[Cite as State v. Passmore,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

STATE OF OHIO, CASE NO. 5-22-39 PLAINTIFF-APPELLEE,

v.

DOMINIC I. PASSMORE, OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court Trial Court No. 2022-CR-00011

Judgment Affirmed

Date of Decision: September 11, 2023

APPEARANCES:

Anthony J. Richardson for Appellant

Phillip A. Riegle for Appellee Case No. 5-22-39

WILLAMOWSKI, J.

{¶1} Defendant-appellant Dominic I. Passmore (“Passmore”) appeals the

judgment of the Hancock County Court of Common Pleas, alleging his conviction

is not supported by sufficient evidence; that his conviction is against the manifest

weight of the evidence; that the trial court improperly imposed financial sanctions;

that he was denied his right to a fair trial; that he did not receive the effective

assistance of counsel; and that the trial court erred by imposing consecutive

sentences. For the reasons set forth below, the judgment of the trial court is

affirmed.

Facts and Procedural History

{¶2} On the evening of December 18, 2021, Latasha Jaquez (“Jaquez”) went

to the house of her friend, Brittney Tate (“Tate”), to celebrate Tate’s birthday.

Another one of Tate’s friends, Sonia Bair (“Bair”), was also present. They decided

to go to a local bar to have some drinks. On their way, Bair drove Jaquez and Tate

to a nearby Circle K gas station in Findlay, Ohio because they wanted to purchase

some cigarettes. Bair pulled into the gas station parking lot at roughly 12:45 A.M.

on December 19, 2021.

{¶3} Jaquez, Tate, and Bair exited the vehicle and went into the gas station

store. While Jaquez was at the counter selecting her cigarettes, Tate and Bair went

over to a nearby automatic teller machine to withdraw some cash. At some point,

Passmore got in line behind her. Jaquez testified that Passmore was making some

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comments to her but that she ignored him. Tate then told Passmore to stop making

comments to Jaquez. Passmore called Tate a “b***h.” (Tr. 261). Tate responded

by saying, “I don’t care. We’re from Findlay. We’re classy, not Trashy.” (Tr. 261).

Tate and Passmore continued to exchange words with the intensity of this discussion

escalating very quickly.

{¶4} Jaquez turned her head towards Passmore in time to see him “push her

[Tate] in the face * * *.” (Tr. 262). Jaquez told them to stop. She then turned

towards the clerk behind the counter, Stephen LaRue (“LaRue”), for the purpose of

asking him to call 9-1-1. At this moment, she felt Passmore grab onto her head with

both of his hands before he slammed her head down into the counter. After the top

portion of her skull made contact with the counter, Jaquez fell to the ground with

her head hitting the floor.

{¶5} Unable to stand, Jaquez crawled behind the counter where she begged

LaRue to call 9-1-1. She testified that she was bleeding and “very dizzy.” (Tr. 265).

She also stated that her “vision was bouncing back and forth.” (Tr. 265). Passmore

then left the store with two other people who had come with him. They got into a

red pickup truck and drove away. By this point, LaRue had called 9-1-1 to request

police and emergency medical assistance.

{¶6} Officer Noah Burkholder (“Officer Burkholder”) of the Findlay Police

Department arrived on the scene before Emergency Medical Services (“EMS”).

When he entered the store, he noticed blood and hair on the floor. He also noticed

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that the store was in “disarray” with “[t]he displays ha[ving] been knocked over,

and * * * items everywhere.” (Tr. 351). At that time, Jaquez was sitting on the

floor with a “towel * * * covered in blood * * * on her head” and “was very

disoriented.” (Tr. 351). She appeared to either be “losing consciousness, or maybe

just regaining consciousness * * *.” (Tr. 351).

{¶7} Sensing that Jaquez might have a concussion, Officer Burkholder “took

control of the towel” pressed against her head and “tried to hold her head * * * still

* * * to help protect her neck and her spine from any further injury.” (Tr. 352).

EMS arrived at roughly 1:15 A.M. After dressing her head wound and fitting a C-

Collar around her neck, EMS took Jaquez out of the store on a stretcher and

transported her to the emergency room at Blanchard Valley Hospital. Jaquez had

seven staples put into her head to close her laceration. She also had a concussion.

{¶8} Shortly after the altercation at Circle K, Patrolman Joshua Scharp

(“Patrolman Scharp”) received a report from dispatch that several individuals

potentially involved in the incident were fleeing from the scene in a red pickup

truck. Within roughly ten seconds of receiving this dispatch, he saw a vehicle

matching this description leaving Circle K and initiated a traffic stop. Three people

were inside the pickup truck. Passmore was sitting in the back seat. The other two

passengers were Passmore’s brother and sister.

{¶9} After Patrolman Scharp approached the vehicle, he asked the occupants

to identify themselves. Passmore stated that his name was Dequan Thomoson.

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Patrolman Scharp then asked about the incident that occurred in Circle K. He

testified that Passmore responded by saying that a “female was talking shit” and that

“he didn’t like it and a fight broke out.” (Tr. 391). Passmore also indicated that this

female, later identified as Tate, “pushed him, and he pushed her away from him.”

(Tr. 395). Shortly thereafter, Passmore was taken into custody.

{¶10} On January 1, 2022, he was indicted on one count of felonious assault

in violation of R.C. 2903.11(A)(2), a felony of the second degree. A jury trial was

held on October 31, 2022 and November 1, 2022. Passmore testified in his own

defense. The jury then returned a verdict of guilty on the count of felonious assault.

Passmore was then sentenced on November 28, 2022.

{¶11} Passmore filed his notice of appeal on December 15, 2022. On appeal,

he raises the following six assignments of error:

First Assignment of Error

Is there sufficient evidence to hold that appellant, Mr. Passmore, committed felonious assault, which is a crime fit for a shooting, where there was no evidence he intended to harm the alleged victim, and no evidence his actions caused incapacitation or the like to be considered serious harm akin to shooting? Appellant urges this reviewing court to assess the record and reverse the matter, there holding that there is insufficient evidence of the necessary mens rea and element of serious harm.

Second Assignment of Error

Did the jury lose its way when finding that appellant, Mr. Passmore, committed felonious assault, which is a crime for a shooting, where there is no evidence his actions caused incapacitation, or the like, to be considered serious harm akin to

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a shooting? Appellant urges this reviewing court to assess the record and reverse the matter, there holding the jury lost its way in finding appellant acted with the necessary mens rea and/or caused serious harm.

Third Assignment of Error

Did R.C. 2929.19(B) require a stated finding by the trial court, or a minimum support in the record, that appellant has or had the means to pay financial sanctions imposed under R.C. 2929.18(A)(4), before the trial court imposed such financial sanctions? Appellant urges this reviewing court to assess the record and reverse the matter, there holding that the trial court must engage in an analysis and make a finding at the sentencing hearing and/or in the sentencing entry, or at minimum have support for such finding, before imposing a financial sanction under R.C. 2929.18, as contemplated in R.C. 2929.19(B)(5).

Fourth Assignment of Error

Should the prosecution be allowed to intentionally ignore and violate the appellant’s right to a fair trial, even against admonition of the trial court, when the violation and ignoring of the admonition resulted in the jury hearing an extremely prejudicial and speculative statement that, single handedly, could have resulted in the jury finding appellant intended to seriously harm the alleged victim? Appellant urges this reviewing court to assess the record and reverse the matter, there holding that appellant was deprived of a fair trial when the prosecution violated his right to by intentionally offering a statement, against court order, that on its lonesome would suffice to find the mens rea element.

Fifth Assignment of Error

Is it effective assistance of counsel to stipulate to highly prejudicial evidence and in essence waive all rights and arguments related to and under Evid.R. 609, in an effort to mitigate at or streamline trial, where that strategy falls below a reasonable standard of care causing a guilty verdict, when considering appellant requested a jury trial of peers who did not

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have sufficient instruction or opportunity to fairly judge his actions on the occasion for which he was charged without holding his past violent crime against him or treating the evidence as character evidence? Appellant urges this reviewing court to assess the record and reverse the matter, there holding trial counsel’s strategy fell below a reasonable standard of care by employing an obvious, losing strategy, and the outcome would have been different in that appellant would not have been found guilty and sentenced.

Sixth Assignment of Error

Should consecutive sentences be imposed where the record does not support that all the findings related to R.C. 2929.14, were supported in the record with competent, credible evidence? Appellant urges this reviewing court to assess the record and reverse the matter, there holding that consecutive sentences were inappropriate under the law.

First Assignment of Error

{¶12} Passmore asserts that his conviction for felonious assault is not

supported by sufficient evidence, arguing that the State failed to produce evidence

that he intended to cause serious physical harm to Jaquez.

Legal Standard

{¶13} “A challenge to the sufficiency of the evidence supporting a

conviction requires a court to determine whether the state has met its burden of

production at trial.” In re Swift, 8th Dist. Cuyahoga No. 79610,

, ¶

19. This “analysis addresses the question of whether adequate evidence was

produced for the case to be considered by the trier of fact and, thus, whether the

evidence was ‘legally sufficient to support the verdict * * *.’” State v. Barga, 3d

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Dist. Shelby No. 17-17-14,

, quoting State v. Worthington, 3d

Dist. Hardin No. 6-15-04,

.

{¶14} An appellate court is not to examine whether the evidence presented

should be believed but should rather “examine the evidence admitted at trial to

determine whether such evidence, if believed, would convince the average mind of

the defendant’s guilt beyond a reasonable doubt.” State v. Johnston, 3d Dist. Logan

No. 8-13-10,

, quoting State v. Jenks,

,

(1991), superseded by state constitutional amendment on other

grounds, State v. Smith,

,

,

(1997).

On appeal, the applicable standard

is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt.

State v. Brown, 3d Dist. Hancock No. 5-17-19,

, quoting State

v. Plott,

,

, ¶ 62 (3d Dist.).

{¶15} To establish a conviction for the offense of felonious assault in

violation of R.C. 2903.11(A)(1), the State must prove that the defendant knowingly

* * * cause[d] serious physical harm to another * * *.” R.C. 2903.11(A)(1). “A

person acts knowingly, regardless of purpose, when the person is aware that the

person’s conduct will probably cause a certain result or will probably be of a certain

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nature.” R.C. 2901.22(B). Further, R.C. 2901.01(A)(5) defines “serious physical

harm to persons” as including the following:

(a) Any mental illness or condition of such gravity as would normally require hospitalization or prolonged psychiatric treatment;

(b) Any physical harm that carries a substantial risk of death;

(c) Any physical harm that involves some permanent incapacity, whether partial or total, or that involves some temporary, substantial incapacity;

(d) Any physical harm that involves some permanent disfigurement or that involves some temporary, serious disfigurement;

(e) Any physical harm that involves acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.

R.C. 2901.01(A)(5). “The Ohio Supreme Court has held that one can infer from the

defendant’s action under the circumstances whether the defendant possessed an

intent to cause serious physical harm.” State v. Ross, 2d Dist. Montgomery No.

20031,

, citing State v. Seiber,

,

(1990).

Legal Analysis

{¶16} On appeal, Passmore first argues that the State did not produce

evidence that Jaquez suffered serious physical harm. However, during his trial

testimony, Passmore affirmed that his “actions caused serious physical harm to

Latasha [Jaquez.]” (Tr. 456). Further, the State introduced evidence that was

consistent with Passmore’s admission. Officer Burkholder testified that, when he

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arrived at Circle K, Jaquez appeared to be having symptoms of a concussion and

that he was holding a towel to her head because she had been bleeding. He stated

that Jaquez told him “that she had hit her head, and that she thought she lost

consciousness.” (Tr. 352). He further testified that Jaquez “was nodding off or

losing consciousness or maybe just regaining consciousness, like she was very

disoriented.” (Tr. 351).

{¶17} Paramedic Kevin Kozel (“Kozel”) testified that he was involved in

treating Jaquez. Kozel stated that she had an elevated heart rate and blood pressure

levels. Another EMS first responder, Diane Pack (“Pack”), testified that she

observed a laceration on Jaquez’s head that was “significantly deep” and was

informed that Jaquez had lost consciousness. (Tr. 307). Pack testified that she

helped place a C-Collar around Jaquez’s neck to stabilize her and that Jaquez had

to be carried out of Circle K on a stretcher.

{¶18} Jaquez testified that, after her head struck the counter, she hit the

ground and could not initially move her body. She could not stand up, was dizzy,

and was having issues with her vision. At the hospital, seven staples were put into

her head to close the laceration. Jaquez testified that she had trouble with dizziness,

nausea, and balance for around one month after the incident, causing her to seek

follow up treatment from her doctor. She also reported that she had a concussion

and that she still experienced numbness in the affected area of her skull at the time

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of trial. The State introduced Jaquez’s medical records and pictures of her injuries

to corroborate these statements.

{¶19} From this evidence, a rational trier of fact could conclude that Jaquez

sustained serious physical harm from having her head slammed into the counter at

Circle K. See State v. Burks, 3d Dist. Seneca No. 13-05-36,

, ¶ 19-

20 (concluding evidence that the victim sustained a concussion was sufficient to

establish serious physical harm); State v. Battles, 8th Dist. Cuyahoga No. 109265,

; State v. Long,

,

, ¶ 57 (11th

Dist.). Thus, this first argument is without merit.

{¶20} Second, Passmore asserts the State did not establish that he “acted with

the awareness” that his actions would cause Vaquez to be injured. Appellant’s

Brief, 12. However, Jaquez testified that Passmore grabbed both sides of her head

with his hands and then slammed her head onto the counter. She described his

actions as “bash[ing]” her “head into the counter.” (Tr. 289). Jaquez stated that she

then fell to the ground and was unable to stand back up.

{¶21} Bair similarly testified that Passmore grabbed Jaquez’s head and

“slammed” her head “straight back” onto the counter. (Tr. 371). She then stated

that she heard a “thud” when Jaquez’s head hit the floor and that her body began

shaking. (Tr. 371). During his testimony, Passmore admitted that both of his hands

were on Jaquez’s head and that he “forcibly push[ed]” her “face first” down into the

counter. (Tr. 465). He also stated, “I pushed her as hard as I possibly could, because

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I was trying to get her away from me. And so my momentum brought us into the

counter.” (Tr. 447).

{¶22} The undisputed evidence presented at trial indicates that Passmore

grabbed Jaquez’s head with both of his hands and forcefully slammed her skull into

the counter “as hard as * * * [he] possibly could * * *.” (Tr. 447). He acted with

such force that Jaquez reportedly lost consciousness, fell to the floor, and sustained

a concussion. State v. Beaver, 3d Dist. Union No. 14-13-15,

,

(“Punching someone in the face satisfies the requisite culpable mental state for

felonious assault * * *.”); State v. Vanover, 4th Dist. Lawrence No. 98CA38,

, *5, (May 18, 1999) (“[T]he mere act of punching someone in the head

area carries with it the risk of causing serious physical harm.”); State v. Lloyd, 8th

Dist. Cuyahoga No. 109128,

(holding that “a single punch to

the head or face can support a conviction for felonious assault”).

{¶23} Viewing the evidence in a light most favorable to the prosecution, we

conclude that a reasonable trier of fact could conclude that Passmore acted with the

requisite intent to commit felonious assault. Serious physical harm—in this case, a

deep laceration and concussion—was a “natural and logical consequence[]” of

Passmore’s conduct. Lloyd at ¶ 57. See State v. Higgins, 9th Dist. Summit No.

26120,

(To act knowingly, “it is only necessary that the

serious physical harm is a ‘reasonable and probable’ result of his action.”). Thus,

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his second argument herein is without merit. Accordingly, Passmore’s first

assignment of error is overruled.

Second Assignment of Error

{¶24} Passmore argues that his conviction for felonious assault is against the

manifest weight of the evidence.

Legal Standard

{¶25} The manifest weight of the evidence analysis examines whether the

State has carried its burden of persuasion at trial. State v. Wilson,

,

(3d Dist.). In this process, “an appellate court’s function * *

* is to determine whether the greater amount of credible evidence supports the

verdict.” State v. Harvey, 3d Dist. Marion No. 9-19-34,

,

quoting

. Accordingly, an “appellate court sits as a ‘thirteenth

juror’ * * *.”

, quoting Thompkins, supra, at 388.

Appellate courts “must review the entire record, weigh the evidence and all of the reasonable inferences, consider the credibility of witnesses, and determine whether in resolving conflicts in the evidence, the factfinder ‘clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.’”

State v. Randle,

,

(3d Dist.), quoting Plott at ¶

73, quoting Thompkins at 387.

{¶26} “A reviewing court must, however, allow the trier of fact appropriate

discretion on matters relating to the weight of the evidence and the credibility of the

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witnesses.” State v. Sullivan,

,

(3d Dist.),

quoting State v. Coleman, 3d Dist. Allen No. 1-13-53,

. “Only

in exceptional cases, where the evidence ‘weighs heavily against the conviction,’

should an appellate court overturn the trial court’s judgment.” State v. Little, 2016-

Ohio-8398,

, ¶ 27 (3d Dist.), quoting State v. Hunter,

,

,

, ¶ 119.

Legal Analysis

{¶27} Passmore first argues that the conclusion that Jaquez suffered serious

physical harm in this case is against the manifest weight of the evidence. However,

at trial, Passmore did not dispute that Jaquez had suffered serious physical harm.

Further, Jaquez testified that she had a concussion; received seven staples to close

the laceration in her head; and still had symptoms related to this injury at the time

of the trial. Kozel, Pack, and Officer Burkholder also testified about the nature and

extent of Jaquez’s injuries. The State introduced pictures of Jaquez’s injuries and

copies of her medical records at trial. Given this evidence, we cannot conclude that

the evidence in the record weighs more heavily against the finding that Jaquez

suffered serious physical harm.

{¶28} Passmore next argues that the conclusion that he acted with the intent

required for a felonious assault conviction is against the manifest weight of the

evidence. At trial, Jaquez testified that Passmore grabbed her head with both of his

hands and then slammed her skull against the counter. During his testimony,

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Passmore admitted that he put both of his hands on Jaquez’s head and pushed her

head down. He testified that he “pushed her as hard as [he] * * * possibly could *

* *.” (Tr. 447). However, Passmore also testified that he did not intend to slam

Jaquez’s head into the counter and that he only meant to push her away. The jury

heard this testimony and watched the security camera footage of this altercation.

Having reviewed the same materials, we cannot conclude that the evidence in the

record weighs more heavily against the conclusion that Passmore acted with the

intent required to commit felonious assault.

{¶29} Finally, Passmore argues that the conclusion that he did not act in self-

defense was against the manifest weight of the evidence. Under Ohio law, if the

defendant carries the burden of producing evidence that tends to establish that he or

she acted in self-defense, the State then bears the burden of persuasion in

establishing that the defendant did not use force in self-defense. State v. Grant,

, --- N.E.3d ---, ¶ 68 (3d Dist.). Thus, the State must “disprove at

least one of the elements of self-defense beyond a reasonable doubt.” State v.

Carney, 10th Dist. Franklin No. 19AP-402,

.

Self-defense through the use of non-deadly force is present where: ‘(1) the accused was not at fault in creating the situation giving rise to the affray, (2) the accused (even if mistaken) had a bona fide belief that he was in imminent danger of any bodily harm; and (3) the only means to protect himself from such danger was the use of force not likely to cause death or great bodily harm.’

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State v. Eddy, 3d Dist. Allen No. 1-22-17,

, quoting State v.

Chavez, 3d Dist. Seneca Nos. 13-19-05, 13-19-06, and 13-19-07,

. “The elements of self-defense are cumulative, and a defendant’s claim of self-

defense fails if any one of the elements is not present.” State v. Ridley, 1st Dist.

Hamilton No. C-210458,

.

{¶30} As to the first element of self-defense, “Ohio courts have long

recognized that a person cannot provoke [an] assault or voluntarily enter an

encounter and then claim a right of self-defense.” State v. Woodson, 6th Dist. Lucas

No. L-21-1068,

, quoting State v. Nichols, 4th Dist. Scioto

No. 01CA2775,

, *3 (Jan. 22, 2002). We turn to examining the

circumstances leading up the physical altercation in this case.

{¶31} Jaquez testified that, while she was in line to buy cigarettes at Circle

K, Passmore was making comments to her, but she ignored him. At this point, Tate

positioned herself in between Jaquez and Passmore. Jaquez testified that Tate then

asked Passmore to stop making these comments. At this point, Tate and Passmore

began to argue. Jaquez turned towards these two telling them to stop arguing.

Passmore eventually called Tate a “b***h” and then pushed Tate in the face. (Tr.

262).

{¶32} Jaquez testified that she then turned to tell LaRue to call 9-1-1.

However, at this moment, Passmore grabbed her with both hands and slammed her

head against the counter. Jaquez testified that she never grabbed Passmore but was

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scared of him based on his actions. She stated that she did not approach him from

behind; that she did not touch him; and that she did not try to touch him. She further

clarified that when she turned to tell them to stop arguing that she was at Passmore’s

side, not behind him.

{¶33} Bair was the designated driver for Tate’s birthday party on the night

of the incident and testified that she had only consumed half of a beer that night.

Bair was inside Circle K at the time of the incident and gave the following account

of what transpired:

He [Passmore] pushed Brittney [Tate] in her face, said something to Latasha [Jaquez]. I did not hear that. And Brittney said, you’re not going to talk to my friend that way. And so they were arguing, and then Latasha said something back. And at that point then is when he grabbed Latasha and slammed her head on the floor.

(Tr. 370). She affirmed that she did not “ever see Latasha physically fight with the

Defendant[.]” (Tr. 370). Similarly, LaRue affirmed that he did not see Jaquez “do

anything threatening to [Passmore.]” (Tr. 241).

{¶34} During his testimony, Passmore stated that Tate moved closer to him

as they were arguing and that he believed her to be intoxicated. He then remembers

Tate “rushing towards” him. (Tr. 445). He testified that he pushed her in response.

At this point, his sister got involved in the struggle with Tate. Passmore testified

that he then felt Jaquez on his back. (Tr. 446). In response, he grabbed her and

“pushed her as hard as [he] * * * possibly could * * *.” (Tr. 447). He stated that

he did not intend to hit her head on the counter. He further stated that he “pushed

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Latasha [Jaquez] initially, because * * * [he] felt like she was going to harm” him.

(Tr. 449). On cross-examination, Passmore testified that he did not recall whether

he told the police that Jaquez had put her hands on him.

{¶35} Next, “[t]he second element of a self-defense claim is a combined

subjective and objective test.” State v. Hunt, 8th Dist. Cuyahoga No. 111892, 2023-

Ohio-1977, ¶ 26. Thus, “self-defense ‘is placed on the grounds of the bona fides of

defendant’s belief, and reasonableness therefor, and whether, under the

circumstances, he exercised a careful and proper use of his own faculties.’” State

v. Thomas,

, 330,

,

, quoting State

v. Sheets,

,

(1926). “Part of this entails showing

that the defendant used ‘only that force that is reasonably necessary to repel the

attack.’” State v. Ray, 12th Dist. Butler,

,

, ¶ 30,

quoting State v. Bundy,

,

, ¶ 55 (4th Dist.).

{¶36} At trial, Passmore testified that, when he was in the parking lot of

Circle K, he told his sister that they needed to lock the truck because a person could

rob it in seven seconds. Tate was nearby and said she would only need two seconds.

Passmore reported that his interaction with Tate resumed when he was in line in

front of the counter. He stated that Tate said, “I got n****z for you.” (Tr. 442).

Passmore testified that he interpreted this to mean that she was “going to call

somebody up here to kill me.” (Tr. 442). He also testified that he did not see any

weapons in her possession.

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{¶37} On cross-examination, he stated he did not report his interaction with

Tate in the parking lot to the police. He also admitted that he reported that Tate

made him “uncomfortable” and did not report that he was “scared” of her. (Tr. 478).

He also affirmed that he told the police that Tate was “talking sh*t to [him]”; that

this was disrespectful; and that he “didn’t like that * * *.” (Tr. 478). While he had

previously stated that Tate had made comments that led him to believe she might

call someone to beat him, Passmore also admitted that he did not remember whether

Tate had a phone readily available to use for this purpose. He also testified that he

did not see Tate or Jaquez with any weapons.

{¶38} Passmore testified that he grabbed Jaquez’s head with both of his

hands and pushed her as hard as he could. Bair and LaRue stated that Jaquez was

slammed against the counter. Both of them testified that Jaquez did not physically

engage or threaten Passmore in the lead up to her injury. After the incident,

Passmore further admitted that he fled the scene and lied about his name to the

police. His explanation for this behavior was that he wanted to “[g]et away from

those women” and that he wanted to avoid the legal issues this incident would cause

for him given he had an outstanding warrant for his arrest in Michigan. (Tr. 473).

{¶39} In summary, Passmore’s account of what transpired conflicts at points

with the testimony that was provided by the State’s witnesses. However, “[a]

conviction is not against the manifest weight of the evidence merely because there

is conflicting evidence before the trier of fact.” State v. Jackson, 12th Dist. Butler

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No. CA2001-10-239,

, ¶ 48. Jaquez testified that Passmore began

interacting with her by making comments that she chose to ignore. She also testified

that she did not threaten or make physical contact with Passmore before she was

assaulted. Bair and LaRue’s testimony was in agreement with Jaquez on this point.

Further, Passmore was not able to explain how slamming Jaquez’s head into the

counter was a proportional response to Tate’s purportedly belligerent attitude or was

necessary to defend himself in any way.

{¶40} Having examined the evidence in the record, we cannot conclude that

the evidence weighs more heavily against Passmore’s conviction for felonious

assault. Further, we also find no indication that the jury lost its way and returned a

verdict against the manifest weight of the evidence by concluding that Passmore did

not act in self-defense. Accordingly, Passmore’s second assignment of error is

overruled.

Third Assignment of Error

{¶41} Passmore argues that the trial court erred in ordering him to pay the

costs of prosecution and the fees listed in R.C. 2929.18(A)(4) without first

considering his ability to pay these costs.

Legal Standard

{¶42} R.C. 2947.23(A)(1)(a) states that, “[i]n all criminal cases, * * * the

judge or magistrate shall include in the sentence the costs of prosecution * * * and

render a judgment against the defendant for such costs.” R.C. 2947.23(A)(1)(a).

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This provision requires the trial court to assess the costs of prosecution against all

criminal defendants, regardless of whether the defendant is indigent. State v.

Taylor,

,

,

. Thus, “[t]he

costs of prosecution are mandatory * * *, and trial courts are obligated to impose

the costs of prosecution irrespective of a defendant’s ability to pay.” State v. West,

3d Dist. Seneca No. 13-22-07,

. Further, “[t]he term ‘cost of

prosecution,’ although not defined, is synonymous with ‘court costs’ as defined by

R.C. 2949.111(A)(1), meaning ‘any assessment that the court requires an offender

to pay to defray the costs of operating the court.’” State v. Jackson, 2013-Ohio-

1390,

, ¶ 19 (3d Dist.), quoting State v. Hall, 12th Dist. No. CA2011-

05-043,

, ¶ 16, quoting R.C. 2949.111(A)(1).

Legal Analysis

{¶43} In its judgment entry of sentencing, the trial court ordered Passmore

“to pay all costs of prosecution, and any fees permitted pursuant to R.C.

2929.18(A)(4).” (Doc. 82). Passmore argues that the trial court did not consider

his ability to pay before ordering him to pay these costs. While a trial court must

consider a defendant’s ability to pay before imposing a number of financial

sanctions, the costs of prosecution are mandatory and must be imposed regardless

of a defendant’s ability to pay.

. See R.C. 2929.19(B)(5). Thus, a

“trial court need not consider a defendant’s ability to pay * * * prior to imposing

court costs.” State v. Lux, 2d Dist. Miami No. 2010-CA-30,

.

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{¶44} Further, this Court has previously held that the fees in R.C.

2929.18(A)(4) “are part of the cost of prosecution * * *.” State v. Nevels, 3d Dist.

Logan No. 8-15-12,

, quoting Jackson, 2013-Ohio-

1390supra, at ¶ 19. For this reason, the trial court did not have to consider

Passmore’s ability to pay before ordering him to pay the fees under R.C.

2929.18(A)(4). State v. Lantz, 6th Dist. Fulton No. F-18-011,

. See also State v. Rose,

,

(7th Dist.); Hall,

supra, at ¶ 16. But see State v. Rickett, 4th Dist. Adams No. 07CA846, 2008-Ohio-

1637, ¶ 4-5. Thus, with this argument, Passmore has not identified an error that was

committed in the process of ordering him to pay these costs. Accordingly, his third

assignment of error is overruled.

Fourth Assignment of Error

{¶45} Passmore argues that the State engaged in prosecutorial misconduct

by engaging in a line of questioning that deprived him of his right to a fair trial.

Legal Standard

{¶46} To establish prosecutorial misconduct, the “defendant must prove the

prosecutor’s acts were improper and that they prejudicially affected the defendant’s

substantial rights.” State v. Davis, 3d Dist. Seneca No. 13-16-30,

, quoting State v. Merriweather,

,

, ¶ 45 (12th

Dist.).

-22- Case No. 5-22-39

Because prosecutorial misconduct implicates due-process concerns, “[t]he touchstone of the analysis ‘is the fairness of the trial [or proceeding], not the culpability of the prosecutor.’” State v. Jones,

,

,

, quoting Smith v. Phillips,

,

,

(1982).

State v. Thompson,

,

,

.

“The identified conduct is examined in the context of the entire proceeding.” State

v. Tebelman,

,

(3d Dist.). “To demonstrate

prejudice, ‘the defendant must show that there is a reasonable probability that but

for the prosecutor’s misconduct, the result of the proceeding would have been

different.’” Id. at ¶ 92, quoting State v. Cureton, 9th Dist. Medina Nos. 03CA0009-

M,

.

Legal Analysis

{¶47} In this case, Officer Burkholder was given the opportunity to view and

listen to several recordings of the incident that were captured by the security

cameras in Circle K. However, the audio recordings captured by the security

cameras were not properly transferred when Circle K personnel made a copy of this

material for law enforcement. As the audio was not preserved, the State could only

play the video footage of the incident for the jury at trial.

{¶48} Since Officer Burkholder had listened to the audio recording, the State

asked him if he had heard Passmore make any statements in the lead up to the

physical altercation. In response, he testified that Passmore told Tate, “I’m going

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to kill you.” (Tr. 356). The Defense then objected to this statement, arguing that

Officer Burkholder did not have a basis to believe that the voice he heard on the

recording belonged to Passmore. In response, the State argued that this was Officer

Burkholder’s personal observation of the recording and that any statements from the

party opponent were admissible at trial. The trial court sustained the objection

because of a lack of certainty regarding the identity of the declarant.

{¶49} Upon issuing this ruling, the trial court immediately gave a curative

instruction, telling the jurors to disregard Officer Burkholder’s testimony regarding

the statement that he had heard on the recording. Further, in its jury instructions,

the trial court again stated that the jurors were not to consider any testimony that

was stricken and were to act as though they had never heard these statements. “A

jury is presumed to follow a trial court’s instructions, including curative

instructions.” State v. Akers, 3d Dist. Logan No. 8-19-31,

.

See also State v. Echols,

, --- N.E.3d ---, ¶ 38 (1st Dist.). Having

reviewed the evidence, nothing in the record suggests that the jurors failed to

comply with these instructions.

{¶50} Further, LaRue, Jaquez, and Bair testified that Jaquez did not lay a

hand on Passmore before he slammed her against the counter. The testimony also

indicated that she was turning away from Passmore and towards LaRue at the time

he assaulted her. The jurors were also able to compare these accounts with the video

footage of the altercation that was played for them at trial. No testimony suggested

-24- Case No. 5-22-39

that Jaquez threatened Passmore. After the incident, Passmore then fled the scene

and gave the police a false name. Given these facts, we conclude that, even if this

question from the prosecutor was improper, Passmore has not demonstrated that the

elicited response affected his substantial rights in this case such that, without it, there

is a reasonable probability that the outcome would have been different.

{¶51} In conclusion, regardless of whether the identified line of questioning

was improper, Passmore has not raised an argument that demonstrates his

substantial rights were affected and that he was denied his right to a fair trial.

Further, Passmore has not given us a reason to dispense with the presumption that

the jurors followed the trial court’s repeated instructions to disregard the statement

that was stricken from Officer Burkholder’s testimony. For these reasons, his fourth

assignment of error is overruled.

Fifth Assignment of Error

{¶52} Passmore argues that he was denied his constitutional right to the

effective assistance of counsel.

Legal Standard

{¶53} “Under Ohio law, ‘a properly licensed attorney is presumed to carry

out his duties in a competent manner.’” State v. Gee, 3d Dist. Putnam No. 12-92-9,

(July 22, 1993). “For this reason, the appellant has the burden of

proving that he or she was denied the right to the effective assistance of counsel.”

State v. Cartlidge, 3d Dist. Seneca No. 13-19-44,

. “In order

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to prove an ineffective assistance of counsel claim, the appellant must carry the

burden of establishing (1) that his or her counsel’s performance was deficient and

(2) that this deficient performance prejudiced the defendant.” State v. McWay, 3d

Dist. Allen No. 1-17-42,

, quoting Strickland v. Washington,

,

,

(1984).

{¶54} In order to establish deficient performance, the appellant must

demonstrate that trial “counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

State v. Howton, 3d Dist. Allen No. 1-16-35,

, quoting

. “[D]ebatable trial tactics do not establish ineffective assistance of

counsel.” State v. Queen, 3d Dist. Logan No. 8-19-41,

,

quoting State v. Conway,

,

,

. Further, “[t]actical or strategic trial decisions, even if unsuccessful, do not

generally constitute ineffective assistance.” State v. Harrison,

,

, ¶ 75 (3d Dist.).

{¶55} A trial attorney is not required to “raise meritless issues or even all

arguably meritorious issues.” State v. Mayse,

,

, ¶

24 (3d Dist.). Thus, as a general matter, “[d]efense counsel’s decision to stipulate

to evidence in a case is a tactical decision.” State v. Townsend, 9th Dist. Summit

No. 23397,

. “Moreover, counsel is not deficient by

stipulating to facts for which there is ample evidence, or to evidence that is

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‘unassailable.’” State v. Mackey, 12th Dist. Warren No. CA99-06-065,

, *5 (Feb. 14, 2000).

{¶56} “In order to establish prejudice, ‘the defendant must show a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have

been different.’” State v. Berry, 3d Dist. Union No. 14-20-05,

, quoting State v. Bibbs,

,

, ¶ 13 (3d Dist.). “If

the appellant does not establish one of these two prongs, the appellate court does

not need to consider the facts of the case under the other prong of the test.” State v.

Gear, 3d Dist. Van Wert No. 15-22-03,

.

Legal Analysis

{¶57} Before trial, the parties submitted a number of stipulations to the trial

court. Passmore makes arguments about two of these stipulations to establish his

ineffective assistance of counsel claim. First, defense counsel stipulated to the

admission of one of his prior convictions at trial. Before Passmore testified in his

defense, the trial court engaged in an extended discussion with the parties about the

use of his criminal history pursuant to Evid.R. 609(A)(2). In this discussion, defense

counsel indicated that he would question Passmore about his criminal past on direct

examination. The initial purpose of this inquiry was to provide an explanation for

why Passmore fled the scene of the incident in the pickup truck and gave a fake

name to the police upon being stopped.

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{¶58} Defense counsel pointed to the fact that a warrant had been issued for

Passmore in Michigan because he had failed to report in compliance with the terms

of his parole. During his testimony, Passmore indicated that he believed that the

police would have learned about the outstanding warrant if he remained at the scene

or gave his actual name. He further explained that he did not want to go back to

prison because he now had a one-year-old daughter. Defense counsel argued that

Passmore acted in self-defense at Circle K but did not remain on the premises

afterwards and gave a fake name to law enforcement because of the warrant issued

for him in Michigan. This was part of a trial strategy to establish that Passmore’s

actions after the incident were not reflective of any consciousness of guilt on his

part but his fear of returning to prison in spite of his purported innocence in the

earlier incident.

{¶59} Another purpose of this inquiry was to explain why Passmore was put

on heightened alert by Tate’s comments. At trial, the Defense questioned Passmore

about his experiences in prison. Passmore testified that he witnessed a number of

serious fights while incarcerated and was, for this reason, wary for his safety. He

said, “you got to be able to, you know protect yourself. You got to be ready at any

moment in time, because anything can happen to you.” (Tr. 433). The Defense

later asserted that this wariness is why he responded so quickly to defend himself in

Circle K. Given this context, we conclude that the decision to make this challenged

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stipulation falls squarely within the realm of debatable trial tactics and strategies.

This decision does not constitute deficient performance.

{¶60} Second, his counsel stipulated to the admission of the video footage

from the security camera in Circle K. The evidence in the record indicates that the

Circle K employee who was copying the security camera footage from the night of

the incident failed to record the sound. For this reason, the recording presented at

trial had video footage but no audio.1 However, on appeal, Passmore has not

presented the grounds upon which defense counsel should have objected to this

video footage or raised an argument that would suggest that this video footage was

even arguably inadmissible.

{¶61} At trial, the assistant manager of that Circle K location, LaRue, was

called as a witness and identified the video footage for the record. See State v.

Spencer, 4th Dist. Pickaway No. 19CA6,

(holding that

objecting to properly authenticated security camera footage from a bank would have

been a futile act and that, for this reason, the failure to object did not constitute

ineffective assistance of counsel). Having reviewed the record, we find no

indication that the admission of this video footage was improper. We cannot

conclude that trial counsel’s decision to stipulate to the admission of this video

1 We also note that, as discussed in the fourth assignment of error, Officer Burkholder testified at trial that, when he first viewed the security camera footage from Circle K, the audio was functioning and he could hear someone state, “I’m going to kill you.” (Tr. 356). He testified that he believed that Passmore made this statement. After objecting to this testimony, Defense counsel used the fact that the audio recording was not preserved and the resulting uncertainty about who made this remark to successfully argue for this statement to be stricken from the record.

-29- Case No. 5-22-39

footage constituted deficient performance as Passmore has not demonstrated that

objecting to this evidence would have been anything other than a futile act.

{¶62} In conclusion, Passmore has not demonstrated that defense counsel’s

performance at trial was deficient as alleged. Thus, he has failed to carry the burden

of establishing an ineffective assistance of counsel claim with these arguments.

Accordingly, his fifth assignment of error is overruled.

Sixth Assignment of Error

{¶63} Passmore argues that the imposition of consecutive sentences in this

case was not supported by the record.

Legal Standard

{¶64} “[T]he proper scope of felony sentence review by Ohio appellate

courts is set forth in R.C. 2953.08(G)(2).” State v. Redmond, 6th Dist. Lucas No.

L-18-1066,

. Pursuant to this provision, an appellate court may

modify or vacate a sentence if it clearly and convincingly finds either

(a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

(Emphasis added.) R.C. 2953.08(G)(2). R.C. 2929.14(C)(4) states the findings that

a trial court must make prior to imposing consecutive sentences and is expressly

-30- Case No. 5-22-39

included within the purview of R.C. 2953.08(G)(2)(a). R.C. 2929.14(C)(4) reads,

in its relevant part, as follows:

(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

R.C. 2929.14(C)(4). Thus, the trial court must find (1) that consecutive sentences:

are necessary to protect the public or punish the offender (“the necessity finding”);

(2) that consecutive sentences are not disproportionate to the seriousness of the

offense (“the proportionality finding”); and (3) that one of the three factors listed in

R.C. 2929.14(C)(4)(a-c) is applicable. State v. Rodriquez, 3d Dist. Hancock Nos.

5-19-40, 5-19-41,

, ¶ 6.

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{¶65} If the trial court has made the required findings under R.C.

2929.14(C)(4), “the appellate court may then determine whether the record clearly

and convincingly supports those findings.” State v. Gwynne, --- Ohio St.3d ---,

, --- N.E.2d ---, ¶ 26. “R.C. 2953.08(G)(2) does not require

deference to the trial court’s findings under R.C. 2929.14(C)(4).” Id. at ¶ 31.

Rather, [a]ppellate review “of the record and findings is de novo with the ultimate

inquiry being whether it clearly and convincingly finds * * * that the evidence in

the record does not support the consecutive-sentence findings * * *.” Id. at ¶ 27.

Clear and convincing evidence is that measure or degree of proof which is more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.

State v. Taflinger, 3d Dist. Logan No. 8-17-20,

, quoting Cross

v. Ledford,

,

, paragraph three of the syllabus

(1954). In examining the findings on appeal,

the first core requirement is that there be some evidentiary support in the record for the consecutive-sentence findings that the trial court made. A record that is devoid of evidence simply cannot support the findings required by R.C. 2929.14(C)(4); there must be an evidentiary basis upon which these findings rest.

. The second core requirement is that the evidentiary basis be

adequate to fully support the trial court’s consecutive-sentence findings. This requires the appellate court to focus on both the quantity and quality of the evidence in the record that either supports or contradicts the consecutive-sentence findings.

-32- Case No. 5-22-39

Id. at ¶ 29. Thus, “[t]he record must contain a basis upon which a reviewing court

can determine that the trial court made the findings required by R.C. 2929.14(C)(4)

before it imposed consecutive sentences.”

, quoting State v.

Bonnell,

,

,

.

Legal Analysis

{¶66} On appeal, Passmore argues that the findings made by the trial court

were not supported by the record. In this case, the trial court ordered the prison term

imposed to be served consecutively to the prison term he was “currently serv[ing]

in Michigan * * *.” (Sentencing Tr. 30). At sentencing, the trial court expressly

found that imposing this sentence consecutively was “necessary * * * to protect the

public from future crime” and was “not * * * disproportionate to the seriousness of

the conduct and the danger posed by the Defendant.” (Sentencing Tr. 30). The trial

court concluded that the factor listed in R.C. 2929.14(C)(4)(c) was applicable in this

case, finding that consecutive sentences were necessary to protect the public based

upon Passmore’s “significant criminal record.” (Sentencing Tr. 28).

{¶67} Initially, Passmore argues that this case does not present multiple

offenses as required under R.C. 2929.14(C)(4) in order to impose consecutive

sentences. At sentencing, defense counsel acknowledged that the trial court could

impose consecutive sentences in this case. Further, “the ‘multiple prison term’

language * * * from R.C. 2929.14(C)(4) has been interpreted to include previously

-33- Case No. 5-22-39

imposed prison terms from other jurisdictions.” State v. Knox, 8th Dist. Cuyahoga

No. 107414,

. For this reason, his first argument herein is

without merit. We turn now to examining whether the evidence in the record

supports the trial court’s R.C. 2929.14(C)(4) findings.

{¶68} As to the necessity finding, the trial court stated that, while Tate “may

have been, to some degree, the provocateur,” the altercation “was a matter of words,

which never justifies a response * * *.” (Sentencing Tr. 22, 23). On the one hand,

the trial court noted that Tate’s actions indicated that Passmore did not act

“indiscriminately * * * without any explanation * * *.” (Id. at 22). On the other

hand, the trial court also noted that Passmore “directed * * * [his] anger and * * *

[his] violence at the wrong person” as Jaquez “was not involved in precipitating this

event at all.” (Sentencing Tr. 22). The trial court also noted that Passmore was “in

Ohio, without permission” during his parole. (Id. at 26). Based on these facts, the

trial court concluded that consecutive sentences were necessary to protect the public

from future harm.

{¶69} As to the proportionality finding, the trial court discussed the fact that

“Jaquez was seriously injured” and now “has some ongoing issues and some

psychological issues in terms of her concern.” (Sentencing Tr. 23). At trial,

Passmore admitted that Jaquez suffered serious physical harm during the incident.

The testimony indicated that Passmore’s actions immediately rendered Jaquez

unable to stand or see clearly. Jaquez also testified about her injuries and indicated

-34- Case No. 5-22-39

that she was still experiencing numbness around the area of her head wound by the

time of the trial. Based on these facts, the trial court concluded that consecutive

sentences were not disproportionate to the seriousness of the offense.

{¶70} As to the R.C. 2929.14(C)(4)(c) finding, the State described

Passmore’s history of criminal conduct at sentencing. His criminal record indicated

that he had convictions for participating in three armed robberies. He had served

over thirteen years in prison before being released on parole in 2017 in Michigan.

Within three months of his release, he committed the offenses of disorderly conduct

and resisting arrest. By 2020, he had absconded on his parole, causing a warrant to

be issued for his arrest. This warrant remained outstanding until Passmore was

apprehended after the incident in this case. Based on these facts, the trial court

found that Passmore’s history of criminal conduct indicated that consecutive

sentences were necessary to protect the public from future crime.

{¶71} Having examined the evidence, we cannot conclude that the trial

court’s findings are clearly and convincingly unsupported by the record. We also

note that the trial court not only made the required findings but also incorporated

them into its judgment entry of sentencing. Thus, this case does not present the

grounds set forth in R.C. 2953.08(G)(2) to modify or vacate the imposition of

consecutive sentences. Accordingly, his sixth assignment of error is overruled.

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Conclusion

{¶72} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Hancock County Court of Common Pleas

is affirmed.

Judgment Affirmed

WALDICK and ZIMMERMAN, J.J., concur.

/hls

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