State v. Scott

2019 Ohio 5014

Opinion

[Cite as State v. Scott, 2019-Ohio-5014.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28139 : v. : Trial Court Case No. 2016-CR-2634/2 : RYAN SCOTT : (Criminal Appeal from : Common Pleas Court ) Defendant-Appellant : :

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OPINION

Rendered on the 6th day of December, 2019.

MATHIAS H. HECK JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Montgomery County Prosecutor’s Office, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

RICHARD HEMPFLING, Atty. Reg. No. 0029986, 15 West Fourth Street, Suite 100, Dayton, Ohio 45402 Attorney for Defendant-Appellant

............. -2-

HALL, J.

{¶ 1} Ryan Scott appeals from his conviction and sentence for felonious assault

with a repeat-violent-offender (RVO) specification.

{¶ 2} Scott advances four assignments of error. First, he contends the trial court

erred in overruling his motion for a separate trial. Second, he claims the trial court erred

in failing to give a complete jury instruction regarding aiding and abetting. Third, he

challenges his conviction as being against the manifest weight of the evidence. Fourth,

he asserts that the trial court erred in failing to note the “fact of conviction” for the repeat-

violent-offender specification in its judgment entry.

{¶ 3} The record reflects that Scott and a co-defendant, Javonn Hockett, jointly

were indicted and tried on multiple charges for their roles in a non-fatal shooting outside

of a liquor store. In an opinion resolving Hockett’s appeal,1 we summarized the evidence

and the procedural history as follows:

On December 17, 2015, Kevin Webb was shot multiple times while

in the parking lot of a liquor store known as Gina’s. Webb and his sister

Kaneisha McDonald had driven to Gina’s to purchase alcohol. Once inside

the store, Webb and McDonald encountered Hockett and Ryan Scott.

Hockett made a remark to McDonald. While it is not clear what the exact

remark was, the record indicates that it was suggestive or an attempt to

“come on” to McDonald. The remark caused Webb to respond by saying

something to the effect of “that’s not going to happen.” At that point, Hockett

1 In State v. Hockett, 2d Dist. Montgomery No. 28141, 2019-Ohio-1257, we overruled Hockett’s sole assignment of error, which raised a manifest-weight-of-the-evidence challenge to his felonious-assault conviction. -3-

became angry, and he and Webb began arguing. Scott was also involved

in the argument. Eventually, Webb, McDonald, Hockett and Scott left the

store. Hockett and Scott entered the same vehicle, a silver Pontiac, which

drove away.

A few moments later, the silver Pontiac returned to the parking lot at

which time Webb was shot. Webb suffered gunshot wounds to the

abdomen, right torso and right hand. Webb testified that he was first shot in

the hand, and that he began to run back into the store while the shots

continued. He then began to feel a burning sensation from the remaining

shots to his body.

Webb was transported to the hospital, where he underwent

emergency surgery requiring two trauma surgeons. During surgery, Webb

lost the equivalent of four times his entire blood volume, requiring massive

transfusions. Additionally, parts of Webb’s liver and pancreas, as well as

one entire kidney, were removed due to irreparable damage. His stomach

had holes in both the front and back which required repair. The surgeons

were not able to close Webb’s abdomen following the initial surgery. He

remained in the hospital for almost 60 days. As a result of his injuries, Webb

underwent numerous additional surgeries. He also developed diabetes as

a result of the pancreatic surgery, and he later began suffering seizures due

to the inability to control the surgically-induced diabetes.

Following an investigation, the Dayton Police arrested Hockett and

Scott. Both men were indicted on two counts of felonious assault, and each -4-

count had attendant firearm and repeat violent offender specifications. They

were also both indicted on two counts of having a weapon while under

disability with attendant firearm specifications.

The felonious assault charges proceeded to a jury trial; the jury found

Hockett guilty of both counts of felonious assault as well as the firearm

specifications. Scott was convicted of both counts of felonious assault but

not the firearm specifications. Thereafter, a bench trial was conducted on

the charges of having weapons while under disability and the repeat violent

offender specifications. The trial court found both men guilty of those

charges and specifications.

A sentencing hearing was conducted in October 2017. At that time,

the trial court noted that a written jury waiver had not been filed for either

defendant relating to the counts of having weapons while under disability.

Thus, the trial court dismissed those counts, along with the related firearm

specifications. The trial court ordered the merger of Count 1 (felonious

assault/deadly weapon) and Count 2 (felonious assault/serious physical

harm), and the State elected to proceed to sentencing on Count 2. The court

sentenced Hockett to an aggregate prison term of 20 years.

State v. Hockett, 2d Dist. Montgomery No. 28141, 2019-Ohio-1257, ¶ 3-8.

{¶ 4} For his part, Scott received an eight-year prison sentence for felonious

assault and a consecutive eight-year prison sentence for the RVO specification. (Doc. #

186.) This appeal followed.

{¶ 5} In his first assignment of error, Scott challenges the trial court’s denial of his -5-

motion for a separate trial. In the February 2017 motion, Scott asserted that he and

Hockett would be presenting antagonistic defenses insofar as they would be arguing at

trial “that each other was the shooter.” (Doc. # 41 at 4.) Scott also maintained that Hockett

was “the one who got into the verbal and physical confrontation with Webb and had the

reason to be upset (Webb bluntly and forcibly telling Hockett he would not allow Hockett

to flirt with his sister).” (Id. at 5.) Scott expressed concern that the jury would infer his guilt

simply by association with Hockett. (Id.)

{¶ 6} In an April 21, 2017 decision, the trial court overruled Scott’s motion. (Doc. #

66.) It reasoned:

Scott’s defense is antagonistic in that he argues he did not shoot the

gun allegedly involved in the indicted felonious assaults, but rather Hockett

did. This antagonistic defense does not deny Scott a fair trial. The State

intends to present the same witnesses to prove its case against Scott and

Hockett. The State also has forensic evidence retrieved from the scene.

Thus, Scott and Hockett do not become the government’s best witnesses

against each other, as Scott contends. Further, Scott’s Motion only contains

one sentence claiming that he and Hockett will each argue at trial that the

other was the shooter. Scott has not otherwise articulated how Hockett’s

defense would be antagonistic to his (Scott’s). For instance, it is not clear

beyond Scott’s unsupported assertion that Hockett will identify Scott as the

shooter. * * * Without more, a limiting instruction that Scott’s and Hockett’s

guilt or innocence must be considered separately and that evidence may be

admitted against one but not the other would be sufficient to preserve -6-

Scott’s right to a fair trial.

(Id. at 4-5.)

{¶ 7} In State v. Humphrey, 2d Dist. Clark No. 2002CA30, 2003-Ohio-3401, this

court recited the applicable law as follows:

Under Crim.R. 8(B), two defendants can be jointly indicted and tried

for a non-capital offense as long as “they are alleged to have participated in

the same act or transaction * * * or in the same course of criminal conduct.”

However, under Crim.R. 14, “if it appears that a defendant or the state is

prejudiced by a joinder of * * * defendants * * * the court shall grant a

severance of defendants, or provide such other relief as justice requires.”

The law favors the joinder of co-defendants and the avoidance of

multiple trials because it, “conserves judicial and prosecutorial time, lessens

the not inconsiderable expenses of multiple trials, diminishes inconvenience

to witnesses, and minimizes the possibility of incongruous results in

successive trials before different juries.” State v. Daniels (1993), 92 Ohio

App.3d 473, 636 N.E.2d 336. As a result, a defendant claiming relief from

joinder bears the initial burden of demonstrating that he will be materially

prejudiced by the joinder. State v. Torres (1981), 66 Ohio St.2d 340, 421

N.E.2d 1288, 20 O.O.3d 313; State v. Brooks (1989), 44 Ohio St.3d 185,

542 N.E.2d 636. Absent a clear showing of abuse of discretion, a trial court’s

decision regarding severance will not be disturbed. Torres at 340, 421

N.E.2d 1288. * * *

Id. at ¶ 63-64. -7-

{¶ 8} In State v. Kleekamp, 2d Dist. Montgomery No. 23533, 2010-Ohio-1906, this

court explained “antagonistic defenses” as follows:

“Antagonistic defenses exist when each defendant is trying to

exculpate himself and inculpate his co-defendant.” State v. Humphrey,

Clark App. No. 2002-CA-30, 2003-Ohio-3401, ¶ 68. Although antagonistic

defenses can be so prejudicial that they can deny a co-defendant a fair trial,

antagonistic defenses are not prejudicial per se and separate trials are not

required whenever co-defendants have conflicting defenses. Id., citing

State v. Daniels (1993), 92 Ohio App.3d 473, 636 N.E.2d 336, and Zafiro v.

United States (1993), 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317. As

stated in Zafiro in the context of Fed.R.Civ.P. 14, which is substantially

similar to Crim.R. 14, “a [trial] court should grant a severance under Rule

14 only if there is a serious risk that a joint trial would compromise a specific

trial right of one of the defendants, or prevent the jury from making a reliable

judgment about guilt or innocence.” Zafiro, 506 U.S. at 539. In many cases,

limiting instructions are sufficient to prevent any prejudice to a co-defendant.

Id.

Id. at ¶ 103.

{¶ 9} With the foregoing standards in mind, we see no abuse of discretion in the

trial court’s ruling on Scott’s motion for a separate trial. Despite the concerns Scott

expressed in his pretrial motion, he and Hockett did not present mutually antagonistic

defenses at trial by each arguing that the other was the shooter.

{¶ 10} The State’s most significant trial witnesses were the victim, Kevin Webb, -8-

and his sister, Kaneisha McDonald. Webb testified that at least one of the two defendants

shot him, but he did not know which one. After one of the defendants started shooting at

him from inside a car, he turned and ran. Therefore, he could not say whether both

defendants shot at him. (Tr. Vol. IV at 636-637, 649-650, 653, 666-667.) McDonald

testified that after the silver Pontiac returned to the parking lot and stopped, both

defendants exited the car and both started shooting at her and Webb. (Tr. Vol. III at 474-

476, 479.)

{¶ 11} In response to the State’s evidence, Hockett did not testify but called

detective Thomas Cope as a witness. In his testimony, Cope discussed his investigation

of the crime scene, his awareness of shell casings being found, and his viewing of the

silver Pontiac allegedly involved. Cope also testified that to his knowledge no usable

fingerprints were recovered from the car and that DNA test results did not impact his

investigation, suggesting that such results, if any, were not useful. (Tr. Vol. IV at 785-

804.) Hockett’s defense at trial did not depend on incriminating Scott. Rather, Hockett’s

counsel argued that McDonald simply was not a credible witness and that Webb did not

see who shot him.

{¶ 12} For his part, Scott presented testimony from four witnesses: (1) Steven

Lehman, who claimed to have witnessed the shooting after dark from his house across

the street; (2) Scott’s mother, Montaga Bailey; (3) Shavia Henderson, an acquaintance of

both Scott and Hockett who testified that she was present at the liquor store; and (4)

Dalexus Brody, the mother of Scott’s children. Lehman acknowledged that he was drunk

when he saw the shooting from his porch. He admitted telling police at the time that an

unidentified female had fired five or six shots before running away. (Tr. Vol. IV at 719- -9-

720.) Bailey testified that she had taken Scott, Hockett, and an unidentified male to the

liquor store in a burgundy pick-up truck. (Id. at 726.) According to Bailey, the three men

returned to the truck after purchasing alcohol and she drove them away. While in the

truck, she heard Scott cursing at Hockett about being “stupid” and “disrespectful.” (Id. at

728-729.) About a minute after she pulled away from the liquor store, Scott and Hockett

got into a “heated argument.” Bailey testified that she stopped the truck, and Hockett got

out with the unidentified third person. (Id. at 729-730.) According to Bailey, she proceeded

to take Scott to Dalexus Brody’s house and then drove to her own house. (Id. at 731-732.)

In her testimony, Brody stated that Scott appeared at her door around 10:00 p.m. that

night. She did not see how he got there or who brought him. (Id. at 760.) Finally,

Henderson testified that she was in the liquor store and saw Hockett arguing with Webb.

According to Henderson, Scott was trying to stop the argument. (Id. at 772.) Henderson

testified that Scott left the liquor store before her and that when she went outside

“everybody was gone.” She did not hear any gunshots at all. (Id. at 773-774.)

{¶ 13} Hockett’s counsel did not examine Steven Lehman or Dalexus Brody. (Id.

at 720, 762.) Hockett’s counsel did question Henderson but elicited nothing harmful to

Scott’s case. (Id. at 774-776.) Henderson told Hockett’s counsel that she did not see

anyone with a gun and did not hear any gunshots. (Id.) When examining Montaga Bailey,

Hockett’s counsel very briefly mentioned her failure to contact detectives after Scott’s

arrest to tell them her son had been with her. (Id. at 757.) We note, however, that the

prosecutor already had discussed that issue with Bailey in greater detail on cross-

examination. (Id. at 747-748, 752-754.)

{¶ 14} In short, the record persuades us that Scott and Hockett did not present -10-

antagonistic defenses requiring separate trials. In addition, the trial court provided a

limiting instruction to minimize the potential for prejudice resulting from joinder. The

instruction stated: “You must separately consider the evidence applicable to each

Defendant as though he or she were being separately tried and you must state your

findings as to each Defendant uninfluenced by your verdict as to the other Defendant.”

(Tr. Vol. V at 927.) With regard to Scott’s alibi, the trial court also instructed the jury that

its rejection of the alibi defense would not create an inference that Scott was present at

the time and place of the shooting. (Id. at 928.) Based on our review of the record, we

conclude that the trial court did not abuse its discretion in overruling Scott’s motion for a

separate trial. The first assignment of error is overruled.

{¶ 15} In his second assignment of error, Scott contends the trial court erred in

“failing to give a complete instruction regarding aiding and abetting.” Specifically, he

contends the trial court failed to include certain language found in the Ohio Jury

Instructions at 2 OJI-CR 523.03(B)(9) concerning (1) the need for an aider and abettor to

have “shared the criminal intent of the principle offender” and (2) the “mere presence of

the defendant at the scene of the offense” not being sufficient by itself to prove aiding and

abetting.

{¶ 16} The pattern OJI instruction at issue, which is drawn from State v. Johnson,

93 Ohio St.3d 240, 754 N.E.2d 796 (2001), states:

9. AIDED OR ABETTED. Before you can find the defendant guilty of

complicity by aiding and abetting, you must find beyond a reasonable doubt

that the defendant supported, assisted, encouraged, cooperated with,

advised, or incited the principal offender in the commission of the offense -11-

and that the defendant shared the criminal intent of the principal offender.

Such intent may be inferred from the circumstances surrounding the offense

including but not limited to presence, companionship, and conduct before

and after the offense was committed. The mere presence of the defendant

at the scene of the offense is not sufficient to prove, in and of itself, that the

defendant was an aider and abettor.

(Emphasis added.)

{¶ 17} Here the trial court instructed the jury as follows regarding complicity and

aiding and abetting:

The law provides two ways in which criminal responsibility may be

placed upon a Defendant. First, that a Defendant was the principal offender.

That is the Defendant who did all the acts which make up all the elements

of the particular offense charged in the indictment, which in this case is

felonious assault.

Second, that the Defendant aided or abetted one or more persons in

committing an offense or offenses knowing that he was facilitating the

offense or offenses charged in the indictment. The second way is known as

complicity.

Whether a Defendant is the principal offender or an aider and

abettor, the State must prove each and every element of the charged

offense beyond a reasonable doubt before the Defendant can be found

guilty of the offense as either the principal offender or as the aider and

abettor. -12-

If you find that the State proved beyond a reasonable doubt that the

Defendant committed all of the essential elements of the offense charged

in the indictment your verdict must be guilty as to that offense or offenses.

Or if you find beyond a reasonable doubt that another person or persons

committed the offense or offenses charged in the indictment, then you may

consider whether or not the Defendant aided and abetted such person or

persons in the commission of the offense or offenses.

An aider and abettor is a person who knowingly aids, helps, assists,

encourages, or directs himself with another person or persons to commit an

offense. An aider and abettor is regarded as if he were the principal offender

and is just as guilty as if he personally performed every act constituting the

offense.

The mere association, however, with one who perpetrates an

unlawful act does not render a person a participant in the crime so long as

his acts are innocent.

(Emphasis added). (Tr. Vol. V at 916-917.)

{¶ 18} The trial court also specifically instructed jurors that Scott could not be found

guilty of felonious assault as an aider and abettor unless they found, beyond a reasonable

doubt, that he “knowingly aided and abetted another in causing or attempting to cause

physical harm to Kevin Webb by means of a deadly weapon” (Count 1) or “knowingly

aided and abetted another in causing serious physical harm to Kevin Webb.” (Count 2).

(Id. at 923, 925.)

{¶ 19} “When reviewing the trial court’s jury instructions, the proper standard of -13-

review is whether the trial court’s decision to give or exclude a particular jury instruction

was an abuse of discretion under the facts and circumstances of the case.” (Citation

omitted) State v. Fair, 2d Dist. Montgomery No. 24388, 2011-Ohio-4454, ¶ 65. “A trial

court abuses its discretion when it makes a decision that is unreasonable,

unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135 Ohio St.3d 343,

2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

{¶ 20} Here Scott objected generally to whether the evidence warranted giving an

“aiding and abetting” instruction at all. (Tr. Vol. V at 817.) But he did not object to the

substance of the trial court’s instruction or the trial court’s failure to make it more complete.

(Id. at 829, 832.) Accordingly, he has forfeited all but plain error with respect to the

language used by the trial court. In order to constitute plain error, an error must be an

obvious defect in the trial proceedings, and it must have affected the defendant’s

substantial rights. State v. Norris, 2d Dist. Montgomery No. 26147, 2015-Ohio-624, ¶ 22;

Crim.R. 52(B). Plain error should be noticed “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; State v. Singleton,

2d Dist. Montgomery No. 26889, 2016-Ohio-5443, ¶ 45.

{¶ 21} Upon review, we see no error in the challenged jury instruction, plain or

otherwise, and no abuse of discretion in the trial court’s failure to include the language

Scott addresses on appeal. Although the trial court did not use the exact language found

in the pattern jury instruction, its aiding-and-abetting instructions were a correct statement

of the law. They also conveyed essentially the same information that Scott claims was

missing from the instructions. -14-

{¶ 22} The trial court correctly instructed the jury regarding the culpability or mens

rea required for Scott to be found guilty as an aider and abettor. It explained that he had

to “knowingly” aid, help, assist, encourage, or direct himself with another person or

persons to commit an offense. The trial court then again stated that Scott had to have

“knowingly” aided and abetted another in committing the crimes at issue. The required

mental state for a complicity instruction is that of the primary offense, and the required

mental state for felonious assault is “knowingly.” See R.C. 2903.11. Therefore, the trial

court effectively communicated to the jury that Scott was required to have “shared the

criminal intent of the principle offender.” In State v. Harwell, 2d Dist. Montgomery No.

25852, 2015-Ohio-2966, ¶ 47, this court approved language similar to that employed by

the trial court, noting that it adequately instructed the jury on the culpability required to be

an aider and abettor.

{¶ 23} We are equally unpersuaded by Scott’s argument about the lack of an

instruction regarding “mere presence” being insufficient to prove aiding and abetting. The

trial court instructed the jury that “mere association” with one who commits a crime is not

enough to prove aiding and abetting. Being “present” with a person is simply a type of

“association.” Therefore, by instructing the jury that “mere association” with a principal

offender was not enough, the trial court effectively did communicate the concept that

“mere presence” with a principal offender was not enough. The second assignment of

error is overruled.

{¶ 24} In his third assignment of error, Scott contends the jury’s verdict finding him

guilty of felonious assault was against the manifest weight of the evidence. His entire

substantive argument is as follows: -15-

In the present case Kaneisha [McDonald] testified that two men got

out of the car and began running toward her and Kevin [Webb] and both

started shooting. TR. pp. 474-476. This testimony was contradicted by

Kevin himself, who never saw anyone get out of the car, and only

remembered one man shooting at him by hanging out of the car window.

TR, pp. 636-637. The forensic evidence gathered at the scene also

supported the conclusion that there was only one gun, one shooter. See

TR, pp. 385, 606. This coupled with the fact that Hockett was the only one

with a gun inside the store, as well as Kevin’s testimony that it appeared

that Scott was trying to take that gun from Hockett and get him to leave the

store, weighs almost inexorably toward the conclusion that Mr. Scott was

not the ultimate shooter. Apparently, the jury agreed that Kaneisha’s version

of the shooting was not worthy of credence, inasmuch as it found Hockett

guilty on his firearm specifications, and acquitted Mr. Scott with regard to

his.

In light of the foregoing, then it is incumbent upon the Court to

determine whether convicting Mr. Scott under a theory of complicity was

also against the manifest weight of the evidence.

As has been noted previously, with regard to the first incident in the

store before someone initially drove Mr. Scott and Mr. Hockett from the

scene, it is apparent that Mr. Scott’s words and actions weighed heavily

toward the conclusion that he was attempting to de-escalate the situation.

And, with regard to the actual shooting event, even if the jury didn’t believe -16-

Mr. Scott’s alibi evidence, there remains the undeniable fact that there was

absolutely no evidence presented that Mr. Scott, if present in the car, ever

spoke or encouraged Hockett in any way to shoot at Kevin. Nor was there

any evidence that Mr. Scott was driving the vehicle back to the site of the

shooting or was in any other way assisting Hockett. Thus, his conviction

under a theory of complicity was against the manifest weight of the evidence

and must be reversed.

(Appellant’s brief at 11.)

{¶ 25} When a conviction is challenged on appeal as being against the weight of

the evidence, an appellate court must review the entire record, weigh the evidence and

all reasonable inferences, consider witness credibility, and determine whether, in

resolving conflicts in the evidence, the trier of fact “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. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). A

judgment should be reversed as being against the manifest weight of the evidence “only

in the exceptional case in which the evidence weighs heavily against the conviction.”

State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 26} With the foregoing standards in mind, we conclude that Scott’s felonious

assault conviction was not against the weight of the evidence. We are unpersuaded by

his argument that “conflicting” testimony and forensic evidence necessarily supported a

conclusion that there was only one shooter. Although Webb saw only one shooter and

McDonald saw two, we reconciled this alleged conflict in our disposition of Hockett’s

appeal, reasoning: -17-

* * * [W]e cannot say that the testimony regarding the shooters is

contradictory. Webb testified that the Pontiac returned to the parking lot at

which time Webb observed it stop with a person hanging out of the window

shooting at him; he was, however, unable to identify the shooter. Webb

testified that he was shot in the hand, at which point he began running back

into Gina's. McDonald testified that she saw both Hockett and Scott exit the

vehicle and shoot at Webb. Based upon this testimony, it is entirely possible

the jury determined that McDonald and Webb observed the shooters at

different points in time. In other words, Webb initially saw the car, with a

shooter hanging out the window, return to the parking lot and stop. Then he

was shot in the hand at which point he turned to run into the store and did

not observe, as McDonald did, the two men exit the vehicle. Therefore, we

find this argument lacks merit.

Hockett at ¶ 17.

{¶ 27} The forensic evidence also does not require a finding of only one shooter.

Although the nine-millimeter shell casings found at the scene all came from the same

semi-automatic handgun, the State presented testimony establishing that revolvers do

not eject shell casings. (Tr. Vol. II at 338; Tr. Vol. IV at 606-610.) Therefore, the forensic

evidence and the testimony of Webb and McDonald would support a finding that Hockett

and Scott both fired weapons, one of which was a semi-automatic and one of which was

a revolver. The fact that Scott did not display a firearm inside the liquor store also did not

render his conviction against the manifest weight of the evidence. In light of McDonald’s

testimony that she saw Hockett and Scott both firing shots, Webb simply may have left -18-

his weapon in the silver Pontiac when he went inside the store. And the fact that Scott

tried to disarm Hockett inside the store did not establish that he was acting as a

peacekeeper. McDonald testified that her perception was Scott was trying to take the

weapon away from Hockett to use or threaten to use it himself, not to defuse the situation.

(Tr. Vol. III at 520-521.) Similarly, Webb testified that Hockett and Scott both were arguing

with him inside the liquor store. (Tr. Vol. IV at 628.) With regard to Scott trying to take

Hockett’s weapon, Webb explained:

Basically he [Scott] was pushing him [Hockett] out like bro, we got

him. Like he was trying to grab him [sic] gun at the same time. That’s why I

said I didn’t know if he was trying to grab the gun to keep from shooting me

in the store or was trying to grab it to retaliate it with me, but he was basically

pushing him out of the store like bro it’s cool. We got him. We going to get

him. That’s he was pushing him out of the store. * * *

That’s basically how he [Scott] was doing. I don’t know what he was

saying.

(Id. at 652.)

{¶ 28} Based on the record before us, the manifest weight of the evidence

supported a finding that Hockett and Scott both fired handguns toward Webb and

McDonald. Although the State failed to establish whether Hockett or Scott, or both, fired

the shots that actually hit Webb, such evidence was not necessary. The jury found Scott

guilty of felonious assault under R.C. 2903.11(A)(1) and (A)(2), which provide that no

person shall knowingly “[c]ause serious physical harm to another” or knowingly “[c]ause

or attempt to cause physical harm” with a deadly weapon. Even if Hockett fired all of the -19-

shots that struck Webb, the weight of the evidence supported a finding that Scott aided

and abetted Hockett in knowingly causing serious harm by also firing at Webb. And by

firing at Webb, Scott also knowingly attempted to cause serious physical harm with a

deadly weapon even if his shots missed.

{¶ 29} In opposition to the foregoing analysis, Scott contends the jury necessarily

found, as a factual matter, that he was not a shooter on the night in question. He reaches

this conclusion based on the jury acquitting him of the firearm specifications

accompanying the felonious assault charges. Based on the premise that he did not shoot

a gun at Webb, Scott then argues that the remaining evidence failed to support his

conviction under a theory of complicity.

{¶ 30} We find Scott’s argument to be unpersuasive. As set forth above, the

manifest weight of the evidence reasonably supported a finding that Scott shot at Webb.

And we have no way of determining with confidence whether the jury believed Scott was

an actual shooter or whether it found that he acted as an accomplice in other ways. The

jury simply returned general verdicts finding Scott guilty on two counts of felonious

assault. We are not required to infer from his acquittal on the firearm specifications that

he necessarily did not fire a weapon. An acquittal on a firearm specification will not

undermine a guilty verdict on a principal charge where a guilty verdict on the principal

charge is supported by the evidence. State v. Davis, 9th Dist. Summit No. 26660, 2013-

Ohio-5226, ¶ 35; State v. Smith, 2d Dist. Montgomery No. 26116, 2015-Ohio-1328, ¶ 17.

That is the case here. In our view, it is inappropriate to speculate about or infer any factual

finding based on the jury’s failure to convict Scott of the firearm specifications while finding

him guilty of both counts of felonious assault. There is simply no way of knowing why the -20-

jury failed to find Scott guilty of the specifications, and its verdict may have been the

product of leniency or compromise. The bottom line is that the manifest weight of the

evidence supported Scott’s conviction on both counts of felonious assault for participating

in the shooting of Webb with co-defendant Hockett. That being so, we overrule the third

assignment of error.

{¶ 31} In his fourth assignment of error, Scott claims the trial court erred in failing

to note the “fact of conviction” for the repeat-violent-offender specification in its judgment

entry, which the trial court calls a “termination entry.” Scott contends the trial court’s

termination entry imposed an eight-year sentence on the specification while being

“completely devoid of any finding or reference to the fact that Appellant was convicted of

that specification.” (Appellant’s brief at 12.)

{¶ 32} In a June 26, 2019 decision and entry, we determined that the alleged

defect about which Scott complains did not negate the existence of a final, appealable

order. We reasoned:

“A judgment of conviction is a final order subject to appeal under R.C.

2505.02 when the judgment entry sets forth (1) the fact of conviction, (2) the

sentence, (3) the judge’s signature, and (4) the time stamp indicating the

entry upon the journal by the clerk.” State v. Lester, 130 Ohio St.3d 303,

2011-Ohio-5204, 958 N.E.2d 142, ¶ 14. Appellant questions whether the

order on appeal—the October 24, 2017 “Termination Entry”—is final, in that

it does not specifically contain the “fact of conviction” of the Repeat Violent

Offender specification attached to count 2 of the indictment. As appellant

notes, some courts have held that the four requirements for a final -21-

appealable order in a criminal case also apply to specifications. * * *

However, in 2012, the Supreme Court of Ohio rejected the argument

that an otherwise complete sentencing entry was not final because it failed

to dispose of a firearm specification. State ex rel. Jones v. Ansted, 131 Ohio

St.3d 125, 2012-Ohio-109, 961 N.E.2d 192, ¶ 2. The Court referred to its

decision in State v. Ford, parenthetically noting that a “ ‘firearm specification

is merely a sentence enhancement, not a separate criminal offense.’ ”

Ansted at ¶ 2, quoting Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945

N.E.2d 498, ¶ 17.

“Since Ansted, other appellate districts have determined that a trial

court’s failure to address sentencing-enhancing specifications does not

render the entry a non-final, non-appealable order.” State v. Blackburn, 4th

Dist. Jackson No. 18CA3, 2019-Ohio-420, ¶ 4 (citing cases from the Fifth

and Eighth Districts). Instead, any such failure is a sentencing error that can

be addressed on appeal.” State v. Clark, 8th Dist. Cuyahoga No. 101449,

2014-Ohio-5693, ¶ 11-12.

{¶ 33} Here the trial court’s October 24, 2017 termination entry did mention the

repeat-violent offender specification, but it did so inaccurately and incompletely. The first

paragraph of the entry stated:

Defendant herein having entered a Jury Trial to the Offenses of COUNT 1:

FELONIOUS ASSAULT (deadly weapon) – 2903.11(A)(1)(F2) with a

REPEAT VIOLENT OFFENDER SPECIFICATION—2929.14(B)(2)(a) and

2941.149 and COUNT 2: FELONIOUS ASSAULT (serious physical harm) -22-

– 2903.11(A)(2)(F2) with a REPEAT VIOLENT OFFENDER

SPECIFICATION—2929.14(B)(2)(a) and 2941.149 was on October 20,

2017, brought before the Court.

(Doc. # 186 at 1.)

{¶ 34} The termination entry then turns to sentencing. The only mention of the

repeat-violent-offender specification is as follows:

COUNT 2: EIGHT (8) YEARS TO RUN CONSECUTIVELY TO THE

REPEAT VIOLENT OFFENDER SPECIFICATION.

REPEAT VIOLENT OFFENDER SPECIFICATION: EIGHT (8)

MANDATORY YEARS ACTUAL INCARCERATION to be served

CONSECUTIVELY to Count 2 for an aggregate prison sentence of

SIXTEEN (16) MANDATORY YEARS.

(Id.)

{¶ 35} The first paragraph above is inaccurate, or at least inartfully drafted, insofar

as it suggests that Scott was tried by a jury on the felonious assault charges and the

repeat-violent-offender specifications. To the contrary, those specifications were tried to

the bench. The first paragraph also is incomplete as it fails to record the outcome after

Scott “entered a jury trial.” It simply indicates that Scott faced felonious assault charges

with repeat-violent-offender specifications. It does not indicate that the jury or the trial

court found the specifications proven.2 That fact is established elsewhere in the record

2 With respect to Count 2, the felonious assault charge on which the trial court proceeded to sentencing, we note that the heading of the termination entry contained the following additional information: “Convicted Of: Count 2: Felonious Assault (serious physical harm)(F2) by Defendant herein having been found guilty by a jury.” (Doc. # 186 at 1.) -23-

where the trial court entered its own verdict against Scott on the specifications. (Doc.

# 181.) That the specifications were proven also is implicit in the termination entry insofar

as the trial court proceeded to sentence Scott as a repeat violent offender. Nevertheless,

the termination entry itself does not clearly state that the trial court found Scott to be a

repeat violent offender. As set forth above, that omission is not a jurisdictional defect, and

the trial court did impose sentence on the specification. Because the record reflects that

the trial court found Scott guilty of the specification and sentenced him on it, we agree

with the State that the noted deficiencies in the termination entry regarding the repeat-

violent offender specifications can be cured by the trial court through a nunc pro tunc

entry. State v. McIntyre, 2d Dist. Montgomery No. 25502, 2013-Ohio-3281, ¶ 5, quoting

State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, 940 N.E.2d 924, ¶ 15 (“[A] nunc pro

tunc entry may be used to ‘reflect what the trial court did decide but recorded

improperly.’ ”). Accordingly, Scott’s fourth assignment of error is sustained.

{¶ 36} Based on the reasoning set forth above, we affirm the trial court’s judgment

but remand the matter for the trial court to issue a corrective nunc pro tunc judgment

entry.

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

FROELICH, J. and TUCKER, J., concur.

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Mathias H. Heck Jr. Michael P. Allen Richard Hempfling Hon. Michael W. Krumholtz