State v. Knowles

[Cite as State v. Knowles, 2016-Ohio-8540.]

IN THE COURT OF APPEALS OF OHIO

TENTH APPELLATE DISTRICT

State of Ohio, :

Plaintiff-Appellee, :

No. 16AP-345

v. : (C.P.C. No. 15CR-2699)

Brandon P. Knowles, : (REGULAR CALENDAR)

Defendant-Appellant. :

D E C I S I O N

Rendered on December 30, 2016

On brief: Ron O'Brien, Prosecuting Attorney, and Valerie

Swanson, for appellee. Argued: Valerie Swanson.

On brief: Todd W. Barstow, for appellant.

APPEAL from the Franklin County Court of Common Pleas

DORRIAN, P.J.

{¶ 1} Defendant-appellant, Brandon P. Knowles, appeals the April 19, 2016

judgment of the Franklin County Court of Common Pleas convicting him, following a

bench trial, and imposing sentence. For the following reasons, we affirm appellant's

conviction but reverse his sentence.

I. Facts and Procedural History

{¶ 2} Officer Aaron Getzinger testified that on May 25, 2015, at approximately

2:30 p.m., he was dispatched on a report of a possible shooting at the intersection of

Wager and Columbus Streets in Columbus, Ohio. Approximately one-to-two minutes

later, Officer Getzinger arrived in the area and found a car crashed into a fence at the

intersection of South 18th and Columbus Streets. Officer Getzinger saw a person sitting

in the driver's seat of the car and a woman seated near the car. Officer Getzinger

No. 16AP-345 2

approached the woman, who appeared to be very distressed. The woman told him that

"she was in the car at the time of the accident, and that -- at the time of the shooting, that

the guy in the car was her husband, * * * that her husband was shot by a male known to

her as Brandon." (Tr. Vol. III at 19-20.)

{¶ 3} Michael D. Williams testified that he owns a residential rental property

located on Wager Street ("the residence"). Approximately two-to-three weeks before

May 25, 2015, Michael went with his brother, Jerome, to perform work on the residence.

When they arrived, Michael found appellant in the residence with a group of people.

Michael testified he had not given appellant permission to be in the residence and told

appellant and the other people to leave, which they did. Approximately two weeks later,

Michael saw appellant riding his bike. Michael told appellant he had just installed a

furnace and hot water tank in the residence, and offered appellant $20 if he would watch

the residence to make sure those items were not stolen. Appellant then began staying at

the residence.

{¶ 4} Michael testified that on May 25, 2015, he and his brother, Edward, went to

the residence to check on it. Around 2:00 p.m., Michael saw appellant outside the

residence talking to "an older black guy" in a car. (Tr. Vol. III at 44.) Michael said he

exchanged pleasantries with the man in the car as he left the residence. Michael also

observed a woman sitting in the passenger seat of the car.

{¶ 5} Michael testified that a neighbor who lived across the street from the

residence had a surveillance camera that could record the front of the residence. Viewing

the footage from the surveillance camera at trial, Michael was able to identify himself, his

brother, and appellant in the recording. The recording showed appellant outside the

residence approaching a black car.

{¶ 6} Edward Williams testified that on May 25, 2015, he went with Michael to

the residence. While he was in front of the residence, a car pulled up and the driver asked

Edward to go get appellant. Edward found appellant and brought him outside. Later,

when Edward was preparing to leave with Michael, he overheard the driver of the car say

to appellant: "[Y]eah, I've got 20 for you now, and I've got the rest -- have the rest for you

later, or something like that." (Tr. Vol. IV at 19.) Edward stated the conversation between

the car's driver and appellant was "pretty calm" and he "didn't think anything of it." (Tr.

No. 16AP-345 3

Vol. IV at 20.) Edward then left the area with Michael until later that day. When Edward

returned, he observed the same car whose driver had been conversing with appellant was

"on the side of the road, on the stop sign, ran into a stop sign or a wall." (Tr. Vol. IV at

22.)

{¶ 7} Ta-Nikka Fly testified that on May 25, 2015, she and her husband, Walter

Fly, drove to the residence to see appellant. At the time, Ta-Nikka and Walter were

homeless and living out of their car. When they arrived at the residence, Walter asked

someone to get appellant to come outside. Once appellant came outside, Walter and

appellant had a conversation about "some pills, something about $23, and that was just

the sum of it." (Tr. Vol. IV at 97-98.) When asked to clarify, Ta-Nikka said that Walter

owed appellant $23 because "[s]omething about the pills wasn't what they were supposed

to be. I don't know." (Tr. Vol. IV at 98.) However, Walter either did not have the money

or did not give money to appellant. On cross-examination, Ta-Nikka stated that "[a]ll I

know is he said he owed him $23. That's all I remember out of that conversation." (Tr.

Vol. IV at 127.) Ta-Nikka also confirmed she previously told police that the incident

involved "the sale of some bogus pills." (Tr. Vol. IV at 127.)

{¶ 8} Ta-Nikka stated that the conversation about money lased for only a few

minutes and that afterward appellant and Walter were laughing and getting along. While

appellant and Walter were talking, Ta-Nikka saw a person she knew as "Tjuan" in the area

and greeted him. (Tr. Vol. IV at 100.)

{¶ 9} Walter asked to use appellant's phone, and appellant went back inside the

residence. Ta-Nikka believed at the time that appellant was going to the residence to get a

phone. When appellant came back outside from the residence, Ta-Nikka heard appellant

say "[g]ive it up." (Tr. Vol. IV at 104.) Ta-Nikka then heard a single shot. She turned to

look in the direction the shot came from and saw appellant standing within five feet of the

car, pointing a gun at Walter. Walter turned to Ta-Nikka and said "[h]e shot me, babe."

Ta-Nikka told Walter to "[p]ull off," and Walter drove the car away. (Tr. Vol. IV at 107.)

At trial, Ta-Nikka stated that she heard another shot as they were driving away. On cross-

examination, Ta-Nikka confirmed that she originally told responding officers that she

heard only a single shot.

No. 16AP-345 4

{¶ 10} Ta-Nikka grabbed the steering wheel because she saw Walter's "eyes rolling

in the back [of] his head." (Tr. Vol. IV at 107.) Ta-Nikka was unable to completely control

the car because Walter was pressing the car's accelerator and trying to turn the wheel. Ta-

Nikka was also ducking while she tried to steer because she was scared of being shot

herself. Ta-Nikka hit two or three parked cars and then aimed the car into a fence in

order to stop it. The car stopped and Ta-Nikka tried to administer CPR to Walter who was

gasping for air. Ta-Nikka was "screaming [and] scared." (Tr. Vol. IV at 108.) Despite Ta-

Nikka's efforts, Walter died.

{¶ 11} Ta-Nikka stayed in the car for a minute "because I was trying to save my

husband, and I just was in shock." (Tr. Vol. IV at 109.) People in the area came to assist

her and helped her out of the car. Ta-Nikka sat down on a nearby porch until police

officers arrived. Ta-Nikka spoke to police and identified appellant as her husband's killer.

She later selected appellant's picture in a photo array.

{¶ 12} On May 25, 2015, Antjuan Washington was riding his bike near Columbus

and Wager Streets when he saw appellant speaking with Walter. He did not hear what

they were talking about, but did hear two gunshots. After he heard the gunshots, he saw

Walter's car driving away and appellant walking away in the opposite direction.

Washington was later interviewed by a detective.

{¶ 13} At trial, Washington testified that he is friends with appellant. Washington

also stated he did not want to testify and that he was brought to appellant's trial by a

detective. Washington knew Walter, whom he knew as "Mr. Fly" or "JD." (Tr. Vol. IV at

72.)

{¶ 14} Washington stated that he did not see appellant with a gun when he heard

gunshots. However, when Washington was asked the following: "You heard gunshots.

You turned around, and you saw [appellant] with the gun pulling it down. Isn't that what

you told the detective," Washington responded: "I mean, shit, yeah." (Tr. Vol. IV at 78-

79.) Washington testified that he felt pressured by the detective who interviewed him

after the shooting. Washington admitted that his testimony at trial was different from

what he told the detective after the shooting.

{¶ 15} Lena Brown testified that she lived across the street from the residence

where appellant was staying. Brown's house had surveillance cameras that recorded all

No. 16AP-345 5

the time. Brown was familiar with appellant and a person she knew as "Antjuan" from

interactions in the neighborhood. On May 25, 2015, Brown arrived home around 1:00

p.m. Brown stated she saw appellant standing outside the residence near the driver's side

of a car talking to people in the car. The car started to move away and then stopped.

Brown heard two gunshots and then saw the car drive down East Columbus Street. When

she heard the shots, Brown saw appellant in the street and Antjuan riding nearby on a

bike. Brown did not see whether appellant or Antjuan had a gun. Brown believed that

appellant was the one who fired the shots. Brown called police and provided them with

surveillance footage from her house.

{¶ 16} The parties stipulated to a report prepared by Dr. Donald Pojman of the

Franklin County Coroner's Office. The coroner's report ruled that Walter's death was a

homicide and the cause of death was a gunshot wound to the chest. The projectile, a .45

caliber bullet, entered Walter's body on his left side and traveled to his right arm.

{¶ 17} Detective Larry Shoaf of the Columbus Police Crime Scene Search Unit,

testified that, on May 25, 2015, he responded to two crime scenes. One scene was located

at a vehicle crash site near the intersection of East Columbus and South 18th Streets, and

the other scene was two blocks to the east near the residence. At the vehicle crash scene,

Detective Shoaf found lead fragments from a projectile on the driver's seat, passenger's

seat, and on the ground outside the passenger's side of the car. Detective Shoaf found two

spent .45 caliber shell casings near the residence. According to Detective Shoaf, one shot

which originated "outside behind where the driver would be [sitting]" traveled through

the inside of the car heading out "towards the front passenger side quarter panel area."

(Tr. Vol. IV at 61-62.)

{¶ 18} At trial, the parties stipulated to appellant's prior conviction for attempted

burglary, a felony of the third degree, and three juvenile adjudications for robbery,

burglary, and aggravated assault.

{¶ 19} On June 3, 2015, a Franklin County Grand Jury filed an indictment

charging appellant with three criminal counts: murder, in violation of R.C. 2903.02, an

unclassified felony, felonious assault, in violation of R.C. 2903.11, a felony of the second

degree, and having weapons while under disability, in violation of R.C. 2923.13, a felony

No. 16AP-345 6

of the third degree. The counts of murder and felonious assault both included a firearm

specification pursuant to R.C. 2941.145(A).

{¶ 20} On April 4, 2016, appellant waived his right to trial by jury. On April 5,

2016, a bench trial commenced. On April 6, 2016, the trial court found appellant guilty on

all counts and specifications and proceeded to hold a sentencing hearing. The trial court

sentenced appellant to 15 years to life for murder, 5 years for felonious assault, and 3

years for the having weapons while under disability conviction. The court also sentenced

appellant to two 3-year sentences for the two firearm specifications. The court ordered

the sentences for murder and felonious assault to be served concurrently to each other.

The court ordered all other sentences, including those for the firearm specifications, to be

served consecutively, resulting in a total sentence of 24 years to life. On April 7, 2016, the

trial court filed a judgment entry. On April 19, 2016, the trial court filed an amended

judgment entry reflecting appellant's conviction and sentence.

II. Assignments of Error

{¶ 21} Appellant appeals and assigns the following two assignments of error for

our review:

I. THE TRIAL COURT ERRED AND DEPRIVED

APPELLANT OF DUE PROCESS OF LAW AS

GUARANTEED BY THE FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION AND ARTICLE

ONE SECTION TEN OF THE OHIO CONSTITUTION BY

FINDING HIM GUILTY OF MURDER; FELONIOUS

ASSAULT AND HAVING WEAPONS UNDER DISABILITY

AS THOSE VERDICTS WERE NOT SUPPORTED BY

SUFFICIENT EVIDENCE AND WERE ALSO AGAINST THE

MANIFEST WEIGHT OF THE EVIDENCE.

II. THE TRIAL COURT ERRED TO THE PREJUDICE OF

APPELLANT BY IMPROPERLY SENTENCING HIM TO

CONSECUTIVE TERMS OF INCARCERATION IN

CONTRAVENTION OF OHIO'S SENTENCING STATUTES.

III. First Assignment of Error—Sufficiency and Manifest Weight

{¶ 22} In his first assignment of error, appellant asserts his convictions were not

supported by sufficient evidence and were against the manifest weight of the evidence.

No. 16AP-345 7

A. Sufficiency

{¶ 23} Sufficiency of evidence is a "legal standard that tests whether the evidence

introduced at trial is legally sufficient to support a verdict." State v. Cassell, 10th Dist. No.

08AP-1093, 2010-Ohio-1881, ¶ 36, citing State v. Thompkins, 78 Ohio St.3d 380, 386

(1997). When judging the sufficiency of the evidence to support a criminal conviction, an

appellate court must decide if, "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. Jenks, 61 Ohio St.3d 259 (1991), paragraph

two of the syllabus. Where the evidence, "if believed, would convince the average mind of

the defendant's guilt beyond a reasonable doubt," it is sufficient to sustain a conviction.

Id. Thus, viewing the evidence in a light most favorable to the prosecution, we consider

whether any rational trier of fact could have found the essential elements of appellant's

crimes proven beyond a reasonable doubt.

{¶ 24} Murder is defined in R.C. 2903.02(A), which provides, in pertinent part,

that "[n]o person shall purposely cause the death of another." Felonious assault is defined

in R.C. 2903.11(A)(2), which provides, in pertinent part, that "[n]o person shall knowingly

* * * [c]ause or attempt to cause physical harm to another * * * by means of a deadly

weapon." Pursuant 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 such circumstances probably exist."

{¶ 25} Having weapons while under disability is defined in R.C. 2923.13(A)(2),

which provides, in pertinent part, as follows: "Unless relieved from disability under

operation of law or legal process, no person shall knowingly acquire, have, carry, or use

any firearm or dangerous ordnance, if * * * [t]he person * * * has been convicted of any

felony offense of violence." The firearm specification provided in R.C. 2941.145(A)

permits imposition of a three-year mandatory prison term if "the offender had a firearm

on or about the offender's person or under the offender's control while committing the

offense and displayed the firearm, brandished the firearm, indicated that the offender

possessed the firearm, or used it to facilitate the offense." See R.C. 2929.14(B)(1)(a)(ii).

No. 16AP-345 8

{¶ 26} We first consider appellant's conviction for murder with a firearm

specification. Ta-Nikka testified that appellant was standing approximately five feet away

from the car in which she and Walter were sitting when appellant fired two shots into the

car. Ta-Nikka testified the first shot struck Walter, who ultimately died of the resulting

injury. Minutes after Walter was shot and killed, Ta-Nikka told responding officers that

"Brandon" shot Walter, and later selected appellant's picture from a photo array. (Tr. Vol.

III at 20.)

{¶ 27} Moreover, additional evidence supported Ta-Nikka's testimony. Detective

Shoaf testified that two .45 caliber shell casings were recovered near the residence. The

coroner's report, to which the parties stipulated, classified appellant's death as a homicide

and stated that the cause of death was a gunshot wound to the chest. Michael, Edward,

Brown, and Washington all testified that appellant was talking to people in a car where

the shooting occurred. Washington admitted he told police he heard gunshots and "saw

[appellant] with the gun pulling it down." (Tr. Vol. IV at 78.) The surveillance video

recorded at Brown's residence also supports the witnesses' testimonies tending to show

that appellant shot Walter. Thus, viewing the evidence in a light most favorable to the

prosecution, there was sufficient evidence for the trial court to find appellant committed

the offense of murder with a firearm specification. See State v. Harris, 10th Dist. No.

15AP-683, 2016-Ohio-3424, ¶ 28; State v. Jackson, 10th Dist. No. 14AP-748, 2015-Ohio-

5114, ¶ 23 (finding the testimony of one witness, if believed, is sufficient to support a

conviction).

{¶ 28} We next consider appellant's conviction for felonious assault with a firearm

specification. We have previously held that an attempt to cause physical harm may be

inferred from the act of firing a gun in the direction of a person. State v. Thompson, 10th

Dist. No. 97APA04-489 (Nov. 10, 1997), citing State Kline, 11 Ohio App.3d 208 (6th

Dist.1983) ("When appellant fired the gun in the direction of [the victim], he committed

an overt act sufficient to support the finding that he knowingly attempted to cause

physical harm."). See also State v. Grisson, 10th Dist. No. 08AP-952, 2009-Ohio-5709,

¶ 43, citing State v. Phillips, 75 Ohio App.3d 785, 792 (2d Dist.1991) ("Firing a weapon

randomly in the direction of individuals who are arguably within range of the shooter is

sufficient to demonstrate an attempt to cause physical harm."); State v. Mills, 62 Ohio

No. 16AP-345 9

St.3d 357, 369 (1992) (finding evidence was sufficient to support defendant's felonious

assault convictions involving persons in defendant's line of fire, but not sufficient to

support a conviction if the person was not in line of fire); State v. Gray, 10th Dist. No.

04AP-938, 2005-Ohio-4563, ¶ 12.

{¶ 29} Here, as previously mentioned, the testimony supports that appellant fired

two shots approximately five feet away from the car. One of those shots struck Walter,

fatally injuring him. Ta-Nikka was sitting directly next to Walter in the passenger seat of

the car. Ta-Nikka testified she was "looking in the barrel of a gun" when appellant fired

into the car. (Tr. Vol. IV at 130.) As she attempted to drive away from the shooting, Ta-

Nikka testified she was ducking because she was scared of being shot herself. Detective

Shoaf described a bullet hole in the "front passenger side quarter panel area" of the

windshield. (Tr. Vol. IV at 62.) Detective Shoaf also found projectile fragments on both

the driver's and passenger's seat. Therefore, regardless of the fact that only Walter was

shot, appellant's intent to cause physical harm to Ta-Nikka can be inferred based on

appellant's act of firing multiple shots into the enclosed space of the car, where Ta-Nikka

was seated directly next to Walter, placing her within the line of fire. Grisson at ¶ 44;

Gray at ¶ 13. Thus, we find that the evidence, when viewed in a light most favorable to the

prosecution, is sufficient to convict appellant of the offense of felonious assault with a

firearm specification.

{¶ 30} Next, considering the foregoing evidence and appellant's stipulation to a

prior felony conviction, we find that the evidence was sufficient to support appellant's

conviction for having weapons while under disability. Therefore, we find that all of

appellant's convictions were supported by sufficient evidence because, viewing the

evidence in a light most favorable to the prosecution, a rational trier of fact could have

found the essential elements of the crimes proven beyond a reasonable doubt. Jenks at

paragraph two of the syllabus.

B. Manifest Weight

{¶ 31} "While sufficiency of the evidence is a test of adequacy regarding whether

the evidence is legally sufficient to support the verdict as a matter of law, the criminal

manifest weight of the evidence standard addresses the evidence's effect of inducing

belief." Cassell at ¶ 38, citing State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, ¶ 25.

No. 16AP-345 10

See also Thompkins at 387 ("Although a court of appeals may determine that a judgment

of a trial court is sustained by sufficient evidence, that court may nevertheless conclude

that the judgment is against the weight of the evidence."). An appellate court must review

the entire record, weighing the evidence and all reasonable inferences, consider the

credibility of witnesses, 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. Id., citing State v. Martin, 20 Ohio

App.3d 172, 175 (1st Dist.1983). This authority " 'should be exercised only in the

exceptional case in which the evidence weighs heavily against the conviction.' " Id. at 387,

quoting Martin at 175.

{¶ 32} "[A] defendant is not entitled to a reversal on manifest weight grounds

merely because inconsistent evidence was presented at trial." State v. Spires, 10th Dist.

No. 10AP-861, 2011-Ohio-3312, ¶ 18, citing State v. Raver, 10th Dist. No. 02AP-604,

2003-Ohio-958, ¶ 21. The trier of fact is free to believe or disbelieve any or all of the

testimony. Id., citing State v. Jackson, 10th Dist. No. 01AP-973, 2002-Ohio-1257. In

considering the credibility of the witnesses, a reviewing court is guided by the principle

that 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 testimony. State v. Horton, 10th Dist. No. 14AP-997, 2015-Ohio-4039, ¶ 25, citing

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). Thus, although an

appellate court acts as a "thirteenth juror" in considering the weight of the evidence, it

must give great deference to the fact finder's determination of witness credibility. Spires

at ¶ 18, citing State v. Covington, 10th Dist. No. 02AP-245, 2002-Ohio-7037, ¶ 22.

{¶ 33} First, appellant contends that the video recordings from Brown's

surveillance cameras are "grainy and unfocused and, in order to be useful, had to be

'interpreted' by the State's witnesses at trial." (Appellant's Brief at 2.) Here, the trier of

fact was aware of the quality of the recording and could weigh the evidence accordingly.

Furthermore, appellant fails to point to any inconsistencies between the recording and the

witnesses' testimonies that would render his conviction against the manifest weight of

evidence.

No. 16AP-345 11

{¶ 34} Second, appellant asserts that Ta-Nikka's testimony was not credible

because she "insisted that she knew nothing about [Walter's] drug dealing. However, she

and [Walter] were homeless and lived in a car. Keeping secrets in that type of living

arrangement would be difficult at best." (Appellant's Brief at 3.) At trial, Ta-Nikka

testified regarding her recollection of Walter's conversation with appellant. She also

admitted that she told police that Walter and appellant were involved in a discussion

about "bogus pills." (Tr. Vol. IV at 127.) The trier of fact was aware of Ta-Nikka's

statements regarding the nature of Walter and appellant's interaction, and as such was in

the best position to weigh Ta-Nikka's testimony in determining her credibility. State v.

Jackson, 2015-Ohio-5114, at ¶ 24; State v. Edmond, 10th Dist. No. 15AP-574, 2016-Ohio-

1034, ¶ 33; Horton at ¶ 25. Having reviewed the record, we cannot find that Ta-Nikka's

testimony was inherently unreliable and unworthy of belief.

{¶ 35} Thus, considering the credibility of the witnesses and the evidence

presented at trial, we cannot find that 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. Jackson, 2015-Ohio-5114, at ¶ 25; Thompkins at 387. Accordingly, appellant's

first assignment of error is overruled.

IV. Second Assignment of Error—Consecutive Sentence Findings

{¶ 36} In his second assignment of error, appellant contends the trial court

committed reversible error by failing to make findings sufficient to support the imposition

of consecutive sentences.

{¶ 37} R.C. 2929.14(C)(4) provides:

If multiple prison terms are imposed on an offender for

convictions of multiple offenses, the court may require the

offender to serve the prison terms consecutively if the court

finds that the consecutive service is necessary to protect the

public from future crime or to punish the offender and that

consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the

offender poses to the public, and if the court also finds any of

the following:

(a) The offender committed one or more of the multiple

offenses while the offender was awaiting trial or sentencing,

was under a sanction imposed pursuant to section 2929.16,

No. 16AP-345 12

2929.17, or 2929.18 of the Revised Code, or was under post-

release control for a prior offense.

(b) At least two of the multiple offenses were committed as

part of one or more courses of conduct, and the harm caused

by two or more of the multiple offenses so committed was so

great or unusual that no single prison term for any of the

offenses committed as part of any of the courses of conduct

adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates

that consecutive sentences are necessary to protect the public

from future crime by the offender.

{¶ 38} Thus, pursuant to R.C. 2929.14(C)(4), in order to impose consecutive terms

of imprisonment, the trial court is required to make at least three distinct findings:

"(1) that consecutive sentences are necessary to protect the public from future crime or to

punish the offender; (2) that consecutive sentences are not disproportionate to the

seriousness of the offender's conduct and to the danger the offender poses to the public;

and (3) that one of the subsections (a), (b) or (c) applies." (Emphasis omitted.) State v.

Price, 10th Dist. No. 13AP-1088, 2014-Ohio-4696, ¶ 31, citing State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177. A trial court seeking to impose consecutive sentences must

make the findings required by R.C. 2929.14(C)(4) at the sentencing hearing and also

incorporate such findings into its sentencing entry. Bonnell at ¶ 37. However, the trial

court need not state reasons to support its findings, nor is the court "required to give a

talismanic incantation of the words of the statute, provided that the necessary findings

can be found in the record and are incorporated into the sentencing entry." Id. See also

State v. Ayers, 10th Dist. No. 13AP-371, 2014-Ohio-276, ¶ 12. A "word-for-word recitation

of the language of the statute is not required," but where "the reviewing court can discern

that the trial court engaged in the correct analysis and can determine that the record

contains evidence to support the findings, consecutive sentences should be upheld."

Bonnell at ¶ 29.

{¶ 39} Because appellant failed to object to the imposition of consecutive sentences

at the sentencing hearing, our review is limited to consideration of whether the trial court

committed plain error. Jackson, 2015-Ohio-5114, at ¶ 30, citing Ayers at ¶ 7. Under

Crim.R. 52(B), " '[p]lain errors or defects affecting substantial rights may be noticed

No. 16AP-345 13

although they were not brought to the attention of the court.' 'To constitute plain error,

the error must be obvious on the record, palpable, and fundamental such that it should

have been apparent to the trial court without objection.' " State v. Jones, 10th Dist. No.

14AP-80, 2014-Ohio-3740, ¶ 11, quoting State v. Gullick, 10th Dist. No. 13AP-26, 2013-

Ohio-3342, ¶ 3, citing State v. Tichon, 102 Ohio App.3d 758, 767 (9th Dist.1995).

{¶ 40} Plaintiff-appellee, State of Ohio, contends that we cannot find error where

there "is no probability of a different outcome." (Appellee's Brief at 29.) As the state

acknowledges, however, "[w]e have previously found that when the record demonstrates

that the trial court failed to make the findings required by R.C. 2929.14(C)(4) before

imposing consecutive sentences on multiple offenses, 'appellant's sentence is contrary to

law and constitutes plain error.' " Ayers at ¶ 15, quoting State v. Wilson, 10th Dist. No.

12AP-551, 2013-Ohio-1520, ¶ 18.

{¶ 41} Therefore, in determining compliance with R.C. 2929.14(C)(4), we examine

whether: (1) the trial court engaged in the correct analysis, and (2) the record contains

evidence to support the findings of the trial court. State v. Dennison, 10th Dist. No. 14AP-

486, 2015-Ohio-1135, ¶ 18, citing Bonnell at ¶ 29. Here, with regard to its sentencing

decision, the trial court stated the following:

[The Court]: The Court at this time after reviewing the

matters in this case will impose on the Murder charge -- and I

really don't have anything to add other than in reviewing your

record, [appellant], you've had opportunities starting as a

juvenile, and even before this Court previously you were

placed on Community Control.

Now, I will say -- and one of the things that I did -- I had you

come back to see me a couple of times during the course of

that to insure that you were, what we felt was, in compliance,

but, obviously, with this incident, you were not totally in

compliance with what you were supposed to be doing.

***

Without a doubt * * *, you will spend more than 24 years in

prison in all likelihood. You're a young man. * * * I hope that

you use your time to try [to] find out where you should be.

Certainly what you've done is a horrendous crime, and the

minimum you should pay is 24 to life.

No. 16AP-345 14

***

[Assistant Prosecutor]: I would just ask the Court make [its]

findings of why you found the Weapon Under Disability and

imposed consecutive sentences. I think we just need it for the

record.

[The Court]: The Court imposed the consecutive sentence on

the Weapon Under Disability because this gentleman was on

probation to the Court, and the Court feels that in order to

protect it's necessary that a consecutive sentence be imposed.

(Tr. V(A) at 233-36.)

{¶ 42} In the April 19, 2016 judgment entry, the trial court stated the following:

Consecutive sentences are imposed here because it is

necessary to protect the public from future crimes or to

punish the offender. The offender committed one or more of

the multiple offenses while under community control. The

offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from

future crime by the offender.

(Emphasis omitted.) (Amended Jgmt. Entry at 2.)

{¶ 43} We first consider whether the trial court made a finding that consecutive

sentences are not disproportionate to the seriousness of the offender's conduct and to the

danger the offender poses to the public. Dennison at ¶ 19; Price at ¶ 36-38. After

thoroughly reviewing the record of the sentencing hearing, we cannot discern whether the

trial court made the required proportionality finding. In so concluding, we recognize that

the trial court need not engage in a talismanic recitation of the statutory language.

Bonnell at ¶ 37. However, where a reviewing court cannot discern from the record

whether or not the trial court engaged in the correct analysis, the trial court's imposition

of consecutive sentences cannot be upheld. Id. at ¶ 29.

{¶ 44} In this case, we cannot discern from the record whether the trial court

considered whether consecutive sentences are not disproportionate to the seriousness of

the offender's conduct and to the danger the offender poses to the public as required by

R.C. 2929.14(C)(4). Therefore, we find that the trial court failed to make the findings

required by R.C. 2929.14(C)(4) at the sentencing hearing. This conclusion is supported by

the trial court's failure to journalize findings regarding the proportionality analysis into

the sentencing entry. State v. Williams, 10th Dist. No. 13AP-552, 2013-Ohio-4891, ¶ 6,

No. 16AP-345 15

citing State v. Miller, 127 Ohio St.3d 407, 2010-Ohio-5705, ¶ 12 ("It is a well-settled rule

that a court speaks through its journal entries."); Bonnell at ¶ 30 ("A trial court's

inadvertent failure to incorporate the statutory findings in the sentencing entry after

properly making those findings at the sentencing hearing does not render the sentence

contrary to law."); Dennison at ¶ 21; Jackson, 2015-Ohio-5114, at ¶ 32.

{¶ 45} The state urges us to find that the trial court engaged in the proper analysis

because it noted that "what you've done is a horrendous crime, and the minimum you

should pay is 24 to life." (Tr. Vol. V(A) at 235.) Additionally, the state points to the trial

court's statement that it "imposed the consecutive sentence on the Weapon Under

Disability because this gentleman was on probation to the Court, and the Court feels that

in order to protect it's necessary that a consecutive sentence be imposed." (Tr. Vol. V(A)

at 236.)

{¶ 46} In Bonnell, the Supreme Court of Ohio stated:

We can discern from the trial court's statement that Bonnell

had "shown very little respect for society and the rules of

society" that it found a need to protect the public from future

crime or to punish Bonnell. We also can conclude that the

court found that Bonnell's "atrocious" record related to a

history of criminal conduct that demonstrated the need for

consecutive sentences to protect the public from future crime.

But it never addressed the proportionality of consecutive

sentences to the seriousness of Bonnell's conduct and the

danger he posed to the public, which in this case involved an

aggregate sentence of eight years and five months in prison

for taking $117 in change from vending machines.

(Emphasis added.) Id. at ¶ 33. The court concluded that the trial court's "description of

Bonnell's criminal record as atrocious and its notation of his lack of respect for society do

not permit us to conclude that the trial court had made the mandated statutory findings in

accordance with R.C. 2929.14(C)(4)." Id. at ¶ 34. Consistent with Bonnell, we cannot

discern from the trial court's statements that it made the proportionality finding required

by R.C. 2929.14(C)(4).

{¶ 47} Therefore, because the record reflects that the " 'trial court failed to make

the findings required by R.C. 2929.14(C)(4) before imposing consecutive sentences on

multiple offenses, "appellant's sentence is contrary to law and constitutes plain error." ' "

State v. J.H.S., 10th Dist. No. 14AP-399, 2015-Ohio-254, ¶ 17, quoting Ayers at ¶ 15,

No. 16AP-345 16

quoting Wilson, 2013-Ohio-1520, at ¶ 18. Finally, as we have determined the trial court

erred by failing to make the required proportionality finding, we need not consider

whether the trial court made the other findings required by R.C. 2929.14(C)(4).

Accordingly, we sustain appellant's second assignment of error and remand this matter to

the trial court for it " 'to consider whether consecutive sentences are appropriate,

pursuant to R.C. 2929.14(C)(4), and, if so, to make the proper findings on the record at

the sentencing hearing and incorporate those findings into its sentencing entry.' " J.H.S.

at ¶ 18, quoting Jones at ¶ 18, citing Bonnell.

V. Conclusion

{¶ 48} Having overruled appellant's first assignment of error and sustained

appellant's second assignment of error, we affirm appellant's conviction but reverse his

sentence and remand to the Franklin County Court of Common Pleas for resentencing in

accordance with law and consistent with this decision and R.C. 2929.14(C)(4).

Judgment affirmed in part,

reversed in part,

and cause remanded with instructions.

TYACK and LUPER SCHUSTER, JJ., concur.