[Cite as State v. Hinton, 2025-Ohio-963.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, : No. 113836 v. :
THOMAS HINTON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: March 20, 2025
Criminal Appeal from the Cuyahoga County Common Pleas Court Case No. CR-23-683910-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Jeffrey S. Schnatter, Assistant Prosecuting Attorney, for appellee.
Joseph V. Pagano, for appellant.
ANITA LASTER MAYS, J.:
{¶1} Defendant-appellant Thomas Hinton (“Hinton”) appeals his
convictions and sentence and asks this court to reverse his convictions and vacate
his sentence. We affirm Hinton’s convictions and sentence. {¶2} After a bench trial, Hinton was found guilty of one count of aggravated
murder, in violation of R.C. 2903.01(A), two counts of murder, in violation of R.C.
2903.02(A) and (B); two counts of felonious assault, in violation of R.C.
2903.11(A)(1) and (2); and one count of having weapons while under disability, in
violation of R.C. 2923.13(A)(3). The first five counts contained one- and three-year
firearms specifications. All counts contained a forfeiture specification for the gun
used to commit the offenses. Counts 2 through 5 were merged into count one,
aggravated murder. The trial court sentenced on Count 6, having weapons while
under disability, and two firearm specifications. The trial court sentenced Hinton
to life without the possibility of parole to be served consecutively to six years’
imprisonment for the firearm specifications. The court awarded 259 days of jail-
time credit.
I. Facts and Procedural History
{¶3} On July 5, 2023, police officers from the Cuyahoga Metropolitan
Housing Authority (“CMHA”) responded to a call concerning a man that was
assaulted. Tr. 124. When they arrived, they observed paramedics loading a man
into the ambulance, who was bleeding from the face. Tr. 125. The police were
informed by paramedics that the man could not speak. Id. Police observed keys
on the ground near a pool of blood left by the male victim on the sidewalk. Tr. 130.
The police discovered that the keys belonged to the victim, Duane Jones (“Jones”).
{¶4} During the course of their investigation, officers went to the hospital
where the ambulance transferred the victim. Tr. 136. When they arrived, they were unable to speak to the victim, but did speak with medical staff. The officers
were wearing body cameras and captured a video of Emergency Medical Services
(“EMS”) rendering aid to Jones. Tr. 142. At trial, the State played the video, with
an objection from the defense. Tr. 140.
{¶5} Also, during the course of their investigation, the police retrieved a
surveillance video from the apartment complex located at the scene. Tr. 152. The
surveillance video showed a vehicle pulling into the parking lot of the apartment
building. A man, who was eventually identified as Jones, exited the apartment
building, and another man, later identified as Hinton, exited the vehicle. Hinton
was observed assaulting Jones with a gun. Tr. 156. Hinton was observed hitting
Jones in the head with a gun, kicking Jones in the head, and stomping on Jones’s
head while Jones was on the ground. Tr. 159. Hinton attempted to discharge the
firearm, but the gun appeared to have jammed. Tr. 157-158. According to the
surveillance video, Hinton assaulted Jones for over 25 minutes, taking brief breaks
when vehicles pass by the scene. Tr. 160.
{¶6} Later, during the assault, Jones sat up and touched Hinton’s car. Jones
grabbed Hinton by the shirt and dragged him away from the car. Tr. 163. Then,
Hinton pistol whipped Jones, and Jones fell to the ground underneath the tire of
Hinton’s vehicle. Id. Hinton got into the vehicle, but got out and started beating
Jones again, stomping him in the back of the head, while Jones was lying face
down. Tr. 166. Jones was on the ground until the medics arrived. Tr. 171. {¶7} Later that same day, while conducting their investigation, the police
learned that the assault on Jones was because of a drug deal. Tr. 172. While at the
scene, one of the police officers observed the same Cadillac from the surveillance
video coming into the parking lot of the apartment building and radioed the other
officers, alerting them to the Cadillac’s presence in the parking lot. The other
officers entered unmarked, undercover vehicles and started following the Cadillac.
They conducted a traffic stop on the Cadillac, and the driver was identified as
Hinton. Tr. 175.
{¶8} The officers asked Hinton to step out of the car. The officers were
wearing body cameras that recorded Hinton stating that he sells marijuana and
crack cocaine at the apartment building where Jones was beaten. Tr. 334-335.
During this time, the officers observed blood on one of Hinton’s shoes. Tr. 177.
Hinton was placed in handcuffs, and the officers continued searching Hinton’s
vehicle. They discovered a possible blood stain on the side of the vehicle, took a
swab, and placed it into an evidence bag. The officers obtained a search warrant
to search the Cadillac and found a gun, Hinton’s cell phone, and Hinton’s
identification. They observed that there was blood on the gun and hair fiber stuck
in the recoil spring. Also, they discovered that a spent shell casing was inside of
the gun, which means that the firearm was discharged, but jammed. Tr. 157-158.
After testing at the lab, the blood on Hinton’s shoe was a DNA match for Jones’s
blood. Tr. 237. The blood found on the gun was also matched to Jones. Tr. 229. It was determined that the stain on the Cadillac was not blood, so no further testing
was done.
{¶9} A cell phone extraction company analyzed the data on Hinton’s cell
phone. Tr. 351. The data on Hinton’s cell phone revealed that there were text
messages between Hinton and Jones and that Jones’s cell phone number was
saved in Hinton’s phone. Tr. 352-353. Based on the text messages, the police were
able to ascertain that Jones owed Hinton money. Tr. 354-357. Hinton also asked
Jones if he had to physically come and get his money from Jones and told Jones
that “he would catch him.” Tr. 357.
{¶10} After the assault on Jones, he did not regain consciousness and died
on July 15, 2023. Tr. 296. Jones died from pneumonia due to blunt impact to his
head with a subdural hematoma and brain injuries. Id. As a result, Jones’s manner
of death was classified as a homicide.
{¶11} Hinton was charged with aggravated murder, murder, felonious
assault, and having a weapon while under disability. Hinton opted for a bench
trial, waiving his right to a jury trial. During the trial, after the State presented its
case, Hinton moved the court for an acquittal. Tr. 375. The trial court denied his
motion. Tr. 377. Hinton did not call any witnesses at trial. Id. At the end of the
trial, the trial court found Hinton guilty on all counts. The trial court sentenced
Hinton to life imprisonment without parole on the aggravated murder count and
merged Counts 2 through 5 for the purposes of sentencing. Hinton was sentenced
to two years’ imprisonment on Count 6, weapons while under disability. Counts 1 and 6 were run concurrently to one another. The trial court ran the three-year gun
specification on the aggravated murder count consecutively to the three-year gun
specification on the murder count, for a mandatory sentence of six years’
imprisonment. Hinton’s final sentence was life without parole plus six years for
the gun specifications.
{¶12} Hinton filed this appeal, assigning five errors for our review:
1. The trial court erred when it denied appellant’s motion for acquittal under Crim.R. 29 because the state failed to present sufficient evidence to establish the elements necessary to support the convictions beyond a reasonable doubt;
2. Appellant’s convictions were against the manifest weight of the evidence;
3. Appellant was deprived of his right to effective assistance of counsel under the Sixth Amendment of the United States Constitution and Article I, Section 10 of the Ohio Constitution;
4. The trial court erred by allowing the State to elicit inadmissible hearsay testimony over defense objection and depriving appellant of due process and a fair trial in violation of his federal and state constitutional rights; and
5. Appellant’s sentence is contrary to law because the imposition of multiple consecutive sentences for firearm specifications is unconstitutional where the charge related to the second firearm specification was merged for purposes of sentencing as mandated by law.
II. Crim.R. 29
A. Standard of Review
{¶13} “Crim.R. 29(A)(1) provides that a court ‘shall order the entry of the
judgment of acquittal of one or more offenses . . . if the evidence is insufficient to sustain a conviction of such offense or offenses.’” State v. McQuisition, 2024-
Ohio-3011, ¶ 24 (8th Dist.). “A Crim.R. 29 motion questions the sufficiency of the
evidence, and we apply the same standard of review to a trial court’s ruling on a
Crim.R. 29 motion as we do in reviewing challenges to the sufficiency of the
evidence presented at trial.” Id., citing Fairview Park v. Peah, 2021-Ohio-2685,
¶ 37 (8th Dist.).
{¶14} “‘[A]n appellate court’s function when reviewing the sufficiency of the
evidence to support a criminal conviction is to examine the evidence admitted at
trial to determine whether such evidence, if believed, would convince the average
mind of defendant’s guilt beyond a reasonable doubt.’” Id. at ¶ 25, quoting State
v. Jenks, 61 Ohio St.3d 259 (1991). “‘The relevant inquiry is whether, after viewing
the evidence in a light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime proven beyond a reasonable
doubt.’” Id., quoting id. at paragraph two of the syllabus, citing Jackson v.
Virginia, 443 U.S. 307 (1979). “‘In essence, sufficiency is a test of adequacy.
Whether the evidence is legally sufficient to sustain a verdict is a question of law.’”
Id., quoting State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
B. Law and Analysis
{¶15} In Hinton’s first assignment of error, he argues that the trial court
erred when it denied his motion for acquittal under Crim.R. 29, contending that
the State failed to present sufficient evidence to support his convictions.
Specifically, Hinton argued that the State failed to prove Hinton caused Jones’s death purposely with prior calculation and design, which is necessary to sustain a
conviction for aggravated murder.
{¶16} R.C. 2903.01(A) states, in pertinent part: “No person shall purposely,
and with prior calculation and design, cause the death of another. . . .” “Prior
calculation and design has been defined by Ohio courts as the presence of sufficient
time and opportunity for the planning of an act of homicide.” (Cleaned up.) State
v. Hughley, 2020-Ohio-4741, ¶ 36 (8th Dist.). “The finding of prior calculation
and design turns upon the particular facts and evidence presented at trial and must
be determined on a case-by-case basis.” (Cleaned up.) Id.
{¶17} “Prior calculation and design has been interpreted to mean more than
a momentary deliberation; it requires a scheme designed to implement the
calculated decision to kill.” (Cleaned up.) State v. Smith, 2021-Ohio-1185, ¶ 9
(8th Dist.). “While neither the degree of care nor the length of time the offender
takes to ponder the crime beforehand are critical factors in themselves, momentary
[or immediate] deliberation is insufficient.” (Cleaned up.) Id.
{¶18} “Thus,
[t]he state can prove “prior calculation and design” from the circumstances surrounding a murder in several ways, including: (1) ‘evidence of a preconceived plan leading up to the murder’; (2) ‘evidence of the [defendant’s] encounter with the victim, including evidence necessary to infer that the defendant had a preconceived notion to kill regardless of how the [events] unfolded’ or (3) ‘evidence that the murder was executed in such a manner that circumstantially proved the defendant had a preconceived plan to kill,’ such as where the victim is killed in a cold-blooded, execution-style manner. State v. Orr, 2014-Ohio-4680, ¶ 75 (8th Dist.), citing State v. Dunford, 2010-Ohio-1272, ¶ 53 (11th Dist.); State v. Trewartha, 2005-Ohio- 5697, (10th Dist.); State v. Hough, 2010-Ohio-2770, ¶ 19 (8th Dist.) (‘[I]f the victim is killed in a cold-blooded, execution-style manner, the killing bespeaks aforethought, and a jury may infer prior calculation and design.’).
State v. Maxey, 2024-Ohio-1279, ¶ 40 (8th Dist.), quoting State v. Hicks, 2015-
Ohio-4978, ¶ 40 (8th Dist.).
{¶19} “‘There is no bright-line test for determining the presence or absence
of prior calculation and design; however, the Ohio Supreme Court has identified
several factors to be weighed along with the totality of the circumstances
surrounding the murder in determining the existence of prior calculation and
design.’” Id. at ¶ 41, quoting id. at ¶ 41. The following factors are to be taken into
consideration: “‘whether the defendant and the victim knew each other and, if so,
whether the relationship was strained; whether there was thought or preparation
in choosing the murder weapon or murder site; and whether the act was drawn out
or an almost instantaneous eruption of events.’” Id., quoting id., citing State v.
Taylor, 78 Ohio St.3d 15, 19 (1997).
{¶20} First, the evidence is sufficient to prove that Hinton and Jones knew
each other. Their phone numbers were saved in each of their phones, and the
record demonstrates from the text messages that Hinton was Jones’s drug dealer.
Also from the text messages, it demonstrates that their relationship was strained
from Jones owing Hinton money. The record reveals that Hinton threatened Jones
in the text messages. Second, the evidence is also sufficient to prove that there was
thought or preparation in choosing the murder weapon. The surveillance video showed that Hinton brought a gun to meet Jones, pointed the gun at him several
times, and attempted to fire the gun. When the gun did not fire, Hinton returned
to Jones and started stomping him on the head. Third, the evidence is sufficient
to prove that the act was drawn out. Hinton brutally beat Jones for over 25
minutes, hitting Jones in the head with a gun, kicking Jones in the head, and
stomping on Jones’s head while Jones was on the ground. Hinton even retreated
to his car, got out, and started beating Jones again. The evidence sufficiently
demonstrates that the State proved Hinton caused Jones’s death purposely with
prior calculation and design.
{¶21} Hinton further argues that the State failed to prove that he knowingly
caused or attempted to cause physical harm by means of a deadly weapon. R.C.
2903.11(A)(2) states, in pertinent part: “No person shall knowingly do either of the
following: Cause or attempt to cause physical harm to another. . .by means of a
deadly weapon or dangerous ordnance.” “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 nature.” State v. Carson, 2025-Ohio-
166, ¶ 15 (8th Dist.), quoting R.C. 2901.22(B).
{¶22} Hinton contends that there is no evidence that a gun was ever fired
during the incident and that merely pointing a gun at Jones was not sufficient to
convict Hinton of knowingly causing physical harm by means of a deadly weapon.
Hinton’s contentions are not well taken. The surveillance video showed Hinton
beating Jones with a gun repeatedly. “‘Deadly weapon’ means 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.” State v. Ogletree,
2025-Ohio-371, ¶ 21 (8th Dist.), quoting R.C. 2923.11(A).
{¶23} “This court in State v. Tripplett, 2023-Ohio-4644 (8th Dist.),
explained the analysis applied to determine what constitutes a deadly weapon:
The test for whether something is a deadly weapon is not whether it in fact inflicted a fatal injury, but whether it is capable of doing so. State v. Grayson, 2021-Ohio-4312, ¶ 34 (8th Dist.). Generally, a trier of fact “is permitted to infer the deadly nature of an instrument from the facts and circumstances of its use.” State v. Dean, 2019-Ohio- 1391, ¶ 10 (9th Dist.), quoting State v. Vondenberg, 61 Ohio St.2d 285, 289 (1980). The size and composition of the item wielded as a weapon is generally immaterial. No item, no matter how small or commonplace, can be safely disregarded for its capacity to cause death when it is wielded with the requisite intent and force. State v. Moody, 2010-Ohio-3272, ¶ 40 (5th Dist.), citing In re Smith, 142 Ohio App.3d 16 (8th Dist. 2001), and State v. Deboe, 62 Ohio App.2d 192 (6th Dist. 1977). Thus, the legal test is not based on the outcome of the assault, but rather the capability to turn the everyday item into and be used as a deadly weapon. Generally, what constitutes a deadly weapon is an issue for the trier of fact.
Ogletree at ¶ 21, quoting Tripplett at ¶ 20.
{¶24} The record and evidence demonstrate that Hinton knowingly caused
physical harm to Jones using a deadly weapon. It matters not that Hinton fired
the gun because he used it to beat Jones in the head. “While an object on its own,
such as a pair of scissors, may not constitute a deadly weapon, ‘the manner of use
of the instrument, its threatened use, and its nature determine its capability to
inflict death.’” Id. at ¶ 22, quoting State v. Berry, 2003-Ohio-6642, ¶ 13. Hinton is aware that beating someone in the head with an object could cause physical
harm. In fact, his purpose was to cause physical harm to Jones.
{¶25} Hinton further argues that the evidence was insufficient to establish
that he was the one who committed the crime. He contends that there was not an
eyewitness to crime that identified him and the evidence used was circumstantial.
“[C]ircumstantial evidence may be sufficient to establish the identity of the
accused.” State v. Toby, 2018-Ohio-3369, ¶ 21 (8th Dist.), citing State v.
McKnight, 2005-Ohio-6046, ¶ 75; State v. Kiley, 2006-Ohio-2469, ¶ 10 (8th
Dist.); Cleveland v. Williams, 2015-Ohio-1739, ¶ 25 (8th Dist.).
{¶26} There was sufficient evidence to demonstrate that Hinton was the
assailant. First, there were text messages between Hinton and Jones that revealed
Jones owed money to Hinton, and Hinton threatened Jones. Second, the vehicle
in the surveillance video was identical to the vehicle that police officers observed
Hinton driving after the assault. Third, Jones’s blood was found on Hinton’s shoes,
and the gun was found in Hinton’s vehicle. Given the totality of the evidence, we
find it was sufficient to demonstrate that Hinton was the assailant. See State v.
Mallory, 2018-Ohio-1846, ¶ 7 (8th Dist.), quoting State v. Scott, 3 Ohio App.2d
239, 244 (11th Dist. 1965) (“‘The general rule is that to warrant conviction the
evidence must establish beyond a reasonable doubt the identity of the accused as
the person who committed the crime.’”). {¶27} Therefore, we find that the evidence was sufficient to convict Hinton
of aggravated murder and felonious assault, and thus the trial court did not err
when it denied Hinton’s motion for acquittal under Crim.R. 29.
{¶ 28} Hinton’s first assignment of error is overruled.
III. Manifest Weight of the Evidence
{¶29} “When reviewing whether a bench trial verdict is against the manifest
weight of the evidence, an appellate court will not reverse the conviction so long as
the trial court, who served as the factfinder rather than a jury, could reasonably
conclude from substantial evidence that the State proved the offense beyond a
reasonable doubt.” (Cleaned up.) State v. Kyles, 2024-Ohio-5817, ¶ 9 (8th Dist.).
“To warrant reversal under a manifest-weight challenge, this court must determine
that the trial court clearly lost its way and created such a manifest miscarriage of
justice that the [bench trial] judgment must be reversed and a new trial ordered.”
(Cleaned up.) Id. “A conviction should be reversed as against the manifest weight
of the evidence only in the most exceptional case in which evidence weighs heavily
against the conviction.” (Cleaned up.) Id.
{¶30} In Hinton’s second assignment of error, he argues that his
convictions are against the manifest weight of the evidence. Specifically, he argues
the same points made in his sufficiency argument. As previously stated, the
evidence is sufficient to demonstrate that Hinton was the assailant, committed the aggravated murder of Jones, and knowingly caused physical harm using a deadly
weapon.
{¶31} “In conducting such a review, this court remains mindful that the
credibility of witnesses and the weight of the evidence are matters primarily for the
trier of fact to assess.” State v. Jackson, 2018-Ohio-3492, ¶ 22 (8th Dist.), citing
State v. DeHass, 10 Ohio St.2d 230 (1967), paragraphs one and two of the syllabus.
“Reversal on manifest weight grounds is reserved for the ‘exceptional case in which
the evidence weighs heavily against the conviction.’” Id., quoting State v.
Thompkins, 78 Ohio St.3d 380, 387 (1997).
{¶32} The record does not demonstrate that the evidence weighs heavily
against the conviction or that the trial court lost its way and created a manifest
miscarriage of justice. Therefore, Hinton’s second assignment of error is
overruled.
IV. Ineffective Assistance of Counsel
{¶33} “Courts considering whether an attorney’s performance fell below an
objective standard of reasonableness ‘must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.’” State v. Thompson, 2024-Ohio-5910, ¶ 6 (8th Dist.), quoting
Strickland v. Washington, 466 U.S. 668, 689, 694 (1984). “A defendant
establishes prejudice by showing that ‘there exists a reasonable probability that, but for counsel’s error, the result of the proceeding would have been different.’”
Id., quoting State v. Davis, 2020-Ohio-309, ¶ 10.
{¶34} In Hinton’s third assignment of error, he argues that he was deprived
of his right to effective assistance of counsel when his trial counsel did not object
to the testimony of the State’s expert witness on the DNA analysis. Hinton
contends that the expert did not state his conclusions within a reasonable degree
of scientific certainty but instead stated that the results were reliable and he was
confident in them.
{¶35} To establish a claim of ineffective assistance of counsel, Hinton “‘must
demonstrate that (1) his counsel was deficient in some aspect of his representation
and (2) there is a reasonable probability that, were it not for counsel’s errors, the
result of the trial would have been different.’” Thompson at ¶ 5, quoting In re S.A.,
2019-Ohio-4782, ¶ 46, citing Strickland at 687-688, 694. “Thus, the failure to
make a showing of either deficient performance or prejudice defeats a claim of
ineffective assistance of counsel.” (Cleaned up.) Id.
{¶36} Hinton’s argument is identical to the one that the appellant made in
State v. Thompson, 2014-Ohio-4751, ¶ 129, where Thompson, the appellant,
argued that the expert witness did not give his opinion in terms of a reasonable
degree of scientific certainty. In response, the Supreme Court stated: “We have
‘held that expert witnesses in criminal cases can testify in terms of possibility
rather than in terms of a reasonable scientific certainty or probability.’” Id., quoting State v. Lang, 2011-Ohio-4215, ¶ 77, citing State v. D’Ambrosio, 67 Ohio
St.3d 185, 191 (1993). “In the criminal context, questions about certainty go not to
admissibility but to sufficiency of the evidence; they are matters of weight for the
jury.” Id., citing id. at ¶ 77. The Supreme Court held that no error occurred when
the expert witness testified in terms of possibilities. Id.
{¶37} We find that Hinton was not deprived of his right to effective
assistance of counsel because his trial counsel was not deficient for not objecting
to the testimony of the expert witness. Therefore, Hinton’s third assignment of
error is overruled.
V. Hearsay Testimony
{¶38} “The admission or exclusion of evidence is within the purview of the
trial court, and we review these decisions for an abuse of discretion.” State v.
Hughes, 2021-Ohio-2764, ¶ 39 (8th Dist.). “Hearsay is an out-of-court statement
that is offered to prove the truth of the matter asserted.” Id., citing Evid.R. 801(C).
“Hearsay is generally prohibited, unless such testimony is subject to an exception.”
Id., citing Evid. R. 802. “Where error in the admission of evidence was caused by
the party complaining of the error, the party cannot benefit from the error on appeal.” Id., citing State v. Jackson, 2006-Ohio-174, ¶ 28 (8th Dist.), citing State
v. Woodruff, 10 Ohio App.3d 326, 327 (2d Dist. 1983).
{¶39} An abuse of discretion occurs when a court exercises its judgment “in
an unwarranted way, in regard to a matter over which it has discretionary
authority.” Johnson v. Abdullah, 2021-Ohio-3304, ¶ 35. “An abuse of discretion
‘implies not merely error of judgment, but perversity of will, passion, prejudice,
partiality, or moral delinquency.’” Id., quoting Schleich v. Penn Cent. Corp., 2024-
Ohio-5005, ¶ 9 (8th Dist.).
{¶40} In Hinton’s fourth assignment of error, he argues that the trial court
allowed inadmissible hearsay testimony over his objections. First, Hinton
contends that the trial court erred by allowing testimony regarding one of the
police officers observing the Cadillac from the surveillance video in the apartment’s
parking lot. It was testified to that the officer radioed the other officers, alerting
them that there was a vehicle matching the description of the Cadillac from the
video.
{¶41} Hinton’s arguments are not well taken. “‘In general, statements
offered by police officers explaining their conduct while investigating a crime are
not hearsay because they are not offered for their truth, but, rather, are offered as
an explanation of the process of investigation.’” State v. Thompson, 2019-Ohio-
2525, ¶ 28 (8th Dist.), quoting State v. Warren, 2004-Ohio-5599, ¶ 46 (8th Dist.).
The police officer’s testimony was explaining how they came to conduct a traffic stop on the Cadillac during the process of their investigation. Thus, these
statements are not inadmissible hearsay testimony.
{¶42} Second, Hinton contends that the trial court erred by allowing the
video of the police officer’s body camera where statements were made by
paramedics. Hinton does not state which statements were inadmissible hearsay or
provide any relevant law to support his claim as required by App.R. 16(A)(7).
Third, Hinton argues that the trial court erred by allowing testimony regarding
how the police officers obtained the license plate of the Cadillac. Again, Hinton
does not provide any relevant law to support his claim as required by App.R.
16(A)(7).
{¶43} “App.R. 16(A)(7) requires an appellant to include within his brief
‘[a]n argument containing the contentions of the appellant with respect to each
assignment of error presented for review and the reasons in support of the
contentions, with citations to the authorities, statutes, and parts of the record on
which appellant relies.’” Walsh v. Walsh, 2023-Ohio-1675, ¶ 9 (8th Dist.)
“According to App.R. 12(A)(2), an appellate court may decline to address an
assignment of error if an appellant fails to cite any legal authority to support his
argument.” Id., citing Thornhill v. Thornhill, 2009-Ohio-5569, ¶ 11 (8th Dist.)
(court declined to address assignments of error when appellant failed to cite any
supporting case law or statute). Thus, we will decline to address these arguments.
{¶44} Fourth, Hinton argues that the trial court admitted inadmissible
hearsay testimony when the police officer testified that the altercation between Hinton and Jones was over a drug deal. Again, “statements offered by police
officers explaining their conduct while investigating a crime are not hearsay
because they are not offered for their truth, but, rather, are offered as an
explanation of the process of investigation.” Thompson at ¶ 28. The testimony
was used to explain why Hinton’s phone was searched for drug-related
conversations.
{¶45} We determine that the trial court did not admit inadmissible hearsay
testimony. Therefore, Hinton’s fourth assignment of error is overruled.
VI. Firearm Specification Sentencing
{¶46} In Hinton’s fifth and final assignment of error, he argues that his
sentence is contrary to law because the imposition of multiple consecutive
sentences for firearm specifications is unconstitutional where the charge relating
to the second firearm specification was merged for purposes of sentencing. Hinton
acknowledges that he raised this assignment of error to preserve his objection for
further review based upon the rationale in the dissenting opinion in State v. Bollar,
2022-Ohio-4370.
{¶47} In Bollar, the Supreme Court held:
We conclude that the approach taken by the Eighth District in Doyle and by the Ninth District in Roper is in tension with the plain language of R.C. 2929.14(B)(1)(g). As noted above, that statute requires that the offender receive prison terms for each of the two most serious firearm specifications when the offender pleads guilty to multiple felony offenses (and at least one of those is a felony listed in the statute) and also pleads guilty to multiple accompanying specifications. The statute makes no exception to the application of its provisions if one of the underlying felony offenses has been merged. Instead, it simply applies whenever the offender has pleaded guilty to (or been found guilty of) multiple felony offenses and multiple specifications.
Id. at ¶ 19.
{¶48} Therefore, Hinton’s fifth assignment of error is overruled.
{¶49} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
__________________________ ANITA LASTER MAYS, JUDGE
EILEEN T. GALLAGHER, P.J., and WILLIAM A. KLATT, J.,* CONCUR
(*Sitting by assignment: William A. Klatt, J., retired, of the Tenth District Court of Appeals.)