The opinion
[Cite as State v. Brefford, 2025-Ohio-4436.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, : No. 23AP-644
(C.P.C. No. 23CR-2226)
v. :
(REGULAR CALENDAR)
Deondre D. Brefford, :
Defendant-Appellant. :
D E C I S I O N
Rendered on September 23, 2025
On brief: [Shayla D. Favor], Prosecuting Attorney, and
Paula M. Sawyers, for appellee. Argued: Paula M. Sawyers.
On brief: L. Scott Petroff, for appellant. Argued: L. Scott
Petroff.
APPEAL from the Franklin County Court of Common Pleas
EDELSTEIN, J.
{¶ 1} Following a jury trial, defendant-appellant, Deondre D. Brefford, was found
guilty of crimes stemming from an altercation with law enforcement during an
investigatory stop. Mr. Brefford appeals from the October 19, 2023 judgment of conviction
entered by the Franklin County Court of Common Pleas. For the following reasons, we
affirm.
I. FACTS AND PROCEDURAL BACKGROUND
{¶ 2} On July 29, 2022, a Franklin County Grand Jury returned a five-count
indictment under Franklin C.P. No. 22CR-3372 charging Mr. Brefford with having a
weapon while under disability, assault, resisting arrest, carrying a concealed weapon, and
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obstructing official business. Firearm specifications were included with the assault,
resisting arrest, and obstruction counts.
{¶ 3} These offenses pertained to law enforcement’s July 21, 2022 encounter with
Mr. Brefford while he was operating a bicycle. Sergeant Matthew Dover of the Columbus
Police Department claimed to have smelled a strong odor of raw marijuana coming from
Mr. Brefford’s person during the encounter. Although Mr. Brefford denied having
marijuana multiple times, circumstances suggested to Sergeant Dover that criminal activity
may be afoot, as described more below, so he decided to detain Mr. Brefford to investigate.
A physical altercation between Mr. Brefford and Sergeant Dover followed, during which a
firearm fell from Mr. Brefford’s person onto the ground. Sergeant Dover requested backup
from his partner, Officer D.S., and both claimed Mr. Brefford attempted to regain
possession of the firearm while struggling with officers. After Mr. Brefford was detained,
officers recovered marijuana and cocaine from the backpack he was wearing.
{¶ 4} On April 6, 2023, Mr. Brefford entered into a negotiated plea agreement with
plaintiff-appellee, the State of Ohio. In exchange for the state’s dismissal of the assault,
carrying a concealed weapon, and obstruction counts, Mr. Brefford entered a counseled
plea of guilty to having a weapon while under disability and resisting arrest. However, on
April 19, 2023, prior to sentencing, Mr. Brefford moved to withdraw his guilty plea. On
May 2, 2023, the trial court entered judgment granting Mr. Brefford’s motion to withdraw
the plea entered in case No. 22CR-3372.
{¶ 5} The next day, a Franklin County Grand Jury returned a seven-count
indictment under Franklin C.P. No. 23CR-2226 charging Mr. Brefford with aggravated
robbery, assault, resisting arrest, obstructing official business, cocaine possession, carrying
a concealed weapon, and having a weapon while under disability. Firearm specifications
were charged with the assault, resisting arrest, obstruction, and drug possession counts.
These offenses all stemmed from the same July 21, 2022 incident that was the subject of
Mr. Brefford’s indictment in the 2022 case.
{¶ 6} On May 19, 2023, Mr. Brefford moved to dismiss the 2023 case in its entirety,
or, in the alternative, to suppress all evidence obtained in violation of the Fourth
Amendment to the United States Constitution and Article I, Section 14 of the Ohio
Constitution. After conducting a hearing on Mr. Brefford’s motion, the trial court issued a
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written decision on June 14, 2023 denying the motion. Mr. Brefford challenges that
decision in his first assignment of error, as discussed below.
{¶ 7} Trial commenced on September 6, 2023. Prior to trial, the state dismissed
the resisting arrest with firearm specification and having a weapon while under disability
counts. At the request of the state and for good cause shown, the trial court subsequently
entered a nolle prosequi on these two counts. Following the presentation of evidence, the
jury returned a verdict finding Mr. Brefford guilty of aggravated robbery, assault with a
three-year firearm specification, obstructing official business with a three-year firearm
specification, possession of cocaine with a one-year firearm specification, and carrying a
concealed weapon.
{¶ 8} At the October 11, 2023 sentencing hearing, the trial court imposed an
aggregate prison sentence of 10 to 11 and one-half years. Mr. Brefford’s convictions and
sentence were memorialized in the court’s October 19, 2o23 judgment entry.
{¶ 9} Mr. Brefford now appeals and raises the following four assignments of error
for our review:
[I.] THE COURT ERRED TO THE PREJUDICE OF [MR.
BREFFORD] WHEN IT DENIED HIS MOTION TO SUPPRESS
EVIDENCE IN VIOLATION OF THE FOURTH AND FOURTEENTH
AMENDMENTS [TO] THE UNITED STATES CONSTITUTION AND
SECTION 14, ARTICLE I OF THE OHIO CONSTITUTION.
[II.] SENTENCING [MR. BREFFORD] TO MULTIPLE
CONSECUTIVE PRISON TERMS FOR GUN SPECIFICATIONS
WHEN THOSE COUNTS WERE PART OF THE SAME ACT AND
THE EXCEPTION DOES NOT APPLY WAS A VIOLATION OF R.C.
2941.25, R.C. 2929.14, AND [MR. BREFFORD’S] UNITED STATES
AND OHIO CONSTITUTIONAL RIGHT TO BE FREE FROM
DOUBLE JEOPARDY.
[III.] [MR. BREFFORD] SUFFERED PREJUDICE DUE TO THE
INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF HIS
RIGHT TO DUE PROCESS AS GUARANTEED BY THE SIXTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO
CONSTITUTION WHEN TRIAL COUNSEL FAILED TO RAISE ANY
SPEEDY TRIAL ISSUES AND AGREED TO AN ERRONEOUS JURY
INSTRUCTION.
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[IV.] THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT
OF THE EVIDENCE AND BASED UPON INSUFFICIENT
EVIDENCE IN VIOLATION OF [MR. BREFFORD’S] RIGHT TO DUE
PROCESS AS GUARANTEED BY THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.
{¶ 10} Mr. Brefford attributes error to a wide range of legal matters, so the relevant
facts are summarized within our analysis of each assignment of error below.
II. ANALYSIS
{¶ 11} For ease of discussion and in the interest of clarity, we address Mr. Brefford’s
four assignments of error out of order. First, we consider his challenge to the trial court’s
denial of his pretrial motion to suppress (first assignment of error). Then we turn to his
ineffective assistance of counsel claims involving statutory speedy trial and jury
instructions on the carrying a concealed weapon count (third assignment of error). We next
review the sufficiency and weight of the evidence supporting Mr. Brefford’s convictions for
aggravated robbery, assault with its corresponding firearm specification, and carrying a
concealed weapon (fourth assignment of error). Finally, we address the propriety of the
court’s decision to impose consecutive prison terms on all three firearm specification
sentencing enhancements (second assignment of error).
A. First Assignment of Error: Motion to Suppress
{¶ 12} In his first assignment of error, Mr. Brefford challenges the trial court’s denial
of his motion to suppress evidence obtained from his warrantless seizure. He argues the
state failed to demonstrate that the traffic stop of his bicycle and continued seizure
following the initial stop were valid. For the following reasons, we disagree.
1. Standard of Review
{¶ 13} Appellate review of a ruling on a motion to suppress presents a mixed
question of law and fact. State v. Banks-Harvey, 2018-Ohio-201, ¶ 14, citing State v.
Burnside, 2003-Ohio-5372, ¶ 8. Thus, an appellate court’s standard of review of a trial
court’s decision denying a motion to suppress is two-fold. See, e.g., State v. Pilgrim, 2009-
Ohio-5357, ¶ 13 (10th Dist.), citing State v. Reedy, 2006-Ohio-1212, ¶ 5 (10th Dist.), citing
State v. Lloyd, 126 Ohio App.3d 95, 100-01 (7th Dist. 1998).
{¶ 14} In ruling on a motion to suppress, the trial court first assumes the role of trier
of fact and, as such, is in the best position to evaluate the evidence and the credibility of
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witnesses. See, e.g., State v. Leak, 2016-Ohio-154, ¶ 12, citing Burnside at ¶ 8, citing State
v. Mills, 62 Ohio St.3d 357, 366 (1992). Thus, on appeal, we must “ ‘accept the trial court’s
findings of fact if they are supported by competent, credible evidence.’ ” Id., quoting
Burnside at ¶ 8, citing State v. Fanning, 1 Ohio St.3d 19, 20 (1982).
{¶ 15} With respect to the trial court’s conclusions of law, however, our standard of
review is de novo. See, e.g., Banks-Harvey at ¶ 14, citing Burnside at ¶ 8; State v. Turner,
2020-Ohio-6773, ¶ 14. See also Pilgrim at ¶ 13. We are tasked with independently
determining whether the facts satisfy the applicable legal standard. See id.
2. Fourth Amendment to the United States Constitution and Article
I, Section 14 of the Ohio Constitution
{¶ 16} The Fourth Amendment to the United States Constitution, applied to the
states through the Fourteenth Amendment, protects people against unreasonable searches
and seizures. See, e.g., Banks-Harvey, 2018-Ohio-201, at ¶ 17, citing United States v. Ross,
456 U.S. 798, 825 (1982). It is a restraint on the government and, more narrowly here, law
enforcement. See id. The Supreme Court of Ohio has held that in felony cases, Article I,
Section 14 of the Ohio Constitution provides the same protection as the Fourth Amendment
to the United States Constitution.1 Banks-Harvey at ¶ 16, citing State v. Jones, 2015-Ohio-
483, ¶ 12.
{¶ 17} To safeguard the rights protected in the Fourth Amendment, the United
States Supreme Court has created the exclusionary rule, which precludes the use in a
criminal proceeding of evidence obtained in violation of the Fourth Amendment. Davis v.
United States, 564 U.S. 229, 236 (2011), citing Elkins v. United States, 364 U.S. 206, 217
(1960). Evidence obtained as the result of an unconstitutional stop, arrest, or search must
1 Although the protections afforded by Article I, Section 14 of the Ohio Constitution have historically been
construed as co-extensive with the protections of the Fourth Amendment to the United States Constitution,
it is well-established that states may “rely on their own constitutions to provide broader protection for
individual rights, independent of protections afforded by the United States Constitution.” State v.
Robinette, 80 Ohio St.3d 234, 238 (1997), citing Arnold v. Cleveland, 67 Ohio St.3d 35 (1993). And, in
certain circumstances, the Supreme Court has construed Article I, Section 14 of the Ohio Constitution as
providing Ohio citizens with greater protections than the Fourth Amendment to the United States
Constitution. See, e.g., State v. Brown, 2015-Ohio-2438, ¶ 23 (holding that Article I, Section 14 of the Ohio
Constitution provides greater protection than the Fourth Amendment to the United States Constitution
against searches and seizures made by members of law enforcement who lack authority to make an arrest);
State v. Brown, 2003-Ohio-3931, ¶ 22, 25 (holding that Article I, Section 14 of the Ohio Constitution
provides greater protection than the Fourth Amendment to the United States Constitution against
warrantless arrests for minor misdemeanors). See also State v. Dibble, 2020-Ohio-546, ¶ 60, fn. 3
(Donnelly, J., dissenting). See also id. at ¶ 14, fn. 1 (DeWine, J., writing for the majority).
No. 23AP-644 6
be excluded at trial as “fruit of the poisonous tree.” See, e.g., Wong Sun v. United States,
371 U.S. 471, 484-88 (1963); State v. Farris, 2006-Ohio-3255, ¶ 49; Banks-Harvey at ¶ 25.
{¶ 18} When a defendant files a motion to suppress on the grounds that his Fourth
Amendment rights have been violated by an unreasonable search or seizure, the defendant
has the initial burden to demonstrate the seizure or search was conducted without a valid
warrant and to articulate the legal and factual basis for suppression. See Xenia v. Wallace,
37 Ohio St.3d 216, 218 (1988). Once the defendant satisfies the initial burden, the state
carries the burden of showing, by at least a preponderance of the evidence, that the search
and/or seizure fits within one of the defined exceptions to the warrant requirement. See,
e.g., id., citing State v. Kessler, 53 Ohio St.2d 204, 207 (1978); Columbus v. Ellyson, 2006-
Ohio-2075, ¶ 5 (10th Dist.), citing Athens v. Wolf, 38 Ohio St.2d 237, 241 (1974); State v.
Brandenburg, 2021-Ohio-2875, ¶ 13 (12th Dist.).
{¶ 19} “For a search or seizure to be reasonable under the Fourth Amendment, it
must be based upon probable cause and executed pursuant to a warrant.” State v. Moore,
90 Ohio St.3d 47, 49 (2000). A seizure or search is unreasonable when police lack a valid
warrant and no exception to the warrant requirement applies. See, e.g., State v. Jackson,
2022-Ohio-4365, ¶ 10, citing Brigham City v. Stuart, 547 U.S. 398, 403 (2006).
3. Analysis
{¶ 20} In his motion to suppress evidence obtained from the warrantless seizure,
Mr. Brefford contended that Sergeant Dover did not have probable cause to arrest him or
reasonable, articulable suspicion to stop him under Terry v. Ohio, 392 U.S. 1 (1968).
Because Mr. Brefford satisfied his initial burden to show the traffic stop of his bicycle was
a warrantless seizure, the burden then shifted to the state to show that the warrantless
seizure of Mr. Brefford was justified. See Xenia at 220. The state argued the initial
encounter between Mr. Brefford and Sergeant Dover was consensual. During the course of
this consensual encounter, Sergeant Dover gained reasonable suspicion that Mr. Brefford
was engaged in criminal activity, thus premising the lawfulness of Mr. Brefford’s prolonged
detention on Terry.
{¶ 21} At the June 1, 2023 suppression hearing, the state presented testimony from
Officer D.S. and Sergeant Dover about the stop, prolonged detention, and search of
Mr. Brefford. The prosecutor played recordings from the officers’ body-worn cameras,
No. 23AP-644 7
which depicted their interaction with Mr. Brefford. The following was established at that
hearing.
{¶ 22} On July 21, 2022, around 2:40 p.m., Officer D.S. and Sergeant Dover were
patrolling the area of Kimball Place and East Fulton Street in Columbus when they observed
a group of individuals congregating in the area. (See June 1, 2023 Tr. at 10, 57-58.) The
officers were in uniform and in a marked cruiser, and Officer D.S. was driving. Officer D.S.
testified about ongoing concerns of criminal activity in the area, explaining they “had been
in that area previously a week or two prior, made several arrests, several guns and a lot of
narcotics taken from there” and were told by a first shift officer about “a lot of activity” going
on in the area that day involving some of the people they had just recently arrested. (June 1,
2023 Tr. at 10-14, 39-40.) Officer D.S. and Sergeant Dover both testified as to their
familiarity with the neighborhood, describing it as a “high crime” area. (See June 1, 2023
Tr. at 12-13, 40-42.)
{¶ 23} As they were driving through the area, Officer D.S. and Sergeant Dover
observed Mr. Brefford sitting stationary on his bicycle in the roadway, thus impeding
traffic. After driving around Mr. Brefford, the officers observed him make an illegal U-turn
in the roadway and walk his bicycle onto the sidewalk. Although Mr. Brefford was not
ultimately cited for these traffic offenses, the fact they were committed is not in dispute.
(See June 1, 2023 Hearing Ex. B1.)
{¶ 24} The officers stopped in front of a house known for conducting drug and
firearm dealing operations to approach people in the area but did not activate their cruiser’s
sirens or lights. (June 1, 2023 Tr. at 40.) Officer D.S. recognized someone he had
“attempted to get a gun off of a week or two prior” and attempted to stop him. (June 1,
2023 Tr. at 10-16.)
{¶ 25} In the interim, Sergeant Dover approached Mr. Brefford, who was shirtless,
on the sidewalk to “address[] the safety concerns associated with [him] having been
stationary in the roadway and doing a ‘U-turn.’ ” (June 1, 2023 Hearing Ex. J. See also
June 1, 2023 Tr. at 42-43.) At the suppression hearing, Sergeant Dover testified he did not
order Mr. Brefford to stop on initial approach, as he intended it to be a “causal encounter.”
(June 1, 2023 Tr. at 42-43.)
{¶ 26} As depicted in his body-worn camera footage from the stop, Sergeant Dover
walked up to Mr. Brefford on the sidewalk and told him: “Hey, man, you know you can’t be
No. 23AP-644 8
[stopped] in the street like that. You’ve got to be riding that bike. . . . You stopped, turned
around, all that craziness.” (June 1, 2023 Hearing Ex. B1.) Mr. Brefford responded by
claiming he was asking someone for directions. (June 1, 2023 Hearing Ex. B1.) Sergeant
Dover further advised Mr. Brefford “to think about you being a car—like, when we pulled
up behind you, we technically have to stop because you’re in the middle of the street. So
us, we have to wait for your, you’re impeding our traffic.” (June 1, 2023 Hearing Ex. B1.)
{¶ 27} Sergeant Dover testified that when he approached Mr. Brefford, he
immediately smelled “a strong odor of raw marijuana coming from his person.” (June 1,
2023 Tr. at 42-44.) Thus, after addressing his roadway safety concerns, Sergeant Dover
asked Mr. Brefford if he had any marijuana on him, explaining he was “smelling a bunch of
marijuana coming off of you.” (June 1, 2023 Hearing Ex. B1.) Mr. Brefford denied having
any marijuana in his possession three times. (June 1, 2023 Hearing Ex. B1; June 1, 2023
Tr. at 43-44.) In his report, Sergeant Dover described that, upon questioning about
marijuana, Mr. Brefford “immediately became visibly nervous” and “nearly motionless”
while looking away from him. (June 1, 2023 Hearing Ex. J.) On review, we note that
Sergeant Dover’s body-worn camera footage is consistent with that description.
{¶ 28} Sergeant Dover explained that, based on the “overwhelming” odor of raw
marijuana coming from Mr. Brefford’s person and being in a “high crime” and “high drug”
area, he decided to prolong the stop to investigate. (June 1, 2023 Tr. at 43-45.) Sergeant
Dover also noted that Mr. Brefford was wearing a regular backpack on his back and a
smaller belt bag on his chest. This was significant to him because, as he explained during
the hearing, based on his training and experience, “people who sell narcotics will keep the
money and/or gun in the front [smaller] pack and the drugs in the [larger] back[pack], so
if they had to run from the police or somebody else, they could drop the drugs and keep the
money and the gun.” (June 1, 2023 Tr. at 44-45.)
{¶ 29} For these reasons, Sergeant Dover told Mr. Brefford to “hang tight” and he
was “not free to go.” (June 1, 2023 Hearing Ex. B1.) After a couple of seconds, Mr. Brefford
suddenly stood up from the bicycle he had been sitting on “as if he was going to leave,” so
Sergeant Dover grabbed the top of Mr. Brefford’s backpack by its handle and repeatedly
told him to stop moving. (June 1, 2023 Hearing Ex. B1; June 1, 2023 Tr. at 46.) Mr.
Brefford asked Sergeant Dover to “let him go,” and Sergeant Dover again reiterated Mr.
Brefford was not free to leave. (June 1, 2023 Hearing Ex. B1; June 1, 2023 Tr. at 46.)
No. 23AP-644 9
Sergeant Dover reached across Mr. Brefford’s chest, patted the small bag, and asked him
what he had inside of it. (June 1, 2023 Hearing Ex. B1; June 1, 2023 Tr. at 46.) Mr. Brefford
then placed his bicycle on the ground and began pushing his body into Sergeant Dover,
causing them both to move backwards off of the sidewalk and into the street. (See June 1,
2023 Hearing Ex. B1, J; June 1, 2023 Tr. at 46.)
{¶ 30} A struggle ensued, as described more fully below, during which a firearm fell
from Mr. Brefford’s person onto the ground. After a few minutes, Officer D.S. and Sergeant
Dover were able to contain Mr. Brefford and place him under arrest. Following his arrest,
officers searched both of Mr. Brefford’s bags. Several small baggies of marijuana and a
scale were recovered from the smaller belt bag. Officers also recovered several large baggies
of marijuana, crack cocaine, and money from Mr. Brefford’s backpack.
{¶ 31} Following the suppression hearing, the trial court issued a written decision
denying Mr. Brefford’s motion to suppress. The court found the officers had a lawful reason
to stop Mr. Brefford due to the traffic violations, and Sergeant Dover’s interaction with
Mr. Brefford went from being a consensual encounter to a lawful investigatory stop.
{¶ 32} On appeal, Mr. Brefford does not contest that Sergeant Dover’s initial
approach was either a lawful traffic stop or began as a consensual encounter about safety
concerns. Instead, Mr. Brefford challenges the validity of Sergeant Dover’s decision to
conduct an investigatory Terry stop based on, among other things, the odor of raw
marijuana.
{¶ 33} In contrast to a consensual encounter, a warrantless seizure of a person may
be justified as a product of a brief investigatory stop under Terry. To justify a Terry stop,
a law enforcement officer must point to specific, articulable facts that gave rise to a
reasonable suspicion that the suspect was engaged in criminal activity. Terry, 392 U.S. at
21. See also State v. Tidwell, 2021-Ohio-2072, ¶ 19-21.
{¶ 34} Reasonable suspicion exists when, based on the totality of the circumstances,
a police officer has a “particularized and objective basis for suspecting the particular person
stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18 (1981).
“Reasonable suspicion entails some minimal level of objective justification, ‘that is,
something more than an inchoate and unparticularized suspicion or “hunch,” but less than
the level of suspicion required for probable cause.’ ” State v. Jones, 2010-Ohio-2854, ¶ 17
(10th Dist.), quoting State v. Jones, 70 Ohio App.3d 554, 556-57 (2d Dist. 1990). “In
No. 23AP-644 10
evaluating reasonable suspicion to support the propriety of a stop, a reviewing court must
consider the totality of the circumstances surrounding the stop as ‘viewed through the eyes
of the reasonable and prudent police officer on the scene who must react to events as they
unfold.’ ” State v. McCandlish, 2012-Ohio-3765, ¶ 7 (10th Dist.), quoting State v. Andrews,
57 Ohio St.3d 86, 87-88 (1991). See also Terry at 21-22.
{¶ 35} On review of the record and assuming the encounter began as consensual, we
conclude the consensual nature ended when Sergeant Dover first told Mr. Brefford to “hang
tight” and that he was “not free to go.” (June 1, 2023 Hearing Ex. B1.) Mr. Brefford’s
primary contention is that the odor of marijuana, alone, can no longer be inherent evidence
of criminal activity justifying an investigatory stop.
{¶ 36} Mr. Brefford’s argument concerns the continued application of the Supreme
Court’s holding in Moore, 90 Ohio St.3d at 47, decided in 2000. In Moore, the court
certified the following issue for review: “[i]s the odor of burnt marijuana, alone, sufficient
to provide probable cause to search a defendant’s motor vehicle.” (Emphasis added.) Id.
at 48. The Moore court broadly held that “the smell of marijuana, alone, by a person
qualified to recognize the odor, is sufficient to establish probable cause to search a motor
vehicle, pursuant to the automobile exception to the warrant requirement.” Id. By
affirming the trial court’s decision to deny the motion to suppress, the Moore court also
held that “exigent circumstances existed to justify the warrantless search of defendant’s
person once [law enforcement] had probable cause based upon the odor of marijuana
detected on the defendant,” who was the sole occupant of the vehicle. Id.
{¶ 37} When Moore was decided in 2000, marijuana (cannabis) could not be legally
possessed or used in any form in Ohio. But, at the time of the stop in this case, it could be
legally possessed and used in certain circumstances. This is because the Ohio General
No. 23AP-644 11
Assembly legalized medical marijuana2 and hemp3 prior to July 21, 2022. On appeal,
Mr. Brefford postures that Moore’s core inference—the mere odor of cannabis provides
inherent evidence of criminal activity—is no longer viable under the current legislative
framework. We do not need to reconcile Moore’s holding with these legislative enactments,
however, in order to resolve this case.
{¶ 38} It is true that Sergeant Dover could not ascertain the legality of raw marijuana
from its plain smell alone. Nonetheless, the record before us shows that, based on the
totality of the circumstances, he had a reasonable articulable suspicion of criminal activity
justifying the Terry stop of Mr. Brefford. Before Sergeant Dover told Mr. Brefford he was
not free to leave, Mr. Brefford denied having marijuana three times. Given Mr. Brefford’s
repeated denial—in the face of the strong and overwhelming odor of raw marijuana
Sergeant Dover smelled—it would be reasonable to conclude that marijuana was being
illegally possessed. Indeed, notwithstanding the legalization of hemp and medical
marijuana, some forms and uses of marijuana remain illegal in Ohio. See, e.g., State v.
Wright, 2024-Ohio-1763, ¶ 23 (1st Dist.). Thus, at a minimum, an officer’s detection of the
odor of marijuana can be a contributing factual circumstance relevant to an officer’s
decision to conduct a Terry stop in order to investigate the legality of the substance that is
the source of the odor. See id. at ¶ 24 (observing that “[i]n other jurisdictions where some
forms of marijuana or hemp are legal, courts have held that the smell of marijuana . . . alone
2 Effective September 8, 2016, medical marijuana became legal in Ohio. See 2016 Sub.H.B. No. 523 (“House
Bill 523”). Medical marijuana is “cultivated, processed, dispensed, tested, possessed, or used for a medical
purpose.” R.C. 3796.01(A)(2). R.C. 3796.06 and Adm.Code 3796:7-2-05 set forth the framework for how a
person can lawfully possess and use prescribed marijuana plant material. R.C. 3796.06(A)(3) allows
possession of prescribed marijuana plant material. However, while a person holding a valid marijuana
license can possess plant marijuana, Adm.Code 3796:7-2-05(G)(2) requires medical marijuana to be
maintained only in the containers approved in subsection (G). Adm.Code 3796:7-2-05(E) also requires that
medical marijuana be kept “in a secure location so as to prevent theft, loss, or access by persons not
authorized” to possess medical marijuana. If an officer observes marijuana that is not stored in accordance
with these requirements, the officer could reasonably infer the marijuana is illegally possessed (even if it
was legitimate medical marijuana). See, e.g., State v. Burke, 2022-Ohio-2166, ¶ 37 (2d Dist.). In addition,
if an officer smells burnt marijuana, or a person admits to smoking marijuana, the officer could reasonably
infer illegality notwithstanding the possibility that the person under investigation had a medical marijuana
license. Although R.C. 3796.06(A)(3) allows for the possession of medical marijuana “[p]lant material,”
section (B)(1) of the statute prohibits “[t]he smoking or combustion of medical marijuana.” The odor of
burnt marijuana is indicative of smoking and therefore a violation of R.C. 3796.06(B)(1). See, e.g., State v.
Grant, 2022-Ohio-2601, ¶ 22 (2d Dist.); State v. Caldwell, 2021-Ohio-3777, ¶ 19 (12th Dist.).
3 Effective July 30, 2019, hemp became legal in Ohio. See 2019 Am. Sub.S.B. No. 57. “Hemp” is defined as
cannabis containing a delta-9 tetrahydrocannabinol (“THC”) concentration of not more than 0.3 percent
on a dry weight basis. R.C. 928.01(C).
No. 23AP-644 12
is insufficient to establish probable cause” to justify a search or an arrest) (Citation
omitted.). But, significantly here, evidence and testimony presented at the suppression
hearing established that Sergeant Dover’s decision to detain Mr. Brefford for further
investigation was not based solely on his detection of the odor of marijuana emanating
from Mr. Brefford’s person.
{¶ 39} In addition to describing an “overwhelming” and “strong odor of raw
marijuana coming from [Mr. Brefford’s] person,” Sergeant Dover testified that his
knowledge about the crime and drug activity associated with the area of the encounter, both
historically and from earlier that same day, informed his decision to conduct an
investigatory stop of Mr. Brefford. (Emphasis added.) (June 1, 2023 Tr. at 42-43.)
Specifically, Sergeant Dover described a “known gang” conducting a “known operation for
drug dealing and selling weapons” in the area. (See June 1, 2023 Tr. at 39-41, 46.) He also
described receiving information from an officer patrolling the area in an unmarked vehicle
earlier that day about observing “what he believed to be multiple hand-to-hand drug
transactions” and “multiple individuals with firearms.” (June 1, 2023 Tr. at 40.)
{¶ 40} Along with Mr. Brefford’s presence in front of a known drug house, Sergeant
Dover testified that his knowledge about the common use of bicycles and two bags by
persons selling drugs further contributed to his belief that Mr. Brefford was involved in
criminal activity. (See June 1, 2023 Tr. at 40.) As depicted in the body-worn camera
footage, Mr. Brefford was riding a bicycle while wearing a large backpack on his back and a
smaller belt bag across his chest. Sergeant Dover testified that, based on his training,
education, and experience, he knew “persons who are selling illegal narcotics often conceal
them in backpacks and or ‘man-purses’ and often do so using bicycles as a means of
transportation.” (June 1, 2023 Hearing Ex. J.)
{¶ 41} Furthermore, in his police report, Sergeant Dover described Mr. Brefford
becoming “visibly nervous” and “nearly motionless” when asked whether he had marijuana
in his possession. (See June 1, 2023 Hearing Ex. J.) Although some degree of nervousness
during interactions with police officers is not uncommon, nervous behavior is a factor that
can reasonably indicate, in conjunction with other circumstances, the possibility of illegal
activity. See, e.g., State v. Atchley, 2007-Ohio-7009, ¶ 14 (10th Dist.).
{¶ 42} Given these facts and circumstances, we agree with the trial court’s finding
that, at a minimum, Sergeant Dover had reasonable suspicion for extending the stop in
No. 23AP-644 13
order to investigate whether criminal activity was afoot. See, e.g., State v. Vega, 2018-Ohio-
4002, ¶ 17-18. In view of the fact that Sergeant Dover had reasonable suspicion of criminal
activity before Mr. Brefford attempted to flee—due to his perceived odor of raw marijuana
on Mr. Brefford’s person, the high-crime area, and Mr. Brefford’s demeanor, appearance,
and repeated denials regarding marijuana—we thus conclude the court did not err in
denying Mr. Brefford’s motion to suppress.
{¶ 43} For these reasons, we overrule Mr. Brefford’s first assignment of error.
B. Third Assignment of Error: Ineffective Assistance of Counsel
{¶ 44} In his third assignment of error, Mr. Brefford argues he received ineffective
assistance of counsel. However, because he fails to establish he was prejudiced by trial
counsel’s deficient performance under Strickland v. Washington, 466 U.S. 668 (1984), we
must overrule this assignment of error, for the reasons that follow.
1. Controlling Law and Standard of Review
{¶ 45} A defendant asserting a claim of ineffective assistance of counsel must
establish: (1) counsel’s performance was deficient or objectively unreasonable, as
determined by “ ‘prevailing professional norms,’ ” and (2) counsel’s deficient performance
prejudiced the defendant. State v. Spaulding, 2016-Ohio-8126, ¶ 77, quoting Strickland at
694.
{¶ 46} To show trial counsel’s performance was deficient or unreasonable, the
defendant must overcome the presumption that counsel provided competent
representation and must show counsel’s actions were not trial strategies prompted by
reasonable professional judgment. Strickland at 689. Counsel is entitled to a strong
presumption that all decisions fall within the wide range of reasonable professional
assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or strategic decisions,
even if unsuccessful, do not generally constitute ineffective assistance of counsel. State v.
Frazier, 61 Ohio St.3d 247, 255 (1991). Rather, the errors complained of must amount to a
substantial violation of counsel’s essential duties to his client. See State v. Bradley, 42 Ohio
St.3d 136, 141-42 (1989).
{¶ 47} Prejudice results when “ ‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.’ ”
Bradley at 142, quoting Strickland, 466 U.S. at 694. “ ‘A reasonable probability is a
No. 23AP-644 14
probability sufficient to undermine confidence in the outcome.’ ” Bradley at 142, quoting
Strickland at 694.
{¶ 48} When analyzing an ineffective assistance of counsel claim, an appellate court
“need not determine whether counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland at
697. See also State v. Wade, 2021-Ohio-4090, ¶ 19 (10th Dist.). “If it is easier to dispose
of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course
should be followed.” Strickland at 697. In determining a claim of ineffective assistance of
counsel, our review is limited to the record before us. See State v. Prophet, 2015-Ohio-
4997, ¶ 32 (10th Dist.).
2. Analysis
{¶ 49} Mr. Brefford asserts his trial counsel was ineffective in failing to move for
discharge on statutory speedy trial grounds and for failing to object to the trial court’s
answer to a jury question regarding the carrying a concealed weapon count. But because
we find, for the following reasons, that Mr. Brefford failed to establish he was prejudiced by
trial counsel’s purported failures, we find no merit to his ineffective-assistance-of-counsel
claim.
a. Failure to move for discharge on statutory speedy trial
grounds
{¶ 50} Mr. Brefford first claims that his trial counsel’s failure to move to dismiss his
case under R.C. 2945.71 for violating his statutory speedy trial rights constituted ineffective
assistance of counsel.
{¶ 51} “A criminal defendant has a right to a speedy trial under the Ohio Revised
Code, the Ohio Constitution, and the Fifth and Sixth Amendments to the United States
Constitution.” State v. Adams, 2015-Ohio-3954, ¶ 80. That right is codified in
R.C. 2945.71. In this case, Mr. Brefford only contends that his trial counsel was ineffective
for failing to move for discharge of the case based on statutory speedy trial grounds.
{¶ 52} Under R.C. 2945.71(C)(2), the state is required to bring a defendant charged
with a felony offense to trial within 270 days of their arrest. Generally, the speedy trial time
period begins the day after a defendant’s arrest. See, e.g., State v. Kadunc, 2016-Ohio-
4637, ¶ 10 (10th Dist.); State v. Juarez-Hernandez, 2012-Ohio-4835, ¶ 8 (10th Dist.). See
No. 23AP-644 15
also Crim.R. 45(A); R.C. 1.14. Each day the defendant is held in jail in lieu of bail counts as
three days in computing this time. R.C. 2945.71(E).
{¶ 53} Statutory speedy trial time may be waived by the defendant or tolled by
operation of law. These “ ‘[t]wo key concepts direct how a court must charge the days when
calculating a potential speedy trial violation.’ ” State v. Williams, 2023-Ohio-1002, ¶ 16
(10th Dist.), quoting State v. Brown, 2019-Ohio-4753, ¶ 28 (10th Dist.). If a defendant
knowingly and voluntarily waives his speedy trial rights, the days included in the waiver
period do not count toward the deadline for bringing the defendant to trial. See, e.g., State
v. Adams, 43 Ohio St.3d 67, 69 (1989), citing State v. Kidd, 60 Ohio App.2d 374, 376 (1st
Dist. 1978), and State v. O’Brien, 34 Ohio St.3d 7, 9 (1987). Further, a plea of guilty waives
a defendant’s right to challenge his or her conviction on statutory speedy trial grounds. See,
e.g., State v. Kelley, 57 Ohio St.3d 127, 130-31 (1991); State v. Johnson, 2016-Ohio-5904,
¶ 18 (10th Dist.).
{¶ 54} R.C. 2945.72 provides an exhaustive list of specifically enumerated events
that automatically extend the statutory speedy trial time by tolling the time period during
which that event occurs. See, e.g., State v. Ramey, 2012-Ohio-2904, ¶ 24. Although a
defendant’s waiver of speedy trial time requires an intentional relinquishment of a known
right that must be expressed in writing or made in open court on the record, the tolling of
speedy trial time under R.C. 2945.72 occurs by operation of law and, thus, extends the
speedy trial time “whether or not a waiver has been executed.” State v. Blackburn, 2008-
Ohio-1823, ¶ 18. See also Juarez-Hernandez at ¶ 9.
{¶ 55} If a defendant is not brought to trial within the statutory speedy trial time
frame mandated by R.C. 2945.71 and 2945.72, the felony charges are subject to discharge
under R.C. 2945.73.4 See R.C. 2945.73.
4 Effective April 4, 2023, the Ohio General Assembly amended R.C. 2945.73 in a manner that changed the
procedure for handling situations where a defendant is not brought to trial within the 270-day statutory
time limit. See 2022 Am.Sub.S.B. No. 228. Prior to the amendment, R.C. 2945.73(B) provided that: “Upon
motion made at or prior to the commencement of trial, a person charged with an offense shall be discharged
if he is not brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised Code.”
Former R.C. 2945.73(D) further provided that “such discharge is a bar to any further criminal proceedings
against [the accused] based on the same conduct.”
However, under the amended version of R.C. 2945.73(C), a defendant who is not brought to trial for a
felony offense within the statutory time limit “is eligible for release from detention” (as opposed to being
discharged from criminal liability). R.C. 2945.73(C)(1). The statute provides that such defendant must be
No. 23AP-644 16
{¶ 56} In this case, Mr. Brefford was arrested on July 21, 2022. Thus, the statutory
speedy trial period began to run on July 22, 2022. Ultimately, his trial commenced on
September 5, 2023, which far exceeded the 270-day speedy trial time period prescribed by
R.C. 2945.71(C)(2). However, Mr. Brefford’s trial counsel did not file a motion to dismiss
based on a speedy trial violation. To prove ineffective assistance of counsel, he must show
his trial counsel’s failure to file such motion was ineffective.
{¶ 57} When a claim of ineffective assistance of counsel is based on counsel’s failure
to file a particular motion, a defendant must show that the motion had a reasonable
probability of success. State v. Boddie, 2011-Ohio-3309, ¶ 10 (10th Dist.), citing State v.
Barbour, 2008-Ohio-2291, ¶ 14 (10th Dist.), citing State v. Adkins, 2005-Ohio-2577 (4th
Dist.).
{¶ 58} Mr. Brefford does not attempt to count days for purposes of calculating
speedy trial time against tolling events on appeal. On review of the record, we note there
are numerous events that would toll (or stop) the counting of days under R.C. 2945.72,
including the defense’s multiple continuance requests, Mr. Brefford’s withdrawn guilty plea
in case No. 22CR-3372 (stemming from the same events and charges filed in case No. 23CR-
2226), pretrial motions filed by the defense, and any other reasonable continuance granted
other than upon Mr. Brefford’s own motion. There may also have been other reasons for
the statutory speedy trial time limits to be tolled or extended that are not apparent from the
record before us. However, because Mr. Brefford did not timely file a motion to dismiss
alleging a statutory speedy trial violation in the trial court, the state had no reason or
opportunity to support its basis for delay on the record or to otherwise argue why the state
believed any statutory tolling events should apply. See Boddie at ¶ 11.
brought to trial within 14 days after his or her motion to dismiss on speedy trial grounds is filed and served
upon the prosecutor. R.C. 2945.73(C)(2). If no motion is filed, the defendant must be brought to trial within
14 days after the trial court determines the statutory speedy trial time limit has expired. Id. Only if the
defendant’s case is not tried within that 14-day grace period are the defendant’s criminal charges to be
dismissed with prejudice. Id. The 14-day grace period can be extended at the request of the accused or due
to the fault or misconduct of the accused. Id.
The foregoing amendment to R.C. 2945.73 went into effect while Mr. Brefford’s case was pending. Case law
suggests the former version of R.C. 2945.73 would have applied to Mr. Brefford’s case. See, e.g., State v.
Knott, 2024-Ohio-2289, ¶ 47-54 (2d Dist.). But we need not determine this issue since its resolution is not
germane to our analysis of the ineffective assistance of counsel claim presented here.
No. 23AP-644 17
{¶ 59} Based on the record before us, we find Mr. Brefford has failed to demonstrate
that a motion to dismiss based on a violation of his statutory speedy trial rights had a
reasonable probability of success—as was his burden. Because Mr. Brefford has not shown
there was a reasonable probability that a motion to dismiss would have been successful, he
has failed to demonstrate that trial counsel was ineffective for failing to file such a motion.
Thus, he fails to satisfy the prejudice prong of Strickland with respect to this claim.
b. Failure to object to the trial court’s answer to jury’s question
about the carrying a concealed weapon jury instruction
{¶ 60} Mr. Brefford next argues his counsel’s agreement with the trial court’s answer
to a jury question about the carrying concealed weapon count constituted ineffective
assistance of counsel. Specifically, Mr. Brefford argues the court’s answer to that question
does not contain a correct statement of law. We disagree.
{¶ 61} The purpose of jury instructions is to properly guide the jury in deciding
questions of fact based on the applicable substantive law. See, e.g., State v. Griffin, 2014-
Ohio-4767, ¶ 5. Although a trial court “has broad discretion to decide how to fashion jury
instructions,” the trial court must “ ‘fully and completely’ ” give the jury all instructions that
are “ ‘relevant and necessary for the jury to weigh the evidence and discharge its duty as the
fact finder.’ ” State v. White, 2015-Ohio-492, ¶ 46, quoting State v. Comen, 50 Ohio St.3d
206 (1990), paragraph two of the syllabus. Jury instructions must therefore “present a
correct, pertinent statement of the law that is appropriate to the facts” of the case. Id. See
also Marshall v. Gibson, 19 Ohio St.3d 10, 12 (1985). In the absence of an objection to the
trial court’s response to a jury question, a party waives all but plain error. See, e.g., State v.
Long, 53 Ohio St.2d 91, 93-97 (1978); State v. Owens, 2020-Ohio-4616, ¶ 7; Crim.R. 30(A)
and 52(B).
{¶ 62} Further, “where, during the course of its deliberations, a jury requests further
instruction, or clarification of instructions previously given, a trial court has discretion to
determine its response to that request.” State v. Carter, 72 Ohio St.3d 545, 553 (1995). See
also State v. Preston-Glenn, 2009-Ohio-6771, ¶ 28 (10th Dist.) (“It is within the sound
discretion of the trial court to provide supplemental instructions in response to a question
from the jury.”). “The trial court's response to a jury’s question, when viewed in its entirety,
must be a correct statement of law and be consistent with or supplement the instructions
previously given to the jury.” State v. Jones, 2017-Ohio-1168, ¶ 17 (10th Dist.), citing
No. 23AP-644 18
Preston-Glenn at ¶ 28. Generally, we review a trial court’s response to a jury’s question for
an abuse of discretion. Id. at ¶ 17. Although an abuse of discretion is typically defined as
an unreasonable, arbitrary, or unconscionable decision, State v. Beavers, 2012-Ohio-3654,
¶ 8 (10th Dist.), no court has the authority, within its discretion, to commit an error of law.
State v. Akbari, 2013-Ohio-5709, ¶ 7 (10th Dist.), citing State v. Beechler, 2010-Ohio-1900,
¶ 70 (2d Dist.).
{¶ 63} Here, Mr. Brefford argues his trial counsel was ineffective for failing to object
to the court’s answer to the jury’s third question regarding the carrying a concealed weapon
count. To evaluate this assignment of error, then, we must determine whether the court’s
response to this question resulted in the jury being instructed on an incorrect statement of
law.
{¶ 64} To convict Mr. Brefford of carrying a concealed weapon, the state had to
prove Mr. Brefford knowingly carried or had, concealed on his person or concealed ready
at hand, a handgun other than a dangerous ordnance. See R.C. 2923.12(A)(2).
{¶ 65} Evidence presented at trial established Mr. Brefford was not wearing a shirt
at the time of the incident. The officers testified that when they first encountered
Mr. Brefford on his bike in the roadway, they drove by his left side. Moreover, Sergeant
Dover acknowledged that when he exited his cruiser to have a conversation with
Mr. Brefford on the sidewalk, he approached Mr. Brefford on his left side. And Sergeant
Dover agreed he did not see any firearm on Mr. Brefford’s person in either instance and he
did not know where the firearm came from. (Sept. 6, 2023 Tr. at 92-97.) Mr. Brefford
testified that he was carrying the gun on the right side of his waistband, that it was sticking
out of his waistband, and “clearly visible.” (Sept. 6, 2023 Tr. at 152.) Notably, the jury was
provided with Officer D.S. and Sergeant Dover’s body-worn camera footage depicting their
encounter with Mr. Brefford. And on review of that footage, we are not able to observe a
firearm in Mr. Brefford’s waistband leading up to the investigatory stop.
{¶ 66} The trial court initially provided the following instruction to the jurors in the
context of the elements of the carrying a concealed weapon offense: “A deadly weapon is
concealed when it is out of sight or so hidden that it cannot be seen by ordinary observation
by others near enough to see it. It is a question of fact for you, the jury, to decide whether
or not it is concealed. A deadly weapon need not be entirely hidden to be considered
No. 23AP-644 19
concealed.” (Sept. 6, 2023 Tr. at 256.) Regarding the “knowingly” element, the trial court
instructed the jury, in relevant part, as follows:
A person acts knowingly, regardless of purpose, when the
person is aware that the person’s conduct will probably cause a
certain result. A person has knowledge of circumstances when
a person is aware that such circumstances probably exist.
When knowledge of the existence of a particular fact is an
element of an offense, such knowledge is established if a person
subjectively believes that there is a high probability of its
existence and fails to make inquiry or acts with a conscious
purpose to avoid learning the fact.
(Sept. 6, 2023 Tr. at 246-47.) Neither party objected to any of the instructions provided by
the court.
{¶ 67} After the jurors retired to deliberate, they sent three questions to the trial
court regarding the carrying concealed weapon count. The question at issue here asked:
“The concealed carried weapon [instruction] states the defendant has to know they are
concealing it. If he doesn’t know he was concealing it, then does the charge not apply?”
(Sept. 6, 2023 Tr. at 269.) The trial court conferred with counsel for Mr. Brefford and the
state regarding the appropriate response. Ultimately, with the assent of both parties, the
court gave the following response to the jury: “Your question starts with an incorrect
statement of law. In the law regarding carrying a concealed weapon, Count 5, knowingly
applies to carried or had as in knowingly carried or knowingly had.” (Sept. 6, 2023 Tr. at
269-70.)
{¶ 68} Mr. Brefford argues the trial court’s response to the third jury question
contained an inaccurate statement of law and thus, his trial counsel was ineffective for
failing to object to it. Specifically, Mr. Brefford asserts that R.C. 2923.12 requires the state
to prove he knowingly concealed the weapon—not just that he knowingly carried or had
the weapon. In support, he cites to a 1983 decision from another Ohio appellate district
court finding that “[t]he gist of the [carrying concealed weapon] offense is knowing
concealment, not mere knowledge or mere possession.” (Emphasis in original.) State v.
Kline, 11 Ohio App.3d 208, 216 (6th Dist. 1983). (See Appellant’s Brief at 34.) Thus, he
contends his trial counsel should have objected to the trial court’s impermissible
modification of the necessary elements of the concealed carry offense.
No. 23AP-644 20
{¶ 69} However, we need not address the deficient performance prong of
Strickland. See Strickland, 466 U.S. at 697. Even if we were to agree with Mr. Brefford
that his trial counsel was deficient in failing to object to the trial court’s response to the jury
question at issue here, we nonetheless would find he has failed to satisfy his burden on
appeal of showing a reasonable probability that, but for counsel’s alleged error, the result
of the proceeding would have been different. Without prejudice, we do not need to consider
the adequacy of trial counsel’s performance. See, e.g., Strickland at 697; Wade, 2021-Ohio-
4090, at ¶ 19 (10th Dist.).
{¶ 70} As noted above, we do not consider the answers to juror questions in isolation
and instead must consider the charge to the jury as a whole. See, e.g., State v. Rutledge,
2019-Ohio-3460, ¶ 49 (10th Dist.). Mr. Brefford has not assigned as error the instructions
provided to the jury prior to deliberations, including the jury instruction on carrying a
concealed weapon. The jury charge given by the court prior to deliberations stated the
statutory elements of carrying a concealed weapon and defined the term “knowingly.” (See
Sept. 6, 2023 Tr. at 246-47, 255-57.) In those instructions, the jury was told that a deadly
weapon is concealed when it is “so hidden that it cannot be seen by ordinary observation by
others near enough to see it” and that it “need not be entirely hidden to be considered
concealed.” (Emphasis added.) (Sept. 6, 2023 Tr. at 256.) And Mr. Brefford does not
challenge the propriety of this instruction on appeal.
{¶ 71} “Whether a weapon is carried so that ordinary observation would give notice
of its presence is a question of fact to be resolved by the trier of fact.” State v. Gamble,
2021-Ohio-4089, ¶ 10 (10th Dist.), citing State v. Coker, 15 Ohio App.3d 97 (9th Dist. 1984).
Here, Mr. Brefford testified to placing the gun in the waistband of his pants without a
holster. (Sept. 6, 2023 Tr. at 152, 158.) It follows, then, that Mr. Brefford knew the weapon
was at least partially concealed. And, on review of Sergeant Dover’s body-worn camera
footage, we note that Mr. Brefford appears to be wearing at least three types of garments
on his lower extremities: a pair of light grey sweatpants (outer layer, sagging below the
waist), a solid black pair of shorts, boxers, or pants (middle layer, at the waist), and a blue-
and-white plaid pair of boxers, shorts or pants (inner layer, at the waist). At trial,
Mr. Brefford did not specify which of these three or more layers he had his firearm tucked
into. And we note the firearm he was carrying was predominately black, which would blend
in with the middle layer of solid black shorts, boxers, or pants Mr. Brefford was wearing.
No. 23AP-644 21
{¶ 72} The jury could have viewed these facts as proving Mr. Brefford had
knowledge that, at a minimum, he was partially concealing the firearm when he placed it
partway into one of the layers of his lower-extremity garments. Further, the jury could have
found that the portion of the black gun allegedly sticking out from Mr. Brefford’s waistband
blended with the middle layer of clothing—black shorts or pants—he was wearing.
Concealed in this manner, the gun’s existence may not have been visible upon ordinary
observation, and thus was sufficiently concealed so as to constitute a violation of
R.C. 2923.12. Moreover, the jury was free to reject Mr. Brefford’s testimony claiming the
firearm was tucked in his waistband and “clearly visible.” (See Sept. 6, 2023 Tr. at 152.)
See, e.g., State v. Ramirez, 2019-Ohio-4591, ¶ 30-31 (10th Dist.). Indeed, the evidence
presented at trial did not definitively establish where the firearm was located before his
physical altercation with Sergeant Dover, during which the firearm fell from Mr. Brefford’s
person onto the ground. (See, e.g., Trial Ex. A1 at 2:29; Sept. 6, 2023 Tr. at 97.)
{¶ 73} We have repeatedly recognized that “a partially concealed weapon constitutes
a ‘concealed’ weapon within the meaning of R.C. 2923.12.” (Citations omitted.) State v.
Walker, 2005-Ohio-6365, ¶ 84 (10th Dist.). This is because “ ‘the evident purpose of R.C.
2923.12(A) is to ensure that anyone who comes into contact with a person who is armed
with a deadly weapon will be aware of the fact that they are so armed. Thus aware, the
individual can act with a heightened degree of prudence.’ ” Gamble at ¶ 10, quoting State
v. Curry, 1996 Ohio App. LEXIS 4949 (2d Dist. Nov. 15, 1996). “ ‘[A] weapon is concealed
if it is so situated as not to be discernable by ordinary observation by those near enough
to see it were it not concealed, who would come into contact with the possessor in the usual
associations of life.’ ” (Emphasis added.) Id., quoting State v. Pettit, 20 Ohio App.2d 170,
173-74 (4th Dist. 1969). This means that “ ‘[a] weapon need not be completely invisible to
be concealed for purposes of R.C. 2923.12.’ ” Walker at ¶ 84, quoting State v. Graham,
1998 Ohio App. LEXIS 506 (10th Dist. Feb. 10, 1998) (Close, J., dissenting.), citing State v.
Almalik, 41 Ohio App.3d 101 (8th Dist. 1987), and Coker at 97. See also Pettit at 174, citing
Shipley v. State, 243 Md. 262 (1966) (“[A]bsolute invisibility is not required, since
ordinary observation does not extend to a search unusually careful, thorough or
detailed, made because of suspicion that contraband which is not visible by ordinary
observation may in actuality be present.”) (Emphasis added.)
No. 23AP-644 22
{¶ 74} We also note that, in response to the jury’s first question—inquiring whether
carrying a firearm “on someone’s waist is . . . considered ‘concealed’ ”—the trial court
directed the jury to refer back to the written instructions, specifically the paragraph
regarding concealment of a deadly weapon, which, again, has not been challenged on
appeal. (See Sept. 6, 2023 Tr. at 268, referencing Sept. 6, 2023 Jury Instructions at 10-11.)
Further, the court declined to provide the jury with “examples of carrying a gun without
‘concealing’ it,” as requested by the jury’s second question to the court. (See Sept. 6, 2023
Tr. at 269.) Thus, when the court’s instructions to the jury in response to all three questions
are read in context, and not in isolation, we find the court’s response to the third jury
question was consistent with the instructions previously given. See, e.g., Rutledge, 2019-
Ohio-3460, at ¶ 49 (10th Dist.); Jones, 2017-Ohio-1168, at ¶ 20 (10th Dist.); Preston-Glenn,
2009-Ohio-6771, at ¶ 29 (10th Dist.).
{¶ 75} In sum, Mr. Brefford admitted to partially concealing a firearm when he
testified about tucking it into his waistband without a holster. Evidence and testimony
presented at trial—including Officer D.S. and Sergeant Dover’s testimony and body-worn
camera footage—established that the firearm was “ ‘so situated as not to be discernable by
ordinary observation by those near enough to see it were it not concealed.’ ” (Emphasis
added.) Gamble, 2021-Ohio-4089, at ¶ 10 (10th Dist.), quoting Pettit, 20 Ohio App.2d at
173-74. As such, the evidence presented at trial established Mr. Brefford knowingly carried
or had on his person or ready at hand a “concealed weapon” within the meaning of R.C.
2923.12.
{¶ 76} For these reasons, we find that Mr. Brefford has failed to establish he was
prejudiced by trial counsel’s failure to object to the trial court’s response to the jury question
at issue and, thus, is unable to demonstrate he received ineffective assistance of trial
counsel under Strickland.
{¶ 77} Having found that Mr. Brefford failed to establish he was prejudiced by either
of trial counsel’s purported failures, we overrule Mr. Brefford’s third assignment of error.
C. Fourth Assignment of Error: Insufficient Evidence and Manifest
Weight
{¶ 78} In his fourth assignment of error, Mr. Brefford argues the evidence presented
at trial was insufficient to support his convictions for aggravated robbery, assault with a
No. 23AP-644 23
firearm specification, and carrying a concealed weapon. He also contends these convictions
were against the manifest weight of the evidence. For the following reasons, we disagree.
1. Legal Standard and Standard of Review
{¶ 79} Whether evidence is sufficient as a matter of law to support a conviction
involves a determination of whether the state met its burden of production at trial. See,
e.g., State v. Smith, 2004-Ohio-4786, ¶ 16 (10th Dist.); State v. Frazier, 2007-Ohio-11, ¶ 7
(10th Dist.); State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). We do not weigh the
evidence but instead determine “ ‘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.’ ” State v. Leonard, 2004-Ohio-
6235, ¶ 77, quoting State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.
{¶ 80} In evaluating a sufficiency challenge, we assume the state’s witnesses testified
truthfully and determine whether that testimony and any other evidence presented at trial
satisfied each element of the offense. See State v. Watkins, 2016-Ohio-8272, ¶ 31 (10th
Dist.), quoting State v. Hill, 2008-Ohio-4257, ¶ 41 (10th Dist.). Thus, evidence is sufficient
to support a conviction where, if believed, that evidence would allow any rational trier of
fact to conclude that the state proved each element of the offense beyond a reasonable
doubt. Frazier at ¶ 7, citing Jenks at paragraph two of the syllabus.
{¶ 81} In contrast, a manifest weight challenge attacks the credibility of the evidence
presented and questions whether the state met its burden of persuasion. See, e.g., State v.
Richey, 2018-Ohio-3498, ¶ 50 (10th Dist.), citing Eastley v. Volkman, 2012-Ohio-2179,
¶ 11-13, citing Thompkins at 386-87. “Although evidence may be sufficient to sustain a
guilty verdict, the issue of manifest weight requires a different type of analysis.” State v.
Walker, 2003-Ohio-986, ¶ 43 (10th Dist.). “ ‘[W]eight of the evidence concerns the
inclination of the greater amount of credible evidence offered to support one side of the
issue rather than the other.’ ” State v. Petty, 2017-Ohio-1062, ¶ 60 (10th Dist.), quoting
State v. Boone, 2015-Ohio-2648, ¶ 49 (10th Dist.), citing Thompkins at 387.
{¶ 82} When considering an appellant’s claim that a conviction is against the
manifest weight of the evidence, this court sits as a “thirteenth juror” and may disagree
“with the factfinder’s resolution of the conflicting testimony.” Thompkins, 78 Ohio St.3d at
387, citing Tibbs v. Florida, 457 U.S. 31, 42 (1982). See also State v. Martin, 2022-Ohio-
4175, ¶ 26. In making this determination, we must examine the entire record, weigh the
No. 23AP-644 24
evidence and all reasonable inferences, consider the witnesses’ 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. See, e.g., Sparre v. Ohio Dept. of Transp., 2013-Ohio-4153, ¶ 10 (10th
Dist.); Eastley at ¶ 20; Thompkins at 387; Martin at ¶ 26.
{¶ 83} Although we review credibility when considering the manifest weight of the
evidence, we are cognizant that determinations regarding credibility of witnesses and the
weight of testimony are primarily for the trier of fact. See, e.g., State v. DeHass, 10 Ohio
St.2d 230 (1967), paragraph one of the syllabus; Morris v. Ohio Dept. of Rehab. & Corr.,
2021-Ohio-3803, ¶ 64 (10th Dist.), citing Watson v. Ohio Dept. of Rehab. & Corr., 2012-
Ohio-1017, ¶ 31 (10th Dist.), citing Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80
(1984). The trier of fact is best able “to view the witnesses and observe their demeanor,
gestures and voice inflections, and use these observations in weighing the credibility of the
proffered testimony.” Seasons Coal Co., Inc. at 80.
{¶ 84} To reverse a jury verdict as being against the manifest weight of the evidence,
a unanimous concurrence of all three judges on the court of appeals panel reviewing the
case is required pursuant to Article IV, Section 3(B)(3) of the Ohio Constitution. Bryan-
Wollman v. Domonko, 2007-Ohio-4918, ¶ 2-4, citing Thompkins at paragraph four of the
syllabus.
2. Analysis
{¶ 85} Mr. Brefford argues his convictions for aggravated robbery, assault with a
three-year firearm specification, and carrying a concealed weapon are not supported by
sufficient evidence or, in the alternative, are against the manifest weight of the evidence.
We disagree.
a. Aggravated Robbery
{¶ 86} In order to convict Mr. Brefford of aggravated robbery, the state had to prove
that he knowingly, without privilege to do so, removed, attempted to remove, deprived, or
attempted to deprive a known law enforcement officer, who was acting within the course
and scope of the officer’s duties, of a deadly weapon. R.C. 2911.01(B). According to
R.C. 2901.22(B), “[a] person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or will probably be of a
certain nature. A person has knowledge of circumstances when the person is aware that
No. 23AP-644 25
such circumstances probably exist.” Additionally, a defendant acts knowingly, when,
although not intending the result, he or she is nevertheless aware that the result will
probably occur. State v. Edwards, 83 Ohio App.3d 357, 361 (10th Dist. 1992).
{¶ 87} Here, testimony and body-worn camera footage established that after
Sergeant Dover informed Mr. Brefford he was not free to leave, Mr. Brefford stood up from
the bicycle he had been sitting on. (Sept. 6, 2023 Tr. at 76.) Sergeant Dover “took that as a
sign that he might be trying to flee,” so he immediately grabbed ahold of the top strap of
the backpack on Mr. Brefford’s back and began patting down the smaller belt bag
Mr. Brefford was wearing across his chest. (Sept. 6, 2023 Tr. at 76, 95-96.) At this point,
Mr. Brefford put his bicycle on the ground, turned his back to Sergeant Dover, and began
pushing up against him while Sergeant Dover was still holding onto the top handle of
Mr. Brefford’s backpack. (Sept. 6, 2023 Tr. at 76-77, 96; Trial Ex. B1.) The two men began
to struggle, with Sergeant Dover ultimately pulling Mr. Brefford to the ground. (See Sept. 6,
2023 Tr. at 77-79, 96; Trial Ex. B1.) In the midst of the struggle, Sergeant Dover observed
a firearm fall onto the ground a few feet in front of him and yelled out “gun,” and Officer
D.S. ran over to assist. (Sept. 6, 2023 Tr. at 29-30, 77-79, 96-97; Trial Ex. B1.) Mr. Brefford
struggled with officers for several minutes before they were able to place him in handcuffs.
{¶ 88} The body-worn camera footage showed Mr. Brefford attempting to get back
up from the ground and moving toward the firearm while officers attempted to control him
on the ground. Ultimately, Mr. Brefford was able to gain control of the firearm in his left
hand. (See Sept. 6, 2023 Tr. at 29-30, 79-81, 98-101; Trial Ex. B1.) Officer D.S. pinned
Mr. Brefford’s left hand down and attempted to seize the firearm but Mr. Brefford “was
consistently putting pressure in an upward position that would move the firearm towards
us if we let go of holding his arm down.” (Sept. 6, 2023 Tr. at 81. See also Sept. 6, 2023 Tr.
at 30-33, 99-100.) Officer D.S. and Sergeant Dover made multiple attempts at prying the
firearm from Mr. Brefford’s left hand, with Mr. Brefford “using his right hand to try to pull
[Officer D.S.’s] left arm off of his” and otherwise attempting to keep the firearm away from
them. (See Sept. 6, 2023 Tr. at 30-33, 79-81, 99-100; Trial Ex. A1; Trial Ex. B1.) Both
Officer D.S. and Sergeant Dover testified they believed Mr. Brefford was attempting to use
it on them at that time. (See Sept. 6, 2023 Tr. at 30-32, 79-81, 99-100.) Officer D.S. further
testified that even after he was able to remove the firearm from Mr. Brefford’s left hand,
No. 23AP-644 26
Mr. Brefford reached over with his right hand and attempted to pull the firearm away from
him. (Sept. 6, 2023 Tr. at 32-33.)
{¶ 89} After Officer D.S. peeled the firearm out of Mr. Brefford’s left hand,
Mr. Brefford continued struggling with officers while they attempted to get him under
control. Officer D.S. testified that Mr. Brefford “kept reaching underneath his body towards
the backpack” with his right hand, which was concerning because the officers did not know
if Mr. Brefford had any other weapons on his person. (Sept. 6, 2023 Tr. at 33-34.) Officer
D.S. was holding the firearm he had just seized from Mr. Brefford in his right hand, out
away from him, while Mr. Brefford was “kicking and flailing about and swinging his arms
and trying to reach for things” with his right arm. (Sept. 6, 2023 Tr. at 33.) Officer D.S.
grabbed Mr. Brefford’s right arm with his left hand and used his right hand—still holding
the firearm—to hold Mr. Brefford’s right leg down when Mr. Brefford moved his left leg in
toward him, causing Officer D.S.’s right hand to be caught in between Mr. Brefford’s legs.
(See Sept. 6, 2023 Tr. at 33-34; Trial Ex. A1.) Officer D.S. testified that Mr. Brefford
“immediately closed his thighs and squeezed against my [right] hand and began to stretch
his body out and push down with his thighs while applying pressure on both sides of my
hand and trying to pull the gun out of my hand with his thighs.” (Sept. 6, 2023 Tr. at 34.)
After Sergeant Dover struck Mr. Brefford, Officer D.S. was able to remove his right hand
with the gun from between Mr. Brefford’s legs and give it to another officer who had arrived
for backup. (Sept. 6, 2023 Tr. at 33-35; Trial Ex. A1.) Mr. Brefford continued to struggle,
eventually requiring four officers to get him in handcuffs.
{¶ 90} Evidence presented at trial established that the firearm seized from
Mr. Brefford was operable and loaded. It follows, then, that the state proved the seized
firearm was a “deadly weapon” as defined in R.C. 2923.11(A) as “any instrument, device, or
thing capable of inflicting death, and designed or specially adapted for use as a weapon, or
possessed, carried, or used as a weapon.”
{¶ 91} Viewing this evidence in the light most favorable to the state, as we must on
a sufficiency of the evidence review, we find the evidence is sufficient for a rational trier of
fact to conclude that Mr. Brefford knowingly, without privilege to do so, removed,
attempted to remove, deprived, or attempted to deprive a known law enforcement
officer, who was acting within the course and scope of the officer’s duties, of a deadly
weapon. We likewise cannot say the jury clearly lost its way and created a manifest
No. 23AP-644 27
miscarriage of justice in crediting the state’s evidence and finding Mr. Brefford guilty of
aggravated robbery under R.C. 2911.01(B). See, e.g., DeHass, 10 Ohio St.2d 230 at
paragraph one of the syllabus; Morris, 2021-Ohio-3803, at ¶ 64 (10th Dist.), citing Watson,
2012-Ohio-1017, at ¶ 31 (10th Dist.), citing Seasons Coal Co., Inc., 10 Ohio St.3d at 80.
{¶ 92} Notwithstanding our finding that Mr. Brefford violated the elements of
aggravated robbery, as enumerated in R.C. 2911.01(B), we believe it is prudent to note how
this application of the law distorts the crime of aggravated robbery. By virtue of its name,
the offense of aggravated robbery presupposes robbery, which in turn, presupposes a theft.
There can be no robbery, as defined in R.C. 2911.02(A), absent theft or attempted theft. In
the present case, however, Mr. Brefford has been convicted of aggravated robbery for his
attempt to wrest his own gun back from police during his arrest.
{¶ 93} Ohio law defines theft as “knowingly obtain[ing] or exert[ing] control over”
the property of another. R.C. 2913.02(A). Robbery is theft with an additional element: the
use or threat of force, physical harm, or the possession of a “deadly weapon.”
R.C. 2911.02(A). Similarly, aggravated robbery is generally understood to be theft with an
additional element: the possession of a “deadly weapon” and the use or threat of its use; the
possession of a “dangerous ordnance,” which consists of a wide range of illegal weapons
and explosives; or attempting to or actually inflicting serious physical harm on another.
R.C. 2911.01(A). See R.C. 2923.11(K) (defining “dangerous ordnance”). However, as
applicable here, the aggravated robbery statute also provides an alternate definition of an
aggravated robbery offense that does not require any showing of a theft or an alleged
theft. Instead, R.C. 2911.01(B) provides:
No person, without privilege to do so, shall knowingly remove
or attempt to remove a deadly weapon from the person of a law
enforcement officer, or shall knowingly deprive or attempt to
deprive a law enforcement officer of a deadly weapon, when
both of the following apply:
(1) The law enforcement officer, at the time of the removal,
attempted removal, deprivation, or attempted deprivation, is
acting within the course and scope of the officer’s duties;
(2) The offender knows or has reasonable cause to know that
the law enforcement officer is a law enforcement officer.
No. 23AP-644 28
{¶ 94} In previous appeals involving the application of R.C. 2911.01(B), the “deadly
weapon” at issue was the police officer’s own service weapon. See, e.g., State v. Byrd,
2004-Ohio-7127, ¶ 3 (1st Dist.) (appellant “tried to remove [the officer’s] sidearm from its
holster”); State v. Kincaid, 2002-Ohio-6116, ¶ 3 (9th Dist.) (appellant “tried to remove an
officer’s revolver from the holster”); State v. Ramsey, 2014-Ohio-4881, ¶ 6 (11th Dist.)
(officer “noticed that [appellant’s] hand was on [the officer’s] firearm”); State v. Scruggs,
2000 Ohio App. LEXIS 850, *2 (10th Dist.) (“[a]ppellant grabbed the end of [the officer’s]
rifle”); State v. Coleman, 2014-Ohio-856, ¶ 4 (2d Dist.) (officer “testified that he could feel
[appellant] tugging at the handgun [the officer] kept holstered on his belt”); State v. Crespo,
2024-Ohio-5192, ¶ 3 (7th Dist.) (“[a]ppellant took the officer’s service weapon and fled”);
State v. Hathorn, 2023-Ohio-3936, ¶ 32 (3d Dist.) (officer “testified that [appellant] had
grabbed ahold of [the officer’s] taser”); State v. Neal, 2004-Ohio-6823, ¶ 6 (4th Dist.)
(appellant “grabbed the asp baton out of [the officer’s] hand”); State v. Evans, 2002-Ohio-
3322, ¶ 109 (10th Dist.) (“[t]o prove aggravated robbery, the prosecution had to
demonstrate that appellant knowingly attempted to remove the deputy sheriff’s weapon”).
{¶ 95} On review of cases applying R.C. 2911.01(B), it does not appear that any Ohio
appellate court or the Supreme Court has ever squarely determined whether
R.C. 2911.01(B) applies when a defendant attempts to regain control over his own deadly
weapon. In our view, it appears the legislature’s effort to protect police officers from the
theft or attempted theft of their own service weapons in R.C. 29011.01(B) was not
intended to apply in circumstances like those presented here. Indeed, if this provision of
the statute is construed as divorcing an aggravated robbery offense charged under
R.C. 2911.01(B) from the element of theft—as it is written—then the state would be free to
charge a vast array of conduct as an aggravated robbery.
{¶ 96} For instance, a person stopped for a traffic violation could inform a police
officer that he has a firearm in his locked glove compartment but decline the officer’s
request to conduct a warrantless search of his vehicle. This could arguably constitute a
knowing “attempt to deprive a law enforcement officer of a deadly weapon.” R.C.
2911.01(B). Or, a person who is detained while lawfully carrying a firearm in his holster
could be charged with violating R.C. 2911.01(B) if that person steps to the side or turns
around while an officer is attempting to remove that gun from him. It is difficult to accept
No. 23AP-644 29
that the legislature intended to enact a statute so broadly written that such conduct would
render a person guilty of aggravated robbery, a first-degree felony.
{¶ 97} Nonetheless, it remains that the legislature saw fit to label the crime
described in R.C. 2911.01(B) as aggravated robbery. In the absence of any ambiguity
challenge to this provision by Mr. Brefford’s counsel in the trial court or on appeal, we
decline to address it. See, e.g., State ex rel. Twitchell v. Saferin, 2018-Ohio-3829, ¶ 11
(O’Connor, C.J., concurring). And, having found that the evidence and testimony presented
at trial satisfied all of the essential elements of that offense under R.C. 2911.01(B), we must
affirm a conviction for “aggravated robbery” that involves neither robbery nor theft. Any
concerns about the overbreadth of R.C. 2911.01(B)’s application must be affirmatively
raised in litigation or otherwise left for our General Assembly to resolve.
b. Assault and Accompanying Firearm Specification
{¶ 98} To convict Mr. Brefford of assault, the state had to prove that he knowingly
caused or attempted to cause physical harm to Officer D.S. and/or Sergeant Dover.
R.C. 2903.13(A). And because the assault count was charged with a three-year firearm
specification, the state also had to prove Mr. Brefford had a firearm on or about his person
or under his control while committing the offense and displayed a firearm, brandished a
firearm, indicated he possessed a firearm, or used a firearm to facilitate the offense.
R.C. 2941.145(A). As charged here, R.C. 2903.13(C)(5)(a) further provides that an assault
offense is a fourth-degree felony if “[t]he victim of the offense is a peace officer . . . while in
the performance of the officer’s . . . official duties.” There is no dispute that Sergeant Dover
and/or Officer D.S. were peace officers acting in the performance of their official duties, as
specified in this provision.
{¶ 99} Under R.C. 2901.01(A)(3), “[p]hysical harm to persons” refers to “any injury,
illness, or other physiological impairment, regardless of its gravity or duration.”
{¶ 100} Combined with the definition of “knowingly” found in R.C. 2901.22(B),
assault under R.C. 2903.13(A) does not require a defendant intend to cause physical harm,
but that the defendant acted with an awareness that the conduct probably will cause such
harm. See, e.g., State v. Anderson, 2010-Ohio-5561, ¶ 13 (10th Dist.). Further, the state is
not required to prove that the officers were actually harmed, only that Mr. Brefford
attempted to cause physical harm. See R.C. 2903.13(A).
No. 23AP-644 30
{¶ 101} On appeal, Mr. Brefford argues that although he was intentionally struggling
with the officers, his physical transgressions against the officers were not knowingly
committed. (See Appellant’s Brief at 43.) It is well-established, however, that potential or
actual harm caused to officers by a defendant “ ‘flailing’ to evade arrest is sufficient to
support a conviction for knowingly causing harm or attempting to cause harm.” State v.
Pierce, 2023-Ohio-528, ¶ 26 (8th Dist.). See also State v. Munoz, 2013-Ohio-4987, ¶ 12
(10th Dist.) (“[w]hen flailing one’s arms while in close proximity to another, it is probable
that one will strike the other” and cause injury); State v. Jones, 2003-Ohio-3004, ¶ 57 (8th
Dist.) (“by refusing to comply with police orders and submit to their authority when he was
placed in the cruiser, the appellant possessed the requisite knowledge that his conduct, as
demonstrated by his resistance, kicking, head butting, shoulder butting and flailing about,
would probably cause a certain result”).
{¶ 102} Contrary to Mr. Brefford’s contention otherwise, the act of intentionally
flailing one’s limbs in close proximity to officers attempting to effectuate a lawful arrest is
a knowing act. See, e.g., Edwards, 83 Ohio App.3d at 361. Common sense dictates that
intentionally swinging arms, kicking feet, and thrashing about when others are near the
flailing limbs probably will result in physical harm to the other person. It is no different
than intentionally discharging a firearm with no intent to actually harm anyone. Indeed,
regardless of the shooter’s subjective intent, under the letter of the law, the shooter
committed the act knowingly. See State v. Wilson, 2024-Ohio-776, ¶ 24 (“Intentionally
shooting toward or in the vicinity of another person when there is a risk of injury meets the
‘knowingly’ element of felonious assault.”).
{¶ 103} As described above, the testimony and body-worn camera footage
established that Mr. Brefford struggled with Officer D.S. and Sergeant Dover for several
minutes while holding a firearm in his left hand and attempting to regain control of it after
Officer D.S. wrested it out of his hand. The evidence also showed Mr. Brefford flailing about
on the ground, kicking, grabbing the officers with his right hand, and squeezing Officer
D.S.’s right arm with his thighs while Officer D.S. and Sergeant Dover were attempting to
detain him. In addition, several times throughout the encounter, Mr. Brefford was told by
officers to stop struggling, to let go of the gun, to get his hands away from them, and to stop
resisting. These circumstances demonstrate knowledge on Mr. Brefford’s part that his
No. 23AP-644 31
conduct could cause injury to the officers who were on top of him and attempting to secure
him in handcuffs.
{¶ 104} Mr. Brefford also contends that the state’s evidence was not sufficient to find
him guilty of the three-year firearm specification. Pursuant to R.C. 2941.145, the three-year
firearm specification statute, an offender’s sentence for the underlying offense is enhanced
if the offender “displayed the firearm, brandished the firearm, indicated that the offender
possessed the firearm, or used it to facilitate the offense.” Our primary goal in construing
any statute is “ ‘to ascertain and give effect to the intent of the legislature.’ ” White, 2015-
Ohio-492, at ¶ 29, quoting State v. Taylor, 2014-Ohio-460, ¶ 14. Interpreting R.C. 2941.145
in White, the Supreme Court observed that “[t]he purpose of a firearm specification is to
enhance the punishment of criminals who voluntarily introduce a firearm while committing
an offense and to deter criminals from using firearms.” Id. at ¶ 31. Therefore, in order for
Mr. Brefford’s sentence to be enhanced with a three-year firearm specification, the state
was required to produce evidence showing that he displayed the firearm, brandished it,
indicated that he possessed it, or used it to facilitate the assault offense.
{¶ 105} Here, Mr. Brefford grabbed the firearm that fell from his person during the
altercation with officers, refused to let go of the firearm despite the officers’ repeated
commands to do so, attempted to point it in the direction of the officers, and tried to regain
control of the firearm after Officer D.S. removed it from his hand. Both Officer D.S. and
Sergeant Dover testified they believed Mr. Brefford was going to shoot them with the
firearm during the altercation. (See Sept. 6, 2023 Tr. at 30-33, 77-81.) On review, we find
the officers’ body-worn camera footage reasonably supported that belief. Consistent with
the guidance from the Supreme Court regarding the legislative intent behind the firearm-
specification statute, we find the evidence presented in this case supported the jury’s
finding that Mr. Brefford displayed or brandished a firearm, indicated he possessed the
firearm, or used the firearm to facilitate the assault offense under R.C. 2941.145(A).
{¶ 106} In light of the officers’ testimony and body-worn camera footage, the
distinction between sufficiency and manifest weight is not significant. Under any test, the
evidence was both sufficient and credible, as the jury found, in order to prove Mr. Brefford
guilty of the assault of Officer D.S. and/or Sergeant Dover. And for the reasons stated
above, we likewise conclude the three-year firearm specification sentencing enhancement
was supported by sufficient and credible evidence that Mr. Brefford had a firearm under
No. 23AP-644 32
his control while committing the offense, and that Mr. Brefford displayed the firearm,
brandished the firearm, indicated that he possessed the firearm, or used it to facilitate the
offense.
c. Carrying a Concealed Weapon
{¶ 107} R.C. 2923.12 proscribes the offense of carrying a concealed weapon.
Mr. Brefford was convicted of a violation of subsection (A)(2), which prohibits a person
from knowingly carrying or having, concealed on the person’s person or concealed ready at
hand, a handgun other than a dangerous ordnance. R.C. 2923.12(A)(2).
{¶ 108} As described above, Mr. Brefford admitted to partially concealing a firearm
when he testified about tucking it into the waistband of one of the three layers of clothing
he was wearing at or below his waistline. (See Sept. 6, 2023 Tr. at 152-53, 158.) He also
testified it was not secured in a holster. (Sept. 6, 2023 Tr. at 158.) The gun was mostly
black and Mr. Brefford’s middle layer of clothing—shorts or pants worn at his waist—was
also black. Officer D.S. and Sergeant Dover testified they did not see a firearm on
Mr. Brefford’s person at any point before it fell to the ground, and no firearm on his person
can be seen in either of their body-worn camera footage. (See Sept. 6, 2023 Tr. at 56-57,
97-98.) This evidence supports a reasonable inference that the firearm was “ ‘so situated
as not to be discernable by ordinary observation by those near enough to see it were it
not concealed.’ ” (Emphasis added.) Gamble, 2021-Ohio-4089, at ¶ 10 (10th Dist.), quoting
Pettit, 20 Ohio App.2d at 173-74. Thus, the jury, as the trier of fact, could reasonably
conclude that Mr. Brefford knowingly carried or had on his person or ready at hand a
“concealed weapon” within the meaning of R.C. 2923.12.
{¶ 109} Again, the distinction between sufficiency and weight is not significant as to
this offense. Under any test, the evidence was both sufficient and credible to prove, as the
jury found, Mr. Brefford guilty of carrying a concealed weapon.
d. Disposition
{¶ 110} Based on the foregoing, Mr. Brefford’s contention that his convictions for
aggravated robbery, assault with a firearm specification, and carrying a concealed weapon
are not supported by sufficient evidence or, in the alternative, are against the manifest
weight of the evidence is not well-taken.
{¶ 111} As such, we overrule Mr. Brefford’s fourth assignment of error.
No. 23AP-644 33
D. Second Assignment of Error: Consecutive Sentences on Three
Firearm Specifications
{¶ 112} The trial court sentenced Mr. Brefford to an indefinite prison term of 3 to 4
and one-half years for robbery; a 1-year prison sentence for assault with a consecutive
sentence of 3 years as to the firearm specification; a 6-month prison sentence for
obstructing official business with a consecutive sentence of 3 years as to the firearm
specification; a 6-month prison sentence for drug possession with a consecutive sentence
of 1 year as to the firearm specification; and a 1-year prison sentence for carrying a
concealed weapon. The court ordered all counts to be served concurrently to each other
but consecutive to each specification, for a total aggregate prison term of 10 to 11 and one-
half years.
{¶ 113} In his second assignment of error, Mr. Brefford contends the trial court
should have merged mandatory prison sentences imposed for each of the three firearm
specifications because they were based upon the same act or transaction. We disagree.
{¶ 114} R.C. 2953.08(G)(2) generally governs our review of felony sentences. See,
e.g., State v. Jones, 2020-Ohio-6729, ¶ 26-42; State v. Toles, 2021-Ohio-3531, ¶ 7
(Brunner, J., concurring). Under that statute, we are permitted to modify or vacate a
sentence only if we clearly and convincingly find either: (1) the record does not support the
sentencing court’s findings under certain statutes, including R.C. 2929.14(C)(4); or (2) the
sentence is otherwise contrary to law. Jones at ¶ 30-39; R.C. 2953.08(G)(2).
{¶ 115} R.C. 2929.14(C)(4), the consecutive sentencing statute, applies to “multiple
prison terms [that] are imposed on an offender for convictions of multiple offenses.”
(Emphasis added.) A specification is a sentencing enhancement, not a separate criminal
offense. State v. Ford, 2011-Ohio-765, ¶ 16. By its own terms, then, R.C. 2929.14(C)(4)
does not apply to penalty enhancing specifications. And because firearm specifications are
not separate offenses, they cannot be allied offenses of similar import for purposes of
R.C. 2941.25, the allied offenses statute. See, e.g., State v. Logan, 2025-Ohio-1772, ¶ 9-12;
Ford at ¶ 16-19.
{¶ 116} Because R.C. 2929.14(B)(1)(g) specifically applies to penalty enhancing
specifications, this statute controls our analysis. That provision states, in relevant part:
If an offender is convicted of or pleads guilty to two or more
felonies, if one or more of those felonies are . . . aggravated
No. 23AP-644 34
robbery. . . and if the offender is convicted of or pleads guilty to
a specification of the type described under division (B)(1)(a) of
this section in connection with two or more of the felonies, the
sentencing court shall impose on the offender the prison term
specified under division (B)(1)(a) of this section for each of the
two most serious specifications of which the offender is
convicted or to which the offender pleads guilty and, in its
discretion, also may impose on the offender the prison term
specified under that division for any or all of the remaining
specifications.
R.C. 2929.14(B)(1)(g).
{¶ 117} Thus, to prevail on his second assignment of error, Mr. Brefford must show
the trial court plainly erred in imposing a prison sentence for all three firearm
specifications. At sentencing, Mr. Brefford argued that merger was appropriate for the
aggravated robbery, obstructing official business, assault, and carrying a concealed weapon
counts. The state disagreed. In the alternative, Mr. Brefford asked the court to impose
“concurrent sentences on the underlying felony [offenses] separate and apart from the
firearm specification counts.” (Oct. 11, 2023 Tr. at 302.) Ultimately, the court opted to take
this route and thus made no findings on whether the offenses should merge for purposes of
sentencing. (See Oct. 11, 2023 Tr. at 318-19.) And Mr. Brefford does not attribute any error
to the court’s failure to address the merger issue on appeal.
{¶ 118} The narrow issue before us, then, is the application of R.C. 2929.14(B)(1)(g).
On appeal, Mr. Brefford argues R.C. 2929.14(B)(1)(g) should not apply because no firearm
specifications were linked to the aggravated robbery count. Although aggravated robbery
is listed in R.C. 2929.14(B)(1)(g)—which triggers the imposition of the “two most serious”
firearm specifications—he contends it is unclear from the statute what a conviction of a
firearm specification “in connection with two or more of the felonies” means.
{¶ 119} A court interpreting a statute must give effect to the legislature’s intent.
Ayers v. Cleveland, 2020-Ohio-1047, ¶ 17. Our starting point is the language of the statute
itself. Id. “If the statute’s language is plain and unambiguous, we apply it as written.” State
v. Bollar, 2022-Ohio-4370, ¶ 10. Only ambiguous language requires deciphering. See
Wingate v. Hordge, 60 Ohio St.2d 55, 58 (1979). We may not create ambiguity or “modify
an unambiguous statute under the guise of judicial interpretation.” State ex rel. Sears,
Roebuck & Co. v. Indus. Comm., 52 Ohio St.3d 144, 148 (1990).
No. 23AP-644 35
{¶ 120} R.C. 2929.14(B)(1)(g) is plain and unambiguous. It requires a trial court to
sentence a defendant convicted of multiple firearm specifications to prison for the two most
serious specifications if the defendant has been found guilty of at least two felony offenses
and one of those offenses is specified in R.C. 2929.14(B)(1)(g). See Bollar at ¶ 19. However,
R.C. 2929.14(B)(1)(g) does not dictate which firearm specification(s) a defendant in such
situation must be convicted of in order for that provision to apply. Thus, in concluding that
R.C. 2929.14(B)(1)(g) applies even when a firearm specification is not attached to one of
the felony offenses listed in the statute, we give “effect to the legislature’s intent by simply
applying the law as written.” State v. Faggs, 2020-Ohio-523, ¶ 15.
{¶ 121} Here, Mr. Brefford was convicted of two or more felonies—one of which
included aggravated robbery—and multiple firearm specifications. Thus, according to the
plain language of R.C. 2929.14(B)(1)(g), he must at least receive prison terms for the two
most serious specifications for which he was convicted. Further, the trial court had
discretion to impose a sentence on “any or all of the remaining specifications.”
R.C. 2929.14(B)(1)(g). Because the court was not required to make any findings before
imposing, at its discretion, a consecutive prison sentence on the third firearm specification,
we cannot conclude its imposition was contrary to law. Accordingly, we find no basis to
conclude the court erred in imposing prison terms for all three firearm specifications in this
case.
{¶ 122} Mr. Brefford also asserts that R.C. 2929.14(B)(1)(g) violates the double
jeopardy protection against imposition of multiple punishments for the same offense. The
Double Jeopardy Clause of the Fifth Amendment to the United States Constitution states
that no person shall “be subject for the same offense to be twice put in jeopardy of life or
limb,” applied to the states through the Fourteenth Amendment. The prohibition against
double jeopardy “protects against three abuses”: (1) a second prosecution for the same
offense after acquittal; (2) a second prosecution for the same offense after conviction; and
(3) multiple punishments for the same offense. State v. Ruff, 2015-Ohio-995, ¶ 10.
{¶ 123} The Supreme Court has noted, however, that double jeopardy protections are
not violated when the legislature specifically authorizes cumulative punishment. Bollar,
2022-Ohio-4370, at ¶ 20. The court further concluded that R.C. 2941.25, which implements
double jeopardy protections, “does not override R.C. 2929.14(B)(1)(g), as the latter is the
more specific and more recently enacted statute.” Id. at ¶ 21. We are duty bound to follow
No. 23AP-644 36
that ruling. Thus, even if any of the underlying offenses should have merged for purposes
of sentencing, the Double Jeopardy Clause nonetheless permits cumulative punishment
when the legislature has authorized it. See Missouri v. Hunter, 459 U.S. 359, 366 (1983)
(“With respect to cumulative sentences imposed in a single trial, the Double Jeopardy
Clause does no more than prevent the sentencing court from prescribing greater
punishment than the legislature intended.”). Thus, because a firearm specification survives
merger under the plain language of R.C. 2929.14(B)(1)(g), as it is a penalty enhancement
rather than a separate criminal offense, the imposition of a prison sentence on multiple
firearm specifications, as authorized by R.C. 2929.14(B)(1)(g), did not run afoul of
Mr. Brefford’s constitutional protections against double jeopardy. See, e.g., State v.
Muhammad, 2025-Ohio-1981, ¶ 9 (10th Dist.); Ford, 2011-Ohio-765, at ¶ 16-19.
{¶ 124} For these reasons, we overrule Mr. Brefford’s second assignment of error.
III. CONCLUSION
{¶ 125} Having overruled Mr. Brefford’s four assignments of error, we affirm the
judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
LELAND and DINGUS, JJ., concur.