State v. Scott , 2019 Ohio 5014 ( 2019 )

[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 :
:
...........
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
.............
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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.
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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
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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
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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
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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.
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{¶ 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,
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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-
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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
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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
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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.
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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
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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.
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{¶ 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:
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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
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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:
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* * * [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
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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
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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
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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
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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)
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– 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.)
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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.
Copies sent to:
Mathias H. Heck Jr.
Michael P. Allen
Richard Hempfling
Hon. Michael W. Krumholtz