State v. Ferguson

2022 Ohio 1648

• Court: Ohio Court of Appeals
• Decided: May 17, 2022
• Docket: 20AP-437
• Status: Published

Opinion

[Cite as State v. Ferguson, 2022-Ohio-1648.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, : No. 20AP-437 v. : (C.P.C. No. 19CR-1636)

Jared T. Ferguson, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on May 17, 2022

On brief: G. Gary Tyack, Prosecuting Attorney, and Michael P. Walton, for appellee. Argued: Darren M. Burgess.

On brief: James A. Anzelmo, for appellant. Argued: James A. Anzelmo.

APPEAL from the Franklin County Court of Common Pleas

BEATTY BLUNT, J.

{¶ 1} Defendant-appellant, Jared T. Ferguson, appeals from a judgment of

conviction and sentence entered by the Franklin County Court of Common Pleas pursuant

to a jury verdict finding him guilty of murder, an unclassified felony; felony murder, an

unclassified felony; and tampering with evidence, a third-degree felony; and a trial court

verdict finding him guilty of domestic violence, a third-degree felony, for which he was

sentenced to an aggregate prison term of 18 years to life. For the reasons that follow, we

reverse the judgment of the trial court. No. 20AP-437 2

I. Facts and Procedural History

{¶ 2} Appellant was indicted on April 3, 2019 on four counts: two counts of murder,

in violation of R.C. 2903.02, each an unclassified felony; one count of tampering with

evidence, in violation of R.C. 2921.12, a third-degree felony; and one count of domestic

violence, in violation of R.C. 2919.25, a third-degree felony. The indictment alleged the

foregoing offenses occurred on or about March 24, 2019.

{¶ 3} On August 3, 2020, a jury trial commenced, with the murder counts and the

tampering with evidence count being tried to the jury, while the domestic violence count

was tried to the court after appellant waived trial by jury as to this count. The record shows

that Ferguson was present for all portions of the trial with two minor exceptions: one, he

was not present during some purely housekeeping communications between the trial court

and the jury at the conclusion of voir dire; and two, during jury deliberations, Ferguson was

not present during the conference between the trial court and counsel regarding the jury's

questions because, unfortunately, Ferguson had to be placed in a COVID quarantine status

at the jail and could not be transported to the courthouse that day. Nevertheless, the record

is clear that the response given by the trial court to the jury's questions–"you have received

all the testimony and evidence. You must rely on your collective memory to decide all

factual issues"–was inconsequential. (Tr. Vol. II. at 761-63.)

{¶ 4} The following evidence was adduced at trial. Josiah Murphy testified that he

was a friend of Ferguson, Lisa Baker, and Deystefano English. According to Murphy, Baker

and Ferguson were a couple. English lived in the same apartment building as Baker and

Ferguson–33 East Duncan Street–where English shared an apartment with his mother-like

figure, Tameka Wade. (Tr. Vol. I at 267-68, 287-88.) Occasionally, Wade would kick him

out of the apartment, and at these times English would temporarily live with Baker and No. 20AP-437 3

Ferguson in the upstairs apartment which they shared. English would also get kicked out

of Baker and Ferguson's apartment, and as of March 24, 2019, English had been kicked

out of Baker and Ferguson's apartment.

{¶ 5} Murphy testified that Baker and Ferguson had lived together for a few years

after Baker had gotten Ferguson "off the street" when he was homeless. (Tr. at 271.) Baker

and Ferguson shared a cell phone that Murphy would text message to communicate with

them.

{¶ 6} Murphy would occasionally smoke marijuana with English, Baker and

Ferguson. Murphy also sold marijuana and would loan money to people "like a loan

shark." (Tr. at 270-71.) One of the people to whom Murphy would loan money was

Ferguson.

{¶ 7} Murphy gave testimony regarding a screen shot of a text message

conversation between Murphy and the shared cell phone used by Baker and Ferguson

which took place on March 24, 2019. (State's Ex. C2) Murphy testified that Ferguson

texted him on Murphy's cell phone to tell him that he had the $15 he owed to Murphy. In

the text, Ferguson told Murphy to "come get it." (Tr. at 278.)

{¶ 8} Murphy and English went to 33 East Duncan Street and encountered

Ferguson at a nearby restaurant. Ferguson told Murphy, "I got your money. You've got

to go inside." (Tr. at 281.) Ferguson began laughing and told Murphy "[t]here's a dead

body in there." Id. Later in his testimony, Murphy added that Ferguson told him "I

bodied that bitch." Id. at 303. Murphy testified neither he nor English believed him,

based on the joking manner he was using. Ferguson gave Murphy a key to get into the

residence and Murphy and English entered the 33 East Duncan Street building. No. 20AP-437 4

{¶ 9} Murphy testified that he went into Baker and Ferguson's apartment and

found every room had been cleaned except one. He later added that he had never seen the

place look so clean. Ferguson came into the apartment about a minute later and he led

Murphy to one of the bedrooms which was locked. Ferguson kicked the door open, and

that damage is reflected in Exhibit D40.

{¶ 10} Murphy saw a pile of blankets on the bed. When Ferguson moved one of the

blankets, Murphy saw one of Baker's hands. Murphy immediately began exiting the

residence, and as he was leaving, Ferguson said to him "[d]on't snitch on Crip." (Tr. at 286.)

Murphy testified that Ferguson sent a text to him shortly thereafter stating "im out" and

that Murphy took that to mean that Ferguson had left the scene.

{¶ 11} After exiting Baker's residence, Murphy went downstairs to Wade's

apartment where English had remained. Murphy told them what happened, and Wade

called 911. About 20 minutes later, Ferguson also called 911 to report that Baker had been

killed. Murphy explained he believed Baker had been killed based on Ferguson telling him

that he had "bodied that bitch." (Tr. at 303.)

{¶ 12} Murphy further testified that Ferguson returned to the apartment building

later in the day when the police were still there. The police saw him and yelled his name,

but Ferguson turned around. They chased him and they arrested him.

{¶ 13} Finally, Murphy testified that in the days leading up to March 24, 2019, Baker

and Ferguson would argue and fight with each other, and at times Murphy had to intervene

and say "bro, chill out, like don't do that, don't put your hands on her." (Tr. at 348-49.)

{¶ 14} Officer Charles Naples of the Columbus Police Department ("CPD") testified

as follows. On March 24, 2019, Naples and his partner responded to a report of an

unknown complaint at 33 East Duncan Street, Columbus, Ohio. Naples was very familiar No. 20AP-437 5

with the residence because he had responded to many calls at that address. He was also

familiar with Baker and Ferguson, as some of the calls to 33 East Duncan Street involved

reports of violence between them.

{¶ 15} Upon arrival, Naples knocked on the door to Baker's residence but there was

no response, which he testified was very unusual as, in his experience, Baker had always

been there during previous calls to the residence. The door was locked, and the officers

called the Columbus Fire Department to assist in opening it. Naples' body-worn camera

footage was admitted as Exhibit A1, and the woman heard screaming in the background is

Wade. Naples testified that based on the officers' initial examination of the body as shown

in the footage, they believed foul play was a possibility and so they called for homicide

detectives to come out.

{¶ 16} Officer Justin Sidle-Wallace testified that he and his partner Naples

responded to 33 East Duncan Street on March 24, 2019. Upon arrival, he made contact

with Wade, Murphy, and English. Wade was "kind of in a panic, breathing heavy, kind of

incoherent at times" and "seemed very stressed out." (Tr. at 392.) Once the Columbus Fire

Department had opened the locked door to the apartment, officers searched the residence

and found a body in blankets on a bed in one of the bedrooms. Sidle-Wallace testified that

Murphy told him that Ferguson was the one responsible for Baker's death.

{¶ 17} Later that night, Sidle-Wallace encountered Ferguson. Sidle-Wallace was

wearing a body-worn camera at the time. Sidle-Wallace's body-worn camera footage

showing the encounter was admitted as Exhibit A2. Ferguson was arrested and handcuffed,

and he told the arresting officers "something to the effect of '[y]ou got the right one.' " (Tr.

at 402.) No. 20AP-437 6

{¶ 18} Wade testified that she moved into unit 4 of 33 East Duncan Street on

April 14, 2010 and that Baker had moved into the building about a year or two later. Wade

testified that English had lived with Baker for a few months up until March 23, 2019, when

Baker kicked him out of the residence. Baker threw his belongings down the steps that day,

but "[s]he did that to a lot of people." (Tr. Vol II. at 441, 458.) Wade testified that ultimately,

English got all of his belongings back from Baker, including "his important papers that he

really wanted." (Tr. at 466.)

{¶ 19} Detective Larry Shoaf testified that he is employed by the City of Columbus,

Division of Police with the Crime Scene Search Unit. On March 24, 2019, he responded to

a crime scene at 33 East Duncan Street, Apartment 3. His responsibility was to take

photographs of and document the scene. One of the photographs he took was a posed

photograph of a knife that had been discovered in a tool bag in a closet. (State's Ex. D90.)

The knife was tested, and it reacted to a substance called "BLUESTAR" which indicates the

presence of blood. The knife found in the tool bag in the closet was the only knife found in

the residence which reacted to BLUESTAR when tested. The knife was admitted into

evidence as Exhibit B20.

{¶ 20} Kevin Jenkins, M.D., is the chief deputy coroner at the Franklin County

Forensic Science Center and performed the autopsy of Baker. Dr. Jenkins testified that

Baker died due to multiple sharp force injuries. There were 16 stab wounds to Baker's neck.

The wounds were predominantly from the back to the front and at a downward angle.

Dr. Jenkins designated one of the wounds as "F" indicating it was the fatal wound in this

case. The fatal wound caused injuries to the left jugular vein and severed the left internal

carotid artery. Dr. Jenkins testified that the fatal wound to Baker would have produced a

large volume of blood. Baker also had injuries to her fingers and hands consistent with No. 20AP-437 7

defensive wounds. Dr. Jenkins further testified that the knife admitted into evidence as

Exhibit B20 was consistent with the injuries sustained by Baker.

{¶ 21} The last witness to testify at trial was Jessica Damin, a DNA analyst at the

Columbus Police Laboratory. She performed DNA analyses relevant to this case and

produced a report of her findings. As part of her analysis, she identified and swabbed

staining on the knife admitted into evidence as Exhibit B20.

{¶ 22} Damin testified that DNA recovered from the knife by swabbing suspected

blood staining was consistent with the DNA of Baker. Swabs taken from the handle of the

knife produced a mixture of three DNA standards: one consistent with Baker, one

consistent with Ferguson, and a third that was from an unknown contributor. The major

profile, however, was the profile consistent with Ferguson's DNA. The unknown

contributor could not be identified even after the standard was entered into the "CODIS"

database.1 Finally, Damin testified that no items from the residence other than the knife

were tested for the presence of DNA.

{¶ 23} At the conclusion of the trial, the jury returned a verdict finding appellant

guilty of all three counts for which it heard evidence. The trial court found appellant guilty

of the domestic violence count. On August 21, 2020, the trial court issued a Judgment Entry

which reflected the verdicts of the jury and the court and imposed an aggregate prison

sentence of 18 years to life. (Aug. 21, 2020 Jgmt. Entry.)

{¶ 24} This timely appeal followed.

II. Assignments of Error

{¶ 25} Appellant asserts the following eight assignments of error for our review:

1Damin explained that "CODIS" stands for "Combined DNA Index System" and is "a database of known profiles used by law enforcement for investigative purposes." (Tr. Vol. II. at 641.) No. 20AP-437 8

[I.] The trial court erred by barring Ferguson from introducing evidence material to his defense, in violation of his rights to due process, under the Fifth and Fourteenth Amendments to the United States Constitution and Sections 1 & 16, Article I of the Ohio Constitution, and his right to a fair trial, as guaranteed by the Sixth Amendment to the United States Constitution and Section 16, Article I of the Ohio Constitution.

[II.] The trial court plainly erred by conducting portions of the trial outside of Ferguson's presence, in violation of the Sixth Amendment to the United States Constitution.

[III.] The trial court plainly erred by instructing the jury that it could consider flight as evidence of a consciousness of guilt.

[IV.] The trial court plainly erred by instructing the jury that it could infer purpose to cause death from Ferguson's use of a deadly weapon.

[V.] There is insufficient evidence behind the jury finding Ferguson guilty of murder, felony murder, and tampering with evidence, and the trial court finding Ferguson guilty of domestic violence, in violation of the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and Sections 1 & 16, Article I of the Ohio Constitution.

[VI.] The jury finding Ferguson guilty of murder, felony murder, and tampering with evidence, and the trial court finding Ferguson guilty of domestic violence, are against the manifest weight of the evidence in violation of the Due Process Clause of the Fifth and Fourteenth Amendments to the United States Constitution and Sections 1 & 16, Article I of the Ohio Constitution.

[VII.] The trial court unlawfully ordered Ferguson to serve consecutive sentences, in violation of his rights to due process, guaranteed by Section 10, Article I of the Ohio Constitution and the Fifth and Fourteenth Amendments to the United States Constitution.

[VIII.] The trial court erred when it imposed post-release control on Ferguson. No. 20AP-437 9

III. Discussion

A. Assignment of Error I

{¶ 26} In his first assignment of error, Ferguson asserts the trial court erred by

barring him from introducing evidence material to his defense, in violation of his rights to

due process and his right to a fair trial. We do not agree.

{¶ 27} The decision to admit or exclude relevant evidence is left to the sound

discretion of the trial court, and an appellate court will not disturb that decision absent an

abuse of discretion that materially prejudices the defendant. State v. Darazim, 10th Dist.

No. 14AP-203, 2014-Ohio-5304, ¶ 16, citing Andrew v. Power Marketing Direct, Inc., 10th

Dist. No. 11AP-603, 2012-Ohio-4371, ¶ 73, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001).

An abuse of discretion "implies that the court's attitude was unreasonable, arbitrary, or

unconscionable." Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

{¶ 28} " Relevant evidence" is defined by Evid.R. 401 as "evidence having any

tendency to make the existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without the evidence." Relevant

evidence is admissible unless prohibited by evidentiary rule, statute, or constitutional

provision. Evid.R. 402. "Although relevant, evidence is not admissible if its probative value

is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or

of misleading the jury." Evid.R. 403(A). "Unfair prejudice is that quality of evidence which

might result in an improper basis for a jury decision." State v. J.L.S., 10th Dist. No. 08AP-

33, 2012-Ohio-181, ¶ 39, citing Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172

(2001).

{¶ 29} Furthermore, any error on the part of the trial court in excluding evidence

will be deemed harmless " ' "if such evidence would not negate the overwhelming proof of No. 20AP-437 10

defendant's guilt." ' " State v. Fudge, 10th Dist. No. 16AP-821, 2018-Ohio-601, ¶ 40,

quoting State v. Johnson, 3d Dist. No. 9-10-47, 2011-Ohio-994, ¶ 64, quoting State v.

Gilmore, 28 Ohio St.3d 190, 193 (1986) . See also State v. West, 10th Dist. No. 06AP-111,

2006-Ohio-6259, ¶ 9 (noting that an "appellate court will not reverse a judgment for

improper exclusion of evidence on a basis of error that is harmless," and that "error is

harmless if the jury would not have rendered a different verdict had the excluded evidence

been admitted at trial").

{¶ 30} At trial, Ferguson sought to introduce testimony concerning two 911 calls

made by Baker during an encounter with English on March 23, 2019, the day before Baker

was murdered. Baker called 911 to report that English and another person were throwing

rocks at her window and banging on her door. Apparently, English wanted back into the

apartment he had been kicked out of in order to retrieve a bottle of pills of some kind.

{¶ 31} The trial court excluded the calls from evidence, finding them irrelevant. The

trial court further found that even if this evidence was relevant, under an Evid.R. 403

analysis, such relevance was substantially outweighed by unfair prejudice to the state and

the danger of confusion of issues for the jury. Ferguson contends this was an abuse of

discretion. It was not.

{¶ 32} Despite Ferguson's theory that English was the real perpetrator of the crime,

there was no evidence that showed this. Ferguson argues the 911 calls made by Baker show

English had a "motive" for wanting to murder her, but this is wildly speculative at best,

especially in light of the testimony of Wade that English was ultimately able to get all of his

belongings back from Baker's apartment before she was killed.

{¶ 33} Furthermore, Ferguson's contention that motive is always relevant in a

murder case and therefore this evidence of a possible motive for English to want to kill No. 20AP-437 11

Baker misses the mark. The motive that is relevant in a murder case is that of the defendant,

not that of a third-party that "might" have been the "real killer." Indeed, the case cited to

by Ferguson for this proposition, State v. Harris, 10th Dist. No. 09AP-578, 2010-Ohio-

1688, and the cases to which it further cites State v. Dixon, 10th Dist. No. 98AP-626,

(Dec. 5, 2000) and State v. Lancaster, 167 Ohio St. 391, 396 (1958) are all cases in which

on appeal the defendant objected to the admission of evidence which tended to show he

had a motive for killing the victim or victims.

{¶ 34} Additionally, Ferguson's argument that because in closing argument he

argued that English was the "real" killer without objection, he should have been permitted

to introduce the evidence of Baker's 911 calls is meritless. It is well-settled that "[c]losing

arguments are not evidence, and the parties are given considerable latitude in making

them." State v. Maurer, 15 Ohio St.3d 239, 269-70 (1984). Merely because the state did

not object to this theory in closing argument does not mean irrelevant and/or unfairly

prejudicial evidence ostensibly in support of the theory should have been admitted by the

trial court.

{¶ 35} Finally, even if the trial court erred in excluding the evidence of Baker's 911

calls, such error was harmless. The remainder of the evidence overwhelmingly supported

the jury's conclusion that Ferguson was responsible for Baker's murder. Specifically,

Murphy testified that Ferguson told him he had "bodied that bitch." (Tr. at 303.) Murphy

testified that Ferguson warned him not to "snitch on Crip [Ferguson]." (Tr. at 286.)

Furthermore, Ferguson told Officer Sidle-Wallace that the responding officers "got the

right one." (Tr. at 402.) Ferguson's DNA was found on the handle of the knife that evidence

in the form of testimony by Detective Shoaf and Dr. Jenkins showed was the murder No. 20AP-437 12

weapon. In the face of the foregoing evidence, Ferguson's substantial rights were not

affected by excluding the 911 calls.

{¶ 36} Accordingly, Ferguson's first assignment of error is overruled.

B. Assignment of Error II

{¶ 37} In his second assignment of error, Ferguson asserts the trial court plainly

erred by conducting portions of the trial outside of his presence. We disagree.

{¶ 38} First, Ferguson concedes trial counsel did not object to this alleged error of

the trial court and thus has waived all but plain error. Under Crim.R. 52(B), an appellate

court may take notice of "plain errors" even when "they were not brought to the attention

of the court." For an error to constitute "plain error" under Crim.R. 52(B), it must satisfy

three prongs: (1) there must be an error, meaning a deviation from a legal rule, (2)

the error must be "plain," meaning an "obvious" defect in the trial proceedings, and (3)

the error must have affected "substantial rights," meaning the error must have affected the

outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27 (2002).

{¶ 39} An appellate court "recognizes plain error with the utmost caution, under

exceptional circumstances, and only to prevent a miscarriage of justice." State v. Pilgrim,

184 Ohio App.3d 675, 2009-Ohio-5357, ¶ 58 (10th Dist.), citing State v. Diar, 120 Ohio

St.3d 460, 2008-Ohio-6266, ¶ 139; State v. Saleh, 10th Dist. No. 07AP-431, 2009-Ohio-

1542, ¶ 68. The defendant bears the burden of demonstrating plain error. State v. Perry,

101 Ohio St.3d 118, 2004-Ohio-297, ¶ 14.

{¶ 40} Here, Ferguson argues it was plain error for him not to have been present for

the entirety of voir dire and when the trial court responded to certain jury questions. First,

the record shows that Ferguson was present for all of the substantive portions of voir dire

and was only not present during some housekeeping communications between the trial No. 20AP-437 13

court and the jury. Second, although the state concedes Ferguson was not present during

the conference between the trial court and counsel regarding the jury's questions, the

reason he was not present is because Ferguson had to be placed in a COVID quarantine

status at the jail and could not be transported to the courthouse the day in question.

{¶ 41} Counsel for Ferguson did not object to his absence from the courthouse that

day; therefore, any alleged error is subject to a "plain error" analysis. Ferguson does not

explain how this alleged error affected his "substantial rights," meaning how the alleged

error affected the outcome of the trial, and we do not find that it did. Specifically, when the

trial court responded to the jury's questions, it simply advised the jury that "you have

received all the testimony and evidence. You must rely on your collective memory to decide

all factual issues." (Tr. Vol. II. at 761, 763.) It defies reason to conclude that such an answer

provided to the jury would have affected their ultimate verdict. As noted in our discussion

pertaining to Assignment of Error I, the evidence supporting a finding of guilt on the part

of Ferguson was overwhelming. There was no error, plain or otherwise, on the part of the

trial court in permitting Ferguson's absence during the jury question conference. Even if

there was any error, it did not affect the outcome of the trial.

{¶ 42} Accordingly, Ferguson's second assignment of error is overruled.

C. Assignments of Error III and IV

{¶ 43} Ferguson's third and fourth assignments of error pertain to certain jury

instructions given by the trial court, and we address them together. In his third assignment

of error, Ferguson contends the trial court plainly erred by instructing the jury that it could

consider Ferguson's flight from the scene as consciousness of his own guilt. In his fourth

assignment of error, Ferguson maintains the trial court plainly erred by instructing the jury

that a knife is a deadly weapon. Neither assignment of error has merit. No. 20AP-437 14

{¶ 44} Ferguson concedes that trial counsel did not object to these jury instructions

given by the trial court and thus has waived all but plain error under Crim.R. 52(B). We

discussed the standard for considering plain error above and will not repeat ourselves. In

addition to the standard as set forth above, we specifically observe that "[a] jury instruction

does not constitute plain error unless, but for the error, the verdict would have been

otherwise." State v. Philpot, 10th Dist. No. 03AP-758, 2004-Ohio-5063, ¶ 21, citing State

v. Long, 53 Ohio St.2d 91 (1978), certiorari denied, 465 U.S. 1106, (1984). Thus, under the

plain error standard, Ferguson must establish that, if the allegedly erroneous instructions

had not been given, he would have been acquitted.

{¶ 45} Here, Ferguson has not met this burden. Indeed, he has not presented any

argument as to how the verdict would have been anything other than guilty had these

instructions not been given. As discussed under Ferguson's first assignment of error, the

evidence supporting a finding of guilt on the part of Ferguson was overwhelming. Simply

put, based on the record, Ferguson cannot demonstrate that the outcome of the trial would

have been different if the trial court had not provided these two instructions and thus, he

cannot establish the requisite prejudice to require reversal.

{¶ 46} Accordingly, Ferguson's third and fourth assignments of error are overruled.

D. Assignments of Error V and VI

{¶ 47} Ferguson's fifth and sixth assignments of error challenge the sufficiency and

weight of the evidence and we address them together. Ferguson asserts that the evidence

was insufficient to support his convictions for murder, felony murder, tampering with

evidence, and domestic violence, and that the verdicts for same are against the manifest

weight of the evidence. We find no merit in either of these assignments of error. No. 20AP-437 15

{¶ 48} "Sufficiency of the evidence is a legal standard that tests whether the evidence

introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th Dist. No.

08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d 380, 386

(1997). In reviewing a challenge to the sufficiency of the evidence, an appellate court must

determine "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, 61 Ohio St.3d 259 (1991), paragraph two of the

syllabus. A reviewing court will not disturb the jury's verdict unless the court finds "that

reasonable minds could not reach the conclusion reached by the trier of fact." State v.

Treesh, 90 Ohio St.3d 460, 484 (2001), citing Jenks at 273.

{¶ 49} In a review for sufficiency of the evidence, we do not engage in a

determination of the credibility of the witnesses. State v. Woodward, 10th Dist. No. 03AP-

398, 2004-Ohio-4418, ¶ 16, citing State v. Goff, 82 Ohio St.3d 123, 139 (1998). Rather, "we

essentially assume the state's witnesses testified truthfully and determine if that testimony

satisfies each element of the crime." Id., citing State v. Gore, 131 Ohio App.3d 197, 200-01

(7th Dist.1999). Furthermore, the testimony of one witness, if believed by the jury, is

sufficient to support a conviction. State v. Winston, 10th Dist. No. 16AP-664, 2018-Ohio-

2525, ¶ 21, citing State v. Strong, 10th Dist. No. 09AP-874, 2011-Ohio-1024, ¶ 42.

{¶ 50} Comparatively, "[w]hile sufficiency of the evidence is a test of adequacy

regarding whether the evidence is legally sufficient to support the verdict as a matter of law,

the criminal manifest weight of the evidence standard addresses the evidence's effect of

inducing belief." Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-

2202, ¶ 25, citing Thompkins at 386. "When a court of appeals reverses a judgment of a

trial court on the basis that the verdict is against the weight of the evidence, the appellate No. 20AP-437 16

court sits as a 'thirteenth juror' and disagrees with the factfinder's resolution of the

conflicting testimony." Thompkins at 387, citing Tibbs v. Florida, 457 U.S. 31, 42 (1982).

" 'The court, reviewing the entire record, weighs the evidence and all reasonable inferences,

considers the credibility of witnesses and determines whether in resolving conflicts in the

evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that

the conviction must be reversed and a new trial ordered.' " Id., quoting State v. Martin, 20

Ohio App.3d 172, 175 (1st Dist.1983). This discretionary authority " 'should be exercised

only in the exceptional case in which the evidence weighs heavily against the conviction.' "

Id., quoting Martin at 175.

{¶ 51} Furthermore, " '[w]hile the jury may take note of inconsistencies and resolve

or discount them accordingly, * * * such inconsistences do not render defendant's

conviction against the manifest weight or sufficiency of the evidence.' " State v. Gullick,

10th Dist. No. 13AP-317, 2014-Ohio-1642, ¶ 10, quoting State v. Nivens, 10th Dist. No.

95APA09-1236 (May 28, 1996). "A jury, as the finder of fact and the sole judge of the weight

of the evidence and the credibility of the witnesses, may believe or disbelieve all, part, or

none of a witness's testimony." Id., citing State v. Antill, 176 Ohio St. 61, 67 (1964).

{¶ 52} A conviction is not against the manifest weight of the evidence simply because

the jury believed the state's version of events over the appellant's version. Gullick at ¶ 11,

citing State v. Houston, 10th Dist. No. 04AP-875, 2005-Ohio-4249, ¶ 38 (reversed and

remanded in part on other grounds.) Rather, a reviewing court must give great deference

to the jury's determination of witness credibility. Id., citing State v. Chandler, 10th Dist.

No. 05AP-415, 2006-Ohio-2070, ¶ 19. This is so because the jury " ' "is best able to view

the witnesses and observe their demeanor, gestures and voice inflections, and use these

observations in weighing the credibility of the proffered testimony." ' " State v. Huber, 10th No. 20AP-437 17

Dist. No. 18AP-668, 2019-Ohio-1862, ¶ 32, quoting State v. Cattledge, 10th Dist. No. 10AP-

105, 2010-Ohio-4953, ¶ 6, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80

(1984).

{¶ 53} As stated previously, Ferguson challenges his convictions for murder, in

violation of R.C. 2903.02(A); felony murder, in violation of R.C. 2903.02(B); tampering

with evidence, in violation of R.C. 2921.12(A)(1); and domestic violence, in violation of

R.C. 2919.25(A).

1. Murder and Felony Murder

{¶ 54} In order to convict a defendant of murder in violation of R.C. 2903.02(A), the

state must prove the defendant purposely caused the victim's death.

{¶ 55} In order to convict a defendant of felony murder in violation of

R.C. 2903.02(B), the state must prove the defendant caused the death of another "as a

proximate result of the offender's committing or attempting to commit an offense of

violence that is a felony of the first or second degree and that is not a violation of section

2903.03 or 2903.04 of the Revised Code." R.C. 2903.02(B). In this case Ferguson was

charged with murder as a proximate result of felonious assault which is an offense of

violence. R.C. 2901.01(A)(9)(a) (including R.C. 2903.11, felonious assault, in the definition

of "offense of violence".)

{¶ 56} "The law has long recognized that intent, lying as it does within the privacy of

a person's own thoughts, is not susceptible of objective proof." State v. Garner, 74 Ohio

St.3d 49, 60 (1995), citing State v. Carter, 72 Ohio St.3d 545, 554 (1995). Intent to kill "may

be deduced from all the surrounding circumstances, including the instrument used to

produce death, its tendency to destroy life if designed for that purpose, and the manner of No. 20AP-437 18

inflicting a fatal wound." State v. Robinson, 161 Ohio St. 213 (1954), paragraph five of the

syllabus; see also State v. Eley, 77 Ohio St.3d 174, 180 (1996).

{¶ 57} In this case, Ferguson's arguments notwithstanding, there was sufficient

evidence to meet all elements of the murder and felony murder counts. First, eyewitness

testimony is not necessary to establish the elements of the offenses for which Ferguson was

charged, and he has cited no authority for such a novel proposition. Furthermore, the

evidence in the form of the testimony of Murphy, Officer Naples, and Officer Sidle-Wallace

showed the jury that Baker and Ferguson had a history of a contentious and sometimes

violent relationship. And Ferguson's own statements and admissions to Murphy that he

"bodied that bitch" and "there's a dead body in there," that the officers "got the right one,"

and his warning to Murphy that he shouldn't "snitch on Crip" all support a conclusion that

Ferguson was responsible for Baker's death.

{¶ 58} Moreover, there is no dispute that Baker died as a result of multiple sharp

force injuries sustained to her head and neck. Those injuries were inflicted with a knife,

which there is no doubt constitutes a deadly weapon in this case. See R.C. 2923.11(A)

(defining "deadly weapon" as "any instrument, device, or thing capable of inflicting death,

and designed or specially adapted for use as a weapon, or possessed, carried, or used as a

weapon." See also R.C. 2903.11(E)(1) (incorporating the definition provided by

R.C. 2923.11(A)). The evidence in the form of testimony from Dr. Jenkins shows there were

16 stab wounds to Baker's neck and that Baker's hands and fingers sustained defensive

wounds. The extent and severity of Baker's injuries and the manner in which they were

inflicted was sufficient evidence for the jury to conclude Ferguson acted purposely to kill

Baker. State v. Lindsey, 10th Dist. No. 14AP-751, 2015-Ohio-2169, ¶ 36, citing State v. No. 20AP-437 19

Scudder, 71 Ohio St.3d 263, 274 (1994) (stating "the number and nature of [the victim's]

stab wounds clearly established [the defendant's] purpose to kill").

{¶ 59} Likewise, the evidence discussed above was also sufficient to support the

jury's conclusion that Baker's death occurred as a proximate result of felonious assault, i.e.,

that Ferguson knowingly caused serious physical harm to Baker by means of a deadly

weapon, proximately causing Baker's death. Thus, there was sufficient evidence for the jury

to find Ferguson guilty of both murder and felony murder.

{¶ 60} The manifest weight of the evidence also supports Ferguson's convictions for

murder and felony murder. First and foremost, Ferguson has not identified any conflict in

the evidence, nor does the record evince any such conflicting evidence. "[A] prerequisite

for any reversal on manifest-weight grounds is conflicting evidence, more specifically,

evidence weighing ' "heavily against the conviction," ' such that ' " the jury clearly lost its

way and created such a manifest miscarriage of justice." ' " State v. Tate, 140 Ohio St.3d

442, 2014-Ohio-3667, ¶ 20, quoting Thompkins at 387, quoting Martin at 175. There is no

evidence weighing heavily against the convictions in this case.

{¶ 61} Furthermore, Ferguson's argument that there was no evidence to support any

motive he would have to kill Baker is meritless. Motive is not an element of the crimes for

which Ferguson was charged and the state did not have to prove motive in order to sustain

a conviction for murder. Moreover, the testimony of several of the state's witnesses,

discussed at length above, shows there was ongoing acrimony between Ferguson and

Baker. That evidence, particularly when coupled with Murphy's specific testimony

regarding the escalation of the discord between Ferguson and Baker in the days leading up

to March 24, 2019, would readily permit the jury to conclude that the acrimony between No. 20AP-437 20

Ferguson and Baker had escalated even further by March 24, 2019, to the point where

Ferguson murdered Baker.

{¶ 62} In short, the jury did not clearly lose its way in finding Ferguson guilty of

murder and felony murder. Merely because it chose to find the state's witnesses credible

does not mean Ferguson's convictions were against the manifest weight of the evidence.

2. Tampering with Evidence

{¶ 63} R.C. 2921.12(A)(1) defines tampering with evidence and provides: "[n]o

person, knowing that an official proceeding or investigation is in progress, or is about to be

or likely to be instituted, shall * * * [a]lter, destroy, conceal, or remove any * * * thing, with

purpose to impair its value or availability as evidence in such proceeding or investigation."

To convict Ferguson of tampering with evidence, the state needed to submit sufficient

evidence for the trier of fact to conclude Ferguson knew or should have known an

investigation was forthcoming but nevertheless purposely took steps to conceal the murder

weapon and/or his fingerprints in the apartment.

{¶ 64} Here, Murphy testified that the entire apartment had been cleaned except for

one room and that he had never seen it so clean. Dr. Jenkins testified that the fatal wound

sustained by Baker would have produced a large volume of blood, yet a large volume of

blood was not found at the scene. Photographs of the crime scene admitted into evidence

showed cleaning supplies and tools. Detective Shoaf testified that the knife that was

recovered having DNA consistent with Ferguson on the handle and DNA consistent with

Baker on the blade was found inside a tool bag in a closet. All of the foregoing evidence is

more than enough to permit the jury to conclude that evidence at the scene had been

cleaned, altered and/or attempted to be concealed. No. 20AP-437 21

{¶ 65} Furthermore, the identification of Ferguson as the one responsible for

cleaning, altering, or otherwise attempting to conceal evidence at the crime scene could be

readily inferred from the same evidence supporting his being responsible for Baker's

murder. Ferguson's argument that the evidence is insufficient because his DNA was not

found on the mop handle is meritless. The presence of DNA is not an element of the offense

of tampering with evidence and Damin testified that no items in the apartment other than

the knife were tested for DNA.

{¶ 66} Thus, based upon the foregoing, the state presented sufficient evidence to

allow the jury to find, beyond a reasonable doubt, that Ferguson purposely concealed

evidence pivotal to the investigation into Baker's death. State v. Miller, 10th Dist. No. 14AP-

851, 2015-Ohio-4678, ¶ 32.

{¶ 67} The manifest weight of the evidence also supports Ferguson's conviction for

tampering with evidence. First, as noted previously, Ferguson has not identified any

conflicting evidence pertaining to this count. This alone negates his argument that his

conviction for tampering with evidence is against the manifest weight of the evidence.

Furthermore, the evidence discussed above under our sufficiency analysis would readily

permit the jury to conclude that Ferguson was responsible for cleaning the apartment in an

attempt to alter or conceal evidence knowing that an investigation into Baker's death was

likely to be instituted.

{¶ 68} In sum, the jury did not clearly lose its way in finding Ferguson guilty of

tampering with evidence, and the jury's choice to credit the testimony of the state's

witnesses does not mean Ferguson's conviction for tampering with evidence was against

the manifest weight of the evidence. No. 20AP-437 22

3. Domestic Violence

{¶ 69} R.C. 2919.25(A) defines domestic violence and provides, in pertinent part:

"[n]o person shall knowingly cause or attempt to cause physical harm to a family or

household member." A "[f]amily or household member" includes "a person living as a

spouse* * *" "who is residing * * * with the offender." R.C. 2919.25(F)(1)(a)(i).

{¶ 70} Here, the evidence showed that Ferguson and Baker shared a residence and

had done so for several years. Murphy testified that Baker and Ferguson were a couple.

Furthermore, Murphy specifically testified that Ferguson and Baker shared a cell phone.

From this, the trial court could have inferred that Ferguson and Baker comingled assets

and were therefore living as a spouse of one another. Based on the foregoing, we find the

state presented sufficient evidence to permit the trial court to find, beyond a reasonable

doubt, that Ferguson knowingly caused or attempted to cause physical harm to a family or

household member.

{¶ 71} Nor did the trial court clearly lose its way in finding Ferguson guilty of

domestic violence, and merely because it chose to find the testimony of the state's witnesses

credible does not mean Ferguson's conviction for domestic violence was against the

manifest weight of the evidence.

{¶ 72} Therefore, for all of the reasons discussed above, we find sufficient evidence

supports all of Ferguson's convictions and that Ferguson's convictions are not against the

manifest weight of the evidence. Accordingly, we overrule Ferguson's fifth and sixth

assignments of error.

E. Assignment of Error VII

{¶ 73} In his seventh assignment of error, Ferguson asserts the trial court erred in

ordering him to serve consecutive sentences. We agree. No. 20AP-437 23

{¶ 74} We begin our discussion by observing that pursuant to R.C. 2953.08(G)(2),

an appellate court will reverse a trial court's sentencing decision "only if it determines by

clear and convincing evidence that the record does not support the trial court's findings

under relevant statutes or that the sentence is otherwise contrary to law." State v. Marcum,

146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 1. Clear and convincing evidence is that "which will

produce in the mind of the trier of facts a firm belief or conviction as to the facts sought to

be established." Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

This court must "look to the record to determine whether the sentencing court considered

and properly applied the statutory guidelines and whether the sentence is otherwise

contrary to law." State v. Reeves, 10th Dist. No. 14AP-856, 2015-Ohio-3251, ¶ 4.

{¶ 75} " 'Under Ohio law, absent an order requiring sentences to be served

consecutively, terms of incarceration are to be served concurrently.' " State v. Guy, 10th

Dist. No. 17AP-322, 2018-Ohio-4836, ¶ 56, quoting State v. Sergent, 148 Ohio St.3d 94,

2016-Ohio-2696, ¶ 16, citing R.C. 2929.41(A). A trial court may, in its discretion, impose

consecutive sentences for multiple prison terms pursuant to R.C. 2929.14(C)(4). Id. Before

imposing consecutive sentences, the trial court must find that: (1) the consecutive sentence

is necessary to protect the public from future crime or to punish the offender, (2)

consecutive sentences are not disproportionate to the seriousness of the offender's conduct

and to the danger the offender poses to the public, and (3) at least one 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 No. 20AP-437 24

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, pursuant to R.C. 2929.14(C)(4), in order to impose consecutive

terms of imprisonment, a trial court is required to make at least three distinct findings:

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

punish the offender, (2) that consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses to the public,

and (3) that one of the subsections (a), (b), or (c) applies. State v. Price, 10th Dist. No.

13AP-1088, 2014-Ohio-4696, ¶ 31, citing State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-

3177.

{¶ 76} In Bonnell, the Supreme Court of Ohio held that a trial court seeking to

impose consecutive sentences must make the findings required by R.C. 2929.14(C)(4) "at

the sentencing hearing and incorporate its findings into its sentencing entry, but it has no

obligation to state reasons to support its findings." Bonnell at syllabus. Nor is the trial court

"required to give a talismanic incantation of the words of the statute, provided that the

necessary findings can be found in the record and are incorporated into the sentencing

entry." Id. at ¶ 37. "[A] word-for-word recitation of the language of the statute is not

required," and "as long as the reviewing court can discern that the trial court engaged in the

correct analysis and can determine that the record contains evidence to support the

findings, consecutive sentences should be upheld." Id. at ¶ 29.

{¶ 77} "In determining whether the trial court engaged in the correct analysis, an

appellate court 'may liberally review the entirety of the sentencing transcript to discern No. 20AP-437 25

whether the trial court made the requisite findings.' " State v. Hairston, 10th Dist. No.

17AP-416, 2017-Ohio-8719, ¶ 8, quoting State v. Stephen, 7th Dist. No. 14 BE 0037, 2016-

Ohio-4803, ¶ 22. Furthermore, "once the trial court makes the factual findings required by

R.C. 2929.14(C)(4), an appellate court may overturn the imposition of consecutive

sentences only if it finds, clearly and convincingly, that the record does not support the

sentencing court's findings or that the sentence is otherwise contrary to law." State v.

Hargrove, 10th Dist. No. 15AP-102, 2015-Ohio-3125, ¶ 22.

{¶ 78} In this case, the judgment entry includes the following findings pertaining to

the imposition of consecutive sentences:

The Court made factual findings on the record to support all of the following as it relates to a consecutive sentence. The Court finds that this consecutive sentence is necessary to protect the public from future crimes or to punish the offender and consecutive sentences are not disproportionate to the seriousness of the offender's conduct and the danger the offender poses to the public, and the offender committed one or more of the multiple offenses while awaiting trial or sentencing.

Further, two of the multiple offenses were committed as part of one or more courses of conduct and the harm caused by two or more 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. Finally, the offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

(Aug. 21, 2020 Jgmt. Entry.) The sentencing transcript shows a very brief statement by the

trial court explaining the consecutive sentences. The entirety of the statement is as follows:

The sentence of the Court will be as follows: As to Count One, the Court imposes a sentence of life with parole eligibility after 15 years. That will run consecutive to a 36-month sentence as to Count Three. No. 20AP-437 26

The Court finds that consecutive sentences are necessary to protect the public from future harm and to - - to punish the offender. The Court finds that the conviction for tampering with evidence constitutes a distinct harm and that it is an attempt to obstruct justice.

(Aug. 5, 2020 Tr. at 785.)

{¶ 79} As previously set forth, a trial court seeking to impose consecutive sentences

must make the findings required by R.C. 2929.14(C)(4) "at the sentencing hearing and

incorporate its findings into its sentencing entry * * *." (Emphasis added.) Bonnell at

syllabus. While we opine that the findings necessary pursuant to R.C. 2929.14(C)(4) were

sufficiently stated in the judgment entry, even a liberal view of the transcript reveals they

were not sufficiently stated at the sentencing hearing. Specifically, although the initial

finding required by R.C. 2929.14(C)(4)–i.e., that the consecutive sentence is necessary to

protect the public from future crime or to punish the offender–is satisfied by the trial court's

statement as set forth above, the trial court failed to find that consecutive sentences are not

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

poses to the public. The trial court further failed to make a distinct finding that one of the

subsections set forth in R.C. 2929.14(C)(4)(a) through (c) applies. Therefore, pursuant to

R.C. 2953.08(G)(2), the trial court's imposition of consecutive sentences without

considering and making the requisite findings under R.C. 2929.14(C)(4) is contrary to law.

{¶ 80} Accordingly, based on the foregoing, we sustain Ferguson's seventh

assignment of error.

F. Assignment of Error VIII

{¶ 81} For his eighth assignment of error, Ferguson asserts the trial court erred

when it imposed post-release control on him. We agree. No. 20AP-437 27

{¶ 82} Murder "is an unclassified felony to which the post-release control statute

does not apply." State v. Silguero, 10th Dist. No. 11AP-274, 2011-Ohio-6293, ¶ 8, citing

State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 36; State v. Gripper, 10th Dist. No.

10AP-1186, 2011-Ohio-3656, ¶ 10. Thus, where multiple counts are merged for purposes of

sentencing, one of which counts is for murder, it is improper to impose post-release control

language in the sentencing entry. See id; see also State v. Alford, 2nd Dist. No. 24368,

2012-Ohio-3490, ¶ 15.

{¶ 83} Here, the state concedes the trial court erred in imposing post-release control

for the domestic violence conviction because it had merged with the conviction for murder

for purposes of sentencing. As noted above, we agree it was error to impose post-release

control on Ferguson.

{¶ 84} Accordingly, Ferguson's eighth assignment of error is sustained.

IV. Disposition

{¶ 85} Based on the foregoing, Ferguson's first, second, third, fourth, fifth, and sixth

assignments of error are overruled. Ferguson's seventh and eighth assignments of error

are sustained, the judgment of the Franklin County Court of Common Pleas is reversed,

and this cause is remanded for further proceedings consistent with this decision.

Judgment reversed and cause remanded.

SADLER, J. concurs. LUPER SCHUSTER, PJ., concurring in part and dissenting in part. No. 20AP-437 28

LUPER SCHUSTER, P.J., concurring in part and dissenting in part.

{¶ 86} I agree with the majority's resolution of appellant Jared T. Ferguson's first,

second, third, fourth, fifth, sixth, and eighth assignments of error. However, because I

would overrule Ferguson's seventh assignment of error, I respectfully dissent in part.

{¶ 87} Ferguson's seventh assignment of error challenges the trial court's imposition

of consecutive sentences. At issue is whether the trial court imposed consecutive sentences

without making the findings at the sentencing hearing as required under R.C.

2929.14(C)(4). The majority concludes the trial court did not make these findings. I

disagree.

{¶ 88} To impose consecutive sentences, the trial court must find that

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

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

offender's conduct and to the danger the offender poses to the public, and (3) at least one

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. No. 20AP-437 29

R.C. 2929.14(C)(4). These findings must be made both at the sentencing hearing and in the

sentencing entry. State v. Peoples, 10th Dist. No. 21AP-45, 2022-Ohio-953, ¶ 63.

{¶ 89} A court need not state reasons to support its findings, nor is the trial court

required to use the precise language of this statute. State v. Richards, 10th Dist. No. 19AP-

259, 2019-Ohio-5325, ¶ 10. "[A]ppellate courts have been fairly deferential to the trial court

when reviewing the transcript of a sentencing hearing to determine whether the trial court

has made the findings required by R.C. 2929.14(C)(4)." State v. Hargrove, 10th Dist. No.

15AP-102, 2015-Ohio-3125, ¶ 19. For example, in Richards, this court determined "the trial

court's statement at the sentencing hearing that 'the two offenses constitute separate and

distinguishable harms and that no single prison sentence for any term would adequately

punish the offender or protect the public from future harm' is akin to a finding under R.C.

2929.14(C)(4)(b), and, as such, constitutes a factual finding on which this court can

conclude that the sentencing court found that consecutive service is not disproportionate

to the seriousness of appellant's conduct." Richards at ¶ 26.

{¶ 90} Here, at the sentencing hearing, the trial court stated the following

concerning the imposition of consecutive sentences:

The sentence of the Court will be as follows: As to Count One [the murder count], the Court imposes a sentence of life with parole eligibility after 15 years. That will run consecutive to a 36-month sentence as to Count Three [the tampering with evidence count].

The Court finds that consecutive sentences are necessary to protect the public from future harm and to -- to punish the offender. The Court finds that the conviction for tampering with evidence constitutes a distinct harm and that it is an attempt to obstruct justice.

(Tr. Vol. II at 785.) In my view, this language substantively equates to the language this

court in Richards found to be sufficient, under the deferential standard, to meet the R.C. No. 20AP-437 30

2929.14(C)(4) requirements. Even though "it would have been better practice for the trial

court to recite the statute's verbiage," the necessary findings are reflected in the trial court's

statements. Richards at ¶ 28. And as in Richards, the trial court's "deviation from the

statutory language in the present case is not so egregious as to render the trial court's

sentence clearly and convincingly contrary to law." Id. at ¶ 28. Therefore, I would overrule

Ferguson's seventh assignment of error.

For these reasons, I respectfully concur in part and dissent in part.