State v. Wilson

[Cite as State v. Wilson, 2023-Ohio-1042.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT

COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :

No. 111755

v. :

MARCELL L. WILSON, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, VACATED IN PART,

AND REMANDED

RELEASED AND JOURNALIZED: March 30, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR-21-658850-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting

Attorney, and Lisa J. Turoso, Assistant Prosecuting

Attorney, for appellee.

The Law Office of Jaye M. Schlachet and Eric M. Levy, for

appellant.

MICHELLE J. SHEEHAN, J.:

Defendant-appellant Marcell L. Wilson appeals from his convictions

and sentences for multiple counts of felonious assault, improperly discharging a

firearm at or into habitation, discharge of a firearm on or near prohibited premises,

and aggravated menacing. These offenses stemmed from an incident where Wilson,

after threatening to kill his girlfriend and police officers responding to the domestic

incident, drove to the house where she was staying and fired six gunshots from his

vehicle toward the police officers who were standing outside the house.

On appeal, Wilson raises a myriad of issues concerning his

convictions and sentence. He claims the evidence was insufficient for his

convictions and the convictions were against the manifest weight of the evidence.

He also challenges the imposition of the five-year drive-by shooting firearm

specifications and the seven-year peace-officer firearm specifications accompanying

the majority of his offenses. He raises additional issues regarding the indefinite

sentences imposed under the Reagan Tokes Law. After a careful review of the record

and applicable law, we affirm his convictions but vacate the five-year drive-by

shooting specification accompanying the offense of discharge of a firearm on or near

prohibited premises. We also remand the case for resentencing for the sole purpose

of providing Wilson with the notification regarding his indefinite sentence required

by the statute.

Grand Jury Indictment

The grand jury returned a 16-count indictment against Wilson.

Counts 1 to 10 related to an arson incident in his girlfriend J.R.’s apartment building

on the day before the shooting incident. Wilson was acquitted of these charges, and

this appeal concerns only Counts 11 to 16, which related to the March 7, 2021

shooting incident.

Counts 11, 12, and 13 charged Wilson with felonious assault, a first-

degree felony, against Officers Matthew Heitzer, Cory Barfield, and Sarah Theobald,

respectively. Each count was accompanied with one- and three-year firearm

specifications, a five-year drive-by shooting specification, and a seven-year peace-

officer specification.

Count 14 charged Wilson with improperly discharging a firearm at or

into a habitation, a second-degree felony; Count 15 charged him with discharge of a

firearm on or near prohibited premises, a third-degree felony. Both counts were

accompanied with one- and three-year firearm specifications and a five-year drive-

by shooting specification. Count 16 charged him with aggravated menacing, a first-

degree misdemeanor.

Trial Testimony

The case was tried in a bench trial. For Wilson’s offenses relating to

the shooting incident, the state presented the testimony of J.R. and her mother, as

well as three officers from the Maple Heights Police Department who responded to

the 911 call and were present when Wilson drove by and fired six shots from his

vehicle. A detective and a fourth officer, who arrived after the shooting, also testified

regarding their investigation of the shooting.

A. Testimony of J.R. and her Mother

J.R., age 23, testified that she met Wilson when she was 17 and they

have a two-year old daughter, who was being cared for by J.R.’s mother at her

mother’s house on Watercrest Avenue in Maple Heights. J.R. was staying with her

sister at her sister’s apartment in Warrensville at the time. On March 5, 2021, J.R.

told Wilson she was breaking up with him and they argued over the phone all day.

The next day, she stopped answering his phone calls and text messages at one point.

Wilson then showed up at her apartment building and rang the buzzer to her door.

She did not let him in. Feeling unsafe, she told her mother about Wilson’s presence

and her mother called the police. The police responded to the call but Wilson had

left.

J.R.’s sister was out of town at the time, and J.R. did not want to stay

in her sister’s apartment by herself. She went to her mother’s house to stay for the

night. The next day, Wilson continued to call her. On one of the phone calls, Wilson

heard the voice of their daughter in the background. Because Wilson knew their

daughter was being cared for by J.R.’s mother, J.R. quickly hung up the phone, for

fear that Wilson may be alerted to her location. Soon after, Wilson began sending

threatening text messages:

Wilson: We all dying today. I am sending the police to your mom’s

house

J.R.: Bruh

What

What is wrong with you?

Wilson: Me and you [a]bout to be in a box * * *

And I will be killin cops today that ain’t stopping me get ready

Or answer the phone

How you wanna to it

I was talking calm

Bet I’m on my way! Old Cel in full go mode let’s turn up * * *

I am not f***in playing

Tell somebody to come get my daughter

Cause this ain’t [a]bout to turn out good

Don’t worry. I can show you better than I can tell you

Bet I’ll just pull up to [your mother’s] house again

Once again you brought drama to your mother’s house

When should I be expecting the police cause if they pull up to

this bitch they gone die and me [too]

On my way!

Wilson followed these text messages with a screenshot of a map showing his

location, and then sent several more messages:

Y’all relationships don’t work because you think it’s okay to ignore

someone when you mad instead of being an adult and communicating

Your done you called the police again bitch you aint’ coming back from

this I’m putting you in a box bitch

I hate you you will have a close casket

You one police ass bitch

You gone done a rat

J.R. testified that her mother called the police again. When the police

officers arrived, J.R. showed them the messages from Wilson. Later, while inside

the house, J.R. heard gunshots erupting and the bullets sounded “really close to the

house.” She immediately took her daughter to the basement.

J.R.’s mother testified that the day before the shooting incident, she

called the police because her daughter was scared that Wilson was trying to get

inside her apartment. The police responded but Wilson was no longer in the area.

For her safety, J.R. came over to her house to stay overnight. The next day, while

J.R. was on the phone with Wilson, he heard the voice of their daughter and found

out J.R. was at her mother’s house. He began to send threatening messages, and

J.R.’s mother called the police for help.

J.R.’s mother testified that she did not believe the threats made in the

text messages were real until Wilson started to send her daughter phone images of

the landmarks near him, which showed that he was getting closer and closer to her

house. While the police were outside her house, she heard multiple gunshots loud

enough that she and her daughter ran down to the basement. The gunshots

appeared to have come from a parking lot near the front of her house.

B. Testimony of the Police Officers

Officers Sarah Theobald, Matthew Heitzer, and Cory Barfield of the

Maple Heights Police Department responded to the call from J.R.’s mother on

March 7, 2021. They parked a police vehicle in the driveway of her house and set up

a perimeter around the house. Wilson’s blue Chevy Trax drove by a nearby parking

lot and four shots were fired from the vehicle. Moments later, as the vehicle sped

off, two more shots were fired. The police recovered six shell casings from the area,

and a bullet hole was located high up on a light post near the edge of the parking lot.

The three police officers provided the following testimony regarding the incident.

Officer Theobald testified that she was the first officer to arrive at the

scene. J.R. and her mother were scared, frantic, and panicking. They told her that

Wilson was on his way to the house and that he was driving a blue Chevy Trax. J.R.’s

phone showed that Wilson had called her 49 times that day. In addition to the

threatening text messages, they also showed her voicemails sent by Wilson and, in

one of them, she could hear the sound of a firearm followed by Wilson saying that

J.R. was “putting everyone’s life in danger.” She related Wilson’s threats to Officer

Heitzer, who was the second officer to arrive at the scene.

Officer Barfield also arrived, and the officers set up a perimeter

around the house. When Officer Heitzer spotted a blue Chevy Trax driving by,

Officer Theobald took cover, and soon after, she heard multiple gunshots, followed

by two more after a pause. The last two shots sounded further away than the first

round of shots. The officers called the Bedford Police Department and Garfield

Heights Police Department for assistance. Subsequently, Officer Theobald located

two witnesses, who saw the blue vehicle heading south and driving into the parking

lot at a high rate of speed. The vehicle stopped at the edge of the parking lot abutting

Watercrest Avenue, spun around, and drove away northbound through the parking

lot. Officer Theobald acknowledged that there were no bullets whizzing by the

officers; no one was injured; and the only bullet hole located was on a light post,

which was struck at a spot about 12 feet off the ground.

Officer Heitzer testified that he responded to a report of domestic

violence in progress. The suspect was threatening to kill J.R. and any police officers

attempting to stop him. He also learned that the suspect was on his way there and

he had a weapon. He and Officer Theobald took the threat very seriously. While

Officer Theobald was inside talking to J.R. and her mother, he stayed outside to

provide security. Officer Theobald related to him that the suspect was texting,

calling, and sending voice clips over the phone to J.R., repeating the threats that he

was going to kill her and the police officers. He requested additional officers, and

Officer Cory Barfield arrived to assist them.

While the three officers were waiting at the front of the house, Officer

Heitzer saw a blue Chevy Trax pull up near the parking lot. He took cover behind a

tree. Officer Heitzer testified that the vehicle stopped briefly and then started rolling

and he heard three gunshots fired toward the officers. He then moved from behind

the tree and toward the vehicle, using a house nearby as cover. Officer Barfield ran

by him, and then two more shots were fired from the vehicle as it drove away,

traveling north-northeast through the parking lot in the direction of a KFC

restaurant drive-through. Officer Heitzer did not return fire because he did not want

to put the public near the drive-through at risk. The officer’s testimony was

accompanied by a video from his body camera.

On cross-examination, Officer Heitzer acknowledged that the light

post struck by the bullet was very close to Wilson’s vehicle and relatively distant from

the officers’ location and that his belief that the shots were fired at the officers was

more a result of the threatening text messages than his direct observations. When

the defense counsel suggested that Wilson may be firing up in the air instead of at

the officers based on the location of the bullet hole on the post, Officer Heitzer

testified that because Wilson fired the shots while he was driving, “[a]nything could

have happened causing a dramatic change in the trajectory of that bullet.”

Officer Cory Barfield, the third officer at the shooting scene, testified

that he saw the blue Chevy pull up and he heard four or five gunshots. He sought

cover behind the house and then saw the vehicle drive off at a high rate of speed

through the parking lot.

Detective Thomas Halley, a 20-year veteran police officer, arrived

after the shooting incident. He testified that a total of six shell casings were found

in the parking lot area. Four of them were located near a light post on the edge of the

parking lot. Two were located further north in the parking lot, somewhat close to a

KFC restaurant near the other end of the parking lot. One bullet hit the light pole

high off the ground. While Detective Halley testified, the state played a video from

the security camera on J.R.’s mother’s house. It captured the moment when the blue

vehicle came into view in the nearby parking lot and gunshots were heard. Detective

Halley also testified that Wilson’s phone showed that he Google-searched the Maple

Heights Police Department on March 7, 2021.

On cross-examination, Detective Halley testified that the parking lot

was about 50 yards from the house and, due to its location on the edge of the parking

lot, the light post was the same distance from the house. Based on the locations of

the four shell casings, Detective Halley acknowledged that the shooter would have

been between 20 and 30 feet from the light post when the first round of shots was

fired. He was asked whether, based on the bullet hole’s location on the light post,

the shooter must have angled the gun upwards. Officer Halley replied that he had

seen “bullets do a lot of strange things” and factors such as wind, the shooter’s

training and emotional state at the time, and whether the shooter was stationary or

in a moving vehicle, would all affect the trajectory of a bullet. Detective Halley also

testified the police were unable to recover the other five bullets because bullets

“travel far.”

In addition, Officer Aaron Carmine testified that he also assisted with

the investigation and he was the officer who found the group of four casings. The

casings were found in a small area, indicating they were fired in rapid succession.

Detective Christopher Faunce testified that on March 9, 2021, the U.S. Marshals

located Wilson in Euclid and he assisted with Wilson’s apprehension.

The defense presented the testimony of Domonique Hill, Wilson’s

cousin, who testified that Wilson was arrested at her residence. She testified that

she was in communication with J.R. in the evening of March 6, 2021, and she never

mentioned a fire in her apartment building. She also testified that she was the owner

of the blue Chevy Trax and J.R. would drive the vehicle. Wilson was driving the

vehicle on the weekend of March 6, 2021, because J.R. was driving another vehicle.

On March 7, 2021, Wilson returned the vehicle to her.

The trial court acquitted Wilson of all counts relating to the arson

incident but found him guilty of all counts relating to the shooting. It imposed a

seven-year term for each of the peace-officer specifications in Count 11 (felonious

assault relating to Officer Heitzer) and Count 12 (felonious assault relating to Officer

Barfield), and required the seven-year terms to be served consecutively. The

consecutive seven-year terms were ordered to run concurrently to the remining

firearm specifications: seven-year peace officer specification in Count 13 (felonious

assault relating to Officer Theobald) and five-year drive-by shooting firearm

specifications in Count 14 (improperly discharging at or into habitation) and

Count 15 (discharge of a firearm on or near prohibited premises). The total term for

the firearm specifications in Counts 11-15 are 14 years, to run prior to and

consecutive to the terms for the underlying offenses.

For the underlying offenses, the trial court imposed an indefinite

sentence of three to four-and-a-half years each for Counts 11, 12, 13, and 14, and 36

months for Count 15, to run concurrently to each other. For Count 16 (aggravated

menacing), the court sentenced Wilson to time served.

Appeal

On appeal, Wilson raises the following assignments of error:

I. Appellant’s convictions must be reversed where the State of Ohio

failed to present sufficient evidence to support the convictions.

II. Appellant’s convictions are against the manifest weight of the

evidence.

III. The trial court erred by imposing the five-year drive-by shooting

firearm specifications upon appellant for a conviction of discharge of

firearm on or near prohibited premises, a strict liability offense.

IV. The trial court erred when it failed to determine at sentencing

whether the offenses were committed by the same conduct and

imposed several firearm specifications not authorized by law.

V. Appellant’s indefinite sentence imposed under the Reagan Tokes

sentencing scheme violates his rights under the United States

Constitution and appellant’s sentence is contrary to law where the

trial court failed to comply with the required notices contained in R.C.

2929.19(B)(2)(c) when imposing sentence.

VI. The trial court erred and imposed a sentence contrary to law when

it imposed a maximum sentencing term on all counts sentenced under

Reagan Tokes.

Sufficiency of Evidence

Under the first assignment of error, Wilson claims there was

insufficient evidence to prove that he was the shooter and further claims that, even

if sufficient evidence established that he was the shooter, the state failed to present

sufficient evidence to prove any of the six counts he was convicted of.

When reviewing a challenge to the sufficiency of the evidence, we

review the evidence admitted at trial and determine whether such evidence, if

believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991),

paragraph two of the syllabus. “The relevant inquiry is whether, after viewing the

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

have found the essential elements of the crime proven beyond a reasonable doubt.”

Id. A reviewing court is not to assess “whether the state's evidence is to be believed,

but whether, if believed, the evidence against a defendant would support a

conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390, 678 N.E.2d 541 (1997).

A. Identity of the Shooter

Wilson claims that there were no eyewitnesses identifying him as the

shooter and therefore there was insufficient evidence to convict him of any of the

offenses he was charged with. Our review, however, reflects that the state produced

an overwhelming amount of circumstantial evidence proving he fired several

gunshots from the blue Chevy Trax.

Direct evidence exists when “a witness testifies about a matter within

the witness’s personal knowledge such that the trier of fact is not required to draw

an inference from the evidence to the proposition that it is offered to establish.”

State v. Cassano, 8th Dist. Cuyahoga No. 97228, 2012-Ohio-4047, ¶ 13.

“[C]ircumstantial evidence requires the drawing of inferences that are reasonably

permitted by the evidence.” Id. Circumstantial evidence and direct evidence

inherently possess the same probative value. Jenks at paragraph one of the syllabus.

“‘Circumstantial evidence is not only sufficient, but may also be more certain,

satisfying, and persuasive than direct evidence.’” State v. Hawthorne, 8th Dist.

Cuyahoga No. 96496, 2011-Ohio-6078, quoting Michalic v. Cleveland Tankers, Inc.,

364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960).

Here, the evidence shows that after Wilson threatened to kill J.R. and

the police officers responding to the domestic incident, he sent his locations to J.R.

indicating he was driving toward J.R.’s mother’s house. The blue Chevy Trax, which

J.R. knew Wilson was driving at the time, was soon sighted by the police officers

around a parking lot near the house and, moments later, gunshots emitted from the

vehicle. The circumstantial evidence establishing Wilson to be the individual firing

the gunshots from the vehicle was overwhelming.

B. Felonious Assault (Counts 11, 12, and 13)

Wilson was convicted of three counts of felonious assault as defined

in R.C. 2903.11(A)(2), which states that no person shall knowingly “cause or attempt

to cause physical harm to another *** by means of a deadly weapon or dangerous

ordnance.” “A person acts knowingly, regardless of his purpose, when he is aware

that his conduct will probably cause a certain result or will probably be of a certain

nature. A person has knowledge of circumstances when he is aware that such

circumstances probably exist.” R.C. 2901.22(B). “The mental element of knowledge

does not require an inquiry into the purpose for an act, but, involves the question of

whether an individual is aware that his or her conduct will probably cause a certain

result or will probably be of a certain nature.” In re F.D., 8th Dist. Cuyahoga No.

102135, 2015-Ohio-2405, ¶ 16, citing State v. Anderson, 10th Dist. Franklin No.

06AP-174, 2006-Ohio-6152, ¶ 43.

Wilson argues there was insufficient evidence to prove that he

knowingly attempted to cause physical harm to the officers because the evidence

shows that he fired the shots at a trajectory high up in the air and the officers were

not in the line of fire.

“[A]n attempt to cause physical harm may be inferred from the act of

firing a gun in the direction of a person.” State v. Knowles, 10th Dist. Franklin

No. 16AP-345, 2016-Ohio-8540, ¶ 28. “Firing a weapon randomly in the direction

of individuals who are arguably within the range of the shooter is sufficient to

demonstrate an attempt to cause physical harm.” State v. Tinsley, 8th Dist.

Cuyahoga Nos. 92335 and 92339, 2010-Ohio-2083, ¶ 23.

Wilson argues that there was no testimony from the officers that they

saw a gun pointing at them or saw bullets whizzing past them, and the evidence

showed that no bullets were located near the officers. However, our review of the

testimony indicates that Officer Heitzer testified the shots were fired toward them,

and the officers took cover after the first round of shots were fired. In addition, the

state produced evidence that Wilson had repeatedly threatened to kill the police

officers involved in the domestic dispute in the morning of the shooting incident.

Our review for a claim regarding sufficiency of the evidence requires us to examine

the evidence in a light most favorable to the state. State v. Goff, 82 Ohio St.3d 123,

128, 694 N.E.2d 916 (1998). Upon a thorough review of the record, we conclude the

state produced sufficient evidence for the trier of fact to consider the issue of

whether Wilson knowingly attempted to cause physical harm to the officers by firing

the gunshots from his vehicle.

Wilson also claims that there was insufficient evidence for the seven-

year peace officer specification accompanying the felonious assault offenses.

R.C. 2941.1412 provides that a mandatory seven-year term is imposed if the count a

defendant is convicted of “specifies that the offender discharged a firearm at a peace

officer or a corrections officer while committing the offense.” For the same reasons

provided in the foregoing, this claim lacks merit.

C. Improperly Discharging a Firearm at or Into Habitation (Count 14)

R.C. 2923.161(A)(1) prohibits a person from knowingly

“[d]ischarg[ing] a firearm at or into an occupied structure that is a permanent or

temporary habitation of any individual[.]” (Emphasis added.) Wilson argues that

the statute does not include an attempt to commit the offense and, therefore,

because no bullet struck the subject house, there was insufficient evidence to prove

the offense.

We disagree with Wilson’s interpretation of the statute. On the face

of the statute, there is no requirement of harm to the habitation for a conviction

under the statute. “Courts generally presume a legislature not to have put redundant

words or phrases into a statute.” Gabbard v. Madison Local School Dist. Bd. of

Edn., 165 Ohio St.3d 390, 2021-Ohio-2067, 179 N.E.3d 1169, ¶ 103. The statute here

specifically employs two different prepositions: while the preposition “into” would

imply an impact of a bullet with the habitation, the preposition “at” would appear to

simply require the discharge of a firearm toward the habitation.

As we have determined in the foregoing, the state presented sufficient

evidence to support its allegation that Wilson, after threatening to kill J.R. and

responding police officers, fired multiple gunshots toward the officers who were

standing in front of the subject house. As such, we find sufficient evidence existed

for the offense of improperly discharging a firearm at or into habitation as defined

in R.C. 2923.161(A)(1). See e.g., State v. Romeo, 7th Dist. Mahoning

No. 14 MA 0060, 2016-Ohio-5657, ¶ 10 (the evidence of gunshots emanating from

the defendant’s vehicle coupled with threatening text messages to the victim

constituted sufficient evidence for the conduct prohibited by R.C. 2923.161(A)).1

D. Discharge of a Firearm on or Near Prohibited Premises (Count 15)

R.C. 2923.162 sets forth the offense of discharge of a firearm on or

near prohibited premises. R.C. 2923.162(A)(3) prohibits a person from

“[d]ischarg[ing] a firearm upon or over a public road or highway.” The offense is a

strict liability offense. State v. James, 2015-Ohio-4987, 53 N.E.3d 770, ¶ 33 (8th

Dist.).

Pursuant to R.C. 2923.162(C)(1), the offense is a misdemeanor of the

first degree. However, the offense is a felony of the third degree if the violation

“created a substantial risk of physical harm to any person or caused serious physical

harm to property.” R.C. 2923.162(C)(2). The state charged Wilson with a third-

degree felony offense in violation of R.C. 2923.162(A)(3) for creating a substantial

risk of physical harm or causing serious physical harm to property.

Wilson argues that there was no specific testimony from the officers

that any bullets went over a public road. He also argues that the offense should be

1Wilson cites State v. Jones, 7th Dist. Mahoning No. 12 MA 181, 2013-Ohio-5915; State

v. Hillen, 5th Dist. Fairfield No. 04 CA 65, 2005-Ohio-6193; State v. Grayson, 2017-Ohio-

7175, 95 N.E.3d 1025 (8th Dist.), but none of these cases support his claim that a

conviction of the offense requires proof that the habitation is struck by a bullet.

charged as a first-degree misdemeanor instead of a felony of the third degree

because there was no testimony that anyone was nearby when the shots were fired.

The exhibits presented at trial included videos from the officers’ body

cameras and several maps and pictures that showed that Watercrest Avenue abuts

both the parking lot and the subject house and, due to the relative position of the

parking lot and the house, shots fired toward the direction of the officers and the

house would necessarily be fired “upon or over” Watercrest Avenue, a public road.

Even if Wilson were to have intended to fire the shots at a certain trajectory to avoid

hitting anyone, as he claims, the offense is a strict liability offense. Moreover, the

offense can be completed “with no one remotely near the location where the firearm

is discharged upon or over the public road or highway.” James, 2015-Ohio-4987, 53

N.E.3d 770, at ¶ 33.

Furthermore, the evidence shows that Wilson fired a rapid round of

shots while driving his vehicle, followed by two more shots that he fired while the

vehicle spun around and accelerated to leave the parking lot. The evidence

presented by the state is sufficient to support its claim that Wilson’s conduct created

a substantial risk of physical harm to the public and its charge of a third-degree

felony for Wilson’s offense of discharging a firearm upon or over a public road or

highway.

E. Aggravated Menacing

R.C. 2903.21 defines the offense of aggravated menacing. It states

that “[n]o person shall knowingly cause another to believe that the offender will

cause serious physical harm to the person or property of the other person * * *.”

R.C. 2903.21(A). Wilson claims there was insufficient evidence to convict him of

aggravated menacing because, while he made certain threats to J.R., he never

pointed the firearm at J.R. or the house and the shots did not land anywhere near

the house.

Wilson’s claim is belied by the evidence, which shows that Wilson

threatened J.R. with death and then sent her his locations as he drove toward J.R.’s

mother’s house. She then heard shots from inside the house. The state’s evidence

is more than sufficient to satisfy the elements of aggravated menacing.

Having reviewed the record and applicable law, we conclude Wilson’s

sufficiency claim lacks merit and overrule the first assignment of error.

Manifest Weight

Under the second assignment of error, Wilson argues his convictions

were against the manifest weight of the evidence. While the test for sufficiency

requires a determination of whether the state has met its burden of production at

trial, a manifest weight challenge questions whether the state has met its burden of

persuasion. Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541. Unlike a claim that

the evidence is insufficient to support a conviction, which raises a question of law,

manifest-weight challenges raise factual issues. “Under the manifest weight-of-the-

evidence standard, a reviewing court asks the following question: whose evidence is

more persuasive — the state’s or the defendant’s?” State v. Williams, 8th Dist.

Cuyahoga No. 108275, 2020-Ohio-269, ¶ 86. When a defendant argues his or her

conviction is against the manifest weight of the evidence, the court,

reviewing the entire record, weighs the evidence and all reasonable

inferences, considers the credibility of witnesses and determines

whether in resolving conflicts in the evidence, the jury clearly lost its

way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. The discretionary

power to grant a new trial should be exercised only in the exceptional

case in which the evidence weighs heavily against the conviction.

Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d

717 (1st Dist.1983).

Wilson places great weight on the fact that one of the six bullets struck

the light post high up on the post, which he argues reflects that he fired all the shots

up in the air, an indication that he did not knowingly attempt to cause physical harm.

The evidence regarding the location of the bullet hole on the light post is not as

significant as Wilson claims. The location might reflect a lack of intent to cause

physical harm, but it may also be a result of other factors affecting the trajectory of

a bullet, as Officer Heitzer and Detective Halley testified; in addition, Wilson fired

five other shots and their trajectory was unknown. There is substantial

circumstantial evidence that he intended to cause harm to the officers responding

to the domestic incident. Most damning are his own words expressed through the

text messages shortly before the shooting. In addition, Officers Heitzer and Barfield

testified that after the first round of shots were fired, they quickly took cover to

protect themselves, which reflects their belief that they were being shot at. Wilson’s

manifest-weight claims regarding the remaining counts are similarly meritless.

Having reviewed the record and having weighed the evidence and all reasonable

inferences, we do not 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.” The evidence produced by the state did not weigh heavily against Wilson’s

convictions requiring a new trial. The second assignment of error is without merit.

Validity of Drive-by Shooting Specification for Underlying Offense of

Discharge of a Firearm on or Near Prohibited Premises

Under the third assignment of error, Wilson argues the trial court

erred in imposing a five-year drive-by shooting specification on the underlying

offense of discharge of a firearm on or near prohibited premises (Count 15) in

contravention of R.C. 2941.146(A). The state concedes the error. As this court held

in State v. Maldonado, 8th Dist. Cuyahoga No. 108907, 2021-Ohio-1724, the drive-

by shooting specification is not applicable to the offense of discharge of a firearm on

or near prohibited premises. This is because the specification adds a mandatory

five-year prison term for offenders who commit “a felony that includes, as an

essential element, purposely or knowingly causing or attempting to cause the death

of or physical harm to another * * *,” R.C. 2941.146(A), yet discharge of a firearm on

or near prohibited premises is a strict liability offense lacking the mens rea of

“purposely or knowingly.” James, 2015-Ohio-4987, 53 N.E.3d 770, at ¶ 33.

Accordingly, we sustain the third assignment of error and vacate the five-year drive-

by shooting firearm specification for Count 15. Upon remand, the trial court is to

issue a sentencing entry reflecting the deletion of the five-year firearm specification.

See State v. Maldonado, 8th Dist. Cuyahoga No. 110655, 2023-Ohio-522 (en banc).

Firearm Specifications

The fourth assignment of error concerns the five-year drive-by

shooting firearm specifications for Count 14 (improperly discharging firearm at or

into habitation) and Count 15 (discharge of a firearm on or near prohibited

premises), and the seven-year peace-officer specifications for Counts 11, 12, and 13

(felonious assault).

A. Five-Year Drive-by Shooting Firearm Specification

First, Wilson claims that five-year firearm specifications for

Counts 14 and 15 should have merged with the seven-year firearm specifications

because the underlying offenses were based on the same act or transaction. As we

have vacated the five-year drive-by shooting specification accompanying Count 15,

the merger claim pertaining to Count 15 is moot and we only address the claim

pertaining to Count 14.

Firearm specifications may be subject to merger under R.C. 2929.14.

State v. Sheffey, 8th Dist. Cuyahoga No. 98944, 2013-Ohio-2463, ¶ 26, citing

R.C. 2929.14(B)(1)(c), Wilson argues the five-year drive-by shooting firearm

specifications should have merged with the seven-year peace-officer specification.

A reading of the pertinent statutory sections governing the imposition of firearm

specifications indicates that such a merger is not authorized by the legislature.

R.C. 2929.14(B) governs the one- and three-year firearm

specifications, five-year drive-by shooting firearm specification, and seven-year

peace-officer specification. Division (B)(1)(a) governs the one- and three-year

firearm specifications; division (B)(1)(c) governs the five-year firearm specification;

and division (B)(1)(f) governs the seven-year firearm specification.

Regarding the five-year firearm specification,

R.C. 2929.14(B)(1)(c)(iii) provides that the court shall not impose more than one

such term if the underlying felonies are committed as part of the same act or

transaction.

Wilson, however, is not arguing that his felony offenses underlying

Counts 14 and 15 were committed as part of the same act or transaction and

therefore the two five-year firearm specifications for Counts 14 and 15 should have

merged with each other. Rather, he argues that because his offenses underlying

Counts 14 and 15 were part of the same act or transaction as the offenses underlying

Counts 11 to 13, the two five-year firearm specifications should have merged with

the seven-year firearm specifications.

Wilson’s claim lacks merit because R.C. 2929.14(B)(1)(c)(iii) only

governs the merger of multiple five-year firearm specifications. R.C. 2929.14(B),

which governs the enhancement of a sentence with various firearm specifications,

does not provide for a merger of five-year and seven-year firearm specifications

based on the underlying offenses being the same act or transaction. We additionally

note that Wilson did not claim at trial that these underling offenses were committed

as part of the same act or transaction.

B. Seven-Year Peace-Officer Specification

Second, Wilson also challenges the three seven-year peace-officer

specifications imposed for the three felonious assault counts (Counts 11, 12, and 13).

The trial court imposed consecutive seven-year terms for Counts 11 and 12,

concurrent to the seven-year term for Count 13. Wilson argues the trial court was

only authorized to impose two seven-year terms for the specification pursuant to

R.C. 2929.14(B)(1)(f)(iii).

Wilson’s argument lacks merit. Division (B)(1)(f) of R.C. 2929.14

governs the imposition of the seven-year peace-officer specification. Division

(B)(1)(f)(iii) states, in pertinent part:

If an offender is convicted of or pleads guilty to two or more felonies

that include, as an essential element, causing or attempting to cause the

death or physical harm to another and also is convicted of or pleads

guilty to a specification of the type described under division (B)(1)(f) of

this section in connection with two or more of the felonies of which the

offender is convicted or to which the offender pleads guilty, the

sentencing court shall impose on the offender the prison term specified

under division (B)(1)(f) of this section for each of two of the

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. * * *

(Emphasis added.)

By its plain language, the trial court, “shall” impose on the offender

the seven-year term “for each of two of the specifications” and, in its discretion, may

impose the seven-year term “for any or all of the remaining specifications.”2 The

trial court here acted within its discretion to impose a third seven-year term (and

ordered it to run concurrently).3 The fourth assignment of error is without merit.

Reagan Tokes Law

Under the fifth assignment of error, Wilson argues his indefinite

sentences imposed under the Reagan Tokes Law is invalid because the law violates

his constitutional rights. This court has determined the statute to be constitutional

2 The Supreme Court of Ohio recently released a decision, State v. Bollar, Slip Opinion

No. 2022-Ohio-4370, concerning the three-year firearm specification, which is governed

by division (B)(1)(a). Although Bollar is not directly applicable to this case, we note that

the court held that the trial court was authorized to impose multiple three-year firearm

specifications even when the underlying offenses had been merged because they were

committed as part of the same act or transaction. The court reached the conclusion based

on its interpretation of R.C. 2929.14(B)(1)(g), which governs the imposition of multiple

one- and three-year firearm specifications and employs similar language permitting the

trial court to, “in its discretion,” impose additional prison term “for any or all of the

remaining specifications” as authorized by division (B)(1)(a).

3 We note that there is a limitation to the discretion exercised by the trial court under this

section. The last sentence of division (B)(1)(f)(iii) provides that “[i]f a court imposes an

additional prison term on an offender under division (B)(1)(f) of this section relative to an

offense, the court shall not impose a prison term under division (B)(1)(a) or (c) of this

section relative to the same offense.” The trial court here appropriately imposed only a

seven-year term for peace-officer specification each for Counts 11 to 13 without also

imposing a prison term for the one- and there-year firearm specification or the five-year

firearm specification.

in an en banc decision, State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th

Dist.), and therefore, we summarily overrule his constitutionality claim.

Under the fifth assignment of error, Wilson also argues that the trial

court failed to comply with the required notification set forth in

R.C. 2929.19(B)(2)(c) when imposing the indefinite sentence. Here, the trial court

gave the following advisement regarding the Reagan Tokes Law:

The sentencing judge will impose a minimum term from within the

currently established sentencing range and a maximum term of an

additional 50 percent of the minimum term imposed. Release is

presumed to occur at the expiration of the minimum term; however,

the Department of Rehabilitation and Correction[] may under certain

circumstances rebut that release presumption and impose additional

prison time up to the maximum term.

Pursuant to R.C. 2929.19(B)(2)(c), the trial court notified Wilson of

the rebuttable presumption that he would be released upon expiration of the

minimum prison term; that under certain circumstances the presumption is

rebuttable by the Department of Rehabilitation and Correction (“DRC”); and that, if

rebutted, Wilson may remain in prison up to the maximum term.

In State v. Laws, 8th Dist. Cuyahoga No. 111591, 2023-Ohio-77, ¶ 22-

24, the trial court provided a similar notification and this court held that the

notification was insufficient under R.C. 2929.19(B)(2)(c) because the trial court’s

reference to “certain circumstances” did not identify the “specified determinations”

the DRC may make to rebut the presumption or that the presumption may be

rebutted more than once up to the maximum term. Id. at ¶ 22. This court held,

however, that “such an error does not undermine the conviction and that the proper

remedy is remand for resentencing so that the offender may be given the proper

advisements.” Id. at ¶ 23, citing State v. Bobo, 2022-Ohio-3555, 198 N.E.3d 580,

¶ 33 (8th Dist.); State v. Bradley, 8th Dist. Cuyahoga No. 110882, 2022-Ohio-2954,

¶ 13; State v. Gates, 8th Dist. Cuyahoga No. 110616, 2022-Ohio-1666,¶ 27; and State

v. Whitehead, 8th Dist. Cuyahoga No. 109599, 2021-Ohio-847, ¶ 46. See also State

v. Guzman, 8th Dist. Cuyahoga No. 111153, 2022-Ohio-2414.

The fifth assignment of error is overruled in part and sustained in

part. This case is remanded for resentencing for the for the sole purpose of providing

Wilson with the notification required by R.C. 2929.19(B)(2)(c).

Imposition of Maximum Term for Concurrent Counts

Under the sixth assignment of error, Wilson argues the trial court

erred in imposing more than one maximum term for Counts 11 to 14.

Pursuant to R.C. 2929.14(A)(1)(a), for felony offenses sentenced

under the Reagan Tokes Law, the trial court is required to impose an indefinite

sentence with a stated minimum term selected by the court and a calculated

maximum term determined in accordance with R.C. 2929.144.

R.C. 2929.144 provides the statutory formula for the calculation of the

maximum term. When a single count is involved, R.C. 2929.144(B)(1) applies.

When there are multiple counts, R.C. 2929.144(B)(2) and (3) govern the calculation

of the maximum prison term. R.C. 2929.144(B)(2) applies when the terms are to

run consecutively, and R.C. 2929.144(B)(3) applies when the terms are to run

concurrently.

Here, the trial court sentenced Wilson on Counts 11 to 14 to indefinite

terms under the Reagan Tokes Law. It imposed a stated minimum sentence of three

years and a calculated maximum term of four-and-a-half years each on all four

counts, to be served concurrently. Wilson argues that the court can only impose a

single maximum term under R.C. 2929.144(B)(3). Division (B)(3) states, in

pertinent part:

If the offender is being sentenced for more than one felony, if one or

more of the felonies is a qualifying felony of the first or second degree,

and if the court orders that all of the prison terms imposed are to run

concurrently, the maximum term shall be equal to the longest of the

minimum terms * * * plus fifty per cent of the longest minimum term

for the most serious qualifying felony being sentenced.

(Emphasis added.) By using the singular noun “term,” the statute appears to

require the trial court to impose only one maximum term for all the

concurrent counts. However, while R.C. 2929.144 governs the calculation of

the maximum term, R.C. 2929.14(A)(1)(a) governs the imposition of

indefinite sentences. It states, in pertinent part:

For a felony of the first degree committed on or after the effective date

of this amendment, the prison term shall be an indefinite prison term

with a stated minimum term selected by the court of three, four, five,

six, seven, eight, nine, ten, or 11 years and a maximum term that is

determined pursuant to section 2929.144 of the Revised Code ***.

(Emphasis added.)

Pursuant to R.C. 2929.14(A)(1)(a), for a qualifying felony offense, the

trial court is required to impose a stated minimum term and a maximum term

determined by the mathematical formula set forth in R.C. 2929.144. The trial court

here complied with the statutory requirements when imposing indefinite sentences

on the four concurrent counts. The sixth assignment of error lacks merit.

Judgment affirmed in part and vacated in part, and the matter is

remanded to the trial court. Upon remand, the trial court is to resentence Wilson

for the sole purpose of providing Wilson with the required statutory notification

regarding his indefinite sentence and the sentencing entry is to reflect the deletion

of the five-year firearm specification accompanying the offense of discharge of a

firearm on or near prohibited premises.

It is ordered that appellant and appellee share costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

____________________________

MICHELLE J. SHEEHAN, JUDGE

ANITA LASTER MAYS, A.J., and

EILEEN T. GALLAGHER, J., CONCUR

N.B. Administrative Judge Anita Laster Mays is constrained to apply Delvallie’s

en banc decision. For a full explanation of her analysis, see State v. Delvallie,

2022-Ohio-470, 185 N.E.3d 536 (8th Dist.) (Laster Mays, J., concurring in part

and dissenting in part).

Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in Delvallie

and would have found that R.C. 2967.271(C) and (D) of the Reagan Tokes Law

are unconstitutional.