[Cite as State v. Tolliver, 2026-Ohio-1615.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY
STATE OF OHIO, CASE NO. 8-25-10
PLAINTIFF-APPELLEE,
v.
HOLLEY TOLLIVER, JR., OPINION AND JUDGMENT ENTRY DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court Trial Court No. CR 24 09 0179
Judgment Affirmed
Date of Decision: May 4, 2026
APPEARANCES:
William T. Cramer for Appellant
Eric C. Stewart for Appellee Case No. 8-25-10
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Holley Tolliver, Jr. (“Tolliver”), appeals the May
20, 2025 judgment entry of sentencing of the Logan County Court of Common
Pleas. For the reasons that follow, we affirm.
{¶2} On August 14, 2024, Tolliver engaged in a lengthy standoff with law
enforcement. After approximately 11 hours of shooting at or into neighboring
homes, ignoring loudspeaker announcements to surrender, and attempting to cause
physical harm to law enforcement, Tolliver exited his residence with a gas mask
hanging from his neck and gunshot wounds to his face and arm. Following his
arrest, law enforcement found a cache of firearms and ammunition inside Tolliver’s
residence that were reported stolen from a neighbor’s home the day before.
{¶3} On September 10, 2024, the Logan County Grand Jury indicted Tolliver
on 39 counts as follows: one count of burglary in violation of R.C. 2911.12(A)(2),
(D), a second-degree felony; one count of grand theft when the property is a firearm
or dangerous ordnance in violation of R.C. 2913.02(A)(1), (B)(4), a third-degree
felony; five counts of improperly discharging a firearm at or into a habitation in
violation of R.C. 2923.161(A)(1), (C), all second-degree felonies, each count
including a three-year firearm specification under R.C. 2941.145(A); 16 counts of
felonious assault in violation of R.C. 2903.11(A)(2), (D)(1)(a), all first-degree
felonies, each count including a seven-year firearm specification under R.C.
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2941.1412(A); and 16 counts of attempted aggravated murder in violation of R.C.
2923.02, 2903.01(E)(1), 2929.02(A), all first-degree felonies, each count including
a seven-year firearm specification under R.C. 2941.1412(A). On September 13,
2024, Tolliver appeared for arraignment and entered pleas of not guilty.
{¶4} On September 17, 2024, defense counsel filed a written plea of not
guilty by reason of insanity (“NGRI”) on Tolliver’s behalf. That same day, the trial
court ordered the Forensic Psychiatry Center for Western Ohio to conduct a
competency evaluation and an NGRI evaluation.
{¶5} On October 9, 2024, Massimo De Marchis, Psy.D., met with Tolliver
for one and a half hours to evaluate him. Tolliver was administered the Minnesota
Multiphasic Personality Inventory-3 (“MMPI-3”). Dr. Marchis also reviewed court
documents relating to Tolliver’s pending charges, police reports, witness
statements, a hospital memorandum dated August 16, 2024, Logan County Jail
medical records, and Community Health and Wellness Partners medical records
dated December 14, 2023.
{¶6} On October 25, 2024, Dr. Marchis issued two reports, one addressing
Tolliver’s competency to stand trial (“the competency report”) and the other report
addressing his mental condition at the time of the charged offenses (“the NGRI
report”). In the competency report, Dr. Marchis opined that Tolliver “is a mentally
ill individual, but not an intellectually disabled individual. He is currently capable
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of understanding the court proceedings and assisting in his defense.” (Oct. 29, 2024
Tr. at Exhibit 1). As for the NGRI report, Dr. Marchis stated that
at the time of the offenses charged, the defendant neither was suffering from active signs/symptoms of a severe mental disease nor a severe mental defect. He further knew the wrongfulness of the acts charged.
(State’s Exhibit 309).
{¶7} A competency hearing was held on October 29, 2024. At the hearing,
the State and Tolliver’s counsel stipulated to the admission of Dr. Marchis’s
competency and NGRI reports. When specifically questioned by the trial court if
there was any other evidence that either the State or defense counsel wished to
present, both parties declined to introduce any additional evidence. In particular,
Tolliver’s counsel stated, “No, Your Honor, not today.” (Oct. 29, 2024 Tr. at 6).
The trial court reviewed Dr. Marchis’s reports and concluded that Tolliver was
competent to stand trial. As to Tolliver’s affirmative defense of NGRI, the trial
court found that “at this point there’s no evidence upon which an insanity defense
could be based.” (Id. at 7).
{¶8} On February 10, 2025, defense counsel requested that Tolliver be
reevaluated to determine his competency to stand trial. The trial court granted the
request and Tolliver was reevaluated by Dr. Marchis on February 19, 2025. Tolliver
was administered the Structured Inventory of Malingered Symptomatology
(“SIMS”). On February 24, 2025, Dr. Marchis issued a second competency report
opining that Tolliver “is a mentally ill individual, but not an intellectually disabled
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individual. He is currently capable of understanding the court proceedings and
assisting in his defense.” (Feb. 28, 2025 Tr. at Exhibit 1). Dr. Marchis further noted
that Tolliver’s “claimed memory impairments are assessed as spurious, because two
psychological tests (MMPI-3 and SIMS) indicated that the defendant exaggerated
or malingered memory impairments.” (Id.)
{¶9} A second competency hearing was held on February 28, 2025 in the
trial court. At the hearing, the parties stipulated to the admission of the second
competency report prepared by Dr. Marchis. Based on the contents of the second
competency report, the trial court found that Tolliver remains competent to stand
trial.
{¶10} On April 11, 2025, the State moved to dismiss one count of improperly
discharging a firearm at or into a habitation and all 16 counts of attempted
aggravated murder and the accompanying firearm specifications. The trial court
granted the State’s motion and an amended indictment was filed charging 22 counts
as follows: one count of burglary in violation of R.C. 2911.12(A)(2), (D), a second-
degree felony; one count of grand theft when the property is a firearm or dangerous
ordnance in violation of R.C. 2913.02(A)(1), (B)(4), a third-degree felony; four
counts of improperly discharging a firearm at or into a habitation in violation of
R.C. 2923.161(A)(1), (C), all second-degree felonies, each count including a three-
year firearm specification under R.C. 2941.145(A); and 16 counts of felonious
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assault in violation of R.C. 2903.11(A)(2), (D)(1)(a), all first-degree felonies, each
count including a seven-year firearm specification under R.C. 2941.1412(A).
{¶11} The case proceeded to a four-day jury trial on April 14, 2025. On
April 17, 2025, the jury returned guilty verdicts on all 22 counts and the
accompanying firearm specifications.
{¶12} A sentencing hearing was held on May 19, 2025. The trial court
sentenced Tolliver to an aggregate prison term of 125 to 130.5 years as follows:
eight years for one count of burglary; three years for one count of grand theft when
the property is a firearm or dangerous ordnance; eight years for each of the four
counts of improperly discharging a firearm at or into a habitation and three years for
each of the accompanying firearm specifications; 11 to 16.5 years for one count of
felonious assault and seven years for the accompanying firearm specification; and
three years for each of the remaining 15 counts of felonious assault and seven years
for each of the accompanying firearm specifications.1 The trial court ordered that
all sentences be served consecutively, with the exception that 14 of the 16 seven-
year firearm specifications be served concurrently.
{¶13} On May 21, 2025, Tolliver filed a notice of appeal. He raises four
assignments of error for our review.
1 The trial court filed its judgment entry of sentencing on May 20, 2025.
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First Assignment of Error
The trial court violated appellant’s rights to due process and a fair trial under the Fifth and Fourteenth Amendments to the U.S. Constitution, and Sections 10 and 16, Article I of the Ohio Constitution, by refusing a jury instructions on insanity.
{¶14} In his first assignment of error, Tolliver argues that the trial court erred
by refusing to instruct the jury on the affirmative defense of NGRI. According to
Tolliver, “the evidence was sufficient to raise a question in the minds of reasonable
people as to whether [his] delusions prevented him from understanding the
wrongfulness of his actions.” (Appellant’s Brief at 19). Tolliver contends that
“[t]he NGRI issue should have been left to the jury.” (Id.).
Standard of Review
{¶15} “[T]he trial judge is in the best position to gauge the evidence before
the jury and is provided the discretion to determine whether the evidence adduced
at trial was sufficient to require an instruction.” State v. Fulmer, 2008-Ohio-936, ¶
72. We review a trial court’s refusal to give a requested jury instruction for an abuse
of discretion. State v. Houle, 2023-Ohio-4609, ¶ 18 (3d Dist.). An abuse of
discretion occurs when a trial court’s decision is unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Analysis
{¶16} “A person is not guilty by reason of insanity only if the person proves
that ‘at the time of the commission of the offense, the person did not know, as a
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result of a severe mental disease or defect, the wrongfulness of the person’s acts.’”
State v. Grate, 2020-Ohio-5584, ¶ 76, quoting R.C. 2901.01(A)(14). Because NGRI
is an affirmative defense that a defendant must prove by a preponderance of the
evidence,
[t]he proper standard for determining whether a defendant has successfully demonstrated this defense and thus is entitled to an NGRI instruction is whether he has introduced sufficient evidence, which if believed, would raise a question in the mind of a reasonable person concerning the existence of the issue.
Grate at ¶ 76, citing State v. Monford, 2010-Ohio-4732, ¶ 70 (10th Dist.). “A trial
court does not err in refusing to include an instruction to the jury on the defense of
insanity where the evidence presented does not warrant such an instruction.”
Monford at ¶ 70.
{¶17} In this case, the trial court determined that Tolliver was not entitled to
an NGRI instruction because the evidence presented at trial did not support the
affirmative defense of insanity. Specifically, the trial court found that Tolliver
failed to introduce sufficient evidence to show that, at the time of the commission
of the offenses, he did not know, as a result of a severe mental disease or defect, the
wrongfulness of his acts. Significantly, the trial court noted that Tolliver failed to
produce expert testimony to support his insanity defense.
{¶18} After reviewing the record, we agree with the trial court that Tolliver
did not present sufficient evidence to support an NGRI instruction. First, Dr.
Marchis testified during the State’s case-in-chief that, at the time of the offenses,
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Tolliver neither was suffering from active signs/symptoms of a severe mental
disease nor a severe mental defect such that he did not know the wrongfulness of
his acts. See Monford at ¶ 76 (concluding that the defendant was not denied his
right to due process or a fair trial when the evidence did not support an NGRI
defense such that an NGRI instruction would not have been warranted). Second,
Tolliver’s own trial testimony did not tend to support an NGRI instruction. See
State v. Hess, 2014-Ohio-3193, ¶ 28 (4th Dist.) (stating that an “NGRI defense is
wholly inconsistent with the theory that was presented at trial, i.e. that Hess did not
engage in any wrongful conduct”).
{¶19} Tolliver testified in his own defense at trial. On direct examination,
Tolliver denied breaking into his neighbor’s home and stealing guns and other items
of personal property. When asked how the stolen items got into his own home,
Tolliver replied, “I have no idea[.]” (Apr. 16, 2025 Tr. at 191). Tolliver further
denied firing shots at another neighbor’s home on the morning of the standoff. He
also denied trying to harm law enforcement and stated that he did not hear the
loudspeaker announcements to surrender.
{¶20} Tolliver testified that he has “memory issues” regarding what
transpired that day. (Id.). “I just remember waking up and taking sleeping pills. I
have two sleeping pills I take, and going back to sleep.” (Id. at 192). Tolliver further
testified that, at some point, “I heard a window bust and something fell on the floor.”
(Id. at 195). Tolliver stated that he fired “[a] 12-gauge shotgun into the - - straight
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down, at a 45-degree angle” and then went back to sleep. (Id. at 196). “Next thing
I remember is the wall, the south wall, getting ripped out, and them shooting at me,
my arm and my nose.” (Id. at 196-197). At this point, Tolliver realized law
enforcement was outside “and I came out.” (Id. at 198). When he exited his
residence, Tolliver had a gas mask hanging from his neck and gunshot wounds to
his face and arm. Tolliver testified that he did not remember putting the gas mask
on.
{¶21} Following his arrest, Tolliver was taken to the hospital. Tolliver
testified, “I was told that I was being treated for schizophrenia at Miami Hospital
when I was there.” (Apr. 16, 2025 Tr. at 199). Tolliver further testified that he is
currently taking medication to assist with the “visions or hallucinations” and hearing
things. (Id.). When asked about specific hallucinations, Tolliver replied, “Mainly
just, like, people coming out of the floor in the home - - or wherever I’m at, at the
jailhouse structure - - the jail[.]” (Id. at 200). When asked if he believed his mental
health negatively impacted his ability to understand what was going on that day,
Tolliver stated,
I really couldn’t say, to be honest with you. I mean, I would think it would. Just by the decision to go back in there and lay down, I’d say it probably had something to do with my mental health, but that’s all I could think about doing, was laying back down and just going back to sleep.
(Id. at 202-203).
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{¶22} On cross-examination, Tolliver reiterated that he did not hear the
loudspeaker announcements to surrender. Tolliver admitted that, following his
arrest, he told law enforcement that he felt he was under attack. When asked if he
ever tried yelling out the window, Tolliver answered, “I tried communicating once
or twice, but some - - but the equipment was running, so I guess they couldn’t hear
me.” (Id. at 214). Tolliver testified that he was in the middle of his home when he
yelled out. When asked what he attempted to communicate, Tolliver replied, “Just
by asking, what do you want? And that kind of conversation, plus a few bad words.”
(Id.). Tolliver’s trial testimony concluded with the State questioning him as follows:
Q. Okay. I guess - - I guess my confusion is this. You don’t - - there’s a lot of things you don’t remember, but you do remember taking a sleeping pill that morning, correct?
A. Yeah.
Q. You have a pretty vivid memory of that?
A. Yeah, that’s when I first woke up.
Q. And everything else though, shooting at the officers, how the guns got in your house, burglarizing [the neighbor’s home], you don’t remember any of that?
A. No sir. I do not.
Q. Okay, that’s what you want the jury to believe, is you just don’t remember any of this?
A. Well, I - - well, I don’t remember it - - I don’t - - I’m not asking them to believe that. I just don’t remember.
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(Id. at 219-220). Following this line of questioning, there was no redirect
examination and the defense rested.
{¶23} Additionally, Dr. Marchis testified at trial that his clinical interview of
Tolliver “revealed some features of a delusional disorder.” (Apr. 16, 2025 Tr. at
99). In particular, Tolliver believed that his computer had been hacked by unknown
entities that prevented him from working. Dr. Marchis testified that Tolliver’s
“persecutory paranoid delusions . . . were fairly circumscribed to that specific
topic.” (Id.). Dr. Marchis further testified that the results of the psychological
testing revealed a personality disorder, such as schizoid personality disorder. Dr.
Marchis explained that
even if someone has a certifiable mental illness, it does not mean that they are experiencing symptoms of such mental illness 24-7. In other words, just because you have a mental disorder, it doesn’t mean that you’re mentally ill every single minute of your life.
(Id. at 105-106).
{¶24} As to his opinion regarding Tolliver’s mental condition at the time of
the charged offenses, Dr. Marchis testified that Tolliver “did not manifest symptoms
of a severe mental disease or defect.” (Id. at 101). With respect to his opinion
regarding whether Tolliver understood the wrongfulness of his acts at the time of
the charged offenses, Dr. Marchis testified that Tolliver’s actions “seemed to be
planned, purposeful, and goal-directed.” (Id. at 103). As to Tolliver’s claim of
memory loss, Dr. Marchis testified that “[c]laiming to have no memory of engaging
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in such actions is a spurious claim designed to deny responsibility, which again, is
another indication of knowledge of the wrongfulness of someone’s action.” (Id. at
104).
{¶25} Based on the foregoing, we conclude that the trial court did not abuse
its discretion by refusing to instruct the jury on the affirmative defense of NGRI.
The trial court considered all of the evidence presented at trial and determined that
it was not sufficient to support an instruction on the defense of NGRI. See Fulmer,
2008-Ohio-936, at ¶ 72. Therefore, we conclude that the trial court did not err by
refusing to instruct the jury on the affirmative defense of NGRI.
{¶26} Tolliver’s first assignment of error is overruled.
Second Assignment of Error
The trial court erred by imposing consecutive sentences because, by clear and convincing evidence, the record does not support the findings required by R.C. 2929.14(C)(4).
{¶27} In his second assignment of error, Tolliver argues that the trial court
erred by imposing consecutive sentences in this matter.
{¶28} Under R.C. 2953.08(G)(2), an appellate court may vacate or modify a
felony 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, 2016-Ohio-1002, ¶ 1.
When reviewing the imposition of consecutive sentences, “[t]he plain language of
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R.C. 2953.08(G)(2) requires an appellate court to defer to a trial court’s consecutive-
sentence findings, and the trial court’s findings must be upheld unless those findings
are clearly and convincingly not supported by the record.” State v. Gwynne, 2023-
Ohio-3851, ¶ 5. 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.’” Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954),
paragraph three of the syllabus.
{¶29} “Except as provided in . . . division (C) of section 2929.14, . . . a prison
term, jail term, or sentence of imprisonment shall be served concurrently with any
other prison term, jail term, or sentence of imprisonment imposed by a court of this
state, another state, or the United States.” R.C. 2929.41(A). In pertinent part, R.C.
2929.14(C) provides:
(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender’s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
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(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶30} Thus, when imposing consecutive sentences, R.C. 2929.14(C)(4)
requires the trial court to make specific findings on the record. State v. Hites, 2012-
Ohio-1892, ¶ 11 (3d Dist.). “Specifically, the trial court must find: (1) consecutive
sentences are necessary to either protect the public or punish the offender; (2) the
sentences would not be disproportionate to the offense committed; and (3) one of
the factors in R.C. 2929.14(C)(4)(a), (b), or (c) applies.” State v. Runyon, 2024-
Ohio-5039, ¶ 23 (3d Dist.). Further, the trial court must state the required findings
at the sentencing hearing and incorporate those findings into its sentencing entry.
Id. at ¶ 24. The trial court “has no obligation to state reasons to support its findings”
and is not “required to give a talismanic incantation of the words of the statute,
provided that the necessary findings can be found in the record and are incorporated
into the sentencing entry.” State v. Bonnell¸ 2014-Ohio-3177, ¶ 37.
{¶31} In this case, the trial court imposed consecutive sentences on all 22
counts. The trial court also imposed consecutive sentences as to all four of the three-
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year firearm specifications and two of the 16 seven-year firearm specifications.2
Additionally, the trial court made the required consecutive-sentence findings at
Tolliver’s sentencing hearing. In particular, the trial court found that (1)
“consecutive sentences are necessary to protect the public from future crime and to
punish [Tolliver]”; (2) “consecutive sentences are not disproportionate to the
seriousness of [Tolliver’s] conduct and to the danger [Tolliver] poses to the public”;
and (3)
at least two of the multiple offenses were committed as part of one or more courses of conduct and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of [Tolliver’s] conduct.
(May 19, 2025 Tr. at 16). See R.C. 2929.14(C)(4)(b). Moreover, the trial court
incorporated these findings into its sentencing entry.
{¶32} Nonetheless, Tolliver argues that the record does not support the trial
court’s findings that consecutive sentences are necessary to protect the public from
future crime and to punish him, and that consecutive sentence are not
disproportionate to the seriousness of his conduct. In support of his argument,
Tolliver claims that he does not pose a danger to the public because, prior to the
instant offenses, “[he] had no criminal record and his ORAS score was low.”
(Appellant’s Brief at 21). Tolliver further argues that, at the time of the instant
2 The trial court ordered that the remaining 14 seven-year firearm specifications be served concurrently.
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offenses, “[he] suffered from severe mental health issues that were not previously
diagnosed or properly treated” and “was faced with a number of issues in his
personal life—such as the break-up of his marriage and financial difficulties.” (Id.
at 21-22). Now that he has been properly diagnosed and treated with medication,
Tolliver contends that a release from prison in approximately 20 years—when he
would be nearly 80 years old—would not pose a danger to the public. As to the
seriousness of his conduct, Tolliver asserts that a minimum sentence of 125 years is
too harsh since the harm he caused “was confined to property damage.” (Id. at 22).
{¶33} “While a trial court is not required to state reasons in support of its
R.C. 2929.14(C)(4) findings, an appellate court may take action if the record clearly
and convincingly does not support the trial court’s findings under R.C.
2929.14(C)(4).” State v. Mason, 2020-Ohio-3505, ¶ 13 (3d Dist.). See also Gwynne,
2023-Ohio-3851, at ¶ 5. Thus, “‘our consecutive-sentencing review is limited to
determining whether the record supports the findings actually made; it is not an
invitation to determine or criticize how well the record supports the findings.’”
State v. Nienberg, 2017-Ohio-2920, ¶ 19 (3d Dist.), quoting State v. Jones, 2016-
Ohio-8145, ¶ 16 (8th Dist.).
{¶34} Here, the record supports the trial court’s findings that consecutive
sentences are necessary to protect the public from future crime and to punish
Tolliver, and that consecutive sentences are not disproportionate to the seriousness
of Tolliver’s conduct and to the danger the he poses to the public. Specifically, the
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record shows that Tolliver stole an arsenal of firearms and ammunition from a
neighboring residence; dug fox holes inside his home and strategically placed the
stolen firearms throughout the home; engaged in a “shooting up of the
neighborhood” that endangered the lives of neighbors; attempted to cause physical
harm to law enforcement; and ignored repeated attempts made by law enforcement
for a peaceful resolution. (May 19, 2025 Tr. at 10). The trial court found that the
victims—being Tolliver’s neighbors and 16 peace officers—suffered significant
emotional harm as a result of Tolliver’s actions. The trial court further found that
“[s]hooting up of the neighborhood is a factor that makes these offenses more
serious than normal offenses of the type.” (Id. at 11).
{¶35} Accordingly, after reviewing the record, we conclude that the trial
court’s consecutive-sentence findings are supported by the record and we reject
Tolliver’s argument to the contrary. We further conclude that the record reflects
that the trial court made the required R.C. 2929.14(C)(4) findings before imposing
consecutive sentences and incorporated those findings into its sentencing entry and
that those findings are not clearly and convincingly unsupported by the record.
Nienberg, 2017-Ohio-2920, at ¶ 22-23 (3d Dist.).
{¶36} Tolliver’s second assignment of error is overruled.
Third Assignment of Error
The trial court erred by imposing all four of the three-year firearm specifications for improper discharge when all of the offenses were committed as part of the same act or transaction.
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{¶37} In his third assignment of error, Tolliver argues that the trial court
erred by imposing all four of the three-year firearm specifications in contravention
of R.C. 2929.14(B)(1)(b), which prohibits courts from imposing multiple prison
terms for felonies committed as part of the same act or transaction.
{¶38} As previously stated, under R.C. 2953.08(G)(2), an appellate court
may vacate or modify a felony 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.” Marcum, 2016-
Ohio-1002, at ¶ 1.
{¶39} In this case, Tolliver was convicted of four counts of improperly
discharging a firearm at or into a habitation and each conviction included a three-
year firearm specification under R.C. 2941.145(A). Pursuant to R.C.
2929.14(B)(1)(b), “a court shall not impose more than one [firearm specification]
prison term on an offender . . . for felonies committed as part of the same act or
transaction.” (Emphasis added.) The Ohio Supreme Court has defined
“transaction” as “‘a series of continuous acts bound together by time, space and
purpose, and directed toward a single objective.’” State v. Wills, 69 Ohio St.3d 690,
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691 (1994), quoting State v. Caldwell, 1991 Ohio App. LEXIS 5879, *32 (9th Dist.
Dec. 4, 1991).
{¶40} On appeal, Tolliver argues that the trial court erred by imposing all
four of the three-year firearm specifications since his “acts of firing into neighboring
houses were part of a single criminal misadventure.” (Appellant’s Brief at 23). In
support of his argument, Tolliver contends that the offenses “occurred relatively
close in time with a similar objective of repelling the people who were invading his
house.” (Id.).
{¶41} Here, the record shows that Tolliver discharged multiple firearms at or
into four separate homes at different times throughout the day. On the morning of
the standoff, Tolliver discharged a firearm at or into the home of G.T. at 11307 Big
Bear Path sometime between 9:30 and 10:30 a.m. G.T. testified that he was
watching television and “heard a big bang.” (Apr. 14, 2025 Tr. at 161). He did not
think much of the noise until it happened again and he saw “powder or smoke in the
kitchen.” (Id.). He went into the kitchen and saw “a hole in the wall . . . drywall on
my table, and well, somebody shot my house.” (Id.). G.T. called 911 to report the
shooting. Law enforcement arrived shortly thereafter. A forensic firearms expert
testified at trial that the bullet recovered from G.T.’s home was “larger than a .22
caliber bullet” and “most consistent with a rifle bullet.” (Apr. 16, 2025 Tr. at 61).
{¶42} Later that same day, after law enforcement made repeated attempts for
a peaceful resolution, Tolliver discharged a firearm at or into the home of K.B. at
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11330 Big Bear Path. K.B. testified that “[a] bullet came through the house,
ricocheted off the refrigerator, hit the window.” (Apr. 15, 2025, Tr. at 183). K.B.
further testified that bullets hit the siding of her home, the garage and garage door,
and the windshield of her vehicle. A forensic firearms expert testified that the
“jacket fragment” of a bullet recovered from K.B.’s home “was consistent with
being .30 caliber.” (Apr. 16, 2025 Tr. at 63).
{¶43} Additionally, Tolliver discharged a firearm at or into the home of E.O.
at 11322 Tecumseh Path. E.O. testified that bullets hit his home, a brand-new
vehicle in his driveway, the garage and its contents, and a metal shed on his property.
E.O. further testified that one bullet hit the water softener inside his home. A
forensic firearms expert testified that four bullets recovered from E.O.’s property
“were completely intact” and determined the “specific caliber” as being “.45 auto.”
(Apr. 16, 2025 Tr. at 65).
{¶44} Lastly, Tolliver discharged a firearm at or into the home of J.V. at
11286 Big Bear Path. An unknown caliber bullet hit J.V.’s home and went through
to the kitchen.
{¶45} Based on our review of the record, we conclude that the trial court did
not err by imposing all four of the three-year firearm specifications in this case.
Critically, the conduct underlying each of the four counts of improperly discharging
a firearm at or into a habitation was not committed as part of the same act or
transaction. Indeed, these shootings took place at different times throughout the day
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and involved four separate homes—11307 Big Bear Path, 11286 Big Bear Path,
11330 Big Bear Path, and 11322 Tecumseh Path—indicating a break in the
continuity of the criminal behavior. Moreover, Tolliver discharged at least three
different firearms at or into neighboring homes and caused distinct damage to each
of the four homes. See State v. Harris, 2020-Ohio-673, ¶ 11 (8th Dist.) (concluding
that “[a]lthough the crimes occurred on the same day, they were committed at
separate locations and involved separate victims” and thus “separate criminal acts”).
Consequently, Tolliver’s sentence is not contrary to law.
{¶46} Tolliver’s third assignment of error is overruled.
Fourth Assignment of Error
The trial court erred by imposing the seven-year firearm specifications concurrently when the court clearly meant to exercise its discretion to not impose them under R.C. 2929.14(B)(1)(f).
{¶47} In his fourth assignment of error, Tolliver argues that the trial court
erred by imposing all 16 of the seven-year firearm specifications. According to
Tolliver, “the trial court only intended to impose two seven-year [firearm]
specifications, but erroneously believed that they all had to be imposed.”
(Appellant’s Brief at 24).
{¶48} Again, under R.C. 2953.08(G)(2), an appellate court may vacate or
modify a felony sentence “only if it determines by clear and convincing evidence
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that the record does not support the trial court’s findings under relevant statutes or
that the sentence is otherwise contrary to law.” Marcum, 2016-Ohio-1002, at ¶ 1.
{¶49} In this case, Tolliver was convicted of 16 counts of felonious assault
and each conviction included a seven-year firearm specification under R.C.
2941.1412(A). The trial court imposed the seven-year firearm specifications as
follows:
On Counts Seven through 22, the seven-year firearm specifications, mandatory seven-year terms on Counts Seven and Eight to be served consecutively, and mandatory seven years on Counts Nine through 22 to be served concurrently with Counts Seven and Eight for a total of 14 years. So that’s seven years on Count Seven, seven years on Count Eight, consecutive to Count Seven for 14 years; seven years on Counts Nine through 22 to be served concurrently with Count Seven and Eight for a total of 14 years on the seven-year firearm specifications.
(May 19, 2025 Tr. at 12).
{¶50} In his fourth assignment of error, Tolliver does not argue that the trial
court erred by imposing two seven-year firearm specifications consecutively.
Rather, he argues that the trial court erred by imposing the remaining 14 seven-year
firearm specifications concurrently. This argument lacks merit.
{¶51} The imposition of the seven-year firearm specification under R.C.
2941.1412(A) is governed by R.C. 2929.14(B)(1)(f). Specifically, R.C.
2929.14(B)(1)(f)(iii) states, in pertinent part:
If an offender is convicted of or pleads guilty to two or more felonies that include, as an essential element, causing or attempting to cause
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the death or physical harm to another and also is convicted of or pleads guilty to a specification of the type described under division (B)(1)(f) of this section in connection with two or more of the felonies of which the offender is convicted or to which the offender pleads guilty, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(f) of this section for each of two of the specifications of which the offender is convicted or to which the offender pleads guilty and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remaining specifications. . . .
(Emphasis added). Thus, “[b]y its plain language, the trial court ‘shall’ impose on
the offender the seven-year term ‘for each of two of the specifications” and, in its
discretion, may impose the seven-year term ‘for any or all of the remaining
specifications.’” (Emphasis in original). State v. Wilson, 2023-Ohio-1042, ¶ 59
(8th Dist.), quoting R.C. 2929.14(B)(1)(f)(iii).
{¶52} Based on our review of the record, we conclude that the trial court was
required to impose two of the 16 seven-year firearm specifications that accompanied
his felonious-assault convictions. See State v. Armbruster, 2024-Ohio-2763, ¶ 20
(12th Dist.) (determining that when an offender is convicted of two or more felonies,
such as felonious assault, the trial court “is required to impose a mandatory seven-
year prison term for each of two of the [R.C. 2941.1412] peace-officer
specifications”). We further conclude that the trial court acted within its discretion
by imposing the remaining 14 seven-year firearm specifications concurrently. See
Wilson at ¶ 59 (concluding that the trial court acted within its discretion when it
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imposed a third seven-year firearm specification and ordered it to run concurrently).
Accordingly, Tolliver’s sentence is not contrary to law.
{¶53} Tolliver’s fourth assignment of error is overruled.
{¶54} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
MILLER and WALDICK, J.J., concur.
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JUDGMENT ENTRY
For the reasons stated in the opinion of this Court, the assignments of error
are overruled and it is the judgment and order of this Court that the judgment of the
trial court is affirmed with costs assessed to Appellant for which judgment is hereby
rendered. The cause is hereby remanded to the trial court for execution of the
judgment for costs.
It is further ordered that the Clerk of this Court certify a copy of this Court’s
judgment entry and opinion to the trial court as the mandate prescribed by App.R.
27; and serve a copy of this Court’s judgment entry and opinion on each party to the
proceedings and note the date of service in the docket. See App.R. 30.
William R. Zimmerman, Judge
Mark C. Miller, Judge
Juergen A. Waldick, Judge
DATED: /hls
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