Upon seeing the barrel of the rifle

pointing out of the window of the truck, Jester quickly left the scene and went back to his

nearby residence. Jester testified that shortly after arriving at his house, he heard a

gunshot.

{¶ 76} Upon review, we conclude that defense counsel’s cross-examination of

Jester was more than adequate. The record establishes that defense counsel was able

to elicit from Jester where he first observed Ropp prior to the shooting. Defense counsel

also elicited where Jester was in relation to Ropp and how Jester was able to identify

Ropp through the rear window of the truck. There were no apparent inconsistencies in

Jester’s testimony, and further cross-examination of Jester regarding his exact location

when he observed Ropp on the morning of the shooting would not have made much

difference.

{¶ 77} The extent and scope of cross-examination clearly falls within the ambit of

trial strategy, and debatable trial tactics do not establish ineffective assistance of counsel.

State v. White, 2d Dist. Montgomery No. 26093,

. We cannot say

that defense counsel’s cross-examination of Jester was objectively unreasonable.

{¶ 78} Ropp’s seventh and final assignment of error is overruled.

{¶ 79} In light of the foregoing, this matter is remanded for the limited purpose of [Cite as State v. Ropp,

.]

the issuance of a nunc pro tunc entry to reflect that Count IV was a felony of the third

degree. In all other respects, the judgment of the trial court is affirmed.

.............

FROELICH, J., concurs.

HALL, J., concurs:

{¶ 80} I concur with the resolution of this case. I write separately in regard to

paragraph 30, which references “two apparently little-recognized cases” in support of the

idea that failure to raise a Crim.R. 29 motion at trial does not waive ordinary appellate

review of a sufficiency-of-the-evidence challenge. In my opinion, those cases are “little-

recognized” because they should not be used to support the premise, despite the fact

that several districts have quoted and analyzed them in regard to waiver of a sufficiency

of the evidence argument by failing to raise a Crim.R. 29 motion at trial. Rather, I believe

we should adhere to the time-honored notion that failure to make a Crim.R. 29 motion in

a jury trial waives sufficiency review on appeal except for plain error. State v. Roe,

,

(1989); Dayton v. Rogers,

,

(1979).1 Neither of these cases has been expressly overruled, and until

they are I think they should be followed.

{¶ 81} The “little-recognized” cases are Jones,

,

and Carter,

,

. Jones cites Carter for the

proposition that “Appellant’s ‘not guilty’ plea preserved his right to object to the alleged

1 Rogers was overruled on other grounds by State v. Lazzaro,

,

(1996). [Cite as State v. Ropp,

.]

insufficiency of the evidence proving the prior offense.” Jones at 346, citing

.

It appears the initial “two apparently little-recognized cases” iteration is found in State v.

Coe,

,

,

(4th Dist.). The

“apparently little-recognized” phrase and the cited cases have since been addressed in

at least nine cases in the Fourth District and in three other districts. Because Jones relies

on, and cites to, Carter, Carter is where to start.

{¶ 82} Clarence Carter had been found guilty of a prior aggravated murder on

December 9, 1988 and was awaiting sentencing in the Hamilton County jail. On

December 28, Carter struck and kicked fellow inmate Johnny Allen multiple times,

necessitating Allen’s hospitalization. On January 5, 1989, Carter was sentenced to life

imprisonment for the original aggravated murder. On January 11, 1989, Allen died as a

result of Carter’s assault. Carter was then convicted of Allen’s aggravated murder with

death penalty specifications. The second death penalty specification alleged a prior

conviction for murder: “[p]rior to the offense at bar, the offender was convicted of an

offense an essential element of which was the purposeful killing of * * * another * * *.”

That specification was tried to the court and not the jury.

{¶ 83} On appeal, Carter argued that his first conviction was not final until he was

sentenced on January 5, which was after he beat Johnny Allen, so he did not have a prior

conviction. The Ohio Supreme Court agreed that the first conviction was not final until

January 5. But it also concluded that the finding of a prior conviction was appropriate

because Allen did not die until January 11, and the subsequent aggravated murder

charge had not matured and had not existed until Allen’s death. Consequently, the date

of the beating was not dispositive of whether there was a prior murder conviction. It was [Cite as State v. Ropp,

.]

the date of death that mattered.

{¶ 84} In Carter, there was no mention of whether a Crim.R. 29 motion was made

either at the close of the State’s case or after all the evidence. A reading of the court of

appeals’ decision in the case reveals trial counsel most likely did not raise the prior-

conviction issue at trial because an ineffective-assistance-of-counsel assignment of error

addressing that error of counsel had been raised. State v. Carter, 1st Dist. Hamilton No.

C-890513,

, *3 (Feb. 13, 1991). In the Ohio Supreme Court, the terse

reference to waiver of the date of the prior-offense issue was as follows: “We find waiver

inapplicable even though counsel failed to raise this point at trial. Carter’s not guilty plea

preserved his right to object to the alleged insufficiency of the evidence proving this prior

conviction.” Carter,

.

{¶ 85} In Jones,

,

, Odraye G. Jones was

wanted for aggravated robbery. A week before his capture, he told his cousin that he “was

going to shoot at the police if they ever tried to arrest him.”

. Ashtabula police

officer William Glover found Jones and beckoned to him. Jones fled and Glover chased.

Jones fired shots at Glover, who fell to the ground. Jones continued to flee but then

returned where Glover was lying and kicked him with such force it left a large bruise on

his chest. In a short while, Jones was apprehended by other officers. Glover had gunshot

wounds to the top of his head, just below his right eye, and his shoulder. He died the next

morning.

{¶ 86} Jones was charged with the aggravated murder of Glover with prior

calculation and design, including four death specifications. Two of the specifications, one

for killing for the purpose of escaping apprehension for his earlier aggravated robbery [Cite as State v. Ropp,

.]

offense and the second for knowingly and purposefully causing the death of a law-

enforcement officer, were submitted to the jury, which recommended death. The trial

court concurred.

{¶ 87} On appeal, it appears that Jones’ defense expanded a sufficiency argument

it apparently had made at trial, on other grounds, to include whether the specification that

the murder was committed for the purpose of escaping apprehension for another offense

committed by the offender must include proof that the other prior offense was in fact

committed. The State maintained that Jones had waived that issue by failing to raise it at

trial. Citing Carter, the Ohio Supreme Court disagreed, finding that Jones’s not-guilty plea

preserved his right to object to the alleged insufficiency of the evidence proving the prior

offense. Id. at 346. The Jones court then determined that there was sufficient evidence

presented to conclude that Jones had committed the prior aggravated robbery for which

he was wanted. His conviction and death penalty were affirmed.

{¶ 88} I find it interesting to note that Carter, in which the death-penalty

specification challenged on appeal was tried to the court, is consistent with the Ohio

Supreme Court’s prior holding in Dayton v. Rogers,

,

,

above, in which the court addressed the necessity of a Crim.R. 29 motion as follows:

The purpose of a motion for judgment of acquittal is to test the

sufficiency of the evidence and, where the evidence is insufficient, to take

the case from the jury. In the non-jury trial, however, the defendant’s plea

of not guilty serves as a motion for judgment of acquittal, and obviates the

necessity of renewing a Crim.R. 29 motion at the close of all the evidence.

See the following cases decided under the analogous Fed.R.Crim.P. 29: [Cite as State v. Ropp,

.]

Hall v. United States (C.A.5, 1961),

, certiorari denied,

,

,

; United States v. Besase

(C.A.6, 1967),

; United States v. Pitts (C.A.5, 1970),

, certiorari denied,

,

,

. See also, 8A Moore’s Federal Practice, Paragraphs 29.01 et seq.

Id. at 163.

{¶ 89} In light of Rogers and the specific circumstances of Carter, the holding of

Carter is that a Crim.R. 29 motion is not necessary to raise on appeal an issue that was

tried to the court. Therefore, the Jones citation to Carter, for the proposition that a

Crim.R. 29 motion is not necessary to preserve a sufficiency-of-the-evidence argument

on appeal, without analysis and without reference to Rogers, is a misstep in a jury-trial

analysis. In addition, despite the Jones/Carter citations, eight of Ohio’s appellate districts,

including the Second District, continue to cite Rogers as authority for the proposition that

failure to make a Crim.R. 29 motion at jury trial waives a sufficiency challenge on appeal

except for plain error review.2

{¶ 90} In my opinion, the determining rationale for following Dayton v. Rogers and

requiring a Crim.R. 29 motion before a case is submitted to a jury to preserve a sufficiency

argument on appeal (except for plain error) is that process matters. If sufficiency can be

raised at any time, under any circumstances, then Crim.R. 29, and particularly section (A)

of that rule, which provides “[t]he court may not reserve ruling on a motion for judgment

of acquittal made at the close of the state’s case,” would have no purpose and no

2 For a collection of such cases, see State v. Hardman,

,

, ¶ 34 (8th Dist.). [Cite as State v. Ropp,

.]

meaning. Moreover, addressing issues in the trial court is fundamental for perhaps having

the record clarified or for allowing the State to request re-opening to solidify a technical

inadequacy. If making a Crim.R. 29 motion at trial does not matter, then trial practice

education would shift to a recommendation that a Crim.R. 29 motion should never be

made for fear that a record could be clarified or corrected, or the trial court might allow re-

opening, rather than raising an error for the first time on appeal after the horse is out of

the barn. Finally, with respect to analogous Fed. R. Civ. P. 29, federal courts consistently

have held the failure to make a motion for judgment of acquittal at trial waives a sufficiency

challenge on appeal except for “manifest miscarriage of justice.” See, e.g., U.S. v. Tragas,

(6th Cir. 2013). That is similar to the plain-error review that I believe

should apply in Ohio when no Crim.R. 29 motion is made in a jury trial.

Copies sent to:

Jane A. Napier Richard L. Kaplan Hon. Nick A. Selvaggio