State v. Armstrong , 2016 Ohio 5263 ( 2016 )

[Cite as State v. Armstrong, 2016-Ohio-5263.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2015-CA-31
:
v. : T.C. NO. 15CR111
:
DAVID M. ARMSTRONG : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 5th day of August, 2016.
...........
JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, 200 N. Main
Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
ANDREW R. PRATT, Atty. Reg. No. 0063764, 18 East Water Street, Troy, Ohio 45373
Attorney for Defendant-Appellant
.............
FROELICH, J.
{¶ 1} David M. Armstrong appeals from a judgment of the Champaign County
Court of Common Pleas, which found him guilty on his guilty pleas of two counts of
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“attempted felonious assault” (including one with a one-year firearm specification) and
one count of aggravated possession of drugs. He challenges his sentence on appeal.
For the following reasons, the judgment of the trial court will be affirmed.
I. Procedural History
{¶ 2} On January 9, 2015, Armstrong pled guilty to one count of attempted
felonious assault, with a one-year firearm specification (Count I, a felony of the third
degree), one count of attempted felonious assault, without a firearm specification (Count
II, a felony of the third degree), and one count of aggravated possession of drugs (Count
III, a felony of the fifth degree).1 A presentence investigation report was prepared, and
Armstrong filed a sentencing memorandum, to which he attached a forensic psychological
evaluation and other exhibits.
{¶ 3} On August 3, 2015, the trial court sentenced Armstrong to prison as follows:
1) 24 months on Count I, with an additional mandatory 12 months on the firearm
specification, 2) 24 months on Count II, and 3) 12 months on Count III, all to be served
consecutively. The court also imposed a three-year term of post-release control, ordered
him to pay court costs and restitution, and noted that, as part of the plea agreement,
Armstrong had agreed to forfeit certain property (firearms, ammunition, and firearms’
equipment) to the sheriff’s office.
{¶ 4} Armstrong appeals from the trial court’s sentence, arguing that the trial court
erred in imposing the maximum prison term on Count III and in ordering that his sentences
1
The attempt offenses were charged under R.C. 2923.02, which defines an “attempt,”
and R.C. 2903.11(A)(1) (felonious assault, causing serious physical harm to another),
rather than under R.C. 2903.11(A)(2), which defines felonious assault to include an
attempt.
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be served consecutively.
II. Facts of the Offense and Information Relevant to Sentencing
{¶ 5} According to the presentence investigation, on the afternoon of May 15,
2015, sheriff’s deputies were dispatched to Armstrong’s residence on State Route 29 in
Champaign County on reports of shots being fired at vehicles and objects being thrown
into the roadway. Specifically, a 911 caller had been driving by in a car with her young
grandson when shots were fired at their car; there was a bullet hole above the rear
passenger-side brake light of the car, but neither of the occupants had been struck. Two
motorists in another vehicle also reported hearing “a slapping noise on the outside” of
their vehicle several times as they passed Armstrong’s residence, and they realized a
short time later that there was damage to the vehicle.
{¶ 6} Sheriff’s deputies issued a “CODERED alert” to nearby residents advising
them to remain in their residences, and the deputies shut down a portion of State Route
29. Deputies also stopped a woman (presumably a neighbor) who was walking along
State Route 29; she had been walking toward Armstrong’s house because she heard a
hissing noise that she believed to be a propane tank leak. Deputies later observed a
bullet hole in the propane tank behind Armstrong’s residence, from which “was leaking a
large amount of propane.”
{¶ 7} Some deputies formed a perimeter around Armstrong’s property, while
others approached his residence in an unmarked patrol vehicle. By that time, Armstrong
had walked toward and sat inside a motor vehicle parked by a barn behind the residence;
he had not seemed to be carrying anything in his hands. Armstrong was ordered out of
the vehicle and taken into custody without further incident. He stated that he had been
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in the Army, admitted that he had been drinking the day of the incident, and stated that
he was “paranoid.”
{¶ 8} When Armstrong was patted down, a small metal box holding a glass pipe
and a clear bag containing a green substance were found in his pocket; the green
substance was later found to be “Spice,” a synthetic cannabinoid. An “AR-15 style rifle”
was found at the bottom of a stairwell near the back door of Armstrong’s residence, and
many other firearms and several hundred rounds of ammunition were found throughout
the house. Gunshot residue was found on Armstrong’s hands.
{¶ 9} According to Armstrong’s version of the events, he was paranoid, mad,
stressed, overwhelmed, and scared at the time of the incident and had been for a long
time. He stated that he only intended to shoot bottles when he went outside with his
weapon; he then decided to shoot the propane tank and to fire “warning shots” for people
who he thought were following him.
{¶ 10} Armstrong stated that, earlier in the day, he had “stopped someone
following me” and had gone to his father’s house. He then went to a “crick” “to kinda
breathe, but there were cars driving by every thirty seconds,” which aggravated his
paranoia. When Armstrong was driving with his father to get some food, his father stated
that they “needed to get help,” whereupon Armstrong jumped out of the truck and ran into
the woods, then went home. It was after this encounter that he started shooting beer
bottles and the propane tank at his house. Because people were driving by and he
thought they were following him, he “started shooting vehicles behind the passenger
compartments.” He stated that he was trying to get the vehicles to stop driving by and
did not intend to hurt anyone. Armstrong also “broke out [his] upstairs window and shot
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some more.” Armstrong stated that he had had similar concerns about being followed
when he was stationed at Fort Hood in the Army. He admitted that he had not considered
the “results” of his actions ahead of time, but stated that he was glad that no one was
hurt.
{¶ 11} Armstrong reported that he had been discharged from the military in 2007
after suffering some mental health problems. He claimed that he had been getting
outpatient treatment at the Veterans Administration (VA) in Springfield for six months and
that “he would only do mental health treatment at the VA.” He stated, however, that the
VA attributed his issues to alcohol use. He reported being diagnosed with paranoid
schizophrenia while in the Army, but stated that it was described as a “personality disorder
* * * on his release to prevent hospitalization and to get an honorable discharge.” He
stated that his military and VA records could not be obtained due to a “Congressional
inquiry.”
III. Sentencing Considerations
{¶ 12} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-
Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
court must consider the statutory policies that apply to every felony offense, including
those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App. 3d
500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio
St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
{¶ 13} R.C. 2929.11 requires trial courts to be guided by the overriding principles
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of felony sentencing. Those purposes are “to protect the public from future crime by the
offender and others and to punish the offender using the minimum sanctions that the court
determines accomplish those purposes without imposing an unnecessary burden on state
or local government resources.” R.C. 2929.11(A). The court must “consider the need for
incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony
shall be reasonably calculated to achieve the two overriding purposes of felony
sentencing * * *, commensurate with and not demeaning to the seriousness of the
offender's conduct and its impact upon the victim, and consistent with sentences imposed
for similar crimes committed by similar offenders.”
{¶ 14} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s
conduct is more serious than conduct normally constituting the offense. These factors
include whether the physical or mental injury to the victim was exacerbated because of
the physical or mental condition of the victim; serious physical, psychological, or
economic harm suffered by the victim as a result of the offense; whether the offender’s
relationship with the victim facilitated the offense; and whether the offender committed
the offense for hire or as a part of an organized criminal activity.
{¶ 15} R.C. 2929.12(C) sets forth four factors indicating that an offender’s conduct
is less serious than conduct normally constituting the offense, including whether the victim
induced or facilitated the offense, whether the offender acted under strong provocation,
whether, in committing the offense, the offender did not cause or expect to cause physical
harm to any person or property, and the existence of substantial grounds to mitigate the
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offender’s conduct, although the grounds are not enough to constitute a defense. R.C.
2929.12(D) and (E) each lists five factors that trial courts are to consider regarding the
offender's likelihood of committing future crimes. Finally, R.C. 2929.12(F) requires the
sentencing court to consider the offender's military service record.
{¶ 16} In general, it is presumed that prison terms will be served concurrently.
R.C. 2929.41(A); State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659,
¶ 23 (“judicial fact-finding is once again required to overcome the statutory presumption
in favor of concurrent sentences”). However, R.C. 2929.14(C)(4) permits a trial court to
impose consecutive sentences if it finds that (1) consecutive sentencing is necessary to
protect the public from future crime or to punish the offender, (2) consecutive sentences
are not disproportionate to the seriousness of the offender’s conduct and to the danger
the offender poses to the public, and (3) any of the following applies:
(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.
(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
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offender.
{¶ 17} In reviewing felony sentences, appellate courts must apply the standard of
review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See
State v. Marcum, Ohio Sup.Ct. Slip Opinion No. 2016-Ohio-1002, ¶ 9. Under R.C.
2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may
vacate the sentence and remand for resentencing, only if it “clearly and convincingly”
finds either (1) that the record does not support certain specified findings or (2) that the
sentence imposed is contrary to law.
{¶ 18} Among the factors found by the trial court to be more serious than conduct
normally constituting the offense, the court observed that Armstrong used a firearm in the
commission of the attempted felonious assaults and that, in addition to the harm which
could have flowed from striking a person directly, the shootings could have caused
collisions on the roadway or, by shooting at the rear of vehicles, caused the cars to
“implode.” The court also found that, by shooting at a propane tank, Armstrong posed a
serious risk to law enforcement officers who responded to the scene. The trial court
further noted that the woman whose car was struck “suffered serious physical,
psychological, or economic harm” as a result of the offense. The court cited Armstrong’s
use of alcohol prior to the offense as a contributing factor.
{¶ 19} Among the factors found by the trial court to be less serious than conduct
normally constituting the offense, the court found “substantial grounds to mitigate the
Defendant’s conduct,” including a “very significant psychological disturbance,” some
evidence of an “effort by [Armstrong] not to cause physical injury,” and a lack of intent to
cause physical injury.
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{¶ 20} With respect to recidivism, the court expressed concern that Armstrong
vacillated about whether he needed professional help and noted that his mental illness
“has gone largely untreated and has evolved to an increased risk for decompensation of
thought process with irrational and paranoid ideation predominating.” On the other hand,
the court recognized Armstrong’s lack of a criminal record and the psychologist’s findings
that Armstrong’s prospect for recovery could be good “with appropriate psychotherapy
and psychotropic medication.” The court concluded that the risk of recidivism was high,
that, according to the psychologist, treatment would be “long-term and arduous,” and that
the court was not aware of a residential treatment facility that could address Armstrong’s
severe mental health issues.
{¶ 21} Finally, the court acknowledged Armstrong’s record of military service and
that his mental condition, which contributed to the offenses with which he was charged,
was “traceable” to that service.
{¶ 22} In imposing the maximum sentence for aggravated possession of drugs,
the court reasoned that, “in the Court’s view, the Defendant’s use of drugs to self-
medicate allow[ed] the Defendant’s mental health issues to evolve into a state of severe
psychopathology.” The court found that consecutive sentences were appropriate
because of the seriousness of Armstrong’s conduct, the dangers it had posed, that
multiple offenses were committed as part of a course of conduct, and that the harm
caused was so great or unusual that no single prison term for any of the offenses
adequately reflected the seriousness of the conduct.
IV. Maximum Sentence for Aggravated Possession of Drugs
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{¶ 23} Armstrong argues that the trial court’s reasons for imposing a maximum
sentence for aggravated possession of drugs were unsupported by the record. (The trial
court did not impose the maximum sentence on the other counts.) Armstrong points out
that these were his first offenses and that there were no drugs, including cannabinoids,
in his system at the time of the offenses. He also notes that possession of a synthetic
cannabinoid is a felony of the fifth degree, which carries a presumption of community
control sanctions, whereas he was sentenced to 12 months of imprisonment.
{¶ 24} Before we address Armstrong’s specific arguments, we will address more
generally his assertion that the “presumption” of community control sanctions set forth in
R.C. 2929.13(B) applied in this case.
{¶ 25} R.C. 2929.13(B) provides that an offender who is convicted of or pleads
guilty to a felony of the fourth or fifth degree that is not an offense of violence or that is a
“qualifying assault offense” shall be sentenced to a community control sanction, subject
to certain exceptions and conditions. (Some courts refer to R.C. 2929.13(B)(1)(a) as
creating a “presumption” of community control, whereas others view community control
as “mandatory,” subject to certain conditions and exceptions.) One of the required
circumstances to invoke the “presumption” of a community control sentence is that “[t]he
most serious charge against the offender at the time of sentencing is a felony of the fourth
or fifth degree.” R.C. 2929.13(B)(1)(a)(ii). Because the two counts of attempted
felonious assault to which Armstrong pled guilty were felonies of the third degree, the
presumption of community control set forth in R.C. 2929.13(B)(1)(a) did not apply to the
drug offense.
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{¶ 26} Furthermore, R.C. 2929.13(B)(1)(b) provides that the trial court “has
discretion to impose a prison term upon an offender who is convicted of or pleads guilty
to a felony of the fourth or fifth degree that is not an offense of violence or that is a
qualifying assault offense” if any of certain conditions apply. These conditions include
that the “offender committed the offense while having a firearm on or about the offender’s
person or under the offender’s control” (R.C. 2929.13(B)(1)(b)(i)) and “[i]n committing the
offense, the offender attempted to cause or made an actual threat of physical harm to a
person with a deadly weapon” (R.C. 2929.13(B)(1)(B)(vi)). Given the nature of
Armstrong’s offenses, i.e., shooting a firearm at occupied vehicles, it would also appear
that he trial court had discretion to impose a prison sentence under R.C. 2929.13(B)(1)(b).
{¶ 27} Armstrong makes three specific arguments in asserting that a maximum
prison sentence was not appropriate for his drug offense: 1) he asserts that he did not
have drugs in his system at the time of the offenses in question, 2) he did not have drugs
on his person, and 3) the trial court “exaggerated” the psychologist’s conclusions with
respect to the effect of drugs on his condition.
{¶ 28} With respect to the first argument, we note that the trial court did not
specifically comment on the presence or absence of drugs in Armstrong’s system at the
time of the offenses. (The court’s observations with respect to this use of alcohol and
drugs, generally, will be discussed below.) We also note that Armstrong relies on an
ARUP Laboratories report, attached to his sentencing memorandum, in claiming that no
drugs, including cannabinoids, were in his system at the time of the offenses. However,
the report states that the “Collection Date” of the sample was May 18, 2015. The date
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of the offenses was May 15, 2015, and the report does not address the length of time that
any of the tested-for substances might be expected to remain in one’s system. We
cannot conclude that this document, standing alone, established the absence of the
tested-for drugs in Armstrong’s system on May 15, 2015. Accordingly, even if we were
to assume that the trial court should have considered the report, we could not conclude
that the trial court erred in giving little, if any, weight to this alleged fact.
{¶ 29} There is no evidence in the record to support Armstrong’s second
assertion: that the synthetic cannabinoids were found in his house rather than on his
person. This issue was not addressed at the plea hearing, and the presentence
investigation states that the substance was found “in his pocket” during a pat-down
search.
{¶ 30} Finally, Armstrong argues that the psychologist who evaluated him (and
whose report was attached to his sentencing memorandum) “noted that the use of alcohol
and drugs exacerbates [his mental health] problems, but not to the exaggerated extent
noted by the Trial Court.”
{¶ 31} The psychologist’s report repeatedly referenced Armstrong’s “chronic
substance abuse” contributing to his impulse control problems and failure to consider
alternate courses of action, his “alcohol use disorder and cannabis use disorder,” the
“very high risk” that a person with paranoid personality disorder (like Armstrong) will
become “over-involved in alcohol and other substance abuse disorders,” Armstrong’s
need for substance abuse counseling, and his “need to achiev[e] abstinence from alcohol
and cannabis use.” The psychological report also stated that Armstrong “was unable to
follow a path of recovery following his discharge from the United States Army and,
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consequently, his psychological condition remained quite tenuous if not deteriorating.
More specifically, he continued to experience the stress of depression and anxiety,
agitation, high threat sensitivity and vulnerability, suspiciousness and mistrust of his
environment, brief episodes of psychotic activity involving loosening of reality ties, and
excessive involvement in alcohol and cannabis abuse.”
{¶ 32} As Armstrong points out, the court did state at the sentencing hearing that
it was imposing the maximum sentence on Count III because “the Defendant’s use of
drugs to self-medicate allow[ed] the Defendant’s mental health issues to evolve into a
state of severe psychopathology.” However, the court stated that this was its view, and
did not suggest that the psychologist drew this connection. Moreover, there is no dispute
that Armstrong had consumed alcohol prior to the offense, which occurred around noon,
and that the trial court found this to be a factor in finding the offense “more serious” than
other similar offenses.
{¶ 33} The presentence investigation and psychological report, as well as other
accounts of the events that transpired, are replete with evidence that Armstrong’s drug
and alcohol use exacerbated his mental health issues. The trial court could have
reasonably concluded – even without the psychologist’s opinions -- that Armstrong’s
substance abuse, as well as his well-documented fluctuations (as discussed in the PSI
and the psychologist’s report) between recognizing and denying his need for professional
help for his mental health and substance abuse issues, played a role in his deteriorating
condition and criminal activity.
{¶ 34} Armstrong cites numerous cases from Champaign and other counties in
which offenders convicted of possession of marijuana, including some with criminal
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records, were sentenced to community control sanctions or to a prison sentence of less
than one year. He argues that his sentence was inconsistent or disproportionate with
the sentences imposed in these similar cases.
{¶ 35} Consistency includes a range of sentences, taking into consideration a trial
court’s discretion to weigh the relevant statutory factors; even if offenses are similar,
distinguishing factors may justify dissimilar sentences. State v. Terrel, 2d Dist. Miami
No. 2014-CA-24, 2015-Ohio-4201, ¶ 16, citing State v. Murphy, 10th Dist. Franklin No.
12AP-952, 2013-Ohio-5599, ¶ 14, and State v. Battle, 10th Dist. Franklin No. 06AP-863,
2007-Ohio-1845, ¶ 24. Additionally, consistency in sentencing does not result from a
case-by-case comparison, but by the trial court’s proper application of the statutory
sentencing guidelines. Id., citing State v. Hall, 179 Ohio App. 3d 727, 2008-Ohio-6228,
903 N.E.2d 676, ¶ 10 (10th Dist.). An offender cannot simply present other cases in
which an individual convicted of the same offense received a lesser sentence to
demonstrate that his sentence is inconsistent with other sentences; rather, to
demonstrate that a sentence is inconsistent, an offender must show that the trial court did
not properly consider applicable sentencing criteria found in R.C. 2929.11 and 2929.12.
Id.; Battle at ¶ 21-23.
{¶ 36} The trial court conducted a thorough analysis of the sentencing factors. It
focused, in particular, on the great potential for harm inherent in Armstrong’s conduct,
although, luckily, no physical injuries were inflicted. In addition to the obvious danger
posed by gunfire toward moving, occupied vehicles, the prosecutor observed that the
propane tank that Armstrong shot could have exploded, and that the gas in the air caused
substantial danger as officers and fire department personnel approached the scene.
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“Law enforcement had concerns about whether they would even be able to use their
weapons to defend themselves as they approached Defendant because of the smell of
propane in the air [and] the fear that firing their weapons in self defense may cause or
trigger some sort of explosion.”
{¶ 37} The court recognized that Armstrong’s military service had contributed to
the offenses and expressed compassion and concern about Armstrong’s mental health,
while recognizing that treatment options were limited. As best we can discern from the
record, the trial court faced a no-win choice between treatment without assured safety for
the community and safety for the community without assured treatment.
{¶ 38} Considering the interplay between Armstrong’s mental health issues, his
substance abuse, the effect of his substance abuse in aggravating his mental health
issues, and the substantial danger posed by his actions in this case, we cannot clearly
and convincingly conclude that the trial court’s imposition of the maximum sentence for
Armstrong’s aggravated possession of drugs was unsupported by the record or contrary
to law.
{¶ 39} The first assignment of error is overruled.
V. Imposition of Consecutive Sentences
{¶ 40} In his second assignment of error, Armstrong argues that the trial court
erred by imposing consecutive sentences, given that he was a first-time offender who
caused no physical harm, was remorseful, and “accepts the need for treatment.” Again,
Armstrong cites other cases from this district in support of his position, observing that we
have, in other cases, reversed maximum, consecutive sentences imposed on first-
offenders.
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{¶ 41} As discussed above, in order to impose consecutive sentences pursuant
to R.C. 2929.14(C)(4), a trial court is required to make at least three distinct findings: (1)
that consecutive sentences are necessary to protect the public from future crime or to
punish the offender; (2) 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 (3) that one of the subsections (a), (b), or (c) applies, related to whether multiple
offenses were committed, the circumstances surrounding those offenses, and the harm
caused thereby. The trial court must make the statutory findings and incorporate them
into its sentencing entry, but it is not required to state reasons to support its findings.
State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. As with the
imposition of a maximum sentence, an appellate court may modify or vacate a
consecutive sentence only if it clearly and convincingly finds that the record does not
support the sentencing court’s findings. R.C. 2953.08(G)(2); Marcum, Ohio Sup.Ct. Slip
Opinion No. 2016-Ohio-1002, ¶ 22.
{¶ 42} First, as discussed with regard to the imposition of maximum sentences,
above, we disagree with Armstrong’s premise that sentences imposed in different cases
can be compared based on the similarity of one or two facts, such as the status of the
defendant as a first-offender or the crime charged. Many factors enter into a sentencing
determination in each case, and sentences cannot reasonably be compared to one
another in this manner. See Terrel, 2d Dist. Miami No. 2014-CA-24, 2015-Ohio-4201, ¶
16; Battle, 10th Dist. Franklin No. 06AP-863, 2007-Ohio-1845, ¶ 24.
{¶ 43} Armstrong also asserts that he “was not the worst offender and his conduct
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was far from the worst,” and that his service to his country and need for rehabilitation
should have been given greater weight. We cannot clearly and convincingly find that the
trial court’s conclusion that Armstrong’s actions were the worst form of the offense of
attempted felonious assault was not supported by the record. The fact that the offenses
were charged as attempts reflects the fact that no one suffered physical injury;
nonetheless, Armstrong’s conduct disregarded the potential for injury to a great many
people. The trial court’s conclusions that consecutive sentences were not inconsistent
with the seriousness of Armstrong’s conduct and to the danger it posed and that “no single
prison term * * * adequately reflects [its] seriousness” were not clearly and convincingly
unsupported by the record.
{¶ 44} Finally, Armstrong contends that the trial court improperly elicited the
prosecutor’s opinions on matters about which he “was clearly not qualified to opine”
during the sentencing hearing, specifically Armstrong’s ability to aim at a moving vehicle
without aiming for its occupants.
{¶ 45} The trial court did inquire of the prosecutor whether the State believed that
Armstrong “was capable of selecting his outcome,” in other words, whether he “just
haphazardly shot” and happened to hit the back of the vehicle in which a woman and her
grandchild were driving, or whether he was able to intentionally shoot only at the back of
the vehicle. In response, the prosecutor acknowledged his limited qualifications to
answer the question, but observed that Armstrong had shot at cars “being driven by
humans,” that “[t]his isn’t the movies,” and the cars were being driven at high rates of
speed; “as a layperson, I find it difficult to believe that he had the skill set, such a high
skill set, that he could choose precisely how he was going to strike that car with his shot
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from the rifle. And that he was going to do it in such a way that nobody would be hurt.”
(We note that defense counsel was similarly permitted to offer non-expert observations
about his experience with mentally ill persons and to suggest, through Armstrong’s
statements, that Armstrong had the expertise to fire at a moving car without intending to
hit the people inside.)
{¶ 46} One of the factors the court found was that Armstrong did not intend to
cause physical injury. It is reasonable to assume that the trial court understood the
prosecutor’s statements to reflect the State’s theory of the case, not expert testimony
about firearms and Armstrong’s marksmanship.
{¶ 47} The trial court found, with respect to the imposition of consecutive
sentences, that such sentences were necessary to protect the public from future crime,
were not disproportionate to the seriousness of Armstrong’s conduct and the danger he
posed to the public, that at least two of the offenses were committed as part of one or
more courses of conduct, and that the harm caused by the multiple offense was so great
or unusual that a single prison term did not adequately reflect its seriousness. We
cannot clearly and convincingly find that the record does not support these findings or
that the imposition of consecutive sentences was contrary to law. .
{¶ 48} The second assignment of error is overruled.
VI. Conclusion
{¶ 49} The judgment of the trial court will be affirmed.
.............
WELBAUM, J., concurs.
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DONOVAN, P.J., dissenting:
{¶ 50} I respectfully dissent. Missing from the trial court’s analysis is consideration
that Am.Sub.H.B. 86 created a statutory presumption in favor of concurrent sentences to
punish an offender like Armstrong. As I have previously noted, the “trial court must give
serious consideration to the departure from concurrent terms and not utilize consecutive
terms as the presumptive starting point.” State v. Withrow, 2d Dist. Clark No. 2015-CA-
24, 2016-Ohio-2884, ¶ 54 (Donovan, P.J. dissenting). I note that while Armstrong
acknowledged that he had a prior OVI offense, the court indicated that it did not “find the
OVI to be a criminal offense. And prior to committing the offense the Defendant has led
a law-abiding life for a significant number of years.” Significantly, the court further
indicated that “there was some effort by the Defendant not to cause physical injury to
another person,” and the court “adopt[ed] Defense Counsel’s position that the Defendant
* * * did not intend to physically assault the motorists.”
{¶ 51} R.C. 2929.12(F) addresses the issue of the mitigating weight to assign to
the effects of military service for veterans and provides: “The sentencing court shall
consider the offender’s military service record and whether the offender has an emotional,
mental, or physical condition that is traceable to the offender’s service in the armed forces
of the United States and that was a contributing factor in the offender’s commission of the
offense or offenses.” At sentencing, the court indicated that it considered Armstrong’s
military service record and determined that he “has a mental condition that is traceable to
the Defendant’s service in the Armed Forces. And that the Defendant’s service in the
Armed Forces was a contributing factor to the Defendant’s commission of [the] offense or
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offenses.”
{¶ 52} In State v. Belew, 140 Ohio St. 3d 221, 2014-Ohio-2964, 17 N.E.3d 515,
Justice Lanzinger dissented from the majority opinion dismissing the matter “as having
been improvidently accepted,” finding that the Court instead “should render an opinion on
how [PTSD] must be considered by a court when it sentences a military veteran. And just
as important, we should clarify the standard that an appellate court must use in reviewing
a sentence of this type.” Id., ¶ 3. Justice Lanzinger noted that R.C. 2929.12(F) “is a
stand-alone provision and was not placed under subsection (D) (factors indicating that
the offender is likely to commit future crime) or subsection (E) (factors indicating that the
offender is not likely to commit future crimes).” Id., ¶ 21.
{¶ 53} It is well known that veterans such as Armstrong often suffer from PTSD,
mental illness, and substance abuse problems that were caused by their experiences in
the military. In addressing veterans at the kickoff event for the Montgomery County
veterans’ treatment court in 2013, Justice Eveylyn Lundberg Stratton stated, “You
defended our country, * * * Sometimes you ended up with these problems - not because
you had a bad personality or you made a mistake - but because you served our county
and came back with war wounds most of which we cannot see.”
Http://www.vorys.com/newsevents-news-736.html.2
{¶ 54} Armstrong’s version of events as reflected in his PSI makes clear that he
was experiencing psychological problems and paranoia at the time of the offenses as
follows:
2
Apropos to paragraphs 52 and 53, I’d urge the Ohio Supreme Court to address the
impact of PTSD on sentencing decisions for military veterans and review Armstrong’s
case.
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* * * I knew not the harshness of judgment for my actions, nor did I
consider results for my actions before hand. I was perinoid (sic), mad,
stressed, and [had] been for a great length of time. No one really cared
(so I thought) at the moment. I did not go outside with wepeon (sic) with
intent to do anything other than shoot bottles. Then I decided to shoot
propane tank - then - warning shoots for ppl. I thought were following me.
Then house and window - etc. (no plan[n]ing) was just mad and at the
moment I was upset about were (sic) I was in my life feeling
overwhelmed/scared. Perinoid pissed off and wanted to change things
with myself; job, etc. Didn’t think about actions but now glad that no one is
hurt, otherwise idk3 if I would have been able to live with my actions - so on
that note I realize there are consiquence (sic) to my actions and for that I
have no excuses or justified reason.
{¶ 55} Armstrong’s Forensic Psychological Evaluation concluded that he “has
been experiencing and continues to manifest multiple psychological problems which are
in the range of moderate to severe psychopathology.” According to the report,
Armstrong is “in need of a multi-modal treatment program involving psychiatric
counseling, psychotherapeutic interventions specifically related to posttraumatic stress
disorder preferably in a Veterans Administration Hospital which is more experienced in
working with returning soldiers who have this disorder, and psychotherapeutic treatment
3
This author believes “idk” is an acronym commonly used in text messaging that means
“I don’t know.”
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oriented towards assisting Mr. Armstrong to gain relief from his paranoid mentation and
to achieve significant cognitive restructuring wherein he might begin to establish trust with
others and a greater sense of safety and security in his world.”
{¶ 56} In light of the court’s conclusion that Armstrong did not intend to harm
anyone, and the fact that no one was physically injured, as well as Armstrong’s ongoing
struggle with PTSD and substance abuse problems traceable to his service, I believe the
trial court erred by imposing a consecutive term of imprisonment which clearly and
convincingly lacks support in the record. Although surely culpable, Armstrong has been
failed by the Department of Veterans Affairs and the criminal justice system. I do not
reach this conclusion lightly knowing one victim indicated she suffered serious
psychological injury, while the other victim did not provide a victim impact statement
revealing a psychological injury. In my view, the psychological impact on one victim does
not dictate a consecutive term. Fortunately, no physical injury occurred and the propane
tank did not explode. Since Armstrong’s PTSD is traceable to his military service and
contributed to the commission of his offenses, I believe that his PTSD and related
conditions mitigate in favor of a concurrent term of imprisonment, and I accordingly would
reverse and vacate the sentence and order the trial court to impose a concurrent term of
imprisonment consistent with the statutory presumption.
..........
Copies mailed to:
Jane A. Napier
Andrew R. Pratt
Hon. Nick A. Selvaggio