State v. Peters
Opinion
[Cite as State v. Peters, 2023-Ohio-4362.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
STATE OF OHIO, CASE NO. 14-22-21 PLAINTIFF-APPELLEE,
v.
STEVEN PETERS, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court Trial Court No. 2021-CR-0207
Judgment Affirmed
Date of Decision: December 4, 2023
APPEARANCES:
Alison Boggs for Appellant
Raymond Kelly Hamilton for Appellee Case No. 14-22-21
MILLER, P.J.
{¶1} Defendant-appellant, Steven Peters (“Peters”), appeals the October 20,
2022 judgment of sentence of the Union County Court of Common Pleas. For the
reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶2} This case originates from a September 8, 2021 incident at the Super 8
Motel in Marysville, where Peters got into an altercation with Kaleigh Dallas
(“Dallas”). The altercation culminated in a heated argument, during which Peters
held a gun to Dallas’ body. Additionally, Dallas alleged that Peters stole items from
her motel room during the incident.
{¶3} On October 12, 2021, the Union County Grand Jury indicted Peters on
four counts relating to the incident: Count One for felonious assault in violation of
R.C. 2903.11(A)(2), a second-degree felony; Count Two for robbery in violation of
R.C. 2911.02(A)(1), a second-degree felony; Count Three for robbery in violation
of R.C. 2911.02(A)(3), a third-degree felony; and Count Four for theft in violation
of R.C. 2913.02(A)(1), a first-degree misdemeanor. Counts One and Two each
featured a firearm specification pursuant to R.C. 2941.145(A). On November 22,
2021, Peters appeared for arraignment and pleaded not guilty to the counts and
specifications in the indictment.
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{¶4} The matter proceeded to a jury trial on August 30 and 31, 2022. At the
close of the State’s case, Peters moved for a judgment of acquittal under Crim.R. 29
as to all counts and specifications in the indictment. The trial court granted Peters’
motion as to Count Two and its attendant firearm specification, but otherwise denied
the motion. On August 31, 2022, the jury found Peters guilty of Count One and its
accompanying firearm specification, but not guilty of Counts Three and Four. The
trial court accepted the jury’s verdicts and continued sentencing until a later date.
{¶5} On October 20, 2022, the trial court held a sentencing hearing. For the
felonious assault charge, the judge sentenced Peters to a mandatory minimum prison
term of four years with a maximum of six years. The trial court specified this was
a mandatory prison term. The trial court also sentenced Peters to an additional
mandatory term of three years in prison for the firearm specification. The trial court
ordered the sentence for the specification be served prior and consecutive to the
felonious assault sentence, resulting in an aggregate mandatory minimum term of
seven years’ imprisonment and an aggregate maximum term of nine years’
imprisonment. The trial court filed its judgment entry of sentence on October 20,
2022.
II. ASSIGNMENTS OF ERROR
{¶6} On October 24, 2022, Peters timely filed a notice of appeal. He raises
the following five assignments of error for our review:
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First Assignment of Error
The jury lost its way when reviewing the evidence, resulting in a verdict that is against the manifest weight of the evidence and sufficiency of the evidence.
Second Assignment of Error
The trial court erred when it included in the jury instructions references to sufficiency of the evidence, as inclusion created confusion and prejudiced appellant.
Third Assignment of Error
Trial court erred when it overruled appellant’s Criminal Rule 29 motions for acquittal on the felonious assault and gun specification at the conclusion of the State’s evidence and then again at the end of the trial.
Fourth Assignment of Error
Appellant was wrongfully indicted of a gun specification in connection with an underlying offense that contains the element that appellant possesses a gun to commit the offense. The addition of a gun specification to an offense that has as an element of the offense the presence or use of a firearm in the commission of the offense is unconstitutional.
Fifth Assignment of Error
The trial court erred when it sentenced appellant to a mandatory minimum prison sentence on the felonious assault charge.
III. DISCUSSION
{¶7} For ease of discussion, we will consider Peters’ first and third
assignments of error together. Then, we otherwise consider Peters’ assignments of
error individually and in the order presented.
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A. First and Third Assignments of Error
{¶8} In his first and third assignments of error, Peters argues the jury’s
verdict is not supported by sufficient evidence and is against the manifest weight of
the evidence.1
i. Standards of Review
{¶9} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389, 678
N.E.2d 541 (1997). Accordingly, we address each legal concept individually.
{¶10} Regarding sufficiency of the evidence, a sufficiency analysis
‘“determine[s] whether the case may go to the jury or whether the evidence is legally
sufficient to support the jury verdict as a matter of law.’” Id. at 386, quoting Black’s
Law Dictionary 1433 (6th Ed.1990). In reviewing the sufficiency of the evidence
to support a criminal conviction, we “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. Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by state
constitutional amendment on other grounds as recognized in State v. Smith, 80 Ohio
1 Peters’ first assignment of error argues that the verdict is both against the weight of the evidence and against the sufficiency of the evidence. Peters’ third assignment of error argues that the trial court erred when it denied his motions for acquittal of the felonious assault and gun specification charges. “Because the purpose of a Crim.R. 29 motion for acquittal ‘is to test the sufficiency of the evidence presented at trial,’ we ‘review[] a denial of a Crim.R. 29 motion for judgment of acquittal using the same standard that is used to review a sufficiency of the evidence claim.’” (Bracketing in original.) State v. Brown, 3d Dist. Allen No. 1-19-61, 2020-Ohio-3614, ¶ 35, quoting State v. Willis, 12th Dist. Butler No. CA2009-10-270, 2010-Ohio-4404, ¶ 9; see also Crim.R. 29(A).
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St.3d 89, 102, 684 N.E.2d 668 (1997), fn. 4. “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. Thus, “[i]n assessing the sufficiency of the evidence, we do
not resolve evidentiary conflicts or assess the credibility of witnesses.” State v.
Jackson, 3d Dist. Allen No. 1-22-27, 2023-Ohio-2193, ¶ 26; see also Jenks at 279.
{¶11} Regarding manifest weight of the evidence, “[a]lthough a court of
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[Cite as State v. Peters, 2023-Ohio-4362.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
STATE OF OHIO, CASE NO. 14-22-21 PLAINTIFF-APPELLEE,
v.
STEVEN PETERS, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court Trial Court No. 2021-CR-0207
Judgment Affirmed
Date of Decision: December 4, 2023
APPEARANCES:
Alison Boggs for Appellant
Raymond Kelly Hamilton for Appellee Case No. 14-22-21
MILLER, P.J.
{¶1} Defendant-appellant, Steven Peters (“Peters”), appeals the October 20,
2022 judgment of sentence of the Union County Court of Common Pleas. For the
reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶2} This case originates from a September 8, 2021 incident at the Super 8
Motel in Marysville, where Peters got into an altercation with Kaleigh Dallas
(“Dallas”). The altercation culminated in a heated argument, during which Peters
held a gun to Dallas’ body. Additionally, Dallas alleged that Peters stole items from
her motel room during the incident.
{¶3} On October 12, 2021, the Union County Grand Jury indicted Peters on
four counts relating to the incident: Count One for felonious assault in violation of
R.C. 2903.11(A)(2), a second-degree felony; Count Two for robbery in violation of
R.C. 2911.02(A)(1), a second-degree felony; Count Three for robbery in violation
of R.C. 2911.02(A)(3), a third-degree felony; and Count Four for theft in violation
of R.C. 2913.02(A)(1), a first-degree misdemeanor. Counts One and Two each
featured a firearm specification pursuant to R.C. 2941.145(A). On November 22,
2021, Peters appeared for arraignment and pleaded not guilty to the counts and
specifications in the indictment.
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{¶4} The matter proceeded to a jury trial on August 30 and 31, 2022. At the
close of the State’s case, Peters moved for a judgment of acquittal under Crim.R. 29
as to all counts and specifications in the indictment. The trial court granted Peters’
motion as to Count Two and its attendant firearm specification, but otherwise denied
the motion. On August 31, 2022, the jury found Peters guilty of Count One and its
accompanying firearm specification, but not guilty of Counts Three and Four. The
trial court accepted the jury’s verdicts and continued sentencing until a later date.
{¶5} On October 20, 2022, the trial court held a sentencing hearing. For the
felonious assault charge, the judge sentenced Peters to a mandatory minimum prison
term of four years with a maximum of six years. The trial court specified this was
a mandatory prison term. The trial court also sentenced Peters to an additional
mandatory term of three years in prison for the firearm specification. The trial court
ordered the sentence for the specification be served prior and consecutive to the
felonious assault sentence, resulting in an aggregate mandatory minimum term of
seven years’ imprisonment and an aggregate maximum term of nine years’
imprisonment. The trial court filed its judgment entry of sentence on October 20,
2022.
II. ASSIGNMENTS OF ERROR
{¶6} On October 24, 2022, Peters timely filed a notice of appeal. He raises
the following five assignments of error for our review:
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First Assignment of Error
The jury lost its way when reviewing the evidence, resulting in a verdict that is against the manifest weight of the evidence and sufficiency of the evidence.
Second Assignment of Error
The trial court erred when it included in the jury instructions references to sufficiency of the evidence, as inclusion created confusion and prejudiced appellant.
Third Assignment of Error
Trial court erred when it overruled appellant’s Criminal Rule 29 motions for acquittal on the felonious assault and gun specification at the conclusion of the State’s evidence and then again at the end of the trial.
Fourth Assignment of Error
Appellant was wrongfully indicted of a gun specification in connection with an underlying offense that contains the element that appellant possesses a gun to commit the offense. The addition of a gun specification to an offense that has as an element of the offense the presence or use of a firearm in the commission of the offense is unconstitutional.
Fifth Assignment of Error
The trial court erred when it sentenced appellant to a mandatory minimum prison sentence on the felonious assault charge.
III. DISCUSSION
{¶7} For ease of discussion, we will consider Peters’ first and third
assignments of error together. Then, we otherwise consider Peters’ assignments of
error individually and in the order presented.
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A. First and Third Assignments of Error
{¶8} In his first and third assignments of error, Peters argues the jury’s
verdict is not supported by sufficient evidence and is against the manifest weight of
the evidence.1
i. Standards of Review
{¶9} Manifest “weight of the evidence and sufficiency of the evidence are
clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389, 678
N.E.2d 541 (1997). Accordingly, we address each legal concept individually.
{¶10} Regarding sufficiency of the evidence, a sufficiency analysis
‘“determine[s] whether the case may go to the jury or whether the evidence is legally
sufficient to support the jury verdict as a matter of law.’” Id. at 386, quoting Black’s
Law Dictionary 1433 (6th Ed.1990). In reviewing the sufficiency of the evidence
to support a criminal conviction, we “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. Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492 (1991), paragraph two of the syllabus, superseded by state
constitutional amendment on other grounds as recognized in State v. Smith, 80 Ohio
1 Peters’ first assignment of error argues that the verdict is both against the weight of the evidence and against the sufficiency of the evidence. Peters’ third assignment of error argues that the trial court erred when it denied his motions for acquittal of the felonious assault and gun specification charges. “Because the purpose of a Crim.R. 29 motion for acquittal ‘is to test the sufficiency of the evidence presented at trial,’ we ‘review[] a denial of a Crim.R. 29 motion for judgment of acquittal using the same standard that is used to review a sufficiency of the evidence claim.’” (Bracketing in original.) State v. Brown, 3d Dist. Allen No. 1-19-61, 2020-Ohio-3614, ¶ 35, quoting State v. Willis, 12th Dist. Butler No. CA2009-10-270, 2010-Ohio-4404, ¶ 9; see also Crim.R. 29(A).
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St.3d 89, 102, 684 N.E.2d 668 (1997), fn. 4. “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. Thus, “[i]n assessing the sufficiency of the evidence, we do
not resolve evidentiary conflicts or assess the credibility of witnesses.” State v.
Jackson, 3d Dist. Allen No. 1-22-27, 2023-Ohio-2193, ¶ 26; see also Jenks at 279.
{¶11} Regarding manifest weight of the evidence, “[a]lthough a court of
appeals may determine that a judgment of a trial court is sustained by sufficient
evidence, that court may nevertheless conclude that the judgment is against the
weight of the evidence.” Thompkins at 387. In determining whether a conviction
is against the manifest weight of the evidence, “‘[t]he 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.’” State v. Elmore, 111 Ohio
St.3d 515, 2006-Ohio-6207, ¶ 44, quoting Thompkins at 387. Yet, “[o]nly in
exceptional cases, where the evidence ‘weighs heavily against the conviction,’
should an appellate court overturn the trial court’s judgment.” State v. Haller, 3d
Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio
St.3d 67, 2011-Ohio-6524, ¶ 119; see also Thompkins at 387.
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ii. Felonious assault
{¶12} Peters was convicted of one count of felonious assault, in violation of
R.C. 2903.11(A)(2). The offense is codified at R.C. 2903.11, which states, in
relevant part: “No person shall knowingly * * * [c]ause or attempt to cause physical
harm to another * * * by means of a deadly weapon or dangerous ordnance.”
Therefore, the State is required to prove, beyond a reasonable doubt, that the
defendant (1) knowingly, (2) caused or attempted to cause physical harm to another,
(3) by means of a deadly weapon or dangerous ordnance. The term “deadly
weapon,” as used in that statute, “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.” R.C. 2923.11(A); see also R.C. 2903.11(E)(1).
{¶13} A reasonable jury can convict a defendant of felonious assault if the
defendant knowingly pointed a gun that qualifies as a “deadly weapon” at the victim
and either fired or attempted to fire in the victim’s direction. State v. Brooks, 44
Ohio St.3d 185, 192, 542 N.E.2d 636 (1989). However, “[t]he act of pointing a
deadly weapon at another, without additional evidence of the actor’s intention, is
insufficient evidence to convict a defendant of the offense of ‘felonious assault’ as
defined by R.C. 2903.11(A)(2).” Id. at syllabus. Simply pointing a deadly weapon
at another is not an “attempt to cause physical harm” to another under the statute.
Id. at 189. However, pointing a deadly weapon at another satisfies the knowingly
element of felonious assault. State v. Potts, 3d Dist. Hancock No. 5-16-03, 2016-
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Ohio-5555, ¶ 46 (“the State presented sufficient evidence that [the defendant]
pointed the gun at [the victim], which satisfies the element of felonious assault that
[the defendant] acted knowingly”).
{¶14} Two years after Brooks, the Ohio Supreme Court identified one
example of sufficient “additional evidence of the actor’s intention,” when it held:
“[t]he act of pointing a pointing a deadly weapon at another coupled with a threat,
which indicates an intention to use such weapon, is sufficient evidence to convict a
defendant of the offense of ‘felonious assault’ as defined by R.C. 2903.11(A)(2).”
State v. Green, 58 Ohio St.3d 239, 569 N.E.2d 1038 (1991), syllabus. Our court
later explained: “‘the Brooks holding is that the trier of fact may infer the existence
of the attempt to cause physical harm element from the circumstances that surround,
and indeed prompt, the aiming of the deadly weapon.’” Potts at ¶ 53, quoting State
v. Dyer, 2d Dist. Montgomery No. 26267, 2015-Ohio-451, ¶ 1 (alterations adopted).
For example, in Potts, the defendant’s felonious assault conviction was based on
sufficient evidence because the jury could reasonably infer he attempted to seriously
harm the victim when he aggressively forced his way into the victim’s house while
pointing a gun at the victim. Id. at ¶ 60. Additionally, the act of pointing a gun at
the victim and instructing him or her not to move, or to get out of the house, may
demonstrate the intent to cause physical harm by means of a deadly weapon. See,
e.g., State v. Smiley, 8th Dist. Cuyahoga No. 97047, 2012-Ohio-1742, ¶ 29
(sufficient evidence to convict defendant of felonious assault where defendant
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pointed a gun at the victim’s chest and said “don’t move”); State v. Simon, 3d Dist.
Hancock No. 5-98-14, 1998 WL 735868, *4 (Oct. 21, 1998) (defendant’s intention
to use the gun pointed at the victim “was evidenced by his statement ‘Get out of my
house’”).
iii. Gun specification
{¶15} The jury also found Peters guilty of the gun specification related to the
felonious assault offense. The State was required to prove, beyond a reasonable
doubt, that Peters “had a firearm on or about [his] person or under [his] control while
committing the offense” of felonious assault and “displayed the firearm, brandished
the firearm, indicated that [he] possessed the firearm, or used it to facilitate the
offense.” R.C. 2941.145(A); see also R.C. 2929.14(B)(1)(a)(ii); State v. Smith, 8th
Dist. Cuyahoga No. 111274, 2023-Ohio-603, ¶ 118. The term “firearm” is defined
as “any deadly weapon capable of expelling or propelling one or more projectiles
by the action of an explosive or combustible propellant.” R.C. 2923.11(B)(1); see
also R.C. 2941.145(F) (“[a]s used in this section, ‘firearm’ has the same meaning
as in section 2923.11 of the Revised Code”). That term “includes an unloaded
firearm, and any firearm that is inoperable but that can readily be rendered
operable.” Id. Thus, to support a firearm specification, the State must also ‘“prove
beyond a reasonable doubt that the firearm was operable or could readily have been
rendered operable at the time of the offense.”’ State v. Elliott, 3d Dist. Logan No.
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8-21-35, 2022-Ohio-3778, ¶ 51, quoting State v. Staten, 10th Dist. Franklin No.
18AP-48, 2018-Ohio-4681, ¶ 11.
{¶16} “When determining whether a firearm is capable of expelling or
propelling one or more projectiles by the action of an explosive or combustible
propellant, the trier of fact may rely upon circumstantial evidence, including, but
not limited to, the representations and actions of the individual exercising control
over the firearm.” R.C. 2923.11(B)(2). This includes explicit or implicit threats
made by the person in control of the firearm. Elliott at ¶ 54; Thompkins, 78 Ohio
St.3d at 384, 678 N.E.2d 541 (“where an individual brandishes a gun and implicitly
but not expressly threatens to discharge the firearm at the time of the offense, the
threat can be sufficient to satisfy the state’s burden of proving that the firearm was
operable or capable of being readily rendered operable”). When a defendant states
he has a gun and will use it, “a reasonable trier of fact can infer both the existence
and the operability of a gun.” Elliott at ¶ 61. “The State may establish that a firearm
was operable ‘by the testimony of lay witnesses who were in a position to observe
the instrument and the circumstances surrounding the crime.’” Id. at ¶ 53, quoting
State v. Murphy, 49 Ohio St.3d 206, 551 N.E.2d 932 (1990), syllabus. Yet, the mere
possession of a gun, without something more, is not enough to allow for a finding
that it is operable. Id. at ¶ 69.
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iv. Evidence at trial
{¶17} The trial lasted for two days. Officer Jason Nichols (“Officer
Nichols”) testified that he was the first officer at the scene on September 8, 2021 at
the Super 8 Motel. (Aug. 30, 2022 Tr. at 24-25). The motel was located at 16510
Square Drive, Marysville, Ohio in the County of Union. (Id.).
{¶18} Another witness was Jimmy Kyle McCune (“McCune”), who was
present during the incident at the motel on September 8, 2021. (Aug. 30, 2022 Tr.
at 81-82, 85-86). At the time he testified, McCune had criminal charges pending
against him related to the incident (including complicity for felonious assault), but
he testified without any agreement with the prosecutor and did so, according to
McCune, as a sign of genuine remorse. (Id. at 78-79, 116-18). McCune explained
he was not expecting to receive a “reward” or anything for his testimony; he just
wanted the truth to be known. (Id.)
{¶19} McCune and Peters had known each other prior to the incident. (Id. at
79-80, 106). In fact, they are cousins, worked together doing construction or
remodeling jobs, and Peters had periodically stayed at McCune’s house. (Id.; Aug.
31, 2022 Tr. at 34-35, 37-38). McCune said he also had known Dallas for about a
month or two prior to the incident, meeting her for the first time when Peters was
present too. (Aug. 30, 2022 Tr. at 82, 104-05). According to McCune, Peters had
a romantic relationship with Dallas at some point prior to the day of the incident.
(Id. at 105). Yet, on September 8, 2021, McCune went to the motel to have sex with
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Dallas. (Id. at 81-82). He drove to the Super 8 Motel with Peters, who agreed to
stay in the car. (Id. at 83). After arriving, Peters told McCune that he wanted to go
to Dallas’ room to talk to her, but McCune told him “no.” (Id. at 83-84).
{¶20} McCune testified that, after he had sex with Dallas, he went to a
convenience store; Peters was at the convenience store and then followed McCune
back up to Dallas’ room. (Id. at 84-85). Peters tried to get into Dallas’ room, but
McCune pushed him out and Peters went back down to the car. (Id.). Eventually,
McCune and Dallas exited her room to smoke a cigarette. (Id.). According to
McCune, Peters started saying that Dallas was “a lying, cheating this and that,” and
Peters and Dallas got into a verbal argument. (Id.). McCune testified: Peters then
“pulled out the gun and he said, bitch, I’ll shoot up this whole Super 8” and started
waving the gun around. (Id. at 85). Although McCune did not know Peters had
brought the gun to the motel, McCune was familiar with the weapon and understood
it to be a real gun. (Id. at 90-91). McCune testified that Peters then came up to
where Dallas was located, put the gun to her head, and screamed “I’ll blow your
head off.” (Id. at 85-86).
{¶21} During the trial, McCune also looked at a surveillance video
screenshot, in which Peters was up against Dallas’ body with the gun; McCune
testified Peters told Dallas “he was going to blow her brains out” at that time. (Id.
at 93-94; State’s Exhibit 14). McCune believed that Peters was going to shoot both
him and Dallas. (Aug. 30, 2022 Tr. at 97). McCune, who was standing next to
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Dallas during this time, tried to convince Peters to put the gun down, which Peters
ultimately did, and then Peters and Dallas started physically fighting. (Id. at 85-86,
92-95; State’s Exhibit 14). Peters and Dallas ended up fighting in Dallas’ room
until McCune finally got Peters out of the room and then they (McCune and Peters)
left the motel together. (Aug. 30, 2022 Tr. at 86-87, 97-98).
{¶22} Dallas also testified at the trial. She had been staying at the motel prior
to and at the time of the incident. (Aug. 30, 2022 Tr. at 130, 133). She believed
that Peters got upset on the day of the incident because she was being intimate with
McCune and not with him. (Id. at 134). She testified that Peters pulled a gun from
his car and was waiving it around in the motel’s parking lot, before he came up to
where she was located and held the gun to her two different times. (Aug. 30, 2022
Tr. at 138, 151-52). According to Dallas, on one occasion, Peters put the gun to her
head and said to her, “you’re not that big and bad now, huh.” (Id. at 139). Dallas
testified:
Q. And so, here is a screen shot, number 11, State’s Exhibit 14, what is Steven Peters doing?
A. He has the gun and he’s raising it up again to my head.
Q. Do you recall anything that he was – Steven Peters was saying as he had the gun raised to your head the first time or the second time?
A. Yes. He had mentioned about big and bad now, huh.
Q. What did you interpret that as? Those words spoken by Steven Peters?
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A. Um, that he thought that I was intimidated and that I was afraid and that I was weak and that, you know, him having that gun to me I would bow down and listen and just think he’s all that, you know.
Q. Uh-huh.
A. And I didn’t.
(Id. at 152).
{¶23} Dallas also testified that she was concerned that the gun was going to
go off and “wasn’t scared to die but [she] did fear for [her] life.” (Id. at 140-41).
She further testified: “* * * I wasn’t scared to die. I’m not going to sit there and
beg for my life * * *.” (Id.). Additionally, she said: “I feared that I was going to
lose my life and not be able to be there for my son.” (Id. at 156). However, Dallas
also testified, on cross-examination, that she told a detective she knew Peters was
not going to shoot her and that Peters was just showing off and flexing the gun. (Id.
at 156-57).
{¶24} After the State closed its evidence, Peters testified on his own behalf.
He admitted he was at the Super 8 Motel in Marysville on September 8, 2021 and
that he and Dallas got into an argument after Dallas and McCune exited her room.
(Aug. 31, 2022 Tr. at 36, 39-40). He also admitted that, after initially arguing with
Dallas, he went to the car and got a gun—which he said belonged to McCune. (Id.
at 40). He said the gun was a semi-automatic weapon that originally was “cocked
back,” but without a clip or bullets in it. (Id. at 41). The clip was sitting beside the
gun in the car. (Id.). He then pulled the gun’s safety down, pulled back the rear of
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the gun, and closed it before proceeding up to Dallas’ room “to scare her.” (Id. at
42). He admitted he “was going upstairs to frighten her with the weapon” because
he “was mad.” (Id.).
{¶25} Peters also admitted he “put the gun to the back of [Dallas’] back.”
(Id.). Regarding what he said when he put the gun up to Dallas’ back, Peters
testified that he “was laughing at her and we was [sic] exchanging cuss words back
and forth. Just cussing at each other.” (Id. at 43). He also said that they were just
arguing about Dallas’ child. (Id. at 55). Peters admitted he subsequently put the
gun up to Dallas’ neck too. (Id. at 43). According to Peters, in the midst of arguing
with Dallas, he then pulled the gun away from Dallas’ neck (“[b]ecause [he] was
thinking it was the wrong thing”), walked over to McCune, and gave McCune the
gun. (Id. at 42-44, 57). Peters said that his finger was never on the trigger of the
gun and that, as far as he knew, there was no clip or bullet in the gun. (Id. at 44).
Peters also testified he, Dallas, and McCune “could clearly see that [the gun was]
empty” and that he told them the gun was empty and was unloaded. (Aug. 31, 2022
Tr. at 52-53, 58). However, Peters admitted on cross-examination he was “asking
the jury to believe a pretty fantastical story that” he had told Dallas and McCune the
gun was unloaded. (Id. at 58). He also agreed that his actions in going up to Dallas
and pointing a gun at her terrorized Dallas. (Id. at 67).
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v. Peters’ conviction was supported by sufficient evidence
{¶26} Peters argues the State failed to present sufficient evidence to send the
charge of felonious assault and accompanying gun specification to the jury, and,
therefore, the trial court erred in overruling his Crim. R. 29 motions for acquittal.
(Appellant’s Brief at 13-14). He asserts the State “failed to present evidence that
Mr. Peters made a threat and that the threat indicated an intention to use the gun.”
(Id. at 13). He also asserts the State did not present any evidence that the gun was
operable to support a conviction on the gun specification.
{¶27} Regarding the felonious assault conviction, we disagree with Peters
that the State failed to present sufficient evidence to survive a Crim.R. 29 motion.
On the contrary, we find the State presented sufficient evidence Peters made a threat
and the threat indicated an intention to use the gun. For example, during the State’s
presentation of evidence, McCune testified that Peters, while pointing a gun at
Dallas, threatened her. (See, e.g., Aug. 30, 2022 Tr. at 85-86, 92-95, 102). The
following exchange took place at trial with McCune on the stand:
Q. Okay. Jimmy [McCune], did Steven Peters make any statements to Miss Dallas as he was holding the gun against her?
A. Yes.
Q. What did he say?
A. He said I’m going to blow your brains out.
(Aug. 30, 2022 Tr. at 102). Again, the Ohio Supreme Court has explained: “[t]he
act of pointing a deadly weapon at another coupled with a threat, which indicates an
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intention to use such weapon, is sufficient evidence to convict a defendant of the
offense of ‘felonious assault’ as defined by R.C. 2903.11(A)(2).” Green, 58 Ohio
St.3d 239, 569 N.E.2d 1038, at syllabus. Therefore, when viewing the evidence in
a light most favorable to the prosecution, a rational trier of fact could have found
the essential elements of the crime proven beyond a reasonable doubt both at the
close of the State’s evidence and at the close of Peters’ evidence. R.C.
2903.11(A)(2); Smiley, 2012-Ohio-1742, at ¶ 29 (sufficient evidence to convict
defendant of felonious assault where evidence supported that defendant had pointed
a gun at the victim’s chest and said “don’t move”); Potts, 2016-Ohio-5555, at ¶ 60
(felonious assault conviction was based on sufficient evidence where, “under the
specific facts of [the] case, a jury could reasonably infer that [defendant] attempted
to seriously harm [the victim] because he forced his way into [the victim’s] house
while pointing a gun at” the victim).
{¶28} Regarding the gun specification, we likewise disagree with Peters and
find the State presented sufficient evidence regarding Peters’ use of the gun and its
operability to warrant sending the charge to the jury. During the State’s presentation
of evidence, testimony from McCune and Dallas, as well as screenshots from the
video evidence, supported that Peters had a gun while committing the offense. (See,
e.g., Aug. 30, 2022 Tr. at 85-86, 92-95, 139-40, 152; State’s Exhibit 14). Testimony
and surveillance video screenshots supported that Peters displayed the gun,
brandished the gun, and used the gun to facilitate the offense. (See, e.g., Aug. 30,
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2022 Tr. at 85-86, 92-95, 139-40, 152; State’s Exhibit 14). Testimony also
supported that the gun qualified under the statute as a “firearm” that was operable
or could readily have been rendered operable at the time of the offense. (See, e.g.,
Aug. 30, 2022 Tr. at 85-86, 89-90, 94, 102). For example, in addition to testifying
that Peters had said “bitch, I’ll shoot up this whole Super 8,” McCune testified that
Peters held the gun to Dallas’ head and told her “I’m going to blow your brains out”
(id. at 85, 102). See Elliott, 2022-Ohio-3778, at ¶ 53-54, 61 (testimony of lay
witnesses, who had observed the weapon and circumstances surrounding the crime,
regarding threats may be relied on as circumstantial evidence that the firearm was
operable or capable of being readily rendered operable). Furthermore, Dallas
testified she was concerned the gun was going to go off and feared she was going
to lose her life, and McCune testified he believed Peters was going to shoot both
him and Dallas (see, e.g., Aug. 30, 2022 Tr. at 97, 140-41, 156). Therefore, when
viewing the evidence in a light most favorable to the prosecution, a rational trier of
fact could have found the essential elements of the gun specification proven beyond
a reasonable doubt both at the close of the State’s evidence and at the close of Peters’
evidence. R.C. 2941.145(A); R.C. 2929.14(B)(1)(a)(ii); Smith, 2023-Ohio-603, at
¶ 118; Smiley, 2012-Ohio-1742, at ¶ 32-34 (trier of fact reasonably concluded the
firearm was operable, based on the victim’s testimony that the defendant pointed a
gun at his chest and told him “don’t move” and the victim feared for his life); State
v. Ware, 9th Dist. Summit No. 22919, 2006-Ohio-2693, ¶ 14 (sufficient evidence
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that gun was operable where the victim testified the defendant pointed a handgun at
him and threatened him).
{¶29} We find that, viewing the evidence in a light most favorable to the
prosecution, the trial court did not err in denying Peters’ Crim.R. 29 motions for
acquittal on the felonious assault and related gun specification.
vi. Peters’ conviction was not against the manifest weight of the evidence
{¶30} Peters also argues “[t]he conflicting testimony and evidence in this
case clearly show the jury lost its way and that the verdict is against the weight of
the evidence,” and he asks us to reverse the jury’s guilty verdict. (Appellant’s Brief
at 3, 8).
{¶31} We find that the jury did not clearly lose its way and create such a
manifest miscarriage of justice that the conviction must be reversed. The weight of
the evidence, including screenshots from the surveillance video coupled with
McCune’s testimony, fully supports the jury’s guilty verdict. Peters admitted
(multiple times) that he pointed a gun at Dallas. (See, e.g., Aug. 31, 2022 Tr. at 60).
Additionally, although Peters testified he and Dallas were merely exchanging “cuss
words back and forth” and arguing about Dallas’ child (see Aug. 31, 2022 Tr. at 43,
55), testimony from McCune supports that Peters threatened to shoot her when he
pointed the gun at her. Specifically, McCune testified he observed Peters put the
gun to Dallas’ head and scream “I’ll blow your head off” and, later, “I’m going to
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blow your brains out.” (Aug. 30, 2022 Tr. at 85-86, 102). The evidence presented
does not weigh heavily against the conviction of felonious assault. Green, 58 Ohio
St.3d 239, 569 N.E.2d 1038, at syllabus; State v. Battle, 5th Dist. Morgan No. 09
AP 0001, 2010-Ohio-4327, ¶ 110-114 (despite conflicting testimony between the
victim’s and defendant’s versions of events, the conviction for felonious assault was
not against the manifest weight of the evidence where the victim’s testimony
supported that defendant pointed a gun at him and ordered him to get out of the
house).
{¶32} Regarding the gun specification, Peters argues the State did not offer
any evidence that the gun was operable. However, Peters himself testified on direct
examination to the following:
Q. And, again, you’re not denying that you took that gun out of his car?
A. No.
Q. And you’re not denying that you’ve seen that gun before?
Q. And, as far as you know, that’s an operable gun?
A. Yeah.
Q. And you’ve even played with that gun or had that gun –
Q. – while in Jimmy’s presence?
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(Aug. 31, 2022 Tr. at 50). Additionally, as set forth above in the sufficient evidence
analysis, there is ample testimony supporting a finding that, despite apparently being
unloaded, the gun was operable or could have been rendered operable at the time of
the offense. R.C. 2923.11(B)(1) (the term “‘[f]irearm’ includes an unloaded
firearm, and any firearm that is inoperable but that can readily be rendered
operable”).
{¶33} Having reviewed the entire record, weighing the evidence and all
reasonable inferences and making the considerations set forth above, we do not find
“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.” Elmore, 111 Ohio St.3d
515, 2006-Ohio-6207, at ¶ 44.
{¶34} Finally, Peters makes another related argument in his briefing.
Specifically, he asserts the trial court committed plain error when it allowed
questioning about what took place in the hotel room (after Peters was no longer in
possession of the handgun) because that line of questioning only served to prejudice
the jury against him, despite his counsel not objecting to the questioning. Under
Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights may be noticed
although they were not brought to the attention of the court.” To qualify for plain-
error relief, the appellant must establish: (1) occurrence of an error, i.e., a deviation
from a legal rule; (2) the error was plain, i.e., it was an obvious defect in the trial
proceedings; and (3) the error affected the appellant’s substantial rights, meaning
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the error “must have affected the outcome of the trial.” State v. Morgan, 153 Ohio
St.3d 196, 2017-Ohio-7565, ¶ 36. Yet, even when an appellant establishes those
three prongs, “[n]otice of plain error under CrimR. 52(B) is to be taken with the
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus; see also Morgan, 2017-Ohio-7565, at ¶ 37; State v.
Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 23 (“even if an accused shows that
the trial court committed plain error affecting the outcome of the proceeding, an
appellate court is not required to correct it”).
{¶35} To us, Peters has not met the plain-error standard. First, he ignores
that he was also on trial for two counts of robbery and one count of petty theft. The
State’s theory at trial regarding those charges was that Peters robbed Dallas of $100
in cash, a cellphone, and cigarettes from her hotel room after Peters had pointed the
gun at Dallas outside of her room. (See, e.g., Aug. 30, 2022 Tr. at 17-18; Aug. 31,
2022 Tr. at 50 (Peters’ counsel asking Peters on direct examination, “Did you ever
take a hundred dollars out of the room?”)). Dallas testified that, after Peters had
been in her hotel room and fought with her there, she looked for her belongings that
she had stored in her room and realized one hundred dollars, a pack of cigarettes,
and her phone were missing. (Aug. 30, 2022 Tr. at 149, 153-54). Second, starting
with the very first witness, Peters’ counsel attempted to erode Dallas’ credibility.
This included Peters’ counsel’s questioning that suggested Peters did not harm
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Dallas in the way she had told police officers (including that he put her on the bed,
jumped on top of her, and began punching her in the head and body). We also note
that, not only did Peters’ trial counsel not object to the line of questioning at issue,
he initiated a series of questions during his direct examination of Peters regarding
what happened in the motel room. (Aug. 31, 2022 Tr. at 47-48). In short, the trial
court did not commit plain error when it allowed the questioning.
{¶36} Peters’ first and third assignments of error are overruled.
B. Second Assignment of Error
{¶37} Peters’ second assignment of error relates to jury instructions.
Specifically, he takes issue with the following instructions to the jury regarding
felonious assault:
As it relates to the knowingly element of Felonious Assault, Ohio law has determined that evidence of a defendant pointing a gun at the victim is legally sufficient, if believed, to prove the defendant acted knowingly.
As it relates to the attempt to cause physical harm element of Felonious Assault, Ohio law has determined that evidence of a defendant making verbal threats while pointing a gun at the victim is legally sufficient, if believed, to prove the defendant attempted to cause the victim physical harm.
(Aug. 31, 2022 Tr. at 199). The State had requested these instructions be included
in the instructions to the jury, and Peters’ counsel objected to their inclusion during
the trial. (Id. at 88-89).
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{¶38} Given their reference to what “is legally sufficient,” Peters argues that
these jury instructions created confusion regarding the role of a jury versus the role
of a judge, reducing the State’s burden of “beyond a reasonable doubt” to merely
requiring “sufficient evidence,” and prejudiced him. Additionally, he contends that
they were not a correct statement of the law and that their inclusion materially
affected the outcome of the case.
i. Standard of Review for Disputed Jury Instructions
{¶39} “Abuse of discretion is the standard of review for disputed
instructions.” State v. White, 6th Dist. Lucas No. L-10-1194, 2013-Ohio-51, ¶ 97,
aff’d, 2015-Ohio-492; see also State v. Chavez, 3d Dist. Seneca Nos. 13-19-05, 13-
19-06, and 13-19-07, 2020-Ohio-426, ¶ 58 (“[g]enerally, appellate courts review
alleged errors in jury instructions for an abuse of discretion”). “An abuse of
discretion ‘connotes more than an error of law or of judgment; it implies that the
court’s attitude is unreasonable, arbitrary or unconscionable.’” State v. Jackson,
107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 181, quoting State v. Adams, 62 Ohio St.2d
151, 157, 404 N.E.2d 144 (1980).
ii. Applicable Law
{¶40} General legal principles regarding the elements and State’s burden for
proving a felonious assault under R.C. 2903.11(A)(2) are set forth above.
Additionally, “[a] trial court has broad discretion to decide how to fashion jury
instructions, but it must ‘fully and completely give the jury all instructions which
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are relevant and necessary for the jury to weigh the evidence and discharge its duty
as the fact finder.’” State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, ¶ 46,
quoting State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two
of the syllabus. “We require a jury instruction to present a correct, pertinent
statement of the law that is appropriate to the facts.” Id. However, there is a limit
to this requirement because, for example, no purpose is served by requiring courts
to present redundant jury instructions or instructions so similar to other instructions
as to be confusing. Id.
{¶41} “Requested jury instructions should ordinarily be given if they are
correct statements of law, if they are applicable to the facts in the case, and if
reasonable minds might reach the conclusion sought by the requested instruction.”
State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 240. However, “[t]he
relevant principle for jury instructions is not one of abstract correctness, but is
whether an instruction—even if a correct statement of law—is potentially
misleading.” White, 2015-Ohio-492, at ¶ 52. Yet, “jury instructions must be
considered as a whole.” State v. Coleman, 37 Ohio St.3d 286, 290, 525 N.E.2d 792
(1988). “A single instruction to a jury may not be judged in artificial isolation but
must be viewed in the context of the overall charge.” State v. Price, 60 Ohio St.2d
136, 398 N.E.2d 772 (1979), paragraph four of the syllabus.
{¶42} Finally, Peters concedes in his brief that, “even if an instruction was
inappropriate, if it did not materially affect the outcome of the case, then it would
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not be proper to reverse the judgment.” (Appellant’s Brief at 8, citing State v.
Copeland, 8th Dist. Cuyahoga No. 106988, 2019-Ohio-1370, ¶ 28). This Court has
previously explained that, if we find the trial court erred in instructing the jury, then
we must “determine whether that error was harmless or prejudicial.” State v.
Noggle, 140 Ohio App.3d 733, 749, 749 N.E.2d 309 (3d Dist.2000). “‘Harmless
error’ is defined in CrimR. 52(A) as ‘[a]ny error, defect, irregularity, or variance
which does not affect substantial rights * * *.’” Id. “‘To be deemed nonprejudicial,
error of constitutional dimension must be harmless beyond a reasonable doubt.’”
Id., quoting State v. Williams, 6 Ohio St.3d 281, 452 N.E.2d 1323 (1983), paragraph
three of the syllabus. Additionally, “‘[e]rror, in order to be construed as prejudicial
error, must be an incorrect statement of the law.’” Id., quoting State v. Sargent, 41
Ohio St.2d 85, 91, 322 N.E.2d 634 (1975).
iii. Analysis
{¶43} First, we disagree with Peters’ argument that any mention of
“sufficiency of the evidence” in the jury instructions caused a confusion of roles
between the jury and the court, as well as with his assertion that the instructions
prejudiced him by reducing the State’s burden. His argument ignores the entirety
of the jury instructions and, instead, incorrectly looks only to the at-issue
instructions in isolation. Price, 60 Ohio St.2d 136, 398 N.E.2d 772, at paragraph
four of the syllabus.
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{¶44} At trial, the judge instructed the jury: “[t]he defendant is presumed
innocent unless his guilt has been established beyond a reasonable doubt” and “[t]he
defendant must be acquitted unless the State produces evidence which convinces
you beyond a reasonable doubt of every essential element of the offense charged in
the indictment.” (Aug. 31, 2022 Tr. at 183-184). The trial court also instructed the
jury: “Reasonable doubt is present when, after you have carefully considered and
compared all of the evidence, you cannot say that you are firmly convinced of the
truth of the charge.” (Id. at 184).
{¶45} Regarding felonious assault, the trial court instructed the jury: “Before
you can find the defendant guilty of Felonious Assault, you must find that the State
of Ohio has proven beyond a reasonable doubt that on or about September 8, 2021,
in Union County, Ohio, Defendant Steven Peters did knowingly cause or attempt to
cause physical harm to Kaleigh Dallas by means of a deadly weapon or dangerous
ordnance, to-wit: A handgun.” (Id. at 192). Regarding some of these terms, the trial
court instructed:
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. A person has knowledge of circumstances when the person is aware that such circumstances probably exist.
***
Attempt means no person, purposely or knowingly, and when purpose or knowledge is sufficient culpability for the commission of offense – of an offense shall engage in conduct that, if successful, would constitute or result in the offense. -27- Case No. 14-22-21
Cause is an act or failure to act in which – which is a natural and continuous sequence directly produces the physical harm and without which it would not have occurred.
Physical harm to persons means any injury, illness or other psychological impairment regardless of its gravity or duration.
(Id. at 193-194). It was after this point that the judge gave the portion of the
instructions at issue in this appeal, quoted above.2 (Id. at 199).
{¶46} Peters’ argument also ignores that numerous courts have upheld jury
instructions containing similar language regarding sufficient evidence. See, e.g.,
State v. Cochran, 2d Dist. Greene No. 2019-CA-41, 2020-Ohio-3054, ¶ 18, 23, 28-
29 (rejecting appellant’s argument that a felonious assault instruction pertaining to
sufficiency of evidence invited the jury to ignore an element of the offense); State
v. Collins, 8th Dist. Cuyahoga No. 89529, 2008-Ohio-578, ¶ 60-70; State v. Turner,
8th Dist. Cuyahoga No. 78520, 2001 WL 1671434, *4-6 (Nov. 29, 2001); State v.
Stone, 11th Dist. Ashtabula, No. 98-A-0102, 1999 WL 1313620, *3 (Dec. 10, 1999).
For example, in Collins¸ the defendant-appellant argued he was denied due process
2 Additionally, in closing arguments, the State briefly previewed the instructions at issue in this appeal, and Peters’ trial counsel then likewise addressed those instructions. (Aug. 31, 2022 Tr. at 147-48, 172-76). Peters’ trial counsel stated that he did not want the jury to be confused about the concept of sufficiency. He told them that, although the State argued what evidence would be legally sufficient to support a finding of guilt, “that doesn’t prevent you, as the jury, still having to find beyond a reasonable doubt that the defendant acted knowingly and it doesn’t mean that if you think that happened, you have to find beyond a reasonable doubt that the defendant acted knowingly. It just means from a point of law there is a sufficient credible basis where you could find the defendant acted knowingly.” (Id. at 173-174). Peters’ trial counsel made similar remarks with respect to the attempted-physical-harm portion of the instruction, telling the jurors they “could determine that an attempt to cause physical harm was made not that you have to and not that the State is relieved of their burden beyond a reasonable doubt because they still have to find the actual elements of the crime.” (Id. at 174). Peters’ trial counsel concluded: “[P]lease have that distinction and try not to get confused between what is a sufficient factual basis where an Appellate Court wouldn’t overturn your verdict and what you actually have to do to follow the law.” (Id. at 176).
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of law when the court gave an (allegedly) incomplete instruction on felonious
assault, effectively directing a verdict of guilty. The appellate court rejected the
argument, concluding the trial court properly instructed the jury in telling it: “The
act of pointing a deadly weapon at another, coupled with a threat which indicates
intention to use such weapon, is sufficient evidence to convict a defendant of the
offense of felonious assault.” Collins at ¶ 64, 70. In Turner, the defendant-appellant
made an argument similar to Peters’ argument here: “the court’s instruction
confused the elements of felonious assault with the concept of sufficiency of the
evidence when the court essentially charged the jury that threatening the victim with
a firearm, when the appellant had previously discharged the firearm, is sufficient for
a conviction.” Turner at * 4. In rejecting this argument, the appellate court found
“the jury instructions, when considered as a whole, provided the jury with all the
information necessary for it to weigh the evidence and arrive at its conclusion.” Id.
at *6. Based on the instructions as a whole and applicable caselaw, we do not find
error in the trial court’s reference to what “is legally sufficient” in the instructions
at issue.
{¶47} Second, we reject Peters’ argument that the jury instructions were not
a correct statement of the law and materially affected the outcome of the case. The
instructions at issue are a correct statement of law in accordance with our precedent.
Potts, 2016-Ohio-5555, at ¶ 46 (“the State presented sufficient evidence that
[defendant] pointed the gun at [victim], which satisfies the element of felonious
-29- Case No. 14-22-21
assault that [defendant] acted knowingly”), ¶ 50 (a reasonable jury could convict the
defendant of felonious assault if he had pointed his weapon at the victim and either
fired or attempted to discharge his weapon in the victim’s direction “or if [the
defendant] verbally threatened [the victim] while pointing the gun at him”).
{¶48} We acknowledge that more complete recitations of the law relating to
attempted felonious assault with a gun have been fashioned into jury instructions by
other trial courts. However, we do not find the jury instructions at issue here were
an incorrect statement of law or misleading—and they certainly did not materially
affect the outcome of the case—given the evidence presented and considering the
instructions as a whole. See State v. Allen, 73 Ohio St.3d 626, 629, 653 N.E.2d 675
(1995) (explaining that, although the Court expressed a preference that a certain
instruction be avoided, giving the instruction did not constitute prejudicial error).
{¶49} Additionally, the jury instructions at issue were applicable to the facts
in the case and reasonable minds might reach the conclusion sought by the
instructions, which the State had requested. Adams, 144 Ohio St.3d 429, 2015-
Ohio-3954, at ¶ 240 (“[r]equested jury instructions should ordinarily be given if they
are correct statements of law, if they are applicable to the facts in the case, and if
reasonable minds might reach the conclusion sought by the requested instruction”).
As explained in the section above addressing the first and third assignments of error,
not only did the State present evidence that Peters pointed a gun at Dallas
(something Peters himself admits), but it presented evidence that Peters made verbal
-30- Case No. 14-22-21
threats to Dallas while doing so. (See, e.g., Aug. 30, 2022 Tr. at 85-86 (McCune
testifying that Peters put the gun to Dallas’ head and screamed “I’ll blow your head
off”); id. at 102 (McCune testifying that Peters told Dallas, while holding a gun
against her, “I’m going to blow your brains out”)).
{¶50} Peters argues he only made one comment to the victim and that
comment, alone, did not indicate an intention on his part to use the weapon.
(Appellant’s Brief at 10 (“[h]e merely said, ‘you’re not that big and bad now huh’”)).
But this argument, inexplicably, completely ignores McCune’s testimony, which
clearly supported that Peters’ verbal threat indicated an intent to use the gun while
pointed at the victim. The words “I’m going to blow your brains out” and “I’ll blow
your head off” each unquestionably evidence an intent to use the gun pointed at
Dallas. The jury was free to believe or disbelieve whatever testimony it chose.
{¶51} Furthermore, even if the jury for some reason did not rely on
McCune’s testimony, then they could have relied on Dallas’ testimony to reach the
conclusion that Peters’ verbal threat indicated an intent to use the gun while pointed
at the victim. Peters ignores Dallas’ testimony that she feared she was going to lose
her life. Dallas testified that on one of the occasions, Peters, while holding the gun
to her head, told her “you’re not that big and bad now, huh.” Caselaw shows this
comment certainly could indicate an intention on Peters’ part to use the gun as
perceived by a reasonable person under the circumstances. See, e.g., State v.
Shepherd, 8th Dist. Cuyahoga No. 102974, 2016-Ohio-1119, ¶ 12 (affirming jury’s
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conviction of the defendant for felonious assault where defendant pointed a gun at
the victim and said “you know what this is”); Simon, 1998 WL 735868, at *4
(sufficient evidence to convict defendant of felonious assault where defendant
pointed a gun at the victim and the threat made was “Get out of my house”); Smiley,
2012-Ohio-1742, at ¶ 29 (sufficient evidence to convict defendant of felonious
assault where defendant pointed a gun at the victim’s chest and the threat made was
“don’t move”). Peters’ argument attempts to isolate the comment from its context,
but the comment cannot be evaluated in isolation. The phrases “you know what this
is” or “don’t move” or “get out of my house”—or even the phrase used in Green
(“If you don’t have a warrant get the fuck out of my house”)—do not, in and of
themselves, evidence an intent to use a deadly weapon when simply read in
isolation. Yet, when properly evaluated in context of the situation, such comments
and the comment Dallas testified to here (“you’re not that big and bad now, huh”)
can be perceived by a reasonable person under the circumstances as an intention to
use a deadly weapon.
{¶52} Next, in his briefing, Peters contends there was nothing to prove Dallas
actually felt threatened or was afraid. In support of this contention he cites Dallas’
testimony that she “wasn’t scared” and had told a detective she knew Peters was not
going to shoot her. (Aug. 30, 2022 Tr. at 155-56). However, the State was not
required to prove that the victim actually felt threatened or was afraid in order to
prove the offense of felonious assault. Such a requirement does not correspond with
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the elements of the offense or with the Ohio Supreme Court’s pronouncements in
Green—which focus on a reasonable person’s perception of the statement made by
the assailant. See also State v. Kehoe, 133 Ohio App.3d 591, 613-614, 729 N.E.2d
431 (12th Dist.1999) (the statement “a felonious assault occurs when a loaded
weapon is pointed at an individual and the individual feels threatened * * * does not
accurately reflect the elements of felonious assault”). Regardless, Dallas’ testimony
does support that she felt threatened and feared for her life. (See, e.g., Aug. 30,
2022 Tr. at 140).
{¶53} Finally, even if the jury instructions at issue were erroneous, they were
not prejudicial under the particular facts of this case given the evidence presented at
trial and instructions as a whole. The trial court did not abuse its discretion. We
find that any alleged error in the jury instructions did not materially affect the
outcome of the case. State v. Swartz, 3d Dist. Auglaize No. 2-85-34, 1987 WL
32155, *3 (Dec. 30, 1987) (if the record shows the jury returned a guilty verdict on
sufficient evidence, and no prejudicial error occurred at trial or in the instructions
to the jury, then the reviewing court may not reverse the judgment of conviction).
{¶54} Peters’ second assignment of error is overruled.
C. Fourth Assignment of Error
{¶55} In his fourth assignment of error, Peters argues that he was deprived
of the Eighth Amendment’s protections against cruel and unusual punishment when
he was indicted for felonious assault and the associated firearm specification. Peters
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maintains that possession of a firearm was, in this instance, an element of the
felonious-assault offense with which he was charged. He argues that “[t]he ability
of the State to add the gun specification penalty enhancement that is also an essential
element of the predicate offense to an indictment creates a penalty that is grossly
disproportionate to the offense in the event there is a finding of guilt.” (Appellant’s
Brief at 15). He claims “it is unconstitutional to further increase a penalty for a
crime that already accounts for a firearm by further indicting an individual with a
gun specification,” and he asks us to reverse his conviction for the firearm
specification. (Id. at 17).
{¶56} However, as Peters concedes, this issue was not raised at any time in
the trial court proceedings below. “‘If a party fails to object to a constitutional issue
at trial, an appellate court need not consider the objection for the first time on
appeal.’” State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 70,
quoting State v. Rowland, 3d Dist. Hancock No. 5-01-28, 2002 WL 479163, *1
(Mar. 29, 2002). While we retain discretion to consider constitutional challenges
not previously submitted to the trial court, “discretion will not ordinarily be
exercised to review such claims, where the right sought to be vindicated was in
existence prior to or at the time of trial.” State v. Woodards, 6 Ohio St.2d 14, 21,
215 N.E.2d 568 (1966).
{¶57} Here, Peters’ Eighth-Amendment argument was available to him from
the outset of his prosecution. Yet, he did nothing in the trial court to develop or
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advance it. Under these circumstances, we decline to exercise our discretion to
consider his constitutional argument in the first instance.
{¶58} Peters’ fourth assignment of error is overruled.
D. Fifth Assignment of Error
{¶59} In his fifth assignment of error, Peters argues that his mandatory four-
year minimum prison sentence for felonious assault is contrary to law. Peters
acknowledges that the trial court had to impose a mandatory prison term for the
firearm specification associated with his felonious-assault conviction, but he
maintains that nothing in the Revised Code required the trial court to impose a
mandatory prison term for the felonious-assault conviction itself. In making this
argument, Peters asks us to reconsider our decision in State v. Wolfe, 3d Dist. Union
No. 14-21-16, 2022-Ohio-96, issued on January 18, 2022, as well as the
interpretation of R.C. 2929.13(F)(8) we adopted therein.3
i. Standard of Review for Felony Sentencing
{¶60} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“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,
3 Although R.C. 2929.13 has since been amended (effective April 4, 2023), the version of the statute applicable both in Wolfe and in this case are the same and, more importantly going forward, the amendments do not alter our conclusion concerning the interpretation of R.C. 2929.13(F)(8). See State v. Johnson, 116 Ohio St.3d 541, 2008-Ohio-69, ¶ 9 (the applicable version of R.C. 2929.13(F) is the one in effect on the date of the offense).
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¶ 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.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),
paragraph three of the syllabus.
ii. Relevant Sentencing Statutes
{¶61} We start with the definition of “mandatory prison term.” As pertinent
here, a “mandatory prison term” means “the term in prison that must be imposed for
the offenses or circumstances set forth in divisions (F)(1) to (8) or (F)(12) to (21) of
section 2929.13 and division (B) of section 2929.14 of the Revised Code.” R.C.
2929.01(X)(1). Therefore, R.C. 2929.13(F)(8) provides for a mandatory prison
term, as does R.C. 2929.14(B)(1)(a)(ii).
{¶62} Looking first to R.C. 2929.14(B)(1)(a), under R.C.
2929.14(B)(1)(a)(i)-(vi), “if an offender who is convicted of or pleads guilty to a
felony also is convicted of or pleads guilty to a [firearm specification] described in
section 2941.141, 2941.144, or 2941.145 of the Revised Code, the court shall
impose on the offender [a prison term of six years, three years, one year, nine years,
54 months, or 18 months, as appropriate].” Under the version of the statute in effect
at the time of Peters’ offense,4 a prison term imposed under R.C. 2929.14(B)(1)(a)
“shall not be reduced pursuant to section 2967.19 [80% release procedure], section
4 As with R.C. 2929.13, the legislature recently amended R.C. 2929.14 (effective April 4, 2023), but those amendments do not alter our conclusion concerning the interpretation of R.C. 2929.13(F)(8).
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2929.20 [petitions for judicial release and early release], section 2967.193 [earned
days of credit for participation in certain programs], or any other provision of
Chapter 2967. [Pardon; Parole; Probation] or Chapter 5120. [Department of
Rehabilitation and Correction] of the Revised Code.” R.C. 2929.14(B)(1)(b).
Because the jail-time credit provision in R.C. 2967.191 “plainly constitutes ‘any
other provision of Chapter 2967,’” R.C. 2929.14(B)(1)(b) clearly “requires that jail-
time credit not be applied toward prison terms for firearm specifications.” State v.
Moore, 154 Ohio St.3d 94, 2018-Ohio-3237, ¶ 10, 15.
{¶63} Some criminal offenses are exempt from enhancement via firearm
specification. Specifically, under R.C. 2929.14(B)(1)(e), “certain firearm
offenses—carrying concealed weapons [R.C. 2923.12], illegal conveyance of
deadly weapon or ordnance into a courthouse [R.C. 2923.123], improperly handling
firearms in a motor vehicle [R.C. 2923.16], illegal possession of firearm in a liquor
permit premises [R.C. 2923.121]—are not enhanceable.” State v. Jones, 8th Dist.
Cuyahoga No. 108050, 2019-Ohio-5237, ¶ 54. Additionally, where a violation of
R.C. 2923.122 (conveyance or possession of deadly weapons or dangerous ordnance
in school safety zone) “involves a deadly weapon that is a firearm other than a
dangerous ordnance,” the trial court is not permitted to impose a sentence for a
firearm specification under R.C. 2929.14(B)(1)(a). R.C. 2929.14(B)(1)(e). Finally,
R.C. 2929.14(B)(1)(e) further “provides that the offense of having a weapon while
under a disability is [generally] not enhanceable with a sentence from a firearm
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specification * * *.” State v. Gray, 4th Dist. Washington No. 21CA6, 2022-Ohio-
2940, ¶ 23. Here, Peters was convicted of felonious assault and a specification of
the type described in R.C. 2941.145(A), and the exception provided in R.C.
2929.14(B)(1)(e) does not apply.5 Thus, a mandatory three-year prison term for the
use of a firearm in the commission of the felony applied, pursuant to R.C.
2929.14(B)(1)(a)(ii).
{¶64} Looking next to R.C. 2929.13(F), which currently includes 22 separate
subdivisions, it “addresses mandatory prison terms and lists offenses for which a
sentencing court is obligated to impose a prison term.” State v. Johnson, 116 Ohio
St.3d 541, 2008-Ohio-69, ¶ 9. The portion relevant here is:
(F) Notwithstanding divisions (A) to (E) of this section, the court shall impose a prison term or terms under * * * section 2929.14 * * * of the Revised Code and except as specifically provided in section 2929.20 [petitions for judicial release and early release] * * * or section 2967.191 of the Revised Code [jail-time credit] * * * shall not reduce the term or terms pursuant to section 2929.20 [judicial release], * * * section 2967.193 [earned days of credit for participation in certain programs] * * *, or any other provision of Chapter 2967. or Chapter 5120. of the Revised Code for any of the following offenses:
(8) Any offense, other than a violation of section 2923.12 of the Revised Code [carrying concealed weapons], that is a felony, if the offender had a firearm on or about the offender’s person or under the offender’s control while committing the felony, with respect to a portion of the sentence imposed pursuant to division (B)(1)(a) of section 2929.14 of the Revised Code for having the firearm[.]
5 R.C. 2941.145(B) also is not applicable to Peters because the trial court did not impose a mandatory prison term under R.C. 2929.14(B)(1)(a)(i), (iii), (iv), (v), or (vi).
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R.C. 2929.13(F)(8). “Although R.C. 2929.13(F) generally prohibits the reduction
of sentences imposed under that section[,] * * * it specifically allows for the
reduction of sentences under R.C. 2967.191, which is the statute that controls
‘[c]redit for confinement awaiting trial and commitment.’” State v. Culp, 6th Dist.
Lucas No. L-19-1281, 2020-Ohio-5287, ¶ 17.
iii. Wolfe & Other Cases
{¶65} As indicated above, the crux of this assignment of error is the legal
understanding of R.C. 2929.13(F)(8). This court was tasked with interpreting and
applying R.C. 2929.13(F)(8) just last year in Wolfe. In Wolfe, the trial court imposed
a mandatory six-year minimum prison sentence for aggravated robbery in addition
to a mandatory three-year prison term for an associated firearm specification.
Wolfe, 2022-Ohio-96, at ¶ 16. On appeal, the defendant argued that R.C.
2929.13(F)(8) “does not transfer the mandatory-ness of the gun specification to the
underlying offense.” Id. at ¶ 23. In rejecting the defendant’s argument, we relied
upon the Sixth District’s opinion in Culp:
Under R.C. 2929.13(F)(8), ‘when a defendant is convicted of committing any felony (with the exception of carrying concealed weapons) while having or controlling a firearm, the court is required to impose a prison term—not community control sanctions—in addition to the mandatory prison term for [any] firearm specification * * *.’ [Culp at ¶ 13]. ‘A plea to or conviction of a firearm specification automatically meets the criteria in R.C. 2929.13(F)(8) that triggers a mandatory prison term for the underlying offense * * *.’ Culp at ¶ 14[.]
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(Emphasis sic.) Id. at ¶ 24 (additional citations omitted). Because the defendant in
Wolfe, by pleading guilty to the firearm specification, “acknowledged that his
accomplices brandished a firearm while committing the aggravated robbery,” the
trial court was required under R.C. 2929.13(F)(8) to impose a mandatory prison
sentence for the aggravated robbery offense. Id. at ¶ 25.
{¶66} In addition to our court and the Sixth District, several other courts of
appeals have concluded that R.C. 2929.13(F)(8) requires a prison term be imposed
for felonies (other than carrying a concealed weapon) where the offender had a
firearm on or about the offender’s person or under the offender’s control while
committing the felony. E.g., State v. Wofford, 1st Dist. Hamilton No. C-180411,
2019-Ohio-2815, ¶ 8, 10; State v. Shields, 2d Dist. Montgomery No. 28573, 2020-
Ohio-3204, ¶ 4-11; State v. Christian, 7th Dist. Mahoning No. 02 CA 170, 2005-
Ohio-1440, ¶ 80; State v. White, 10th Dist. Franklin No. 10AP-34, 2011-Ohio-2364,
¶ 74. Furthermore, the Ohio Supreme Court has explained that “the mandatory-
sentence provision of R.C. 2929.13(F) applies to a number of offenses, including *
* * felonies committed while the offender had a firearm on or about the offender’s
person or control[.]” Johnson, 116 Ohio St.3d 541, 2008-Ohio-69, at ¶ 10.
{¶67} Until recently, the Eighth District appeared to be in agreement with
this court and the others regarding the meaning of R.C. 2929.13(F)(8). See State v.
Galvan, 8th Dist. Cuyahoga No. 108658, 2020-Ohio-1285, ¶ 20; State v. Sharpley,
8th Dist. Cuyahoga No. 106616, 2018-Ohio-4326, ¶ 17. But this recently changed
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with the Eighth District’s en banc decision in State v. Logan, 8th Dist. Cuyahoga
No. 111533, 2023-Ohio-3353.6
{¶68} In Logan, the defendant pleaded guilty to one count of attempted
having weapons while under disability, as well as an associated one-year firearm
specification. Logan, 2023-Ohio-3353, at ¶ 1. The trial court sentenced the
defendant to a mandatory one-year prison term for the firearm specification to be
served prior and consecutive to two years of community control for the underlying
felony. Id. The State appealed the sentence, arguing that the trial court was required
to impose a mandatory prison term on both the specification and the underlying
felony. Id. The Eighth District, sitting en banc, framed the question to be resolved:
Does R.C. 2929.13(F)(8) require a mandatory prison term and preclude the imposition of community control sanctions on an underlying felony when a defendant is found guilty on a corresponding firearm specification?
Id. at ¶ 6. It answered the question in the negative. Id. at ¶ 8. The Eighth District
found “the language of R.C. 2929.13(F)(8) is plain and unambiguous” (id. at ¶ 25),
and it held: “[w]hen a trial court crafts a sentence for a felony that carries a firearm
specification, R.C. 2929.13(F)(8) requires the court to impose the definite prison
term prescribed by R.C. 2929.14(B)(1)(a) as a mandatory prison term with respect
to the specification; it does not also require the court to impose a mandatory prison
6 The en banc decision followed an earlier decision in that case (issued on April 6, 2023), which had created a conflict within the Eighth District: State v. Logan, 8th Dist. No. 111533, 2023-Ohio-1135. Any other reference to Logan in this opinion is to the Eighth District’s en banc decision.
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term with respect to the underlying felony.” Id. at ¶ 8. In its view, “R.C.
2929.13(F)(8) cannot be read in any other way than we do here” and, “[e]ven if there
were some ambiguity, ‘sections of the Revised Code defining offenses or penalties
shall be strictly construed against the state, and liberally construed in favor of the
accused.’” Id. at ¶ 28, quoting R.C. 2901.04(A).
{¶69} The State had argued in Logan that “R.C. 2929.13(F)(8) requires the
imposition of a mandatory prison term on an underlying felony when the felony
carries a corresponding firearm specification.” Id. at ¶ 2. The defendant countered,
saying the State’s argument ignores the last phrase in the statute: “with respect to a
portion of the sentence imposed pursuant to [R.C. 2929.14(B)(1)(a)] for having the
firearm.” Id. at ¶ 20. The Eighth District agreed with the defendant. Id. at ¶ 20. In
its view, “[t]o read the statute in the way that the state suggests would be to read the
last phrase out of the statute.” Id. at ¶ 26. The court also said that “[t]he opinions
rendered by other appellate districts that come to the state’s preferred conclusion, in
our view, similarly do not sufficiently consider the last phrase of the statute.” Id. at
¶ 21. 7 Interestingly, the Logan decision does not mention the Supreme Court of
Ohio’s decision in Johnson.
7 As of the date of publication of this opinion, the Eighth District certified a conflict between Logan and our decision in Wolfe (and other decisions), and the State filed a Notice of Certified Conflict with the Supreme Court of Ohio. Also, the concurring-in-judgment-only portion of the Logan decision indicated a conflict should be certified between Logan and one of the conflicting cases and “the Supreme Court of Ohio should take this issue to better address the relationship between mandatory prison terms on specifications and the underlying offenses in the context of the overriding principles of felony sentencing under R.C. 2929.11 and other relevant provisions in Title 29.” Logan, 2023-Ohio-3353, ¶ 44 (S. Gallagher, J., concurring in judgment only). We fully agree with the portions of the concurring-in-judgment-only opinion from the Logan decision
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{¶70} In addition to the Eighth District, the Fifth District has suggested in
dicta that R.C. 2929.13(F)(8) does not mandate the imposition of a prison sentence
for the felony enhanced by a firearm specification. State v. Roush, 5th Dist. Morrow
No. 13CA0008, 2014-Ohio-4887, ¶ 35 (“R.C. 2929.13(F)(8) requires the firearm
specification penalty be made mandatory, but not the penalty for the underlying
offense”).
iv. When applicable, R.C. 2929.13(F)(8) requires the defendant to serve a mandatory prison term for the underlying felony, not just for an accompanying firearm specification
{¶71} The issue presented in Peters’ fifth assignment of error—whether to
reaffirm the interpretation of R.C. 2929.13(F)(8) we embraced in Wolfe or whether
to repudiate this interpretation in favor of one like that adopted by the Eighth District
in Logan—is ultimately one of statutory interpretation. “The primary goal of
statutory interpretation is to discern the intent of the legislature.” State v. Anthony,
96 Ohio St.3d 173, 2002-Ohio-4008, ¶ 10. “[W]hen analyzing an issue of statutory
interpretation, ‘the question is not what did the general assembly intend to enact,
but what is the meaning of that which it did enact.’” State v. Bollar, 171 Ohio St.3d
678, 2022-Ohio-4370, ¶ 10, quoting Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E.
574 (1902), paragraph two of the syllabus. Therefore, “[i]n determining intent, we
that said “[t]he provisions in [R.C. 2929.13] are a challenge to even the most experienced statute constructionist,” “[t]he legislature has not provided the model of clarity for sentencing considerations,” and “[i]t may well be time to revisit a thorough review and simplification of the bloated sentencing statutes.” (Id. at ¶ 38 fn. 6, ¶ 43).
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first look to the language of the statute.” Anthony at ¶ 10. We “focus on everything
within ‘the four corners of the enactment’ in order to ‘determine the intent of the
enacting body’”; we do not “‘pick out one sentence and disassociate it from the
context.’” Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, ¶ 9, quoting
Black-Clawson Co. v. Evatt, 139 Ohio St. 100, 104, 38 N.E.2d 403 (1941).
{¶72} “If the statute’s language is plain and unambiguous, we apply it as
written.” Bollar at ¶ 10. “However, where the words are ambiguous and are subject
to varying interpretations, further interpretation is necessary.” Anthony at ¶ 10; see
also Jacobson at ¶ 8 (if a statute’s language is plain and unambiguous and conveys
a clear and definite meaning, there is no reason for resorting to rules of statutory
interpretation because an unambiguous statute is to be applied, not interpreted).
Ambiguity “means that a statutory provision is ‘capable of bearing more than one
meaning.’” Jacobson at ¶ 8, quoting Dunbar v. State, 136 Ohio St.3d 181, 2013-
Ohio-2163, ¶ 16.
{¶73} Therefore, we first must determine whether R.C. 2929.13(F)(8) is
ambiguous. Again, the Eighth District found R.C. 2929.13(F)(8) to be plain and
unambiguous and does not require the imposition of a mandatory prison term for
the felony underlying a firearm specification. Logan, 2023-Ohio-3353, at ¶ 8, 25.
However, after fully considering the issue, we respectfully disagree with the Eighth
District—both as to its conclusion regarding R.C. 2929.13(F)(8)’s ambiguity and as
to its conclusion about how R.C. 2929.13(F)(8) operates.
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{¶74} Regarding ambiguity, in our view, R.C. 2929.13(F)(8) does not
“convey[] a clear and definite meaning.” Jacobson at ¶ 8. It is capable of bearing
more than one meaning and, therefore, is ambiguous. Id. The provision can be read
as meaning what the Logan court interpreted it to mean, emphasizing its last phrase
and de-emphasizing the “for any of the following offenses” phrase in its first part.
However, the provision can also be read as meaning a prison term is mandated for
an underlying “offense * * * that is a felony,” and the provision’s last phrase (which
follows a comma) modifies “the felony” to be limited to those felonies where “a
portion” of the sentence will also be imposed pursuant to R.C. 2929.14(B)(1)(a).
This second meaning corresponds with the conclusion reached in Wolfe, the
Supreme Court of Ohio in Johnson, and numerous other courts that have interpreted
the provision.
{¶75} Unlike the Eighth District in Logan, we do not find that R.C.
2929.13(F)(8)’s last phrase makes the statute unambiguous. Rather, we find that
R.C. 2929.13(F)(8)’s last phrase, when viewed in context with the rest of R.C.
2929.13(F)(8) and the structure of R.C. 2929.13(F) as a whole, introduces doubt as
to the meaning of R.C. 2929.13(F)(8) and subjects it to varying interpretations. See
also Griffin & Katz, Ohio Felony Sentencing Law, Section 8:11, at 1149 (2007)
(“[t]hat statutory language [in R.C. 2929.13(F)(8)] leaves unclear whether an
offender who possesses a firearm in committing a felony must be imprisoned for the
underlying felony as well as the term of imprisonment prescribed by RC
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2929.14(D)(1)(a) [now R.C. 2929.14(B)(1)(a)] for possessing or using the
firearm”).8 In short, we find the language is ambiguous.
{¶76} To us, it is meaningful that R.C. 2929.13(F) uses the phrase “for any
of the following offenses,” rather than “for any of the following offenses or
specifications,” when it introduces its list of “offenses” for which “the court shall
impose a prison term or terms.” R.C. 2929.13(F). We note the legislature
specifically repeated the term “offense” in R.C. 2929.13(F)(8). The various
subdivisions in R.C. 2929.13(F)(1)-(22) list offenses, or some combination of
offense and aggravating circumstances, rather than specifications. It is reasonable
to believe that, had the General Assembly meant for R.C. 2929.13(F)(8) to refer
only to the sentence imposed for a firearm specification (as Logan held), it would
have used language more specifically referring to specifications. After all, the
General Assembly knows how to refer clearly to firearm specifications when it
wishes to do so. See, e.g., R.C. 2929.14(B)(1)(a) (outlining sentences for
“specification[s] of the type described in section 2941.141, 2941.144, or 2941.145
of the Revised Code”).
{¶77} We are not convinced by the Eighth District’s assertion in Logan that
“[t]he statutory reference to ‘offenses,’ as opposed to ‘specifications,’ is logical”
and results in a plain and unambiguous statute. Logan, 2023-Ohio-3353, at ¶ 26.
8 Since 2007, the only changes to R.C. 2929.13(F)(8) or the introductory portion of R.C. 2929.13(F) have been renumbering or minor additions immaterial to this issue.
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As the Logan opinion later recognizes in its portion reissuing the decision of the
merit panel, a firearm specification is not a criminal offense. Id. at ¶ 57. They are
different things under the Revised Code. State v. Ford, 128 Ohio St.3d 398, 2011-
Ohio-765, ¶ 17 (“the firearm specification is merely a sentence enhancement, not a
separate criminal offense”); R.C. 2901.03(A) (“[n]o conduct constitutes a criminal
offense against the state unless it is defined as an offense in the Revised Code”).
Separate findings of guilt are required for a specification and its underlying offense.
See R.C. 2929.14(B)(1)(a) (applying “if an offender * * * is convicted of or pleads
guilty to a felony [and] also is convicted of or pleads guilty to a specification * *
*”). Furthermore, in certain circumstances, a specification can have some legal
effect independent of its underlying felony. See Bollar, 171 Ohio St.3d 678, 2022-
Ohio-4370, at ¶ 1, 19, 25 (concluding that, under R.C. 2929.14(B)(1)(g), a defendant
can be sentenced for a firearm specification even when the offense underlying the
specification has merged with another offense for purposes of sentencing).
{¶78} For these same reasons, we also respectfully disagree with the dissent
because it likewise says it finds R.C. 2929.13(F)(8) to be plain and unambiguous.
We also point out that, despite “find[ing] no ambiguity in R.C. 2929.13(F)(8),” the
dissent then impermissibly looks to other statutes for support. The Supreme Court
has explained: “[w]e seek legislative intent first in the statutory language” and, “[i]f
the statutory language is clear and unambiguous, we apply it as written, giving effect
to its plain meaning.” State v. Bryant, 160 Ohio St.3d 113, 2020-Ohio-1041, ¶ 12.
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This should end the dissent’s analysis as it did for the Logan court. “Further
interpretation is necessary only when the statutory language is ambiguous and
subject to varying interpretations.” Id. at ¶ 12, 25-26 (after finding a term in a statute
to be ambiguous, applying a statutory construction rule to consider other statutes
relating to the same general subject matter); see also State v. Arnold, 61 Ohio St.3d
175, 178, 573 N.E.2d 1079 (1991) (“[w]hile we are required to strictly construe
statutes defining criminal penalties against the state, see R.C. 2901.04(A), this ‘rule
of lenity’ applies only where there is ambiguity in or conflict between the statutes”).
{¶79} Next, because we find R.C. 2929.13(F)(8) to be ambiguous, we look
to R.C. 1.49, which “sets forth certain criteria that serve as guideposts for courts to
follow when determining the legislative intent of an ambiguous statute.” Anthony,
96 Ohio St.3d 173, 2002-Ohio-4008, at ¶ 12. That statute tells us:
If a statute is ambiguous, the court, in determining the intention of the legislature, may consider among other matters:
(A) The object sought to be attained;
(B) The circumstances under which the statute was enacted;
(C) The legislative history;
(D) The common law or former statutory provisions, including laws upon the same or similar subjects;
(E) The consequences of a particular construction;
(F) The administrative construction of the statute.
R.C. 1.49. After such consideration, we confirm our interpretation of R.C.
2929.13(F)(8) in Wolfe and hold that R.C. 2929.13(F)(8) requires the imposition of -48- Case No. 14-22-21
a mandatory prison term for any felony (other than carrying concealed weapons)
where the offender had or controlled a firearm when committing that offense.
Notably, the Eighth District in Logan did not consider the R.C. 1.49 matters because
it had found the statutory provision to be “plain and unambiguous.” Logan, 2023-
Ohio-3353, at ¶ 25; see also Jacobson, 149 Ohio St.3d 398, 2016-Ohio-8434, at ¶ 8
(without an initial finding of ambiguity, inquiry into the R.C. 1.49 matters is
inappropriate).
{¶80} First, considerations of former law and legislative history support our
Wolfe interpretation, not the Logan interpretation. R.C. 2929.13(F)(8) (then
codified as R.C. 2929.13(F)(6)) first came into being in 1996, a combined product
of 1995 Am.Sub.S.B. 2 and 1996 Am.Sub.S.B. 269. Although it has since been
amended and reordered, R.C. 2929.13(F)(8) exists in substantially identical form as
it did in 1996. Prior to its enactment, a defendant convicted of a felony and a firearm
specification was subject to mandatory incarceration for the firearm specification
and was also conclusively ineligible for probation under former R.C. 2951.02. State
v. Knox, 10th Dist. Franklin No. 89AP-1168, 1991 WL 115820, *3 (June 11, 1991).
Moreover, other than carrying concealed weapons, any felony offense where the
offender was armed with a firearm was non-probationable, even in the absence of a
firearm specification or if the offender was found not guilty of the firearm
specification. Id.; State v. Ervin, 93 Ohio App.3d 178, 180, 638 N.E.2d 104 (8th
Dist.1994); see also Griffin & Katz, Ohio Felony Sentencing Law, Section 8:11, at
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1149 (2007) (“[u]nder prior law, no question existed that the prison term was
mandatory for the underlying felony and the possession of the firearm”). Members
of the Ohio Sentencing Commission, which recommended the changes to the law
that ultimately took the form of 1995 Am.Sub.S.B. 2 and 1996 Am.Sub.S.B. 269,
expected this general scheme would continue with what is now R.C. 2929.13(F)(8).
See Griffin & Katz, Ohio Felony Sentencing Law, Section 8:11, at 1149 (2007) (“in
the minds of Sentencing Commission staff representatives who helped draft the
amendatory language to RC 2929.13(F)(8) in 1996 * * * [the] expectation was that
the offender would be sentenced to prison for both the firearm penalty and the
underlying crime”). Thus, the Commission anticipated an offender would be
sentenced to mandatory prison time on a firearm specification and also to prison
time for the underlying felony. Id.
{¶81} Furthermore, when the language in R.C. 2929.13(F)(8) (then R.C.
2929.13(F)(6)) went into effect in 1996, language in R.C. 2929.14—i.e., the
companion statute—clearly indicated a court would impose a prison term on the
offender for the underlying felony and a separate prison term for the firearm
specification. 1996 Am.Sub.S.B. 269 (“if an offender who is convicted of or pleads
guilty to a felony also is convicted of or pleads guilty to a specification of the type
described in [R.C. 2941.144, 2941.145, or 2941.141] * * *, the court, after imposing
a prison term on the offender for the felony under division (A), (D)(2), or (D)(3) of
this section, shall impose an additional prison term, determined pursuant to this
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division, that shall not be reduced pursuant to section 2929.20, section 2967.193, or
any other provision of Chapter 2967. or Chapter 5120. of the Revised Code”);
Kehoe, 133 Ohio App.3d at 616, 729 N.E.2d 431 (quoting former version of R.C.
2929.14(D)(1)(a)(i)). This is significant because, again, the language in R.C.
2929.13(F)(8) exists in substantially identical form today as it did in 1996. Thus,
despite later choosing to drop that additional clarifying language in R.C. 2929.14,
the legislature did not attempt to further harmonize the two statutes.
{¶82} Second, regarding the consequences of a particular construction (R.C.
1.49(E)), the Wolfe interpretation avoids some redundancies in the overall statutory
scheme relating to firearm specifications that are a consequence of the Logan
interpretation. For example, R.C. 2929.14(B)(1)(a) directs that the trial court “shall
impose on the offender * * * [a] prison term[]” for a firearm specification; R.C.
2929.14(B)(1)(a)(i)-(vi) sets forth the lengths of the available prison terms
associated with firearm specifications; and R.C. 2929.14(B)(1)(b) makes such terms
mandatory, i.e., not subject to reduction under R.C. 2929.20, or any other provision
of R.C. Chapter 2967. or Chapter 5120. Thus, the combination of R.C.
2929.14(B)(1)(a) and (b) is sufficient, by itself, to effectuate the General
Assembly’s intent that offenders serve a mandatory prison term for firearm
specifications. (The same was true under the former version that went into effect in
1996, referenced above.) With the Logan interpretation, R.C. 2929.13(F)(8)
seemingly would not do anything that R.C. 2929.14(B)(1)(a) and (b) do not already
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do. In other words, it would be redundant. Further highlighting such duplicity is
that R.C. 2929.01(X)(1) identifies sentences imposed under R.C. 2929.14(B)(1)(a)
and R.C. 2929.13(F)(8) as each setting forth a “mandatory prison term.” Thus,
under the Logan interpretation, R.C. 2929.01(X)(1)’s definition of “mandatory
prison term” would apply twice to the same specification. These inefficiencies
disappear if R.C. 2929.14(B) is understood as making the specification time
mandatory and R.C. 2929.13(F)(8) is understood as making the sentence for the
underlying felony mandatory.
{¶83} Third, another consequence of the Logan interpretation of R.C.
2929.13(F)(8) is a conflict between R.C. 2929.13(F)(8) and 2929.14(B)(1)(b)
concerning jail-time credit. Again, R.C. 2929.13(F) states that sentences imposed
under that statute are eligible for reduction under the jail-time credit statute, R.C.
2967.191. In contrast, sentences imposed for firearm specifications under R.C.
2929.14(B)(1)(a) are plainly ineligible for jail-time credit. R.C. 2929.14(B)(1)(b);
Moore, 154 Ohio St.3d 94, 2018-Ohio-3237, at ¶ 10, 15. Thus, if R.C.
2929.13(F)(8) is understood as applying only to the sentence for a firearm
specification, then R.C. 2929.13(F) would seemingly require that jail-time credit be
applied to that term while R.C. 2929.14(B)(1)(b) would expressly forbid it. This
problem does not exist under the Wolfe interpretation of R.C. 2929.13(F)(8). Under
Wolfe, the prison term for the firearm specification is, in accordance with R.C.
2929.14(B)(1)(b), not subject to a reduction for jail-time credit, but the prison term
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imposed for the underlying felony is, per the terms of R.C. 2929.13(F), eligible for
reduction under R.C. 2967.191.
{¶84} Fourth, yet another consequence of the Logan interpretation of R.C.
2929.13(F)(8) is an issue of underinclusivity. Following the Logan interpretation,
the trial court must impose the prison term required by R.C. 2929.13(F)(8) for
firearm specifications attending all felonies except carrying concealed weapons.
However, R.C. 2929.14(B)(1)(e) exempts far more firearm crimes from
enhancement with a firearm specification than just carrying concealed weapons
(e.g., improperly handling firearms in a motor vehicle, illegal possession of firearm
in a liquor permit premises, and many instances of having weapons while under
disability). This is not an issue under the Wolfe interpretation of R.C. 2929.13(F)(8).
Applying Wolfe, a trial court is not required by R.C. 2929.13(F)(8) to impose a
prison term for the underlying offense of carrying concealed weapons, and, pursuant
to R.C. 2929.14(B)(1)(e), no prison term can be imposed for any firearm
specification associated with a felony violation of the carrying-concealed-weapons
statute. Thus, for this one crime, no mandatory prison time is required at all. But
with respect to all other felonies where a firearm was possessed or controlled by the
offender, a mandatory prison term must be imposed under R.C. 2929.13(F)(8) even
if R.C. 2929.14(B)(1)(e) simultaneously prohibits enhancing the sentence with a
firearm specification. Accordingly, the Wolfe interpretation of R.C. 2929.13(F)(8)
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harmonizes the statute with R.C. 2929.14(B)(1)(e) in a way the Logan interpretation
does not.
{¶85} In sum, we find that R.C. 2929.13(F)(8) is ambiguous, extratextual
considerations help to resolve the ambiguity, and those considerations militate in
favor of our Wolfe interpretation of R.C. 2929.13(F)(8) instead of the Logan
interpretation. Therefore, we reaffirm our interpretation of R.C. 2929.13(F)(8) set
forth in Wolfe and conclude that R.C. 2929.13(F)(8) obligates the trial court to
impose a mandatory prison term for any felony (except carrying concealed
weapons) where the offender had or controlled a firearm when committing that
offense. The mandatory sentence required by R.C. 2929.13(F)(8) is for the
underlying felony and not for any firearm specification that might be attached to the
offense.9
v. Peters’ sentence is not contrary to law
{¶86} In this case, Peters was convicted of felonious assault as well as an
accompanying firearm specification. By being found guilty of the firearm
specification, Peters was found to have possessed or controlled a firearm while
committing the felonious assault. At sentencing, the trial court applied R.C.
2929.13(F)(8) consistent with our decision in Wolfe and sentenced Peters to a
9 Even considering the ‘rule of lenity’ and phrasing in R.C. 2929.14(C)(1)(a) and R.C. 2903.11(D) referenced in the dissent, we still reaffirm our interpretation of R.C. 2929.13(F)(8). Reasonable minds are in disagreement on this issue and, therefore, it is one that may best be clarified by the Supreme Court or the legislature rather than an intermediate appellate court defaulting to a principle of statutory construction (i.e. R.C. 2901.04(A)).
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mandatory minimum term of four years in prison for felonious assault. Having
reaffirmed the Wolfe interpretation of R.C. 2929.13(F)(8), we conclude that the trial
court was correct to sentence Peters to a mandatory minimum term of incarceration
and that Peters’ sentence for felonious assault is not contrary to law.
{¶87} While we overrule Peters’ fifth assignment of error, we would look
favorably on a properly drafted and filed motion to certify a conflict to the Supreme
Court of Ohio.
IV. CONCLUSION
{¶88} For the foregoing reasons, Peters’ assignments of error are overruled.
Having found no error prejudicial to the appellant herein in the particulars assigned
and argued, we affirm the judgment of the Union County Court of Common Pleas.
ZIMMERMAN, J., concurs.
WALDICK, J., concurs in part and dissents in part.
{¶89} I concur with the majority regarding its analysis and conclusions as to
the first, second, third, and fourth assignments of error. However, I respectfully
dissent from the majority’s assessment of the fifth assignment of error, for the
reasons that follow.
{¶90} In overruling Peters’ fifth assignment of error, the majority holds that
R.C. 2929.13(F)(8) requires the trial court to impose a mandatory prison term on
Peters’ underlying felonious assault conviction, in addition to imposing a mandatory
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prison term for the firearm specification. In my opinion the majority’s holding here
is in direct contradiction to the plain language of the statutory subsection at issue,
which requires the imposition of a mandatory prison term only with respect to the
portion of the sentence imposed for the firearm specification.
{¶91} When sentencing an offender for a felony offense with a firearm
specification, a trial court must impose a mandatory prison term for the
specification, which must run consecutive to, and be served prior to, the sentence
for the underlying felony. See R.C. 2929.14(B)(1)(a) and (C)(1)(a). However, the
issue before us is whether prison time imposed for the underlying felony must be a
“mandatory prison term” when that felony by itself does not carry mandatory time.
{¶92} “Mandatory prison term” is defined in R.C. 2929.01, which provides
in relevant part:
(X) “Mandatory prison term” means any of the following:
(1) Subject to division (X)(2) of this section, the term in prison that must be imposed for the offenses or circumstances set forth in divisions (F)(1) to (8) or (F)(12) to (21) of section 2929.13 and division (B) of section 2929.14 of the Revised Code. Except as provided in sections 2925.02, 2925.03, 2925.04, 2925.05, and 2925.11 of the Revised Code, unless the maximum or another specific term is required under section 2929.14 or 2929.142 of the Revised Code, a mandatory prison term described in this division may be any prison term authorized for the level of offense except that if the offense is a felony of the first or second degree committed on or after March 22, 2019, a mandatory prison term described in this division may be one of the terms prescribed in division (A)(1)(a) or (2)(a) of section 2929.14 of the Revised Code, whichever is applicable, that is authorized as the minimum term for the offense.
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{¶93} R.C. 2929.13(F), referenced in the definition of “mandatory prison
term” in R.C. 2929.01(X)(1), sets forth a number of offenses and/or specific
situations involving certain offenses, where a trial court must impose a mandatory
prison term.
{¶94} At issue here is R.C. 2929.13(F)(8), which reads:
(F) Notwithstanding divisions (A) to (E) of this section, the court shall impose a prison term or terms under sections 2929.02 to 2929.06, section 2929.14, section 2929.142, or section 2971.03 of the Revised Code and except as specifically provided in section 2929.20, or section 2967.191 of the Revised Code or when parole is authorized for the offense under section 2967.13 of the Revised Code shall not reduce the term or terms pursuant to section 2929.20, division (A)(2) or (3) of section 2967.193 or 2967.194, or any other provision of Chapter 2967. or Chapter 5120. of the Revised Code for any of the following offenses:
(8) Any offense, other than a violation of section 2923.12 of the Revised Code, that is a felony, if the offender had a firearm on or about the offender’s person or under the offender’s control while committing the felony, with respect to a portion of the sentence imposed pursuant to division (B)(1)(a) of section 2929.14 of the Revised Code for having the firearm[.]
(Emphasis added.)10
{¶95} In construing statutes, we must read words and phrases in context and
construe them in accordance with rules of grammar and common usage. State ex rel.
10 It bears noting that upon reading R.C. 2929.01(X) together with the R.C. 2929.13(F), a “mandatory prison term” pursuant to Ohio’s statutory framework refers not only to the fact that prison must be imposed by a trial court for the offenses or under the circumstances set forth in R.C. 2929.13(F). A “mandatory prison term” also carries additional ramifications regarding an offender’s prison time, specifically being that the offender is not eligible for judicial release pursuant to R.C. 2929.20, nor eligible for certain “good time” credit pursuant to R.C. 2967.193 or R.C. 2967.194.
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Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, ¶ 11. Further, it is the
duty of this Court “to give effect to the words used in a statute, not to insert words
not used.” State v. S.R., 63 Ohio St.3d 590, 595, 589 N.E.2d 1319 (1992), citing
Cleveland Elec. Illum. Co. v. City of Cleveland, 37 Ohio St.3d 50, 524 N.E.2d 441
(1988), paragraph three of the syllabus. “When interpreting a statute, we first look
to the plain language of the statute and apply it as written when its meaning is clear
and unambiguous.” Cheap Escape Co., Inc. v. Haddox, L.L.C., 120 Ohio St.3d 493,
2008-Ohio-6323, 900 N.E.2d 601, ¶ 9.
{¶96} In the instant case, the majority interprets the language of R.C.
2929.13(F)(8) to require a mandatory prison term for both the firearm specification
and the underlying felony, but, in my opinion, that is not what the statutory language
says in plain terms. If the language of R.C. 2929.13(F)(8) read “[a]ny offense, other
than a violation of section 2923.12 of the Revised Code, that is a felony, if the
offender had a firearm on or about the offender’s person or under the offender’s
control while committing the felony” (i.e. if the last phrase of the subsection were
omitted), then – in the absence of conflicting language elsewhere in the Ohio
Revised Code – I would agree with the majority’s interpretation. However, that is
not how R.C. 2929.13(F)(8) reads, and I believe the majority opinion here serves to
ignore the final, and operative, phrase of R.C. 2929.13(F)(8). As the Eighth District
Court of Appeals, sitting en banc, pointed out in State v. Logan, 8th Dist. Cuyahoga
No. 111533, 2023 Ohio 3353, to read the statute in the way suggested by the state
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in that case, and the majority here, “would be to read the last phrase out of the
statute.” Logan, at ¶ 26.
{¶97} Unlike the majority, I find no ambiguity in R.C. 2929.13(F)(8).
However, even if the statute were ambiguous, the rule of lenity would require this
Court to sustain the fifth assignment of error in this case. “The rule of lenity is
codified in R.C. 2901.04 and states that ‘sections of the Revised Code defining
offenses or penalties shall be strictly construed against the state, and liberally
construed in favor of the accused.’” State v. Pittman, 3d Dist. Marion No. 9-13-64,
2014-Ohio-5001, ¶ 23. “[T]he ‘touchstone’ of the rule of lenity ‘is statutory
ambiguity.’” Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d
205 (1980), quoting Lewis v. United States, 445 U.S. 55, 65, 100 S.Ct. 915, 63
L.Ed.2d 198 (1980). The Supreme Court of the United States “has made it clear
that this principle of statutory construction applies not only to interpretations of the
substantive ambit of criminal prohibitions, but also to the penalties they impose.”
Bifulco, at 387, citing United States v. Batchelder, 442 U.S. 114, 121, 99 S.Ct. 2198,
2202, 60 L.Ed.2d 755 (1979); Simpson v. United States, 435 U.S. 6, 14–15, 98 S.Ct.
909, 913–914, 55 L.Ed.2d 70 (1978).
{¶98} I believe that my reading of R.C. 2929.13(F)(8) is also supported by
the language of R.C. 2929.14(C). R.C. 2929.14(C)(1)(a) is the statutory subsection
in which the legislature has provided that any mandatory prison term for a firearm
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specification must be served first, and consecutively to, the sentence for the
underlying felony. In so providing, R.C. 2929.14(C)(1)(a) is phrased as follows:
Subject to division (C)(1)(b) of this section, if a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(a) of this section for having a firearm on or about the offender's person or under the offender's control while committing a felony, if a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(c) of this section for committing a felony specified in that division by discharging a firearm from a motor vehicle, or if both types of mandatory prison terms are imposed, the offender shall serve any mandatory prison term imposed under either division consecutively to any other mandatory prison term imposed under either division or under division (B)(1)(d) of this section, consecutively to and prior to any prison term imposed for the underlying felony pursuant to division (A), (B)(2), or (B)(3) of this section or any other section of the Revised Code, and consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender.
(Emphasis added.) The language of R.C. 2929.14(C)(1)(a) distinguishes between a
“mandatory prison term” imposed for a firearm specification and a “prison term”
imposed for the underlying felony offense. The omission of the word “mandatory”
in describing the “prison term” to be imposed “for the underlying felony,”
contrasted with the use of the phrase “mandatory prison term” in describing the
sentence to be imposed for a firearm specification, is a strong indication that the
legislature did not intend that R.C. 2929.13(F)(8) be interpreted as the majority does
here.
{¶99} In this matter Peters was found guilty of felonious assault in violation
of R.C. 2903.11(A)(2). R.C. 2903.11(D) provides that an offender convicted of
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felonious assault in violation of R.C. 2903.11, without certain additional
circumstances having been alleged and proven, is guilty of a felony of the second
degree.11 For a felony of the second degree, pursuant to R.C. 2929.13(D)(1), “it is
presumed that a prison term is necessary in order to comply with the purposes and
principles of sentencing * * * .” Without more, and because felonious assault in
violation of R.C. 2903.11(A) is not on the list of offenses specified in R.C.
2929.13(F) as requiring a mandatory prison term, Peters’ underlying conviction for
felonious assault was not an offense for which a mandatory prison term was
authorized.
{¶100} As noted at the beginning of this dissent, the issue of whether,
because of the accompanying firearm specification, the trial court was required to
impose prison time for the underlying felonious assault is not before this Court. The
issue raised in the fifth assignment of error is whether the prison time imposed for
the felonious assault was required by law to be a “mandatory prison term.”
{¶101} For the reasons set forth in this dissent, I would find that the trial
court was not required and not authorized, by the Ohio Revised Code to order that
the prison time for the felonious assault itself be a mandatory prison term. The fifth
11 Notably, R.C. 2903.11(D) sets forth a number of different circumstances, including several involving certain statutory specifications, where an offender who has committed felonious assault must be sentenced to a mandatory prison term for the felonious assault. However, being convicted of a firearm specification in addition to the felonious assault is not one of the circumstances set forth in R.C. 2903.11(D) that requires mandatory time be imposed for the felonious assault offense.
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assignment of error should be sustained, the sentence reversed, and the matter
remanded for resentencing.
/hls
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2023 Ohio 4362 (State v. Peters) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.