[Cite as State v. Trotter, 2020-Ohio-1002.]
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : Hon. John W. Wise, P.J. Plaintiff - Appellee : Hon. Craig R. Baldwin, J. : Hon. Earle E. Wise, J. -vs- : : JUSTIN TROTTER : Case No. 2019 CA 0024 : Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2018CR1017
JUDGMENT: Affirmed in Part, Reversed and Remanded in Part
DATE OF JUDGMENT: March 12, 2020
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
GARY BISHOP WILLIAM T. CRAMER Prosecuting Attorney 470 Olde Worthington Road, Suite 200 Richland County Westerville, Ohio 43082
By: Joseph C. Snyder Assistant Prosecuting Attorney 38 South Park Street Mansfield, Ohio 44902 Richland County, Case No. 2019 CA 0024 2
Baldwin, J.
{¶1} Defendant-appellant Justin Trotter appeals his conviction and sentence
from the Richland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} On December 11, 2018, the Richland County Grand Jury indicted appellant
on one count of felonious assault against a peace officer in violation of R.C.
2903.11(A)(2), a felony of the first degree, one count of attempted felonious assault in
violation of R.C. 2903.11(A)(1), a felony of the second degree, one count of assault of a
peace officer in violation of R.C. 2903.13(A) & (C)(5), a felony of the fourth degree, one
count of obstructing official business in violation of R.C. 2921.31(A), a felony of the fifth
degree, and two counts of vandalism, one in violation of R.C. 2909.05(B)(1)(b) and the
other in violation of R.C. 2909.05(B)(2), both felonies of the fifth degree. At his
arraignment on December 18, 2018, appellant entered a plea of not guilty to the charges.
{¶3} The matter proceeded to a jury trial. Prior to the start of trial, State dismissed
the count of felonious assault against a peace officer. The following testimony was then
adduced at trial.
{¶4} Deputy Jacob Frazier of the Richland County Sheriff’s Department was
working on November 18, 2018 from 10:00 p.m. to 6:00 a.m. and was in uniform minus a
tie. He was driving a marked patrol car. Deputy Frazier testified that it was his first day
“on shadow” duty where he no longer had a training officer in the vehicle with him. Trial
Transcript at 196. Deputy Frazier testified that 9-1-1 had received a call on November
18, 2018 from a woman who said that a male had frantically knocked on her door, that
she had let him and that she believed he was high on something because he was erratic. Richland County, Case No. 2019 CA 0024 3
A short time after, a man called saying that a man was following him with a gun and that
the man was outside of his residence. A woman then picked up the phone and said that
there was no man outside with a gun and the call ended. Deputy Frazier was dispatched
to the location of the second call, along with Sergeant Henderson and Deputy Dawson.
{¶5} When Deputy Frazier arrived at the residence, he spoke with appellant’s
grandmother who told him that appellant had come home, was acting odd and that she
was afraid of him. Appellant’s brother told the Deputy that appellant had locked himself in
a bathroom and was throwing things around. Deputy Frazier then knocked on the
bathroom door and advised appellant who he was, but appellant refused to come out and
continued throwing items and appeared to be barricading the door. Deputy Frazier
decided that it would not be safe for him to try to get appellant out of the bathroom by
himself and decided to wait until another law enforcement officer arrived on the scene.
{¶6} Sergeant Henderson and Deputy Dawson subsequently arrived. Sergeant
Henderson knew appellant and attempted to get appellant to come out of the bathroom
and they had appellant’s brother speak to him through the door in an attempt to coax him
out. The officers also tried to pick the lock, but were unsuccessful. After 40 to 45 minutes,
Sergeant Henderson decided that they were going get a ram from his patrol car and if
they could not talk appellant out of the bathroom, they were going to have to go through
the door.
{¶7} As the deputies tried to enter the bathroom through a hole in the door,
appellant was” [v]ery sporadic, uncontrolled almost” and was screaming. Trial Transcript
at 204. Appellant would tell the officers that he would come out of the bathroom, but then
would not do so and would make requests that he was told were not possible. Appellant, Richland County, Case No. 2019 CA 0024 4
according to Deputy Frazier, was “rambling on, almost incoherently, combative when we
were trying to enter the door, resisting any kind of attempts that we would make to either
enter the door or make any type of attempt to have him come out.” Trial Transcript at 205.
As they tried to enter the bathroom, appellant pushed back at them and tried to keep the
door closed.
{¶8} Sergeant Henderson and Deputy Frazier eventually were able to gain entry
into the bathroom and used their tasers to order appellant to the ground. After appellant
complied, he was handcuffed and removed from the bathroom. Appellant was then placed
in the driver rear side of Deputy Frazier’s cruiser. Deputy Dawson and Sergeant
Henderson went back inside to take pictures of the room while Deputy Frazier remained
in his patrol vehicle. While appellant was in the police cruiser, Deputy Frazier was able
to obtain information from appellant, including his social security number. The Deputy
testified that appellant was compliant, but kept mixing up numbers and had trouble
providing the information.
{¶9} When Sergeant Henderson returned to the cruiser, he told Deputy Frazier
that appellant needed to be moved from the driver side to the passenger side of the rear
seat for safety reasons. When the Sergeant asked appellant to either step out of the
vehicle or slide over to the passenger side, appellant refused and the officers
unsuccessfully tried to get appellant out of the vehicle. Appellant resisted their attempts
to move him to the passenger side.
{¶10} Deputy Frazier testified that he was told to take appellant directly to jail with
Sergeant Henderson following close behind and to advise corrections officers at the jail
that appellant was disorderly so that there were officers read to handle him. Richland County, Case No. 2019 CA 0024 5
{¶11} As Deputy Frazier began driving away, appellant started banging his head
on the windows and the divider between the front and back seat. Deputy Frazier advised
Sergeant Henderson and Deputy Dawson and pulled over immediately. Sergeant
Henderson opened the rear door to try to talk to appellant and appellant tried to get out.
Sergeant Henderson, however, was blocking appellant’s way and appellant “wrapped his
legs around Sergeant Henderson and wouldn’t let go.” Trial Transcript at 217. Sergeant
Henderson then began striking appellant’s legs to get appellant to release him, but that
did not work.
{¶12} Deputy Frazier testified that he tried to pull appellant off of Sergeant
Henderson and that he put his gloves on for safety reasons due to the blood on appellant
and the vehicle and again tried to pull appellant back, but was unsuccessful. The Deputy
then pulled his taser out and delivered a “drive-stun” to appellant, but appellant did not
appear to be affected and advised the Deputy that he was just burning appellant’s skin.
Appellant asked the Deputy if he could smell appellant’s skin burning. Trial Transcript at
218.
{¶13} When appellant eventually let go of Sergeant Henderson, the Sergeant and
Deputy Dawson attempted to close the door, but appellant used his body to prevent the
door from closing. After several tries, they got the door closed. Deputy Dawson then
advised Deputy Frazier to get to the jail fast as he could in a safe manner and to not stop.
During the drive, appellant was kicking at the doors and windows and spitting, trying to
spit blood over the divider. Appellant told Deputy Frazier that he had Hep C and that he
was going to spit Hep C blood on him and had a needle that he was going to use against
the Deputy. Appellant continued spitting blood in the police vehicle. Richland County, Case No. 2019 CA 0024 6
{¶14} Appellant eventually managed to kick out one of the windows in the police
vehicle and put half of his body out of the window as if he was going to jump out of the
vehicle. Deputy Frazier then pulled over in a church parking lot followed by Sergeant
Henderson and Deputy Dawson and they once again tried to get appellant out of the
vehicle. They all had gloves on because appellant was very bloody. The officers had
decided that they were going to place appellant in Deputy Dawson’s vehicle because it
had hard plastic seats and bars on the windows. They struggled to get appellant out of
Frazier’s vehicle and then he became dead weight, and fell to the ground along with
Deputy Dawson and Sergeant Henderson. Appellant wrapped his legs around the rear
tire of Deputy Dawson’s vehicle. They pulled him off of the tire and he became dead
weight again and wrapped his legs around Sergeant Henderson and said that he had Hep
C and was going to spit blood on the Sergeant. Deputy Frazier testified that appellant
also claimed to have HIV.
{¶15} Appellant then spit in Sergeant Henderson’s face and Deputy Dawson
kicked appellant in his head. Sergeant Henderson tasered appellant. Appellant then
relaxed and the Sergeant went to his cruiser to rinse out his mouth and wipe off his face.
Appellant was on the ground and was compliant for a while. Deputy Frazier called for an
ambulance for appellant and the Sergeant, but the Sergeant did not want to wait and
drove himself to the hospital.
{¶16} When the ambulance arrived, appellant became difficult again and refused
to put on a mask to prevent him from spitting and was flailing and kicking while on the
gurney. Appellant continued spitting and trying to spit on people. Appellant tried to break Richland County, Case No. 2019 CA 0024 7
the handcuffs and appeared to have broken both of his wrists from trying to break them.
At the hospital, appellant continued fighting everyone until he was sedated.
{¶17} Appellant tested negative for HIV and only had Hep C antibodies. There
was no medical testimony that his Hep C was infectious.
{¶18} During trial, as later memorialized in a Judgment Entry filed on March 13,
2019, the trial court, on appellee’s oral motion, had amended Count Two to attempted
felonious assault in violation of R.C. 2923.02(A).
{¶19} At the conclusion of the evidence and the end of deliberations, the jury, on
March 8, 2019, found appellant guilty of attempted felonious assault of a peace officer,
assault of a peace officer, obstructing official business, and both counts of vandalism.
Pursuant to a Sentencing Entry filed on March 13, 2019, appellant was sentenced as
follows:
{¶20} On Count Two the Court sentenced appellant to seven years. On Count
Three, the Court sentenced appellant to eighteen months but merged the offense with
Count Two. On Count Four the Court sentenced appellant to twelve months, consecutive
to Count Two. On Count Five the Court sentenced appellant to twelve months
consecutive to Counts Two and Four. On Count Six the Court sentenced appellant to
twelve months but merged it with Count Five. The Court imposed four hundred and
ninety-three (493) days of post release control.
{¶21} On November 25, 2019, a Judgment Entry was filed correcting the transcript
to indicate that appellant was sentenced to 493 days of post release control.
{¶22} Appellant now raises the following assignments of error on appeal: Richland County, Case No. 2019 CA 0024 8
{¶23} “I. APPELLANT’S RIGHTS TO DUE PROCESS UNDER THE STATE AND
FEDERAL CONSTITUTIONS WERE VIOLATED BY A CONVICTION FOR ATTEMPTED
FELONIOUS ASSAULT THAT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.”
{¶24} “II. APPELLANT’S CONVICTION OF ATTEMPTED FELONIOUS
ASSAULT IS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.”
{¶25} “III. APPELLANT’S RIGHTS TO DUE PROCESS UNDER THE STATE
AND FEDERAL CONSTITUTIONS WERE VIOLATED BY A CONVICTION FOR
VANDALISM OF PROPERTY NECESSARY TO ENGAGE IN A BUSINESS UNDER R.C.
2909.05(B)(1)(b) THAT WAS NOT SUPPORTED SUFFICIENT EVIDENCE.”
{¶26} “IV. APPELLANT’S RIGHTS TO DUE PROCESS UNDER THE STATE
VANDALISM OF GOVERNMENT PROPERTY UNDER R.C. 2909.05(B)(2) THAT WAS
NOT SUPPORTED BY SUFFICIENT EVIDENCE.”
{¶27} “V. THE TRIAL COURT ERRED BY IMPOSING MULTIPLE SENTENCES
ON ALLIED ASSAULT OFFENSES AND ALLIED VANDALISM OFFENSES IN
VIOLATION OF R.C. 2941.25 AND THE STATE AND FEDERAL CONSTITUTIONAL
PROTECTIONS AGAINST DOUBLE JEOPARDY.”
{¶28} “VI. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE
SENTENCES WITHOUT MAKING THE REQUISITE FINDINGS UNDER R.C.
2929.14(C)(4).”
{¶29} “VII. APPELLANT’S RIGHTS TO DUE PROCESS UNDER THE STATE
AND FEDERAL CONSTITUTIONS WERE VIOLATED BY THE IMPOSITION OF 484 Richland County, Case No. 2019 CA 0024 9
DAYS OF POSTRELEASE CONTROL TIME THAT IS NOT SUPPORTED BY THE
RECORD.”
I, II
{¶30} Appellant, in his first assignment of error, argues that his conviction for
attempted felonious assault was not supported by sufficient evidence. In his second
assignment of error, he contends that his conviction for attempted felonious assault was
against the manifest weight of the evidence.
{¶31} The legal concepts of sufficiency of the evidence and weight of the evidence
are both quantitatively and qualitatively different. State v. Thompkins, 78 Ohio St.3d 380,
1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for
a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme
Court held, “An appellate court's function when reviewing the sufficiency of the evidence
to support a criminal conviction is to examine the evidence admitted at trial to determine
whether such evidence, if believed, would convince the average mind of the defendant's
guilt beyond a reasonable doubt. 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.”
{¶32} In determining whether a conviction is against the manifest weight of the
evidence, the court of appeals functions as the “thirteenth juror,” and after “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 Richland County, Case No. 2019 CA 0024 10
be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.
Reversing a conviction as being against the manifest weight of the evidence and ordering
a new trial should be reserved for only the “exceptional case in which the evidence weighs
heavily against the conviction.” Id.
{¶33} “[T]he weight to be given the evidence and the credibility of the witnesses
are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d
212 (1967), paragraph one of the syllabus.
{¶34} Appellant, in the case sub judice, was convicted of attempted felonious
assault in violation of 2903.11(A)(1). R.C. 2903.11 states, in relevant part, as follows:
“(A) No person shall knowingly do either of the following:(1) Cause serious physical harm
to another or to another's unborn;…” Physical harm is any injury or illness, regardless of
gravity or duration. R.C. 2901.01(A)(3).
{¶35} Appellant specifically contends that the medical evidence does not indicate
that appellant was infected with a communicable disease and that his claims to the
contrary were not adequate on their own to prove that his act of spitting on a police officer
amounted to attempted felonious assault.
{¶36} In State v. Price, 162 Ohio App.3d 677, 2005–Ohio–4150, 834 N.E.2d 847,
police officers were dispatched to the home of the defendant where he spat at one of the
officers. The defendant was infected with HIV and hepatitis and he knew of his conditions.
While the officer was not infected with these diseases, the court noted he had to deal with
the concern of possibly being infected with them. The court affirmed the defendant's
convictions for both felonious assault and attempted felonious assault. Richland County, Case No. 2019 CA 0024 11
{¶37} In the case sub judice, there was testimony that appellant did not have HIV.
However, Dr. Fain, a pathologist, testified at trial that appellant had a positive antibody
test for Hep C and that additional testing was required to determine if appellant was
currently infected with Hep C. There was testimony at trial that appellant repeatedly
indicated to the officers that he had Hep C and that he threatened to infect those around
him.
{¶38} At trial, Sergeant Henderson testified that he feared that he had contracted
Hep C and HIV due to appellant’s actions in spitting at him and having appellant’s blood
come into contact with his face, eyes and mouth. He testified that he was referred to an
infectious disease doctor and put on anti-HIV medication and had received treatment the
night in question. There is no protective medication against Hep C. The Sergeant testified
that, due to the side effects of the medication, he missed about ten days of work. The
Sergeant testified that he felt like he had the flu during that period of time. He further
testified that every 90 days, he had to get his blood tested for a year and that at the time
of trial, he was testing negative for Hep C and HIV. We find that he suffered serious
physical harm as a result of appellant’s actions.
{¶39} Based on the foregoing, we find that construing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime of attempted felonious assault proven beyond a reasonable doubt
and that the jury did not lose its way in convicting appellant of attempted felonious assault.
{¶40} Appellant’s first and second assignment of error are, therefore, overruled. Richland County, Case No. 2019 CA 0024 12
III, IV
{¶41} Appellant, in his third assignment of error, maintains that his conviction for
vandalism of property necessary to engage a business is not supported by sufficient
evidence. In his fourth assignment of error, he argues that his conviction for vandalism
of government property is not supported by sufficient evidence.
{¶42} Appellant was convicted of vandalism is violation of R.C. 2909.05(B)(1)(b)
and (B)(2).
{¶43} R.C. 2909.05 states, in relevant part, as follows:
{¶44} (B)(1) No person shall knowingly cause physical harm to property that is
owned or possessed by another, when either of the following applies:…
{¶45} (b) Regardless of the value of the property or the amount of damage done,
the property or its equivalent is necessary in order for its owner or possessor to engage
in the owner's or possessor's profession, business, trade, or occupation.
{¶46} (2) No person shall knowingly cause serious physical harm to property that
is owned, leased, or controlled by a governmental entity. A governmental entity includes,
but is not limited to, the state or a political subdivision of the state, a school district, the
board of trustees of a public library or public university, or any other body corporate and
politic responsible for governmental activities only in geographical areas’
{¶47} As noted by appellant, his conviction on two counts of vandalism was based
on the damage to the police cruiser, which was clearly government property. There was
testimony at trial that appellant kicked at and broke the window in Deputy Frazier’s cruiser
and that the cruiser was heavily covered in appellant’s blood. There also was testimony Richland County, Case No. 2019 CA 0024 13
that Deputy Frazier’s cruiser had to be taken out of service and the window had to be
replaced and the inside decontaminated.
{¶48} Appellant argues that he only damaged a single cruiser and that, therefore,
the requirements of R.C. 2909.05(B)(1)(b) were not satisfied. In State v. Dunfee, 177 Ohio
App.3d 239, 2008–Ohio–3615, 894 N.E.2d 359 (2d Dist.), the court held that a defendant
was guilty of Vandalism, pursuant to R.C. 2909.05(B)(1)(b), when he damaged the
window of a Sheriff's Department cruiser, because the “cruiser could not be used for
transporting prisoners or other persons in custody while the window was broken and * * *
was unusable during the two hours that the window was being repaired.” Id. at ¶ 36.
Despite the fact that the police department had twelve cruisers, the court found that “a
reasonable fact-finder could conclude that each cruiser was necessary for the functioning
of the Sheriff's Department.” Id. The court determined nothing in R.C. 2909.05 precluded
a prosecution under R.C. 2909.05(B)(1)(b) when the property at issue was governmental
property.
{¶49} Appellant’s third and fourth assignments of error are, therefore, overruled.
V
{¶50} Appellant, in his fifth assignment of error, maintains that the trial court erred
by imposing multiple sentences on allied assault offenses and allied vandalism offenses
in violation of R.C. 2941.25 and the state and federal constitutional protections against
double jeopardy.
{¶51} In the case sub judice, appellant argued that the felonious assault and
assault merged as did the two vandalism counts. Appellee agreed with appellant that the
two vandalism counts merged and asked the trial court to sentence appellant on the Richland County, Case No. 2019 CA 0024 14
vandalism charge contained in Count 5 rather than the other vandalism count. The trial
court, however, found that the assault counts merged, noting that it was imposing
sentence on both counts to be “run concurrent as those charges merge.” Trial Transcript
at 611. When sentencing appellant on the vandalism counts, the trial court, as noted by
appellee, did not specifically mention merger, but similarly imposed concurrent prison
terms.
{¶52} R.C. 2941.25, Ohio's allied offense statute, provides:
{¶53} (A) Where the same conduct by defendant can be construed to constitute
two or more allied offenses of similar import, the indictment or information may contain
counts for all such offenses, but the defendant may be convicted of only one.
{¶54} (B) Where the defendant's conduct constitutes two or more offenses of
dissimilar import, or where his conduct results in two or more offenses of the same or
similar kind committed separately or with a separate animus to each, the indictment or
information may contain counts for all such offenses, and the defendant may be convicted
of all of them.
{¶55} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,
syllabus, the Supreme Court of Ohio held the following:
{¶56} 1. In determining whether offenses are allied offenses of similar import
within the meaning of R.C. 2941.25, courts must evaluate three separate factors—the
conduct, the animus, and the import.
{¶57} 2. Two or more offenses of dissimilar import exist within the meaning of R.C.
2941.25(B) when the defendant's conduct constitutes offenses involving separate victims
or if the harm that results from each offense is separate and identifiable. Richland County, Case No. 2019 CA 0024 15
{¶58} 3. Under R.C. 2941.25(B), a defendant whose conduct supports multiple
offenses may be convicted of all the offenses if any one of the following is true: (1) the
conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses
were committed separately, or (3) the conduct shows that the offenses were committed
with separate animus.
{¶59} The Ruff court explained at paragraph 26:
{¶60} At its heart, the allied-offense analysis is dependent upon the facts of a case
because R.C. 2941.25 focuses on the defendant's conduct. The evidence at trial or during
a plea or sentencing hearing will reveal whether the offenses have similar import. When
a defendant's conduct victimizes more than one person, the harm for each person is
separate and distinct, and therefore, the defendant can be convicted of multiple counts.
Also, a defendant's conduct that constitutes two or more offenses against a single victim
can support multiple convictions if the harm that results from each offense is separate
and identifiable from the harm of the other offense. We therefore hold that two or more
offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the
defendant's conduct constitutes offenses involving separate victims or if the harm that
results from each offense is separate and identifiable.
{¶61} In the case sub judice, the parties agree that the trial court erred by imposing
multiple sentences on allied assault offenses and allied vandalism offenses in violation of
R.C. 2941.25 and the state and federal constitutional protections against double jeopardy.
The State of Ohio concedes that these offenses are allied offenses and should have been
merged.
{¶62} Appellant’s fifth assignment of error is, therefore, sustained. Richland County, Case No. 2019 CA 0024 16
VI
{¶63} Appellant, in his sixth assignment of error, argues that the trial court erred
by imposing consecutive sentences without making the requite findings under R.C.
2929.14(C)(4).
{¶64} R.C. 2953.08(G)(2) sets forth the standard of review for all felony
sentences. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231 ¶ 1.
Pursuant to R.C. 2953.08(G)(2), an appellate court may only “increase, reduce, or
otherwise modify a sentence * * * or may vacate the sentence and remand the matter to
the sentencing court for resentencing” if the court finds by clear and convincing evidence
“(a) [t]hat the record does not support the sentencing court's findings[,]” or “(b) [t]hat the
sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(a)–(b).
{¶65} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences. In
Ohio, there is a statutory presumption in favor of concurrent sentences for most felony
offenses. R.C. 2929.41(A). The trial court may overcome this presumption by making the
statutory, enumerated findings set forth in R.C. 2929.14(C) (4). State v. Bonnell, 140 Ohio
St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This statute requires the trial court to
undertake a three-part analysis in order to impose consecutive sentences. . State v.
Alexander, 1st Dist. Hamilton Nos. C–110828 and C–110829, 2012-Ohio-3349, 2012 WL
3055158, ¶ 15.
{¶66} R.C. 2929.14(C)(4) provides,
{¶67} 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 Richland County, Case No. 2019 CA 0024 17
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:
{¶68} (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.
{¶69} (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.
{¶70} (c) The offender’s history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime by the offender.
{¶71} Thus, in order for a trial court to impose consecutive sentences the court
must find that consecutive sentences are necessary to protect the public from future crime
or to punish the offender. The court must also find that consecutive sentences are not
disproportionate to the offender’s conduct and to the danger the offender poses to the
public. Finally, the court must make at least one of three additional findings, which include
that (a) the offender committed one or more of the offenses while awaiting trial or
sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or
while under post-release control for a prior offense; (b) at least two of the multiple offenses
were committed as part of one or more courses of conduct, and the harm caused by two Richland County, Case No. 2019 CA 0024 18
or more of the offenses 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 would adequately reflect the
seriousness of the offender’s conduct; or (c) the offender’s criminal history demonstrates
that consecutive sentences are necessary to protect the public from future crime by the
offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶36.
{¶72} In the case sub judice, the trial court stated on the record that appellant had
been “assaultive in your life” and had several domestic violence offenses that were
elevated to felonies “because of the sheer number of them.” Trial Transcript at 609. The
trial court also noted by appellant had gotten out ”not too long ago on a felonious assault
or an attempted felonious assault” and was on PRC time. Trial Transcript at 609.
{¶73} The trial court further found that the officers “bent over backwards trying to
be polite” with appellant, but that appellant “didn’t want any part of it.” Trial Transcript at
609. The trial court further stated, in relevant part, as follows:
{¶74} Officer Henderson now, although he went through the initial treatment, still
has to go back periodically and still has to wait another 6 months of worrying as to whether
he is infected or not. He has to live with that. It’s on his mind. He is scared. He has a
right to be scared. You see, because alls he was trying to do was his job. Okay? And
he might actually suffer some type of an injury because of your choices, not his.
{¶75} As Attorney Schumacher stated, it started by them trying to help your
grandmother out. She wanted you out of that house that evening. And when officers
arrived, you were barricaded in your bathroom, - - or in her bathroom, and your brother
implored you to come out because your grandmother had to go to the bathroom, and you Richland County, Case No. 2019 CA 0024 19
wouldn’t do that, to the point where a seventy-some-year-old-lady had to defecate in a
bucket because of your choices.
{¶76} If this was the first time, Mr. Trotter, I might believe your apology. But the
fact of the matter is that you’ve been beating up on people, assaulting them for a long
time. This isn’t something new.
{¶77} The court has had an opportunity to look at some of your history. The court,
looking at the principles and purposes of sentencing within Ohio Revised Code 2929.11
and the seriousness and recidivism factors in 2929.12 believes that a prison sentence
and a lengthy one is just in this matter.
{¶78} Trial Transcript at 609-610.
{¶79} In this case, the record does establish that the trial court made all of the
findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive sentences.
We also note that in the sentencing entry, the trial court found that consecutive sentences
were necessary to protect the public from future crime or to punish the offender; were not
disproportionate to the seriousness of the offender’s conduct and to the danger the
offender poses to the public; that the offender committed one or more of the offenses
while under a community control sanction or PRC for a prior offense; that at least two of
the multiple offenses were committed as part of one or more courses of conduct, and that
the harm caused by two or more of the multiple offenses 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 would adequately reflect the seriousness of appellant's conduct. The trial court
also found that the offender’s history of criminal conduct demonstrated that consecutive
sentences were necessary to protect the public from future crime by the offender. Richland County, Case No. 2019 CA 0024 20
{¶80} Appellant’s six assignment of error is, therefore, overruled.
VII
{¶81} Appellant, in his final assignment of error, asserts that his rights to due
process under the state and federal constitutions were violated by the imposition of 484
days of post release control time that is not supported by the record.
{¶82} We note that in this matter, appellant was on post-release control from a
prior felony at the time of the offenses in this case. The trial court, as the sentencing
hearing, stated that it was imposing “the remaining 193 days that you have remaining on
Post Release Control.” Trial Transcript at 611. Subsequently, pursuant to a Judgment
Entry filed on November 25, 2019, the trial court, at the request of the parties, corrected
the transcript to read “493 days” rather than “193 days.” However, the trial court’s March
13, 2019 Sentencing Entry states that appellant received 484 days of post release control.
{¶83} Appellant argues, and we agree, that the imposition of 484 days of post
release control mentioned in the trial court’s Sentencing Entry is not supported by the
record. As noted by this Court in State v. Wells, 5th Dist. Licking No. 14–CA–36, 2015-
Ohio-39 at paragraph 8, the time remaining on appellant’s post-release control sanction
should be calculated from the date of sentencing rather than from the date of the offenses.
{¶84} Appellant’s seventh assignment of error is, therefore, sustained. Richland County, Case No. 2019 CA 0024 21
{¶85} Accordingly, the judgment of the Richland County Common Pleas Court is
affirmed in part and reversed and remanded in part. This cause is remanded to the court
for resentencing in accordance with this Opinion.
By: Baldwin, J.
Wise, John, P.J. and
Wise, Earle, J. concur.