State v. Peters

[Cite as State v. Peters, 2023-Ohio-4362.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

UNION COUNTY

STATE OF OHIO,

CASE NO. 14-22-21

PLAINTIFF-APPELLEE,

v.

STEVEN PETERS, OPINION

DEFENDANT-APPELLANT.

Appeal from Union County Common Pleas Court

Trial Court No. 2021-CR-0207

Judgment Affirmed

Date of Decision: December 4, 2023

APPEARANCES:

Alison Boggs for Appellant

Raymond Kelly Hamilton for Appellee

Case No. 14-22-21

MILLER, P.J.

{¶1} Defendant-appellant, Steven Peters (“Peters”), appeals the October 20,

2022 judgment of sentence of the Union County Court of Common Pleas. For the

reasons that follow, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶2} This case originates from a September 8, 2021 incident at the Super 8

Motel in Marysville, where Peters got into an altercation with Kaleigh Dallas

(“Dallas”). The altercation culminated in a heated argument, during which Peters

held a gun to Dallas’ body. Additionally, Dallas alleged that Peters stole items from

her motel room during the incident.

{¶3} On October 12, 2021, the Union County Grand Jury indicted Peters on

four counts relating to the incident: Count One for felonious assault in violation of

R.C. 2903.11(A)(2), a second-degree felony; Count Two for robbery in violation of

R.C. 2911.02(A)(1), a second-degree felony; Count Three for robbery in violation

of R.C. 2911.02(A)(3), a third-degree felony; and Count Four for theft in violation

of R.C. 2913.02(A)(1), a first-degree misdemeanor. Counts One and Two each

featured a firearm specification pursuant to R.C. 2941.145(A). On November 22,

2021, Peters appeared for arraignment and pleaded not guilty to the counts and

specifications in the indictment.

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{¶4} The matter proceeded to a jury trial on August 30 and 31, 2022. At the

close of the State’s case, Peters moved for a judgment of acquittal under Crim.R. 29

as to all counts and specifications in the indictment. The trial court granted Peters’

motion as to Count Two and its attendant firearm specification, but otherwise denied

the motion. On August 31, 2022, the jury found Peters guilty of Count One and its

accompanying firearm specification, but not guilty of Counts Three and Four. The

trial court accepted the jury’s verdicts and continued sentencing until a later date.

{¶5} On October 20, 2022, the trial court held a sentencing hearing. For the

felonious assault charge, the judge sentenced Peters to a mandatory minimum prison

term of four years with a maximum of six years. The trial court specified this was

a mandatory prison term. The trial court also sentenced Peters to an additional

mandatory term of three years in prison for the firearm specification. The trial court

ordered the sentence for the specification be served prior and consecutive to the

felonious assault sentence, resulting in an aggregate mandatory minimum term of

seven years’ imprisonment and an aggregate maximum term of nine years’

imprisonment. The trial court filed its judgment entry of sentence on October 20,

2022.

II. ASSIGNMENTS OF ERROR

{¶6} On October 24, 2022, Peters timely filed a notice of appeal. He raises

the following five assignments of error for our review:

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Case No. 14-22-21

First Assignment of Error

The jury lost its way when reviewing the evidence, resulting in a

verdict that is against the manifest weight of the evidence and

sufficiency of the evidence.

Second Assignment of Error

The trial court erred when it included in the jury instructions

references to sufficiency of the evidence, as inclusion created

confusion and prejudiced appellant.

Third Assignment of Error

Trial court erred when it overruled appellant’s Criminal Rule 29

motions for acquittal on the felonious assault and gun

specification at the conclusion of the State’s evidence and then

again at the end of the trial.

Fourth Assignment of Error

Appellant was wrongfully indicted of a gun specification in

connection with an underlying offense that contains the element

that appellant possesses a gun to commit the offense. The addition

of a gun specification to an offense that has as an element of the

offense the presence or use of a firearm in the commission of the

offense is unconstitutional.

Fifth Assignment of Error

The trial court erred when it sentenced appellant to a mandatory

minimum prison sentence on the felonious assault charge.

III. DISCUSSION

{¶7} For ease of discussion, we will consider Peters’ first and third

assignments of error together. Then, we otherwise consider Peters’ assignments of

error individually and in the order presented.

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Case No. 14-22-21

A. First and Third Assignments of Error

{¶8} In his first and third assignments of error, Peters argues the jury’s

verdict is not supported by sufficient evidence and is against the manifest weight of

the evidence.1

i. Standards of Review

{¶9} Manifest “weight of the evidence and sufficiency of the evidence are

clearly different legal concepts.” State v. Thompkins, 78 Ohio St.3d 380, 389, 678

N.E.2d 541 (1997). Accordingly, we address each legal concept individually.

{¶10} Regarding sufficiency of the evidence, a sufficiency analysis

‘“determine[s] whether the case may go to the jury or whether the evidence is legally

sufficient to support the jury verdict as a matter of law.’” Id. at 386, quoting Black’s

Law Dictionary 1433 (6th Ed.1990). In reviewing the sufficiency of the evidence

to support a criminal conviction, we “examine the evidence admitted at trial to

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, superseded by state

constitutional amendment on other grounds as recognized in State v. Smith, 80 Ohio

1

Peters’ first assignment of error argues that the verdict is both against the weight of the evidence and against

the sufficiency of the evidence. Peters’ third assignment of error argues that the trial court erred when it

denied his motions for acquittal of the felonious assault and gun specification charges. “Because the purpose

of a Crim.R. 29 motion for acquittal ‘is to test the sufficiency of the evidence presented at trial,’ we ‘review[]

a denial of a Crim.R. 29 motion for judgment of acquittal using the same standard that is used to review a

sufficiency of the evidence claim.’” (Bracketing in original.) State v. Brown, 3d Dist. Allen No. 1-19-61,

2020-Ohio-3614, ¶ 35, quoting State v. Willis, 12th Dist. Butler No. CA2009-10-270, 2010-Ohio-4404, ¶ 9;

see also Crim.R. 29(A).

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St.3d 89, 102, 684 N.E.2d 668 (1997), fn. 4. “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. Thus, “[i]n assessing the sufficiency of the evidence, we do

not resolve evidentiary conflicts or assess the credibility of witnesses.” State v.

Jackson, 3d Dist. Allen No. 1-22-27, 2023-Ohio-2193, ¶ 26; see also Jenks at 279.

{¶11} Regarding manifest weight of the evidence, “[a]lthough 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.” Thompkins at 387. In determining whether a conviction

is against the manifest weight of the evidence, “‘[t]he 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.’” State v. Elmore, 111 Ohio

St.3d 515, 2006-Ohio-6207, ¶ 44, quoting Thompkins at 387. Yet, “[o]nly in

exceptional cases, where the evidence ‘weighs heavily against the conviction,’

should an appellate court overturn the trial court’s judgment.” State v. Haller, 3d

Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter, 131 Ohio

St.3d 67, 2011-Ohio-6524, ¶ 119; see also Thompkins at 387.

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ii. Felonious assault

{¶12} Peters was convicted of one count of felonious assault, in violation of

R.C. 2903.11(A)(2). The offense is codified at R.C. 2903.11, which states, in

relevant part: “No person shall knowingly * * * [c]ause or attempt to cause physical

harm to another * * * by means of a deadly weapon or dangerous ordnance.”

Therefore, the State is required to prove, beyond a reasonable doubt, that the

defendant (1) knowingly, (2) caused or attempted to cause physical harm to another,

(3) by means of a deadly weapon or dangerous ordnance. The term “deadly

weapon,” as used in that statute, “means 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.” R.C. 2923.11(A); see also R.C. 2903.11(E)(1).

{¶13} A reasonable jury can convict a defendant of felonious assault if the

defendant knowingly pointed a gun that qualifies as a “deadly weapon” at the victim

and either fired or attempted to fire in the victim’s direction. State v. Brooks, 44

Ohio St.3d 185, 192, 542 N.E.2d 636 (1989). However, “[t]he act of pointing a

deadly weapon at another, without additional evidence of the actor’s intention, is

insufficient evidence to convict a defendant of the offense of ‘felonious assault’ as

defined by R.C. 2903.11(A)(2).” Id. at syllabus. Simply pointing a deadly weapon

at another is not an “attempt to cause physical harm” to another under the statute.

Id. at 189. However, pointing a deadly weapon at another satisfies the knowingly

element of felonious assault. State v. Potts, 3d Dist. Hancock No. 5-16-03, 2016-

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Ohio-5555, ¶ 46 (“the State presented sufficient evidence that [the defendant]

pointed the gun at [the victim], which satisfies the element of felonious assault that

[the defendant] acted knowingly”).

{¶14} Two years after Brooks, the Ohio Supreme Court identified one

example of sufficient “additional evidence of the actor’s intention,” when it held:

“[t]he act of pointing a pointing a deadly weapon at another coupled with a threat,

which indicates an intention to use such weapon, is sufficient evidence to convict a

defendant of the offense of ‘felonious assault’ as defined by R.C. 2903.11(A)(2).”

State v. Green, 58 Ohio St.3d 239, 569 N.E.2d 1038 (1991), syllabus. Our court

later explained: “‘the Brooks holding is that the trier of fact may infer the existence

of the attempt to cause physical harm element from the circumstances that surround,

and indeed prompt, the aiming of the deadly weapon.’” Potts at ¶ 53, quoting State

v. Dyer, 2d Dist. Montgomery No. 26267, 2015-Ohio-451, ¶ 1 (alterations adopted).

For example, in Potts, the defendant’s felonious assault conviction was based on

sufficient evidence because the jury could reasonably infer he attempted to seriously

harm the victim when he aggressively forced his way into the victim’s house while

pointing a gun at the victim. Id. at ¶ 60. Additionally, the act of pointing a gun at

the victim and instructing him or her not to move, or to get out of the house, may

demonstrate the intent to cause physical harm by means of a deadly weapon. See,

e.g., State v. Smiley, 8th Dist. Cuyahoga No. 97047, 2012-Ohio-1742, ¶ 29

(sufficient evidence to convict defendant of felonious assault where defendant

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pointed a gun at the victim’s chest and said “don’t move”); State v. Simon, 3d Dist.

Hancock No. 5-98-14, 1998 WL 735868, *4 (Oct. 21, 1998) (defendant’s intention

to use the gun pointed at the victim “was evidenced by his statement ‘Get out of my

house’”).

iii. Gun specification

{¶15} The jury also found Peters guilty of the gun specification related to the

felonious assault offense. The State was required to prove, beyond a reasonable

doubt, that Peters “had a firearm on or about [his] person or under [his] control while

committing the offense” of felonious assault and “displayed the firearm, brandished

the firearm, indicated that [he] possessed the firearm, or used it to facilitate the

offense.” R.C. 2941.145(A); see also R.C. 2929.14(B)(1)(a)(ii); State v. Smith, 8th

Dist. Cuyahoga No. 111274, 2023-Ohio-603, ¶ 118. The term “firearm” is defined

as “any deadly weapon capable of expelling or propelling one or more projectiles

by the action of an explosive or combustible propellant.” R.C. 2923.11(B)(1); see

also R.C. 2941.145(F) (“[a]s used in this section, ‘firearm’ has the same meaning

as in section 2923.11 of the Revised Code”). That term “includes an unloaded

firearm, and any firearm that is inoperable but that can readily be rendered

operable.” Id. Thus, to support a firearm specification, the State must also ‘“prove

beyond a reasonable doubt that the firearm was operable or could readily have been

rendered operable at the time of the offense.”’ State v. Elliott, 3d Dist. Logan No.

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8-21-35, 2022-Ohio-3778, ¶ 51, quoting State v. Staten, 10th Dist. Franklin No.

18AP-48, 2018-Ohio-4681, ¶ 11.

{¶16} “When determining whether a firearm is capable of expelling or

propelling one or more projectiles by the action of an explosive or combustible

propellant, the trier of fact may rely upon circumstantial evidence, including, but

not limited to, the representations and actions of the individual exercising control

over the firearm.” R.C. 2923.11(B)(2). This includes explicit or implicit threats

made by the person in control of the firearm. Elliott at ¶ 54; Thompkins, 78 Ohio

St.3d at 384, 678 N.E.2d 541 (“where an individual brandishes a gun and implicitly

but not expressly threatens to discharge the firearm at the time of the offense, the

threat can be sufficient to satisfy the state’s burden of proving that the firearm was

operable or capable of being readily rendered operable”). When a defendant states

he has a gun and will use it, “a reasonable trier of fact can infer both the existence

and the operability of a gun.” Elliott at ¶ 61. “The State may establish that a firearm

was operable ‘by the testimony of lay witnesses who were in a position to observe

the instrument and the circumstances surrounding the crime.’” Id. at ¶ 53, quoting

State v. Murphy, 49 Ohio St.3d 206, 551 N.E.2d 932 (1990), syllabus. Yet, the mere

possession of a gun, without something more, is not enough to allow for a finding

that it is operable. Id. at ¶ 69.

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iv. Evidence at trial

{¶17} The trial lasted for two days. Officer Jason Nichols (“Officer

Nichols”) testified that he was the first officer at the scene on September 8, 2021 at

the Super 8 Motel. (Aug. 30, 2022 Tr. at 24-25). The motel was located at 16510

Square Drive, Marysville, Ohio in the County of Union. (Id.).

{¶18} Another witness was Jimmy Kyle McCune (“McCune”), who was

present during the incident at the motel on September 8, 2021. (Aug. 30, 2022 Tr.

at 81-82, 85-86). At the time he testified, McCune had criminal charges pending

against him related to the incident (including complicity for felonious assault), but

he testified without any agreement with the prosecutor and did so, according to

McCune, as a sign of genuine remorse. (Id. at 78-79, 116-18). McCune explained

he was not expecting to receive a “reward” or anything for his testimony; he just

wanted the truth to be known. (Id.)

{¶19} McCune and Peters had known each other prior to the incident. (Id. at

79-80, 106). In fact, they are cousins, worked together doing construction or

remodeling jobs, and Peters had periodically stayed at McCune’s house. (Id.; Aug.

31, 2022 Tr. at 34-35, 37-38). McCune said he also had known Dallas for about a

month or two prior to the incident, meeting her for the first time when Peters was

present too. (Aug. 30, 2022 Tr. at 82, 104-05). According to McCune, Peters had

a romantic relationship with Dallas at some point prior to the day of the incident.

(Id. at 105). Yet, on September 8, 2021, McCune went to the motel to have sex with

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Dallas. (Id. at 81-82). He drove to the Super 8 Motel with Peters, who agreed to

stay in the car. (Id. at 83). After arriving, Peters told McCune that he wanted to go

to Dallas’ room to talk to her, but McCune told him “no.” (Id. at 83-84).

{¶20} McCune testified that, after he had sex with Dallas, he went to a

convenience store; Peters was at the convenience store and then followed McCune

back up to Dallas’ room. (Id. at 84-85). Peters tried to get into Dallas’ room, but

McCune pushed him out and Peters went back down to the car. (Id.). Eventually,

McCune and Dallas exited her room to smoke a cigarette. (Id.). According to

McCune, Peters started saying that Dallas was “a lying, cheating this and that,” and

Peters and Dallas got into a verbal argument. (Id.). McCune testified: Peters then

“pulled out the gun and he said, bitch, I’ll shoot up this whole Super 8” and started

waving the gun around. (Id. at 85). Although McCune did not know Peters had

brought the gun to the motel, McCune was familiar with the weapon and understood

it to be a real gun. (Id. at 90-91). McCune testified that Peters then came up to

where Dallas was located, put the gun to her head, and screamed “I’ll blow your

head off.” (Id. at 85-86).

{¶21} During the trial, McCune also looked at a surveillance video

screenshot, in which Peters was up against Dallas’ body with the gun; McCune

testified Peters told Dallas “he was going to blow her brains out” at that time. (Id.

at 93-94; State’s Exhibit 14). McCune believed that Peters was going to shoot both

him and Dallas. (Aug. 30, 2022 Tr. at 97). McCune, who was standing next to

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Dallas during this time, tried to convince Peters to put the gun down, which Peters

ultimately did, and then Peters and Dallas started physically fighting. (Id. at 85-86,

92-95; State’s Exhibit 14). Peters and Dallas ended up fighting in Dallas’ room

until McCune finally got Peters out of the room and then they (McCune and Peters)

left the motel together. (Aug. 30, 2022 Tr. at 86-87, 97-98).

{¶22} Dallas also testified at the trial. She had been staying at the motel prior

to and at the time of the incident. (Aug. 30, 2022 Tr. at 130, 133). She believed

that Peters got upset on the day of the incident because she was being intimate with

McCune and not with him. (Id. at 134). She testified that Peters pulled a gun from

his car and was waiving it around in the motel’s parking lot, before he came up to

where she was located and held the gun to her two different times. (Aug. 30, 2022

Tr. at 138, 151-52). According to Dallas, on one occasion, Peters put the gun to her

head and said to her, “you’re not that big and bad now, huh.” (Id. at 139). Dallas

testified:

Q. And so, here is a screen shot, number 11, State’s Exhibit 14, what

is Steven Peters doing?

A. He has the gun and he’s raising it up again to my head.

Q. Do you recall anything that he was – Steven Peters was saying as

he had the gun raised to your head the first time or the second time?

A. Yes. He had mentioned about big and bad now, huh.

Q. What did you interpret that as? Those words spoken by Steven

Peters?

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A. Um, that he thought that I was intimidated and that I was afraid

and that I was weak and that, you know, him having that gun to me I

would bow down and listen and just think he’s all that, you know.

Q. Uh-huh.

A. And I didn’t.

(Id. at 152).

{¶23} Dallas also testified that she was concerned that the gun was going to

go off and “wasn’t scared to die but [she] did fear for [her] life.” (Id. at 140-41).

She further testified: “* * * I wasn’t scared to die. I’m not going to sit there and

beg for my life * * *.” (Id.). Additionally, she said: “I feared that I was going to

lose my life and not be able to be there for my son.” (Id. at 156). However, Dallas

also testified, on cross-examination, that she told a detective she knew Peters was

not going to shoot her and that Peters was just showing off and flexing the gun. (Id.

at 156-57).

{¶24} After the State closed its evidence, Peters testified on his own behalf.

He admitted he was at the Super 8 Motel in Marysville on September 8, 2021 and

that he and Dallas got into an argument after Dallas and McCune exited her room.

(Aug. 31, 2022 Tr. at 36, 39-40). He also admitted that, after initially arguing with

Dallas, he went to the car and got a gun—which he said belonged to McCune. (Id.

at 40). He said the gun was a semi-automatic weapon that originally was “cocked

back,” but without a clip or bullets in it. (Id. at 41). The clip was sitting beside the

gun in the car. (Id.). He then pulled the gun’s safety down, pulled back the rear of

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the gun, and closed it before proceeding up to Dallas’ room “to scare her.” (Id. at

42). He admitted he “was going upstairs to frighten her with the weapon” because

he “was mad.” (Id.).

{¶25} Peters also admitted he “put the gun to the back of [Dallas’] back.”

(Id.). Regarding what he said when he put the gun up to Dallas’ back, Peters

testified that he “was laughing at her and we was [sic] exchanging cuss words back

and forth. Just cussing at each other.” (Id. at 43). He also said that they were just

arguing about Dallas’ child. (Id. at 55). Peters admitted he subsequently put the

gun up to Dallas’ neck too. (Id. at 43). According to Peters, in the midst of arguing

with Dallas, he then pulled the gun away from Dallas’ neck (“[b]ecause [he] was

thinking it was the wrong thing”), walked over to McCune, and gave McCune the

gun. (Id. at 42-44, 57). Peters said that his finger was never on the trigger of the

gun and that, as far as he knew, there was no clip or bullet in the gun. (Id. at 44).

Peters also testified he, Dallas, and McCune “could clearly see that [the gun was]

empty” and that he told them the gun was empty and was unloaded. (Aug. 31, 2022

Tr. at 52-53, 58). However, Peters admitted on cross-examination he was “asking

the jury to believe a pretty fantastical story that” he had told Dallas and McCune the

gun was unloaded. (Id. at 58). He also agreed that his actions in going up to Dallas

and pointing a gun at her terrorized Dallas. (Id. at 67).

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v. Peters’ conviction was supported by sufficient evidence

{¶26} Peters argues the State failed to present sufficient evidence to send the

charge of felonious assault and accompanying gun specification to the jury, and,

therefore, the trial court erred in overruling his Crim. R. 29 motions for acquittal.

(Appellant’s Brief at 13-14). He asserts the State “failed to present evidence that

Mr. Peters made a threat and that the threat indicated an intention to use the gun.”

(Id. at 13). He also asserts the State did not present any evidence that the gun was

operable to support a conviction on the gun specification.

{¶27} Regarding the felonious assault conviction, we disagree with Peters

that the State failed to present sufficient evidence to survive a Crim.R. 29 motion.

On the contrary, we find the State presented sufficient evidence Peters made a threat

and the threat indicated an intention to use the gun. For example, during the State’s

presentation of evidence, McCune testified that Peters, while pointing a gun at

Dallas, threatened her. (See, e.g., Aug. 30, 2022 Tr. at 85-86, 92-95, 102). The

following exchange took place at trial with McCune on the stand:

Q. Okay. Jimmy [McCune], did Steven Peters make any statements

to Miss Dallas as he was holding the gun against her?

A. Yes.

Q. What did he say?

A. He said I’m going to blow your brains out.

(Aug. 30, 2022 Tr. at 102). Again, the Ohio Supreme Court has explained: “[t]he

act of pointing a deadly weapon at another coupled with a threat, which indicates an

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intention to use such weapon, is sufficient evidence to convict a defendant of the

offense of ‘felonious assault’ as defined by R.C. 2903.11(A)(2).” Green, 58 Ohio

St.3d 239, 569 N.E.2d 1038, at syllabus. Therefore, when viewing the evidence in

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

the essential elements of the crime proven beyond a reasonable doubt both at the

close of the State’s evidence and at the close of Peters’ evidence. R.C.

2903.11(A)(2); Smiley, 2012-Ohio-1742, at ¶ 29 (sufficient evidence to convict

defendant of felonious assault where evidence supported that defendant had pointed

a gun at the victim’s chest and said “don’t move”); Potts, 2016-Ohio-5555, at ¶ 60

(felonious assault conviction was based on sufficient evidence where, “under the

specific facts of [the] case, a jury could reasonably infer that [defendant] attempted

to seriously harm [the victim] because he forced his way into [the victim’s] house

while pointing a gun at” the victim).

{¶28} Regarding the gun specification, we likewise disagree with Peters and

find the State presented sufficient evidence regarding Peters’ use of the gun and its

operability to warrant sending the charge to the jury. During the State’s presentation

of evidence, testimony from McCune and Dallas, as well as screenshots from the

video evidence, supported that Peters had a gun while committing the offense. (See,

e.g., Aug. 30, 2022 Tr. at 85-86, 92-95, 139-40, 152; State’s Exhibit 14). Testimony

and surveillance video screenshots supported that Peters displayed the gun,

brandished the gun, and used the gun to facilitate the offense. (See, e.g., Aug. 30,

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2022 Tr. at 85-86, 92-95, 139-40, 152; State’s Exhibit 14). Testimony also

supported that the gun qualified under the statute as a “firearm” that was operable

or could readily have been rendered operable at the time of the offense. (See, e.g.,

Aug. 30, 2022 Tr. at 85-86, 89-90, 94, 102). For example, in addition to testifying

that Peters had said “bitch, I’ll shoot up this whole Super 8,” McCune testified that

Peters held the gun to Dallas’ head and told her “I’m going to blow your brains out”

(id. at 85, 102). See Elliott, 2022-Ohio-3778, at ¶ 53-54, 61 (testimony of lay

witnesses, who had observed the weapon and circumstances surrounding the crime,

regarding threats may be relied on as circumstantial evidence that the firearm was

operable or capable of being readily rendered operable). Furthermore, Dallas

testified she was concerned the gun was going to go off and feared she was going

to lose her life, and McCune testified he believed Peters was going to shoot both

him and Dallas (see, e.g., Aug. 30, 2022 Tr. at 97, 140-41, 156). Therefore, when

viewing the evidence in a light most favorable to the prosecution, a rational trier of

fact could have found the essential elements of the gun specification proven beyond

a reasonable doubt both at the close of the State’s evidence and at the close of Peters’

evidence. R.C. 2941.145(A); R.C. 2929.14(B)(1)(a)(ii); Smith, 2023-Ohio-603, at

¶ 118; Smiley, 2012-Ohio-1742, at ¶ 32-34 (trier of fact reasonably concluded the

firearm was operable, based on the victim’s testimony that the defendant pointed a

gun at his chest and told him “don’t move” and the victim feared for his life); State

v. Ware, 9th Dist. Summit No. 22919, 2006-Ohio-2693, ¶ 14 (sufficient evidence

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that gun was operable where the victim testified the defendant pointed a handgun at

him and threatened him).

{¶29} We find that, viewing the evidence in a light most favorable to the

prosecution, the trial court did not err in denying Peters’ Crim.R. 29 motions for

acquittal on the felonious assault and related gun specification.

vi. Peters’ conviction was not against the manifest weight of

the evidence

{¶30} Peters also argues “[t]he conflicting testimony and evidence in this

case clearly show the jury lost its way and that the verdict is against the weight of

the evidence,” and he asks us to reverse the jury’s guilty verdict. (Appellant’s Brief

at 3, 8).

{¶31} We find that the jury did not clearly lose its way and create such a

manifest miscarriage of justice that the conviction must be reversed. The weight of

the evidence, including screenshots from the surveillance video coupled with

McCune’s testimony, fully supports the jury’s guilty verdict. Peters admitted

(multiple times) that he pointed a gun at Dallas. (See, e.g., Aug. 31, 2022 Tr. at 60).

Additionally, although Peters testified he and Dallas were merely exchanging “cuss

words back and forth” and arguing about Dallas’ child (see Aug. 31, 2022 Tr. at 43,

55), testimony from McCune supports that Peters threatened to shoot her when he

pointed the gun at her. Specifically, McCune testified he observed Peters put the

gun to Dallas’ head and scream “I’ll blow your head off” and, later, “I’m going to

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blow your brains out.” (Aug. 30, 2022 Tr. at 85-86, 102). The evidence presented

does not weigh heavily against the conviction of felonious assault. Green, 58 Ohio

St.3d 239, 569 N.E.2d 1038, at syllabus; State v. Battle, 5th Dist. Morgan No. 09

AP 0001, 2010-Ohio-4327, ¶ 110-114 (despite conflicting testimony between the

victim’s and defendant’s versions of events, the conviction for felonious assault was

not against the manifest weight of the evidence where the victim’s testimony

supported that defendant pointed a gun at him and ordered him to get out of the

house).

{¶32} Regarding the gun specification, Peters argues the State did not offer

any evidence that the gun was operable. However, Peters himself testified on direct

examination to the following:

Q. And, again, you’re not denying that you took that gun out of his

car?

A. No.

Q. And you’re not denying that you’ve seen that gun before?

A. No.

Q. And, as far as you know, that’s an operable gun?

A. Yeah.

Q. And you’ve even played with that gun or had that gun –

A. Yes.

Q. – while in Jimmy’s presence?

A. Yes.

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(Aug. 31, 2022 Tr. at 50). Additionally, as set forth above in the sufficient evidence

analysis, there is ample testimony supporting a finding that, despite apparently being

unloaded, the gun was operable or could have been rendered operable at the time of

the offense. R.C. 2923.11(B)(1) (the term “‘[f]irearm’ includes an unloaded

firearm, and any firearm that is inoperable but that can readily be rendered

operable”).

{¶33} Having reviewed the entire record, weighing the evidence and all

reasonable inferences and making the considerations set forth above, we do not find

“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.” Elmore, 111 Ohio St.3d

515, 2006-Ohio-6207, at ¶ 44.

{¶34} Finally, Peters makes another related argument in his briefing.

Specifically, he asserts the trial court committed plain error when it allowed

questioning about what took place in the hotel room (after Peters was no longer in

possession of the handgun) because that line of questioning only served to prejudice

the jury against him, despite his counsel not objecting to the questioning. Under

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

although they were not brought to the attention of the court.” To qualify for plain-

error relief, the appellant must establish: (1) occurrence of an error, i.e., a deviation

from a legal rule; (2) the error was plain, i.e., it was an obvious defect in the trial

proceedings; and (3) the error affected the appellant’s substantial rights, meaning

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the error “must have affected the outcome of the trial.” State v. Morgan, 153 Ohio

St.3d 196, 2017-Ohio-7565, ¶ 36. Yet, even when an appellant establishes those

three prongs, “[n]otice of plain error under CrimR. 52(B) is to be taken with the

utmost caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus; see also Morgan, 2017-Ohio-7565, at ¶ 37; State v.

Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 23 (“even if an accused shows that

the trial court committed plain error affecting the outcome of the proceeding, an

appellate court is not required to correct it”).

{¶35} To us, Peters has not met the plain-error standard. First, he ignores

that he was also on trial for two counts of robbery and one count of petty theft. The

State’s theory at trial regarding those charges was that Peters robbed Dallas of $100

in cash, a cellphone, and cigarettes from her hotel room after Peters had pointed the

gun at Dallas outside of her room. (See, e.g., Aug. 30, 2022 Tr. at 17-18; Aug. 31,

2022 Tr. at 50 (Peters’ counsel asking Peters on direct examination, “Did you ever

take a hundred dollars out of the room?”)). Dallas testified that, after Peters had

been in her hotel room and fought with her there, she looked for her belongings that

she had stored in her room and realized one hundred dollars, a pack of cigarettes,

and her phone were missing. (Aug. 30, 2022 Tr. at 149, 153-54). Second, starting

with the very first witness, Peters’ counsel attempted to erode Dallas’ credibility.

This included Peters’ counsel’s questioning that suggested Peters did not harm

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Dallas in the way she had told police officers (including that he put her on the bed,

jumped on top of her, and began punching her in the head and body). We also note

that, not only did Peters’ trial counsel not object to the line of questioning at issue,

he initiated a series of questions during his direct examination of Peters regarding

what happened in the motel room. (Aug. 31, 2022 Tr. at 47-48). In short, the trial

court did not commit plain error when it allowed the questioning.

{¶36} Peters’ first and third assignments of error are overruled.

B. Second Assignment of Error

{¶37} Peters’ second assignment of error relates to jury instructions.

Specifically, he takes issue with the following instructions to the jury regarding

felonious assault:

As it relates to the knowingly element of Felonious Assault, Ohio law

has determined that evidence of a defendant pointing a gun at the

victim is legally sufficient, if believed, to prove the defendant acted

knowingly.

As it relates to the attempt to cause physical harm element of

Felonious Assault, Ohio law has determined that evidence of a

defendant making verbal threats while pointing a gun at the victim is

legally sufficient, if believed, to prove the defendant attempted to

cause the victim physical harm.

(Aug. 31, 2022 Tr. at 199). The State had requested these instructions be included

in the instructions to the jury, and Peters’ counsel objected to their inclusion during

the trial. (Id. at 88-89).

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{¶38} Given their reference to what “is legally sufficient,” Peters argues that

these jury instructions created confusion regarding the role of a jury versus the role

of a judge, reducing the State’s burden of “beyond a reasonable doubt” to merely

requiring “sufficient evidence,” and prejudiced him. Additionally, he contends that

they were not a correct statement of the law and that their inclusion materially

affected the outcome of the case.

i. Standard of Review for Disputed Jury Instructions

{¶39} “Abuse of discretion is the standard of review for disputed

instructions.” State v. White, 6th Dist. Lucas No. L-10-1194, 2013-Ohio-51, ¶ 97,

aff’d, 2015-Ohio-492; see also State v. Chavez, 3d Dist. Seneca Nos. 13-19-05, 13-

19-06, and 13-19-07, 2020-Ohio-426, ¶ 58 (“[g]enerally, appellate courts review

alleged errors in jury instructions for an abuse of discretion”). “An abuse of

discretion ‘connotes more than an error of law or of judgment; it implies that the

court’s attitude is unreasonable, arbitrary or unconscionable.’” State v. Jackson,

107 Ohio St.3d 53, 2005-Ohio-5981, ¶ 181, quoting State v. Adams, 62 Ohio St.2d

151, 157, 404 N.E.2d 144 (1980).

ii. Applicable Law

{¶40} General legal principles regarding the elements and State’s burden for

proving a felonious assault under R.C. 2903.11(A)(2) are set forth above.

Additionally, “[a] trial court has broad discretion to decide how to fashion jury

instructions, but it must ‘fully and completely give the jury all instructions which

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are relevant and necessary for the jury to weigh the evidence and discharge its duty

as the fact finder.’” State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, ¶ 46,

quoting State v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two

of the syllabus. “We require a jury instruction to present a correct, pertinent

statement of the law that is appropriate to the facts.” Id. However, there is a limit

to this requirement because, for example, no purpose is served by requiring courts

to present redundant jury instructions or instructions so similar to other instructions

as to be confusing. Id.

{¶41} “Requested jury instructions should ordinarily be given if they are

correct statements of law, if they are applicable to the facts in the case, and if

reasonable minds might reach the conclusion sought by the requested instruction.”

State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 240. However, “[t]he

relevant principle for jury instructions is not one of abstract correctness, but is

whether an instruction—even if a correct statement of law—is potentially

misleading.” White, 2015-Ohio-492, at ¶ 52. Yet, “jury instructions must be

considered as a whole.” State v. Coleman, 37 Ohio St.3d 286, 290, 525 N.E.2d 792

(1988). “A single instruction to a jury may not be judged in artificial isolation but

must be viewed in the context of the overall charge.” State v. Price, 60 Ohio St.2d

136, 398 N.E.2d 772 (1979), paragraph four of the syllabus.

{¶42} Finally, Peters concedes in his brief that, “even if an instruction was

inappropriate, if it did not materially affect the outcome of the case, then it would

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not be proper to reverse the judgment.” (Appellant’s Brief at 8, citing State v.

Copeland, 8th Dist. Cuyahoga No. 106988, 2019-Ohio-1370, ¶ 28). This Court has

previously explained that, if we find the trial court erred in instructing the jury, then

we must “determine whether that error was harmless or prejudicial.” State v.

Noggle, 140 Ohio App.3d 733, 749, 749 N.E.2d 309 (3d Dist.2000). “‘Harmless

error’ is defined in CrimR. 52(A) as ‘[a]ny error, defect, irregularity, or variance

which does not affect substantial rights * * *.’” Id. “‘To be deemed nonprejudicial,

error of constitutional dimension must be harmless beyond a reasonable doubt.’”

Id., quoting State v. Williams, 6 Ohio St.3d 281, 452 N.E.2d 1323 (1983), paragraph

three of the syllabus. Additionally, “‘[e]rror, in order to be construed as prejudicial

error, must be an incorrect statement of the law.’” Id., quoting State v. Sargent, 41

Ohio St.2d 85, 91, 322 N.E.2d 634 (1975).

iii. Analysis

{¶43} First, we disagree with Peters’ argument that any mention of

“sufficiency of the evidence” in the jury instructions caused a confusion of roles

between the jury and the court, as well as with his assertion that the instructions

prejudiced him by reducing the State’s burden. His argument ignores the entirety

of the jury instructions and, instead, incorrectly looks only to the at-issue

instructions in isolation. Price, 60 Ohio St.2d 136, 398 N.E.2d 772, at paragraph

four of the syllabus.

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{¶44} At trial, the judge instructed the jury: “[t]he defendant is presumed

innocent unless his guilt has been established beyond a reasonable doubt” and “[t]he

defendant must be acquitted unless the State produces evidence which convinces

you beyond a reasonable doubt of every essential element of the offense charged in

the indictment.” (Aug. 31, 2022 Tr. at 183-184). The trial court also instructed the

jury: “Reasonable doubt is present when, after you have carefully considered and

compared all of the evidence, you cannot say that you are firmly convinced of the

truth of the charge.” (Id. at 184).

{¶45} Regarding felonious assault, the trial court instructed the jury: “Before

you can find the defendant guilty of Felonious Assault, you must find that the State

of Ohio has proven beyond a reasonable doubt that on or about September 8, 2021,

in Union County, Ohio, Defendant Steven Peters did knowingly cause or attempt to

cause physical harm to Kaleigh Dallas by means of a deadly weapon or dangerous

ordnance, to-wit: A handgun.” (Id. at 192). Regarding some of these terms, the trial

court instructed:

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.

***

Attempt means no person, purposely or knowingly, and when purpose

or knowledge is sufficient culpability for the commission of offense –

of an offense shall engage in conduct that, if successful, would

constitute or result in the offense.

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Cause is an act or failure to act in which – which is a natural and

continuous sequence directly produces the physical harm and without

which it would not have occurred.

Physical harm to persons means any injury, illness or other

psychological impairment regardless of its gravity or duration.

(Id. at 193-194). It was after this point that the judge gave the portion of the

instructions at issue in this appeal, quoted above.2 (Id. at 199).

{¶46} Peters’ argument also ignores that numerous courts have upheld jury

instructions containing similar language regarding sufficient evidence. See, e.g.,

State v. Cochran, 2d Dist. Greene No. 2019-CA-41, 2020-Ohio-3054, ¶ 18, 23, 28-

29 (rejecting appellant’s argument that a felonious assault instruction pertaining to

sufficiency of evidence invited the jury to ignore an element of the offense); State

v. Collins, 8th Dist. Cuyahoga No. 89529, 2008-Ohio-578, ¶ 60-70; State v. Turner,

8th Dist. Cuyahoga No. 78520, 2001 WL 1671434, *4-6 (Nov. 29, 2001); State v.

Stone, 11th Dist. Ashtabula, No. 98-A-0102, 1999 WL 1313620, *3 (Dec. 10, 1999).

For example, in Collins¸ the defendant-appellant argued he was denied due process

2

Additionally, in closing arguments, the State briefly previewed the instructions at issue in this appeal, and

Peters’ trial counsel then likewise addressed those instructions. (Aug. 31, 2022 Tr. at 147-48, 172-76).

Peters’ trial counsel stated that he did not want the jury to be confused about the concept of sufficiency. He

told them that, although the State argued what evidence would be legally sufficient to support a finding of

guilt, “that doesn’t prevent you, as the jury, still having to find beyond a reasonable doubt that the defendant

acted knowingly and it doesn’t mean that if you think that happened, you have to find beyond a reasonable

doubt that the defendant acted knowingly. It just means from a point of law there is a sufficient credible

basis where you could find the defendant acted knowingly.” (Id. at 173-174). Peters’ trial counsel made

similar remarks with respect to the attempted-physical-harm portion of the instruction, telling the jurors they

“could determine that an attempt to cause physical harm was made not that you have to and not that the State

is relieved of their burden beyond a reasonable doubt because they still have to find the actual elements of

the crime.” (Id. at 174). Peters’ trial counsel concluded: “[P]lease have that distinction and try not to get

confused between what is a sufficient factual basis where an Appellate Court wouldn’t overturn your verdict

and what you actually have to do to follow the law.” (Id. at 176).

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of law when the court gave an (allegedly) incomplete instruction on felonious

assault, effectively directing a verdict of guilty. The appellate court rejected the

argument, concluding the trial court properly instructed the jury in telling it: “The

act of pointing a deadly weapon at another, coupled with a threat which indicates

intention to use such weapon, is sufficient evidence to convict a defendant of the

offense of felonious assault.” Collins at ¶ 64, 70. In Turner, the defendant-appellant

made an argument similar to Peters’ argument here: “the court’s instruction

confused the elements of felonious assault with the concept of sufficiency of the

evidence when the court essentially charged the jury that threatening the victim with

a firearm, when the appellant had previously discharged the firearm, is sufficient for

a conviction.” Turner at * 4. In rejecting this argument, the appellate court found

“the jury instructions, when considered as a whole, provided the jury with all the

information necessary for it to weigh the evidence and arrive at its conclusion.” Id.

at *6. Based on the instructions as a whole and applicable caselaw, we do not find

error in the trial court’s reference to what “is legally sufficient” in the instructions

at issue.

{¶47} Second, we reject Peters’ argument that the jury instructions were not

a correct statement of the law and materially affected the outcome of the case. The

instructions at issue are a correct statement of law in accordance with our precedent.

Potts, 2016-Ohio-5555, at ¶ 46 (“the State presented sufficient evidence that

[defendant] pointed the gun at [victim], which satisfies the element of felonious

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Case No. 14-22-21

assault that [defendant] acted knowingly”), ¶ 50 (a reasonable jury could convict the

defendant of felonious assault if he had pointed his weapon at the victim and either

fired or attempted to discharge his weapon in the victim’s direction “or if [the

defendant] verbally threatened [the victim] while pointing the gun at him”).

{¶48} We acknowledge that more complete recitations of the law relating to

attempted felonious assault with a gun have been fashioned into jury instructions by

other trial courts. However, we do not find the jury instructions at issue here were

an incorrect statement of law or misleading—and they certainly did not materially

affect the outcome of the case—given the evidence presented and considering the

instructions as a whole. See State v. Allen, 73 Ohio St.3d 626, 629, 653 N.E.2d 675

(1995) (explaining that, although the Court expressed a preference that a certain

instruction be avoided, giving the instruction did not constitute prejudicial error).

{¶49} Additionally, the jury instructions at issue were applicable to the facts

in the case and reasonable minds might reach the conclusion sought by the

instructions, which the State had requested. Adams, 144 Ohio St.3d 429, 2015-

Ohio-3954, at ¶ 240 (“[r]equested jury instructions should ordinarily be given if they

are correct statements of law, if they are applicable to the facts in the case, and if

reasonable minds might reach the conclusion sought by the requested instruction”).

As explained in the section above addressing the first and third assignments of error,

not only did the State present evidence that Peters pointed a gun at Dallas

(something Peters himself admits), but it presented evidence that Peters made verbal

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threats to Dallas while doing so. (See, e.g., Aug. 30, 2022 Tr. at 85-86 (McCune

testifying that Peters put the gun to Dallas’ head and screamed “I’ll blow your head

off”); id. at 102 (McCune testifying that Peters told Dallas, while holding a gun

against her, “I’m going to blow your brains out”)).

{¶50} Peters argues he only made one comment to the victim and that

comment, alone, did not indicate an intention on his part to use the weapon.

(Appellant’s Brief at 10 (“[h]e merely said, ‘you’re not that big and bad now huh’”)).

But this argument, inexplicably, completely ignores McCune’s testimony, which

clearly supported that Peters’ verbal threat indicated an intent to use the gun while

pointed at the victim. The words “I’m going to blow your brains out” and “I’ll blow

your head off” each unquestionably evidence an intent to use the gun pointed at

Dallas. The jury was free to believe or disbelieve whatever testimony it chose.

{¶51} Furthermore, even if the jury for some reason did not rely on

McCune’s testimony, then they could have relied on Dallas’ testimony to reach the

conclusion that Peters’ verbal threat indicated an intent to use the gun while pointed

at the victim. Peters ignores Dallas’ testimony that she feared she was going to lose

her life. Dallas testified that on one of the occasions, Peters, while holding the gun

to her head, told her “you’re not that big and bad now, huh.” Caselaw shows this

comment certainly could indicate an intention on Peters’ part to use the gun as

perceived by a reasonable person under the circumstances. See, e.g., State v.

Shepherd, 8th Dist. Cuyahoga No. 102974, 2016-Ohio-1119, ¶ 12 (affirming jury’s

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Case No. 14-22-21

conviction of the defendant for felonious assault where defendant pointed a gun at

the victim and said “you know what this is”); Simon, 1998 WL 735868, at *4

(sufficient evidence to convict defendant of felonious assault where defendant

pointed a gun at the victim and the threat made was “Get out of my house”); Smiley,

2012-Ohio-1742, at ¶ 29 (sufficient evidence to convict defendant of felonious

assault where defendant pointed a gun at the victim’s chest and the threat made was

“don’t move”). Peters’ argument attempts to isolate the comment from its context,

but the comment cannot be evaluated in isolation. The phrases “you know what this

is” or “don’t move” or “get out of my house”—or even the phrase used in Green

(“If you don’t have a warrant get the fuck out of my house”)—do not, in and of

themselves, evidence an intent to use a deadly weapon when simply read in

isolation. Yet, when properly evaluated in context of the situation, such comments

and the comment Dallas testified to here (“you’re not that big and bad now, huh”)

can be perceived by a reasonable person under the circumstances as an intention to

use a deadly weapon.

{¶52} Next, in his briefing, Peters contends there was nothing to prove Dallas

actually felt threatened or was afraid. In support of this contention he cites Dallas’

testimony that she “wasn’t scared” and had told a detective she knew Peters was not

going to shoot her. (Aug. 30, 2022 Tr. at 155-56). However, the State was not

required to prove that the victim actually felt threatened or was afraid in order to

prove the offense of felonious assault. Such a requirement does not correspond with

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the elements of the offense or with the Ohio Supreme Court’s pronouncements in

Green—which focus on a reasonable person’s perception of the statement made by

the assailant. See also State v. Kehoe, 133 Ohio App.3d 591, 613-614, 729 N.E.2d

431 (12th Dist.1999) (the statement “a felonious assault occurs when a loaded

weapon is pointed at an individual and the individual feels threatened * * * does not

accurately reflect the elements of felonious assault”). Regardless, Dallas’ testimony

does support that she felt threatened and feared for her life. (See, e.g., Aug. 30,

2022 Tr. at 140).

{¶53} Finally, even if the jury instructions at issue were erroneous, they were

not prejudicial under the particular facts of this case given the evidence presented at

trial and instructions as a whole. The trial court did not abuse its discretion. We

find that any alleged error in the jury instructions did not materially affect the

outcome of the case. State v. Swartz, 3d Dist. Auglaize No. 2-85-34, 1987 WL

32155, *3 (Dec. 30, 1987) (if the record shows the jury returned a guilty verdict on

sufficient evidence, and no prejudicial error occurred at trial or in the instructions

to the jury, then the reviewing court may not reverse the judgment of conviction).

{¶54} Peters’ second assignment of error is overruled.

C. Fourth Assignment of Error

{¶55} In his fourth assignment of error, Peters argues that he was deprived

of the Eighth Amendment’s protections against cruel and unusual punishment when

he was indicted for felonious assault and the associated firearm specification. Peters

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maintains that possession of a firearm was, in this instance, an element of the

felonious-assault offense with which he was charged. He argues that “[t]he ability

of the State to add the gun specification penalty enhancement that is also an essential

element of the predicate offense to an indictment creates a penalty that is grossly

disproportionate to the offense in the event there is a finding of guilt.” (Appellant’s

Brief at 15). He claims “it is unconstitutional to further increase a penalty for a

crime that already accounts for a firearm by further indicting an individual with a

gun specification,” and he asks us to reverse his conviction for the firearm

specification. (Id. at 17).

{¶56} However, as Peters concedes, this issue was not raised at any time in

the trial court proceedings below. “‘If a party fails to object to a constitutional issue

at trial, an appellate court need not consider the objection for the first time on

appeal.’” State v. Bagley, 3d Dist. Allen No. 1-13-31, 2014-Ohio-1787, ¶ 70,

quoting State v. Rowland, 3d Dist. Hancock No. 5-01-28, 2002 WL 479163, *1

(Mar. 29, 2002). While we retain discretion to consider constitutional challenges

not previously submitted to the trial court, “discretion will not ordinarily be

exercised to review such claims, where the right sought to be vindicated was in

existence prior to or at the time of trial.” State v. Woodards, 6 Ohio St.2d 14, 21,

215 N.E.2d 568 (1966).

{¶57} Here, Peters’ Eighth-Amendment argument was available to him from

the outset of his prosecution. Yet, he did nothing in the trial court to develop or

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advance it. Under these circumstances, we decline to exercise our discretion to

consider his constitutional argument in the first instance.

{¶58} Peters’ fourth assignment of error is overruled.

D. Fifth Assignment of Error

{¶59} In his fifth assignment of error, Peters argues that his mandatory four-

year minimum prison sentence for felonious assault is contrary to law. Peters

acknowledges that the trial court had to impose a mandatory prison term for the

firearm specification associated with his felonious-assault conviction, but he

maintains that nothing in the Revised Code required the trial court to impose a

mandatory prison term for the felonious-assault conviction itself. In making this

argument, Peters asks us to reconsider our decision in State v. Wolfe, 3d Dist. Union

No. 14-21-16, 2022-Ohio-96, issued on January 18, 2022, as well as the

interpretation of R.C. 2929.13(F)(8) we adopted therein.3

i. Standard of Review for Felony Sentencing

{¶60} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“only if it determines by clear and convincing evidence that the record does not

support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,

3

Although R.C. 2929.13 has since been amended (effective April 4, 2023), the version of the statute

applicable both in Wolfe and in this case are the same and, more importantly going forward, the amendments

do not alter our conclusion concerning the interpretation of R.C. 2929.13(F)(8). See State v. Johnson, 116

Ohio St.3d 541, 2008-Ohio-69, ¶ 9 (the applicable version of R.C. 2929.13(F) is the one in effect on the date

of the offense).

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¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954),

paragraph three of the syllabus.

ii. Relevant Sentencing Statutes

{¶61} We start with the definition of “mandatory prison term.” As pertinent

here, a “mandatory prison term” means “the term in prison that must be imposed for

the offenses or circumstances set forth in divisions (F)(1) to (8) or (F)(12) to (21) of

section 2929.13 and division (B) of section 2929.14 of the Revised Code.” R.C.

2929.01(X)(1). Therefore, R.C. 2929.13(F)(8) provides for a mandatory prison

term, as does R.C. 2929.14(B)(1)(a)(ii).

{¶62} Looking first to R.C. 2929.14(B)(1)(a), under R.C.

2929.14(B)(1)(a)(i)-(vi), “if an offender who is convicted of or pleads guilty to a

felony also is convicted of or pleads guilty to a [firearm specification] described in

section 2941.141, 2941.144, or 2941.145 of the Revised Code, the court shall

impose on the offender [a prison term of six years, three years, one year, nine years,

54 months, or 18 months, as appropriate].” Under the version of the statute in effect

at the time of Peters’ offense,4 a prison term imposed under R.C. 2929.14(B)(1)(a)

“shall not be reduced pursuant to section 2967.19 [80% release procedure], section

4

As with R.C. 2929.13, the legislature recently amended R.C. 2929.14 (effective April 4, 2023), but those

amendments do not alter our conclusion concerning the interpretation of R.C. 2929.13(F)(8).

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2929.20 [petitions for judicial release and early release], section 2967.193 [earned

days of credit for participation in certain programs], or any other provision of

Chapter 2967. [Pardon; Parole; Probation] or Chapter 5120. [Department of

Rehabilitation and Correction] of the Revised Code.” R.C. 2929.14(B)(1)(b).

Because the jail-time credit provision in R.C. 2967.191 “plainly constitutes ‘any

other provision of Chapter 2967,’” R.C. 2929.14(B)(1)(b) clearly “requires that jail-

time credit not be applied toward prison terms for firearm specifications.” State v.

Moore, 154 Ohio St.3d 94, 2018-Ohio-3237, ¶ 10, 15.

{¶63} Some criminal offenses are exempt from enhancement via firearm

specification. Specifically, under R.C. 2929.14(B)(1)(e), “certain firearm

offenses—carrying concealed weapons [R.C. 2923.12], illegal conveyance of

deadly weapon or ordnance into a courthouse [R.C. 2923.123], improperly handling

firearms in a motor vehicle [R.C. 2923.16], illegal possession of firearm in a liquor

permit premises [R.C. 2923.121]—are not enhanceable.” State v. Jones, 8th Dist.

Cuyahoga No. 108050, 2019-Ohio-5237, ¶ 54. Additionally, where a violation of

R.C. 2923.122 (conveyance or possession of deadly weapons or dangerous ordnance

in school safety zone) “involves a deadly weapon that is a firearm other than a

dangerous ordnance,” the trial court is not permitted to impose a sentence for a

firearm specification under R.C. 2929.14(B)(1)(a). R.C. 2929.14(B)(1)(e). Finally,

R.C. 2929.14(B)(1)(e) further “provides that the offense of having a weapon while

under a disability is [generally] not enhanceable with a sentence from a firearm

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Case No. 14-22-21

specification * * *.” State v. Gray, 4th Dist. Washington No. 21CA6, 2022-Ohio-

2940, ¶ 23. Here, Peters was convicted of felonious assault and a specification of

the type described in R.C. 2941.145(A), and the exception provided in R.C.

2929.14(B)(1)(e) does not apply.5 Thus, a mandatory three-year prison term for the

use of a firearm in the commission of the felony applied, pursuant to R.C.

2929.14(B)(1)(a)(ii).

{¶64} Looking next to R.C. 2929.13(F), which currently includes 22 separate

subdivisions, it “addresses mandatory prison terms and lists offenses for which a

sentencing court is obligated to impose a prison term.” State v. Johnson, 116 Ohio

St.3d 541, 2008-Ohio-69, ¶ 9. The portion relevant here is:

(F) Notwithstanding divisions (A) to (E) of this section, the court shall

impose a prison term or terms under * * * section 2929.14 * * * of the

Revised Code and except as specifically provided in section 2929.20

[petitions for judicial release and early release] * * * or section

2967.191 of the Revised Code [jail-time credit] * * * shall not reduce

the term or terms pursuant to section 2929.20 [judicial release], * * *

section 2967.193 [earned days of credit for participation in certain

programs] * * *, or any other provision of Chapter 2967. or Chapter

5120. of the Revised Code for any of the following offenses:

***

(8) Any offense, other than a violation of section 2923.12 of the

Revised Code [carrying concealed weapons], that is a felony, if the

offender had a firearm on or about the offender’s person or under the

offender’s control while committing the felony, with respect to a

portion of the sentence imposed pursuant to division (B)(1)(a) of

section 2929.14 of the Revised Code for having the firearm[.]

5

R.C. 2941.145(B) also is not applicable to Peters because the trial court did not impose a mandatory prison

term under R.C. 2929.14(B)(1)(a)(i), (iii), (iv), (v), or (vi).

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R.C. 2929.13(F)(8). “Although R.C. 2929.13(F) generally prohibits the reduction

of sentences imposed under that section[,] * * * it specifically allows for the

reduction of sentences under R.C. 2967.191, which is the statute that controls

‘[c]redit for confinement awaiting trial and commitment.’” State v. Culp, 6th Dist.

Lucas No. L-19-1281, 2020-Ohio-5287, ¶ 17.

iii. Wolfe & Other Cases

{¶65} As indicated above, the crux of this assignment of error is the legal

understanding of R.C. 2929.13(F)(8). This court was tasked with interpreting and

applying R.C. 2929.13(F)(8) just last year in Wolfe. In Wolfe, the trial court imposed

a mandatory six-year minimum prison sentence for aggravated robbery in addition

to a mandatory three-year prison term for an associated firearm specification.

Wolfe, 2022-Ohio-96, at ¶ 16. On appeal, the defendant argued that R.C.

2929.13(F)(8) “does not transfer the mandatory-ness of the gun specification to the

underlying offense.” Id. at ¶ 23. In rejecting the defendant’s argument, we relied

upon the Sixth District’s opinion in Culp:

Under R.C. 2929.13(F)(8), ‘when a defendant is convicted of

committing any felony (with the exception of carrying concealed

weapons) while having or controlling a firearm, the court is required

to impose a prison term—not community control sanctions—in

addition to the mandatory prison term for [any] firearm specification

* * *.’ [Culp at ¶ 13]. ‘A plea to or conviction of a firearm

specification automatically meets the criteria in R.C. 2929.13(F)(8)

that triggers a mandatory prison term for the underlying offense * *

*.’ Culp at ¶ 14[.]

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(Emphasis sic.) Id. at ¶ 24 (additional citations omitted). Because the defendant in

Wolfe, by pleading guilty to the firearm specification, “acknowledged that his

accomplices brandished a firearm while committing the aggravated robbery,” the

trial court was required under R.C. 2929.13(F)(8) to impose a mandatory prison

sentence for the aggravated robbery offense. Id. at ¶ 25.

{¶66} In addition to our court and the Sixth District, several other courts of

appeals have concluded that R.C. 2929.13(F)(8) requires a prison term be imposed

for felonies (other than carrying a concealed weapon) where the offender had a

firearm on or about the offender’s person or under the offender’s control while

committing the felony. E.g., State v. Wofford, 1st Dist. Hamilton No. C-180411,

2019-Ohio-2815, ¶ 8, 10; State v. Shields, 2d Dist. Montgomery No. 28573, 2020-

Ohio-3204, ¶ 4-11; State v. Christian, 7th Dist. Mahoning No. 02 CA 170, 2005-

Ohio-1440, ¶ 80; State v. White, 10th Dist. Franklin No. 10AP-34, 2011-Ohio-2364,

¶ 74. Furthermore, the Ohio Supreme Court has explained that “the mandatory-

sentence provision of R.C. 2929.13(F) applies to a number of offenses, including *

* * felonies committed while the offender had a firearm on or about the offender’s

person or control[.]” Johnson, 116 Ohio St.3d 541, 2008-Ohio-69, at ¶ 10.

{¶67} Until recently, the Eighth District appeared to be in agreement with

this court and the others regarding the meaning of R.C. 2929.13(F)(8). See State v.

Galvan, 8th Dist. Cuyahoga No. 108658, 2020-Ohio-1285, ¶ 20; State v. Sharpley,

8th Dist. Cuyahoga No. 106616, 2018-Ohio-4326, ¶ 17. But this recently changed

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Case No. 14-22-21

with the Eighth District’s en banc decision in State v. Logan, 8th Dist. Cuyahoga

No. 111533, 2023-Ohio-3353.6

{¶68} In Logan, the defendant pleaded guilty to one count of attempted

having weapons while under disability, as well as an associated one-year firearm

specification. Logan, 2023-Ohio-3353, at ¶ 1. The trial court sentenced the

defendant to a mandatory one-year prison term for the firearm specification to be

served prior and consecutive to two years of community control for the underlying

felony. Id. The State appealed the sentence, arguing that the trial court was required

to impose a mandatory prison term on both the specification and the underlying

felony. Id. The Eighth District, sitting en banc, framed the question to be resolved:

Does R.C. 2929.13(F)(8) require a mandatory prison term and

preclude the imposition of community control sanctions on an

underlying felony when a defendant is found guilty on a

corresponding firearm specification?

Id. at ¶ 6. It answered the question in the negative. Id. at ¶ 8. The Eighth District

found “the language of R.C. 2929.13(F)(8) is plain and unambiguous” (id. at ¶ 25),

and it held: “[w]hen a trial court crafts a sentence for a felony that carries a firearm

specification, R.C. 2929.13(F)(8) requires the court to impose the definite prison

term prescribed by R.C. 2929.14(B)(1)(a) as a mandatory prison term with respect

to the specification; it does not also require the court to impose a mandatory prison

6

The en banc decision followed an earlier decision in that case (issued on April 6, 2023), which had created

a conflict within the Eighth District: State v. Logan, 8th Dist. No. 111533, 2023-Ohio-1135. Any other

reference to Logan in this opinion is to the Eighth District’s en banc decision.

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term with respect to the underlying felony.” Id. at ¶ 8. In its view, “R.C.

2929.13(F)(8) cannot be read in any other way than we do here” and, “[e]ven if there

were some ambiguity, ‘sections of the Revised Code defining offenses or penalties

shall be strictly construed against the state, and liberally construed in favor of the

accused.’” Id. at ¶ 28, quoting R.C. 2901.04(A).

{¶69} The State had argued in Logan that “R.C. 2929.13(F)(8) requires the

imposition of a mandatory prison term on an underlying felony when the felony

carries a corresponding firearm specification.” Id. at ¶ 2. The defendant countered,

saying the State’s argument ignores the last phrase in the statute: “with respect to a

portion of the sentence imposed pursuant to [R.C. 2929.14(B)(1)(a)] for having the

firearm.” Id. at ¶ 20. The Eighth District agreed with the defendant. Id. at ¶ 20. In

its view, “[t]o read the statute in the way that the state suggests would be to read the

last phrase out of the statute.” Id. at ¶ 26. The court also said that “[t]he opinions

rendered by other appellate districts that come to the state’s preferred conclusion, in

our view, similarly do not sufficiently consider the last phrase of the statute.” Id. at

¶ 21. 7 Interestingly, the Logan decision does not mention the Supreme Court of

Ohio’s decision in Johnson.

7

As of the date of publication of this opinion, the Eighth District certified a conflict between Logan and our

decision in Wolfe (and other decisions), and the State filed a Notice of Certified Conflict with the Supreme

Court of Ohio. Also, the concurring-in-judgment-only portion of the Logan decision indicated a conflict

should be certified between Logan and one of the conflicting cases and “the Supreme Court of Ohio should

take this issue to better address the relationship between mandatory prison terms on specifications and the

underlying offenses in the context of the overriding principles of felony sentencing under R.C. 2929.11 and

other relevant provisions in Title 29.” Logan, 2023-Ohio-3353, ¶ 44 (S. Gallagher, J., concurring in judgment

only). We fully agree with the portions of the concurring-in-judgment-only opinion from the Logan decision

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Case No. 14-22-21

{¶70} In addition to the Eighth District, the Fifth District has suggested in

dicta that R.C. 2929.13(F)(8) does not mandate the imposition of a prison sentence

for the felony enhanced by a firearm specification. State v. Roush, 5th Dist. Morrow

No. 13CA0008, 2014-Ohio-4887, ¶ 35 (“R.C. 2929.13(F)(8) requires the firearm

specification penalty be made mandatory, but not the penalty for the underlying

offense”).

iv. When applicable, R.C. 2929.13(F)(8) requires the

defendant to serve a mandatory prison term for the

underlying felony, not just for an accompanying firearm

specification

{¶71} The issue presented in Peters’ fifth assignment of error—whether to

reaffirm the interpretation of R.C. 2929.13(F)(8) we embraced in Wolfe or whether

to repudiate this interpretation in favor of one like that adopted by the Eighth District

in Logan—is ultimately one of statutory interpretation. “The primary goal of

statutory interpretation is to discern the intent of the legislature.” State v. Anthony,

96 Ohio St.3d 173, 2002-Ohio-4008, ¶ 10. “[W]hen analyzing an issue of statutory

interpretation, ‘the question is not what did the general assembly intend to enact,

but what is the meaning of that which it did enact.’” State v. Bollar, 171 Ohio St.3d

678, 2022-Ohio-4370, ¶ 10, quoting Slingluff v. Weaver, 66 Ohio St. 621, 64 N.E.

574 (1902), paragraph two of the syllabus. Therefore, “[i]n determining intent, we

that said “[t]he provisions in [R.C. 2929.13] are a challenge to even the most experienced statute

constructionist,” “[t]he legislature has not provided the model of clarity for sentencing considerations,” and

“[i]t may well be time to revisit a thorough review and simplification of the bloated sentencing statutes.” (Id.

at ¶ 38 fn. 6, ¶ 43).

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first look to the language of the statute.” Anthony at ¶ 10. We “focus on everything

within ‘the four corners of the enactment’ in order to ‘determine the intent of the

enacting body’”; we do not “‘pick out one sentence and disassociate it from the

context.’” Jacobson v. Kaforey, 149 Ohio St.3d 398, 2016-Ohio-8434, ¶ 9, quoting

Black-Clawson Co. v. Evatt, 139 Ohio St. 100, 104, 38 N.E.2d 403 (1941).

{¶72} “If the statute’s language is plain and unambiguous, we apply it as

written.” Bollar at ¶ 10. “However, where the words are ambiguous and are subject

to varying interpretations, further interpretation is necessary.” Anthony at ¶ 10; see

also Jacobson at ¶ 8 (if a statute’s language is plain and unambiguous and conveys

a clear and definite meaning, there is no reason for resorting to rules of statutory

interpretation because an unambiguous statute is to be applied, not interpreted).

Ambiguity “means that a statutory provision is ‘capable of bearing more than one

meaning.’” Jacobson at ¶ 8, quoting Dunbar v. State, 136 Ohio St.3d 181, 2013-

Ohio-2163, ¶ 16.

{¶73} Therefore, we first must determine whether R.C. 2929.13(F)(8) is

ambiguous. Again, the Eighth District found R.C. 2929.13(F)(8) to be plain and

unambiguous and does not require the imposition of a mandatory prison term for

the felony underlying a firearm specification. Logan, 2023-Ohio-3353, at ¶ 8, 25.

However, after fully considering the issue, we respectfully disagree with the Eighth

District—both as to its conclusion regarding R.C. 2929.13(F)(8)’s ambiguity and as

to its conclusion about how R.C. 2929.13(F)(8) operates.

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{¶74} Regarding ambiguity, in our view, R.C. 2929.13(F)(8) does not

“convey[] a clear and definite meaning.” Jacobson at ¶ 8. It is capable of bearing

more than one meaning and, therefore, is ambiguous. Id. The provision can be read

as meaning what the Logan court interpreted it to mean, emphasizing its last phrase

and de-emphasizing the “for any of the following offenses” phrase in its first part.

However, the provision can also be read as meaning a prison term is mandated for

an underlying “offense * * * that is a felony,” and the provision’s last phrase (which

follows a comma) modifies “the felony” to be limited to those felonies where “a

portion” of the sentence will also be imposed pursuant to R.C. 2929.14(B)(1)(a).

This second meaning corresponds with the conclusion reached in Wolfe, the

Supreme Court of Ohio in Johnson, and numerous other courts that have interpreted

the provision.

{¶75} Unlike the Eighth District in Logan, we do not find that R.C.

2929.13(F)(8)’s last phrase makes the statute unambiguous. Rather, we find that

R.C. 2929.13(F)(8)’s last phrase, when viewed in context with the rest of R.C.

2929.13(F)(8) and the structure of R.C. 2929.13(F) as a whole, introduces doubt as

to the meaning of R.C. 2929.13(F)(8) and subjects it to varying interpretations. See

also Griffin & Katz, Ohio Felony Sentencing Law, Section 8:11, at 1149 (2007)

(“[t]hat statutory language [in R.C. 2929.13(F)(8)] leaves unclear whether an

offender who possesses a firearm in committing a felony must be imprisoned for the

underlying felony as well as the term of imprisonment prescribed by RC

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2929.14(D)(1)(a) [now R.C. 2929.14(B)(1)(a)] for possessing or using the

firearm”).8 In short, we find the language is ambiguous.

{¶76} To us, it is meaningful that R.C. 2929.13(F) uses the phrase “for any

of the following offenses,” rather than “for any of the following offenses or

specifications,” when it introduces its list of “offenses” for which “the court shall

impose a prison term or terms.” R.C. 2929.13(F). We note the legislature

specifically repeated the term “offense” in R.C. 2929.13(F)(8). The various

subdivisions in R.C. 2929.13(F)(1)-(22) list offenses, or some combination of

offense and aggravating circumstances, rather than specifications. It is reasonable

to believe that, had the General Assembly meant for R.C. 2929.13(F)(8) to refer

only to the sentence imposed for a firearm specification (as Logan held), it would

have used language more specifically referring to specifications. After all, the

General Assembly knows how to refer clearly to firearm specifications when it

wishes to do so. See, e.g., R.C. 2929.14(B)(1)(a) (outlining sentences for

“specification[s] of the type described in section 2941.141, 2941.144, or 2941.145

of the Revised Code”).

{¶77} We are not convinced by the Eighth District’s assertion in Logan that

“[t]he statutory reference to ‘offenses,’ as opposed to ‘specifications,’ is logical”

and results in a plain and unambiguous statute. Logan, 2023-Ohio-3353, at ¶ 26.

8

Since 2007, the only changes to R.C. 2929.13(F)(8) or the introductory portion of R.C. 2929.13(F) have

been renumbering or minor additions immaterial to this issue.

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As the Logan opinion later recognizes in its portion reissuing the decision of the

merit panel, a firearm specification is not a criminal offense. Id. at ¶ 57. They are

different things under the Revised Code. State v. Ford, 128 Ohio St.3d 398, 2011-

Ohio-765, ¶ 17 (“the firearm specification is merely a sentence enhancement, not a

separate criminal offense”); R.C. 2901.03(A) (“[n]o conduct constitutes a criminal

offense against the state unless it is defined as an offense in the Revised Code”).

Separate findings of guilt are required for a specification and its underlying offense.

See R.C. 2929.14(B)(1)(a) (applying “if an offender * * * is convicted of or pleads

guilty to a felony [and] also is convicted of or pleads guilty to a specification * *

*”). Furthermore, in certain circumstances, a specification can have some legal

effect independent of its underlying felony. See Bollar, 171 Ohio St.3d 678, 2022-

Ohio-4370, at ¶ 1, 19, 25 (concluding that, under R.C. 2929.14(B)(1)(g), a defendant

can be sentenced for a firearm specification even when the offense underlying the

specification has merged with another offense for purposes of sentencing).

{¶78} For these same reasons, we also respectfully disagree with the dissent

because it likewise says it finds R.C. 2929.13(F)(8) to be plain and unambiguous.

We also point out that, despite “find[ing] no ambiguity in R.C. 2929.13(F)(8),” the

dissent then impermissibly looks to other statutes for support. The Supreme Court

has explained: “[w]e seek legislative intent first in the statutory language” and, “[i]f

the statutory language is clear and unambiguous, we apply it as written, giving effect

to its plain meaning.” State v. Bryant, 160 Ohio St.3d 113, 2020-Ohio-1041, ¶ 12.

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This should end the dissent’s analysis as it did for the Logan court. “Further

interpretation is necessary only when the statutory language is ambiguous and

subject to varying interpretations.” Id. at ¶ 12, 25-26 (after finding a term in a statute

to be ambiguous, applying a statutory construction rule to consider other statutes

relating to the same general subject matter); see also State v. Arnold, 61 Ohio St.3d

175, 178, 573 N.E.2d 1079 (1991) (“[w]hile we are required to strictly construe

statutes defining criminal penalties against the state, see R.C. 2901.04(A), this ‘rule

of lenity’ applies only where there is ambiguity in or conflict between the statutes”).

{¶79} Next, because we find R.C. 2929.13(F)(8) to be ambiguous, we look

to R.C. 1.49, which “sets forth certain criteria that serve as guideposts for courts to

follow when determining the legislative intent of an ambiguous statute.” Anthony,

96 Ohio St.3d 173, 2002-Ohio-4008, at ¶ 12. That statute tells us:

If a statute is ambiguous, the court, in determining the intention of the

legislature, may consider among other matters:

(A) The object sought to be attained;

(B) The circumstances under which the statute was enacted;

(C) The legislative history;

(D) The common law or former statutory provisions, including laws

upon the same or similar subjects;

(E) The consequences of a particular construction;

(F) The administrative construction of the statute.

R.C. 1.49. After such consideration, we confirm our interpretation of R.C.

2929.13(F)(8) in Wolfe and hold that R.C. 2929.13(F)(8) requires the imposition of

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a mandatory prison term for any felony (other than carrying concealed weapons)

where the offender had or controlled a firearm when committing that offense.

Notably, the Eighth District in Logan did not consider the R.C. 1.49 matters because

it had found the statutory provision to be “plain and unambiguous.” Logan, 2023-

Ohio-3353, at ¶ 25; see also Jacobson, 149 Ohio St.3d 398, 2016-Ohio-8434, at ¶ 8

(without an initial finding of ambiguity, inquiry into the R.C. 1.49 matters is

inappropriate).

{¶80} First, considerations of former law and legislative history support our

Wolfe interpretation, not the Logan interpretation. R.C. 2929.13(F)(8) (then

codified as R.C. 2929.13(F)(6)) first came into being in 1996, a combined product

of 1995 Am.Sub.S.B. 2 and 1996 Am.Sub.S.B. 269. Although it has since been

amended and reordered, R.C. 2929.13(F)(8) exists in substantially identical form as

it did in 1996. Prior to its enactment, a defendant convicted of a felony and a firearm

specification was subject to mandatory incarceration for the firearm specification

and was also conclusively ineligible for probation under former R.C. 2951.02. State

v. Knox, 10th Dist. Franklin No. 89AP-1168, 1991 WL 115820, *3 (June 11, 1991).

Moreover, other than carrying concealed weapons, any felony offense where the

offender was armed with a firearm was non-probationable, even in the absence of a

firearm specification or if the offender was found not guilty of the firearm

specification. Id.; State v. Ervin, 93 Ohio App.3d 178, 180, 638 N.E.2d 104 (8th

Dist.1994); see also Griffin & Katz, Ohio Felony Sentencing Law, Section 8:11, at

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1149 (2007) (“[u]nder prior law, no question existed that the prison term was

mandatory for the underlying felony and the possession of the firearm”). Members

of the Ohio Sentencing Commission, which recommended the changes to the law

that ultimately took the form of 1995 Am.Sub.S.B. 2 and 1996 Am.Sub.S.B. 269,

expected this general scheme would continue with what is now R.C. 2929.13(F)(8).

See Griffin & Katz, Ohio Felony Sentencing Law, Section 8:11, at 1149 (2007) (“in

the minds of Sentencing Commission staff representatives who helped draft the

amendatory language to RC 2929.13(F)(8) in 1996 * * * [the] expectation was that

the offender would be sentenced to prison for both the firearm penalty and the

underlying crime”). Thus, the Commission anticipated an offender would be

sentenced to mandatory prison time on a firearm specification and also to prison

time for the underlying felony. Id.

{¶81} Furthermore, when the language in R.C. 2929.13(F)(8) (then R.C.

2929.13(F)(6)) went into effect in 1996, language in R.C. 2929.14—i.e., the

companion statute—clearly indicated a court would impose a prison term on the

offender for the underlying felony and a separate prison term for the firearm

specification. 1996 Am.Sub.S.B. 269 (“if an offender who is convicted of or pleads

guilty to a felony also is convicted of or pleads guilty to a specification of the type

described in [R.C. 2941.144, 2941.145, or 2941.141] * * *, the court, after imposing

a prison term on the offender for the felony under division (A), (D)(2), or (D)(3) of

this section, shall impose an additional prison term, determined pursuant to this

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division, that shall not be reduced pursuant to section 2929.20, section 2967.193, or

any other provision of Chapter 2967. or Chapter 5120. of the Revised Code”);

Kehoe, 133 Ohio App.3d at 616, 729 N.E.2d 431 (quoting former version of R.C.

2929.14(D)(1)(a)(i)). This is significant because, again, the language in R.C.

2929.13(F)(8) exists in substantially identical form today as it did in 1996. Thus,

despite later choosing to drop that additional clarifying language in R.C. 2929.14,

the legislature did not attempt to further harmonize the two statutes.

{¶82} Second, regarding the consequences of a particular construction (R.C.

1.49(E)), the Wolfe interpretation avoids some redundancies in the overall statutory

scheme relating to firearm specifications that are a consequence of the Logan

interpretation. For example, R.C. 2929.14(B)(1)(a) directs that the trial court “shall

impose on the offender * * * [a] prison term[]” for a firearm specification; R.C.

2929.14(B)(1)(a)(i)-(vi) sets forth the lengths of the available prison terms

associated with firearm specifications; and R.C. 2929.14(B)(1)(b) makes such terms

mandatory, i.e., not subject to reduction under R.C. 2929.20, or any other provision

of R.C. Chapter 2967. or Chapter 5120. Thus, the combination of R.C.

2929.14(B)(1)(a) and (b) is sufficient, by itself, to effectuate the General

Assembly’s intent that offenders serve a mandatory prison term for firearm

specifications. (The same was true under the former version that went into effect in

1996, referenced above.) With the Logan interpretation, R.C. 2929.13(F)(8)

seemingly would not do anything that R.C. 2929.14(B)(1)(a) and (b) do not already

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do. In other words, it would be redundant. Further highlighting such duplicity is

that R.C. 2929.01(X)(1) identifies sentences imposed under R.C. 2929.14(B)(1)(a)

and R.C. 2929.13(F)(8) as each setting forth a “mandatory prison term.” Thus,

under the Logan interpretation, R.C. 2929.01(X)(1)’s definition of “mandatory

prison term” would apply twice to the same specification. These inefficiencies

disappear if R.C. 2929.14(B) is understood as making the specification time

mandatory and R.C. 2929.13(F)(8) is understood as making the sentence for the

underlying felony mandatory.

{¶83} Third, another consequence of the Logan interpretation of R.C.

2929.13(F)(8) is a conflict between R.C. 2929.13(F)(8) and 2929.14(B)(1)(b)

concerning jail-time credit. Again, R.C. 2929.13(F) states that sentences imposed

under that statute are eligible for reduction under the jail-time credit statute, R.C.

2967.191. In contrast, sentences imposed for firearm specifications under R.C.

2929.14(B)(1)(a) are plainly ineligible for jail-time credit. R.C. 2929.14(B)(1)(b);

Moore, 154 Ohio St.3d 94, 2018-Ohio-3237, at ¶ 10, 15. Thus, if R.C.

2929.13(F)(8) is understood as applying only to the sentence for a firearm

specification, then R.C. 2929.13(F) would seemingly require that jail-time credit be

applied to that term while R.C. 2929.14(B)(1)(b) would expressly forbid it. This

problem does not exist under the Wolfe interpretation of R.C. 2929.13(F)(8). Under

Wolfe, the prison term for the firearm specification is, in accordance with R.C.

2929.14(B)(1)(b), not subject to a reduction for jail-time credit, but the prison term

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imposed for the underlying felony is, per the terms of R.C. 2929.13(F), eligible for

reduction under R.C. 2967.191.

{¶84} Fourth, yet another consequence of the Logan interpretation of R.C.

2929.13(F)(8) is an issue of underinclusivity. Following the Logan interpretation,

the trial court must impose the prison term required by R.C. 2929.13(F)(8) for

firearm specifications attending all felonies except carrying concealed weapons.

However, R.C. 2929.14(B)(1)(e) exempts far more firearm crimes from

enhancement with a firearm specification than just carrying concealed weapons

(e.g., improperly handling firearms in a motor vehicle, illegal possession of firearm

in a liquor permit premises, and many instances of having weapons while under

disability). This is not an issue under the Wolfe interpretation of R.C. 2929.13(F)(8).

Applying Wolfe, a trial court is not required by R.C. 2929.13(F)(8) to impose a

prison term for the underlying offense of carrying concealed weapons, and, pursuant

to R.C. 2929.14(B)(1)(e), no prison term can be imposed for any firearm

specification associated with a felony violation of the carrying-concealed-weapons

statute. Thus, for this one crime, no mandatory prison time is required at all. But

with respect to all other felonies where a firearm was possessed or controlled by the

offender, a mandatory prison term must be imposed under R.C. 2929.13(F)(8) even

if R.C. 2929.14(B)(1)(e) simultaneously prohibits enhancing the sentence with a

firearm specification. Accordingly, the Wolfe interpretation of R.C. 2929.13(F)(8)

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harmonizes the statute with R.C. 2929.14(B)(1)(e) in a way the Logan interpretation

does not.

{¶85} In sum, we find that R.C. 2929.13(F)(8) is ambiguous, extratextual

considerations help to resolve the ambiguity, and those considerations militate in

favor of our Wolfe interpretation of R.C. 2929.13(F)(8) instead of the Logan

interpretation. Therefore, we reaffirm our interpretation of R.C. 2929.13(F)(8) set

forth in Wolfe and conclude that R.C. 2929.13(F)(8) obligates the trial court to

impose a mandatory prison term for any felony (except carrying concealed

weapons) where the offender had or controlled a firearm when committing that

offense. The mandatory sentence required by R.C. 2929.13(F)(8) is for the

underlying felony and not for any firearm specification that might be attached to the

offense.9

v. Peters’ sentence is not contrary to law

{¶86} In this case, Peters was convicted of felonious assault as well as an

accompanying firearm specification. By being found guilty of the firearm

specification, Peters was found to have possessed or controlled a firearm while

committing the felonious assault. At sentencing, the trial court applied R.C.

2929.13(F)(8) consistent with our decision in Wolfe and sentenced Peters to a

9

Even considering the ‘rule of lenity’ and phrasing in R.C. 2929.14(C)(1)(a) and R.C. 2903.11(D) referenced

in the dissent, we still reaffirm our interpretation of R.C. 2929.13(F)(8). Reasonable minds are in

disagreement on this issue and, therefore, it is one that may best be clarified by the Supreme Court or the

legislature rather than an intermediate appellate court defaulting to a principle of statutory construction (i.e.

R.C. 2901.04(A)).

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mandatory minimum term of four years in prison for felonious assault. Having

reaffirmed the Wolfe interpretation of R.C. 2929.13(F)(8), we conclude that the trial

court was correct to sentence Peters to a mandatory minimum term of incarceration

and that Peters’ sentence for felonious assault is not contrary to law.

{¶87} While we overrule Peters’ fifth assignment of error, we would look

favorably on a properly drafted and filed motion to certify a conflict to the Supreme

Court of Ohio.

IV. CONCLUSION

{¶88} For the foregoing reasons, Peters’ assignments of error are overruled.

Having found no error prejudicial to the appellant herein in the particulars assigned

and argued, we affirm the judgment of the Union County Court of Common Pleas.

Judgment Affirmed

ZIMMERMAN, J., concurs.

WALDICK, J., concurs in part and dissents in part.

{¶89} I concur with the majority regarding its analysis and conclusions as to

the first, second, third, and fourth assignments of error. However, I respectfully

dissent from the majority’s assessment of the fifth assignment of error, for the

reasons that follow.

{¶90} In overruling Peters’ fifth assignment of error, the majority holds that

R.C. 2929.13(F)(8) requires the trial court to impose a mandatory prison term on

Peters’ underlying felonious assault conviction, in addition to imposing a mandatory

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prison term for the firearm specification. In my opinion the majority’s holding here

is in direct contradiction to the plain language of the statutory subsection at issue,

which requires the imposition of a mandatory prison term only with respect to the

portion of the sentence imposed for the firearm specification.

{¶91} When sentencing an offender for a felony offense with a firearm

specification, a trial court must impose a mandatory prison term for the

specification, which must run consecutive to, and be served prior to, the sentence

for the underlying felony. See R.C. 2929.14(B)(1)(a) and (C)(1)(a). However, the

issue before us is whether prison time imposed for the underlying felony must be a

“mandatory prison term” when that felony by itself does not carry mandatory time.

{¶92} “Mandatory prison term” is defined in R.C. 2929.01, which provides

in relevant part:

(X) “Mandatory prison term” means any of the following:

(1) Subject to division (X)(2) of this section, the term in prison that

must be imposed for the offenses or circumstances set forth in

divisions (F)(1) to (8) or (F)(12) to (21) of section 2929.13 and

division (B) of section 2929.14 of the Revised Code. Except as

provided in sections 2925.02, 2925.03, 2925.04, 2925.05,

and 2925.11 of the Revised Code, unless the maximum or another

specific term is required under section 2929.14 or 2929.142 of the

Revised Code, a mandatory prison term described in this division may

be any prison term authorized for the level of offense except that if

the offense is a felony of the first or second degree committed on or

after March 22, 2019, a mandatory prison term described in this

division may be one of the terms prescribed in division (A)(1)(a) or

(2)(a) of section 2929.14 of the Revised Code, whichever is

applicable, that is authorized as the minimum term for the offense.

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{¶93} R.C. 2929.13(F), referenced in the definition of “mandatory prison

term” in R.C. 2929.01(X)(1), sets forth a number of offenses and/or specific

situations involving certain offenses, where a trial court must impose a mandatory

prison term.

{¶94} At issue here is R.C. 2929.13(F)(8), which reads:

(F) Notwithstanding divisions (A) to (E) of this section, the court shall

impose a prison term or terms under sections 2929.02 to 2929.06,

section 2929.14, section 2929.142, or section 2971.03 of the Revised

Code and except as specifically provided in section 2929.20, or

section 2967.191 of the Revised Code or when parole is authorized

for the offense under section 2967.13 of the Revised Code shall not

reduce the term or terms pursuant to section 2929.20, division (A)(2)

or (3) of section 2967.193 or 2967.194, or any other provision of

Chapter 2967. or Chapter 5120. of the Revised Code for any of the

following offenses:

***

(8) Any offense, other than a violation of section 2923.12 of the

Revised Code, that is a felony, if the offender had a firearm on or

about the offender’s person or under the offender’s control while

committing the felony, with respect to a portion of the sentence

imposed pursuant to division (B)(1)(a) of section 2929.14 of the

Revised Code for having the firearm[.]

(Emphasis added.)10

{¶95} In construing statutes, we must read words and phrases in context and

construe them in accordance with rules of grammar and common usage. State ex rel.

10

It bears noting that upon reading R.C. 2929.01(X) together with the R.C. 2929.13(F), a “mandatory prison

term” pursuant to Ohio’s statutory framework refers not only to the fact that prison must be imposed by a

trial court for the offenses or under the circumstances set forth in R.C. 2929.13(F). A “mandatory prison

term” also carries additional ramifications regarding an offender’s prison time, specifically being that the

offender is not eligible for judicial release pursuant to R.C. 2929.20, nor eligible for certain “good time”

credit pursuant to R.C. 2967.193 or R.C. 2967.194.

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Russell v. Thornton, 111 Ohio St.3d 409, 2006-Ohio-5858, ¶ 11. Further, it is the

duty of this Court “to give effect to the words used in a statute, not to insert words

not used.” State v. S.R., 63 Ohio St.3d 590, 595, 589 N.E.2d 1319 (1992), citing

Cleveland Elec. Illum. Co. v. City of Cleveland, 37 Ohio St.3d 50, 524 N.E.2d 441

(1988), paragraph three of the syllabus. “When interpreting a statute, we first look

to the plain language of the statute and apply it as written when its meaning is clear

and unambiguous.” Cheap Escape Co., Inc. v. Haddox, L.L.C., 120 Ohio St.3d 493,

2008-Ohio-6323, 900 N.E.2d 601, ¶ 9.

{¶96} In the instant case, the majority interprets the language of R.C.

2929.13(F)(8) to require a mandatory prison term for both the firearm specification

and the underlying felony, but, in my opinion, that is not what the statutory language

says in plain terms. If the language of R.C. 2929.13(F)(8) read “[a]ny offense, other

than a violation of section 2923.12 of the Revised Code, that is a felony, if the

offender had a firearm on or about the offender’s person or under the offender’s

control while committing the felony” (i.e. if the last phrase of the subsection were

omitted), then – in the absence of conflicting language elsewhere in the Ohio

Revised Code – I would agree with the majority’s interpretation. However, that is

not how R.C. 2929.13(F)(8) reads, and I believe the majority opinion here serves to

ignore the final, and operative, phrase of R.C. 2929.13(F)(8). As the Eighth District

Court of Appeals, sitting en banc, pointed out in State v. Logan, 8th Dist. Cuyahoga

No. 111533, 2023 Ohio 3353, to read the statute in the way suggested by the state

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in that case, and the majority here, “would be to read the last phrase out of the

statute.” Logan, at ¶ 26.

{¶97} Unlike the majority, I find no ambiguity in R.C. 2929.13(F)(8).

However, even if the statute were ambiguous, the rule of lenity would require this

Court to sustain the fifth assignment of error in this case. “The rule of lenity is

codified in R.C. 2901.04 and states that ‘sections of the Revised Code defining

offenses or penalties shall be strictly construed against the state, and liberally

construed in favor of the accused.’” State v. Pittman, 3d Dist. Marion No. 9-13-64,

2014-Ohio-5001, ¶ 23. “[T]he ‘touchstone’ of the rule of lenity ‘is statutory

ambiguity.’” Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d

205 (1980), quoting Lewis v. United States, 445 U.S. 55, 65, 100 S.Ct. 915, 63

L.Ed.2d 198 (1980). The Supreme Court of the United States “has made it clear

that this principle of statutory construction applies not only to interpretations of the

substantive ambit of criminal prohibitions, but also to the penalties they impose.”

Bifulco, at 387, citing United States v. Batchelder, 442 U.S. 114, 121, 99 S.Ct. 2198,

2202, 60 L.Ed.2d 755 (1979); Simpson v. United States, 435 U.S. 6, 14–15, 98 S.Ct.

909, 913–914, 55 L.Ed.2d 70 (1978).

{¶98} I believe that my reading of R.C. 2929.13(F)(8) is also supported by

the language of R.C. 2929.14(C). R.C. 2929.14(C)(1)(a) is the statutory subsection

in which the legislature has provided that any mandatory prison term for a firearm

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specification must be served first, and consecutively to, the sentence for the

underlying felony. In so providing, R.C. 2929.14(C)(1)(a) is phrased as follows:

Subject to division (C)(1)(b) of this section, if a mandatory prison

term is imposed upon an offender pursuant to division (B)(1)(a) of this

section for having a firearm on or about the offender's person or

under the offender's control while committing a felony, if a mandatory

prison term is imposed upon an offender pursuant to division (B)(1)(c)

of this section for committing a felony specified in that division by

discharging a firearm from a motor vehicle, or if both types of

mandatory prison terms are imposed, the offender shall serve any

mandatory prison term imposed under either division consecutively to

any other mandatory prison term imposed under either division or

under division (B)(1)(d) of this section, consecutively to and prior to

any prison term imposed for the underlying felony pursuant to

division (A), (B)(2), or (B)(3) of this section or any other section of

the Revised Code, and consecutively to any other prison term or

mandatory prison term previously or subsequently imposed upon the

offender.

(Emphasis added.) The language of R.C. 2929.14(C)(1)(a) distinguishes between a

“mandatory prison term” imposed for a firearm specification and a “prison term”

imposed for the underlying felony offense. The omission of the word “mandatory”

in describing the “prison term” to be imposed “for the underlying felony,”

contrasted with the use of the phrase “mandatory prison term” in describing the

sentence to be imposed for a firearm specification, is a strong indication that the

legislature did not intend that R.C. 2929.13(F)(8) be interpreted as the majority does

here.

{¶99} In this matter Peters was found guilty of felonious assault in violation

of R.C. 2903.11(A)(2). R.C. 2903.11(D) provides that an offender convicted of

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felonious assault in violation of R.C. 2903.11, without certain additional

circumstances having been alleged and proven, is guilty of a felony of the second

degree.11 For a felony of the second degree, pursuant to R.C. 2929.13(D)(1), “it is

presumed that a prison term is necessary in order to comply with the purposes and

principles of sentencing * * * .” Without more, and because felonious assault in

violation of R.C. 2903.11(A) is not on the list of offenses specified in R.C.

2929.13(F) as requiring a mandatory prison term, Peters’ underlying conviction for

felonious assault was not an offense for which a mandatory prison term was

authorized.

{¶100} As noted at the beginning of this dissent, the issue of whether,

because of the accompanying firearm specification, the trial court was required to

impose prison time for the underlying felonious assault is not before this Court. The

issue raised in the fifth assignment of error is whether the prison time imposed for

the felonious assault was required by law to be a “mandatory prison term.”

{¶101} For the reasons set forth in this dissent, I would find that the trial

court was not required and not authorized, by the Ohio Revised Code to order that

the prison time for the felonious assault itself be a mandatory prison term. The fifth

11

Notably, R.C. 2903.11(D) sets forth a number of different circumstances, including several involving

certain statutory specifications, where an offender who has committed felonious assault must be sentenced

to a mandatory prison term for the felonious assault. However, being convicted of a firearm specification in

addition to the felonious assault is not one of the circumstances set forth in R.C. 2903.11(D) that requires

mandatory time be imposed for the felonious assault offense.

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assignment of error should be sustained, the sentence reversed, and the matter

remanded for resentencing.

/hls

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