text:
    STATE of Ohio, Plaintiff-Appellee v. Jonathan L. CLAY, Defendant-Appellant
    NO. 17 MA 0113
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: March 13, 2018
    Attorney Paul Gains, Mahoning County Prosecutor, Attorney Ralph Rivera, Assistant Prosecutor, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503-1426, For Plaintiff-Appellee
    Jonathan L. Clay, Pro se, Inmate No. 542-025, Mansfield Correction Institution, P.O. Box 788, Mansfield, Ohio 44901, For Defendant-Appellant
   JUDGES: Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Cheryl L. Waite

OPINION

ROBB, P.J.

{¶ 1} Defendant-Appellant Jonathan L. Clay appeals the decision of the Mahoning County Common Pleas Court denying his petition for postconviction relief. He filed the petition nine years after the trial transcripts were filed in the direct appeal of his aggravated murder conviction. Appellant argues the trial court failed to hold an evidentiary hearing and denied his petition without declaring it untimely or issuing findings of fact and conclusions of law. He claims he was not advised by his attorney about postconviction relief or any deadlines. He also contends he could not file a timely petition because he was unaware of a third plea offer, which he believes the state offered to his trial counsel. Alternatively, he argues the trial court lacked subject matter jurisdiction due to the state's correction of a police report upon which the complaint was based. Lastly, he makes an argument about voir dire. For the following reasons, the trial court's judgment is affirmed.

STATEMENT OF THE CASE

{¶ 2} Appellant was indicted for aggravated murder for purposely causing the death of Terrence Brown with prior calculation and design, with a firearm specification for discharging a firearm from a motor vehicle. See R.C. 2903.01(A) ; R.C. 2941.146(A). His cousin, Jason Clay, was jointly indicted, but the cases were later severed. Appellant's case was tried to a jury in December 2007. The testimony established Jason was driving a white sport utility vehicle down Woodcrest Avenue in Youngstown with Appellant as the front seat passenger and two others as back seat passengers. The back seat passengers testified a man named Chuck shot at their vehicle on Woodcrest, and they proceeded to a turnaround where they briefly parked (near a van containing four female witnesses). Outrage was expressed about the gunshots, and a large gun was prepared before the SUV traveled back past the location of the shooter.

{¶ 3} The passenger sitting behind Appellant testified he saw Appellant shoot the victim (who was not Chuck) and he heard Appellant say the victim should have stayed in his house. The passenger behind the driver said he was ducking and did not see who fired, but he heard gunfire from within the SUV. Appellant's position in the vehicle was confirmed by the back seat passengers and by two females who encountered the SUV just before the fatal shooting (one of whom saw Appellant holding a big gun). A third female saw a large gun protruding from the front passenger window of the SUV.

{¶ 4} The jury found Appellant guilty as charged. The court sentenced him to thirty years to life for aggravated murder consecutive to five years for the firearm specification. Appellant filed a timely notice of appeal from the December 20, 2007 sentencing entry. New counsel was appointed for the appeal. Sixteen assignments of error were presented on appeal, dealing with speedy trial, impeachment, photographs, discovery, sufficiency and weight of the evidence, exculpatory evidence, prosecutorial misconduct, ineffective assistance of counsel, jury instructions, sentencing, and cumulative error. This court overruled Appellant's assignments of error and affirmed the trial court's judgment. State v. Clay , 7th Dist. No. 08 MA 2, 2009-Ohio-1204, 2009 WL 684585.

{¶ 5} On June 2, 2017, Appellant filed a petition for postconviction relief setting forth various contentions, including the following arguments reiterated on appeal: failure of counsel to advise on postconviction relief; failure of counsel to convey a third plea offer; corrected police report affected subject matter jurisdiction; and failure to challenge a biased juror during voir dire. On June 9, 2017, the trial court denied the petition. Appellant filed a timely notice of appeal. Appellant's pro se brief sets forth four assignments of error, which we have divided into subject areas.

JUDGMENT ENTRY & UNTIMELY PETITION

{¶ 6} Appellant addresses multiple topics under his first assignment of error, which provides in pertinent part:

"This Trial Court Denied the Petition without declaring it to be Untimely, nor making any findings of facts and conclusions of law, nor did the trial court hold a[n] Evidentiary Hearing on the Affidavits w[h]ere the State Prosecutor's Office never answered or Responded to the petition, nor sought out any Summary Judgement proceedings Pursuant to the Ohio Revised Code 2953.21 -23."

{¶ 7} As provided in R.C. 2953.21(A)(1), a convicted defendant who claims there was such an infringement of his rights as to render the judgment void or voidable under the Ohio or the United States Constitutions may file a petition for postconviction relief in the court that imposed sentence. There are time deadlines for filing this petition. Under the prior version of the statute, a petition had to be filed no later than 180 days after the date the trial transcripts were filed in the court of appeals in the direct appeal. See Former R.C. 2953.21(A)(2) (unless no direct appeal was filed, in which case the 180 days started from day the time expired for filing the appeal). Effective March 23, 2015, the number of days changed from 180 to 365. R.C. 2953.21(A)(2). As the state points out, the transcripts were filed in Appellant's direct appeal on June 3, 2008. Appellant filed his petition for postconviction relief on June 2, 2017, nine years after the transcripts were filed in the direct appeal.

{¶ 8} There is an exception to these time deadlines provided in R.C. 2953.23. See R.C. 2953.21(A)(2) (prefacing the deadlines with: "Except as otherwise provided in section 2953.23 of the Revised Code * * *"). Pertinent to this case, R.C 2953.23(A)(1) states a court may not entertain an untimely petition unless: (a) the petitioner shows (i) he was unavoidably prevented from discovering the facts upon which he must rely to present the claim for relief or (ii) after the time expired, the United States Supreme Court recognized a new federal or state right that applies retroactively and the petition asserts a claim based on that right; and (b) the petitioner shows by clear and convincing evidence that, but for constitutional error at trial, no reasonable factfinder would have found him guilty of the offense.

{¶ 9} Initially, Appellant complains the trial court denied the petition without declaring it untimely or issuing findings of fact and conclusions of law. Findings of fact and conclusions of law are required by R.C. 2953.21(D) and (H) when a court dismisses a timely petition or denies it after a hearing. However, "a trial court need not issue findings of fact and conclusions of law when it dismisses an untimely [post-conviction relief] petition. * * * This rule applies even when the defendant, as here, claims, under R.C. 2953.23, that he was unavoidably prevented from discovery of the facts to present his claim for post-conviction relief." State ex rel. Hach v. Summit Cty. Ct. of Common Pleas , 102 Ohio St.3d 75, 2004-Ohio-1800, 806 N.E.2d 554, ¶ 9, citing State ex rel. Reynolds v. Basinger , 99 Ohio St.3d 303, 2003-Ohio-3631, 791 N.E.2d 459, ¶ 7, and State ex rel. Kimbrough v. Greene , 98 Ohio St.3d 116, 2002-Ohio-7042, 781 N.E.2d 155, ¶ 6. The fact the trial court merely stated the petition was "denied" and did not specify that it was an untimely filed petition does not affect our review or provide Appellant with grounds for appeal. Any argument suggesting findings of fact and conclusions of law were required in this case is overruled.

{¶ 10} Appellant also complains the trial court "sua sponte" denied the petition without an answer or motion for summary judgment from the state. Although R.C. 2953.21(E) provides deadlines for any answer or summary judgment motion the state decides to file, the state has no obligation to respond to the petition for postconviction relief. See State ex rel. Manning v. Montgomery , 39 Ohio St.3d 140, 529 N.E.2d 935 (1988) (denying request for a writ against prosecutor as the defendant could ask the trial court to rule on his petition without the prosecuting attorney's response). Moreover, a hearing is not automatic. State v. Calhoun , 86 Ohio St.3d 279, 282, 714 N.E.2d 905 (1999). Even when a timely petition is filed, a hearing cannot be granted where the petition fails to allege substantive grounds for relief as the petitioner bears the burden of submitting evidentiary documents containing sufficient operative facts to show his claim. See State v. Jackson , 64 Ohio St.2d 107, 110-111, 413 N.E.2d 819 (1980). A trial court has the discretion to dismiss a petition for post-conviction relief without any response from the state. See State v. Peterson , 7th Dist. No. 08 MA 102, 2009-Ohio-1504, 2009 WL 825759, ¶ 10, 14 (where the untimely petition failed to set forth any substantive ground upon which relief can be granted, trial court could dismiss without waiting for petitioner's response to state's summary judgment motion); In re J.B. , 12th Dist. No. CA2005-06-176, 2006-Ohio-2715, 2006 WL 1493276, ¶ 48 ("A trial court is not required to consider the state's answer, if any, before ruling on the petition."). Contrary to Appellant's suggestion, an evidentiary hearing was not required merely because the state did not respond.

{¶ 11} In discussing the exceptions for an untimely petition, Appellant first claims his attorneys (trial counsel and appellate counsel) failed to advise him of the remedy of a petition for postconviction relief and thus failed to advise him of the time deadlines for filing a timely petition. Initially, we note the awkward terminology of Appellant's affidavit submitted in support of the petition; at paragraph 9, he said he had no knowledge he could address issues that were off the record until he was advised by a "Jail house Lawyer" and clerks at the prison law library. The affidavit did not specifically attest his attorneys failed to advise him of postconviction relief or its deadlines. Notably, Appellant also attached to his petition a 2009 letter he received from the Ohio Supreme Court which mentioned postconviction relief. Furthermore, he filed a motion for transcripts in the trial court in August 2009, wherein he argued: the right to transcripts applies in state postconviction proceedings; he was not required to have a postconviction petition pending to assert this right; he needed the transcripts to file such a petition; and his receipt of the transcripts was the first step in the postconviction process.

{¶ 12} In any event, the general failure of counsel (appointed for trial or direct appeal) to advise a defendant of postconviction procedures does not equate to being "unavoidably prevented from discovering the facts upon which he must rely to present the claim for relief." See R.C. 2953.23(A)(1)(a). The statute speaks of being unavoidably prevented from discovering facts, not the law. A petitioner's assertion that he was not informed of the procedural mechanism of postconviction relief is essentially an argument for the creation of an additional exception to the statutory deadlines. See State v. Theisler , 11th Dist. No. 2009-T-0003, 2009-Ohio-6862, 2009 WL 5064290, ¶ 18-21. "Merely because counsel failed to advise him of the deadline for filing a petition does not show he was 'unavoidably prevented' from discovering the deadline on his own or from other sources. Ignorance of the law as to the time for filing is no excuse." State v. Halliwell , 134 Ohio App.3d 730, 735, 732 N.E.2d 405 (8th Dist. 1999). Accordingly, Appellant's alleged state of being unaware of the law on postconviction relief does not satisfy an exception to the statute's timeliness requirements. See State v. Wolff , 7th Dist. No. 10-MA-184, 2012-Ohio-5575, 2012 WL 5993774, ¶ 16.

{¶ 13} We recognize the Sixth Circuit reversed a district court's dismissal of a habeas action because the defendant's attorney failed to advise him of state postconviction deadlines where the attorney knew of a postconviction issue. Gunner v. Welch , 749 F.3d 511, 520 (6th Cir. 2014). However, this was a federal habeas decision, not a decision on a state postconviction petition. See State v. Guy , 6th Dist. No. S-15-019, 2016-Ohio-619, 2016 WL 698039, ¶ 14. In fact, the decision concerned the effect of the habeas petitioner's failure to file for state postconviction relief with a conclusion that a state postconviction petition would be futile due to the filing deadlines. Gunner , 749 F.3d at 516, 520 (a federal habeas petitioner must show cause why he failed to file a state postconviction petition).

{¶ 14} The foregoing arguments in Appellant's first assignment of error are without merit. This leaves Appellant's main argument addressed in both his first and second assignments of error: due to ineffective assistance of counsel he was unavoidably prevented from discovering the third plea offer which would have avoided the trial and the resulting aggravated murder conviction.

UNCONVEYED PLEA OFFER

{¶ 15} The remainder of Appellant's first assignment of error and his second assignment of error are related and provide respectively:

"The Trial Court abused it[s] discretion when it Dismissed the Appellant's Post-Conviction Relief, w[h]ere Appointed Counsel prevented his client from discovering the facts about a Third (3rd) Plea Offer of Eight (8) years that changed the outcome of the Proceedings, and prevented the appellate from serving a lesser penalty in violation of the State and Federal Constitutions."

"Counsel was Substantially unreasonable and Ineffective in his assistance to the prejudice of the Appellant."

{¶ 16} Appellant reviews the United States Supreme Court's Lafler and Frye decisions which were decided on the same day. A defendant is entitled to the effective assistance of competent counsel during the plea bargaining process and in deciding whether to accept an offered plea. Lafler v. Cooper , 566 U.S. 156, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012). As a result, the two-part Strickland test applies, requiring a showing of deficient performance and prejudice on advising whether to accept plea. Id. at 162-163, 132 S.Ct. 1376, applying Hill v. Lockhart , 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985), and Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Lafler , the defendant claimed his attorney advised him to reject a plea offer and provided incorrect legal advice on a lack of intent where the victim was shot below the waist. This rejected plea offer involved dismissing some charges and recommending a sentence of 51-85 months. The defendant was convicted at trial and sentenced to a mandatory minimum sentence of 185 to 360 months in prison. The defendant thereafter sought federal habeas relief. The United States Supreme Court pointed out an erroneous strategic prediction about the outcome of a trial is not necessarily deficient performance but the Court was not addressing the deficiency prong because the parties conceded the attorney rendered deficient performance in advising the defendant. Lafler , 556 U.S. at 174, 129 S.Ct. 1436.

{¶ 17} The Court therefore addressed only the prejudice prong and concluded a defendant must show that but for the ineffective advice of counsel there is a reasonable probability: (1) the plea offer would have been presented to the court (meaning the defendant would have accepted the plea and the prosecution would not have withdrawn it in light of intervening circumstances); (2) the court would have accepted its terms; and (3) the conviction, sentence, or both would have been less severe than that imposed upon the defendant. Id. at 164, 129 S.Ct. 1436 (rejecting the state's contention that "there can be no finding of Strickland prejudice arising from plea bargaining if the defendant is later convicted at a fair trial."). The Court then implemented a remedy of ordering the state to reoffer the plea, the defendant's acceptance of which would still allow the trial court to exercise its discretion in deciding whether to accept the plea, partly accept the plea, or maintain the original conviction and sentence. Id. at 174-175, 129 S.Ct. 1436. See also id. at 171-172, 129 S.Ct. 1436 (the court can consider information learned about the crime after the plea offer).

{¶ 18} In the Frye case, the prosecutor sent the defendant's attorney a letter offering two possible plea bargains; one would reduce the felony charge to a misdemeanor and recommend a sentence of 90 days in jail. The attorney did not convey the offers to the defendant, they expired, he was arrested again, he pled guilty with no underlying agreement, and he was sentenced to three years in prison. The defendant sought postconviction relief in state court, alleging his counsel rendered ineffective assistance by failing to inform him of the plea offers. He testified at an evidentiary hearing that he would have pled guilty to the misdemeanor if he knew of the offer. The trial court denied the motion, but a state appellate court found deficient performance and prejudice and reversed for plea withdrawal.

{¶ 19} After granting certiorari, the United States Supreme Court began by observing: "The reality is that plea bargains have become so central to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires in the criminal process at critical stages." Missouri v. Frye , 566 U.S. 134, 143, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012). The Court found it unnecessary to define the responsibilities of defense counsel in the plea bargaining process, while acknowledging: "The art of negotiation is at least as nuanced as the art of trial advocacy and it presents questions farther removed from immediate judicial supervision." Id. at 144-145, 132 S.Ct. 1399, quoting Premo v. Moore , 562 U.S. 115, 125, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011). Plea bargaining depends on "personal style" with such individual negotiation tactics that "it may be neither prudent nor practicable to try to elaborate or define detailed standards for the proper discharge of defense counsel's participation in the process." Frye , 566 U.S. at 145, 132 S.Ct. 1399.

{¶ 20} The Court found the narrow issue was "whether defense counsel has the duty to communicate the terms of a formal offer to accept a plea on terms and conditions that may result in a lesser sentence, a conviction on lesser charges, or both." Id. The Court held "defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused. Any exceptions to that rule need not be explored here, for the offer was a formal one with a fixed expiration date." Id. It was therefore concluded counsel's performance was deficient by allowing the offer to expire without advising the defendant of the offer. Id. at 145-146, 132 S.Ct. 1399.

{¶ 21} To demonstrate prejudice from this type of deficient performance, a defendant must show a reasonable probability that: (1) he would have accepted the earlier plea offer; (2) the plea would have been entered without the prosecution canceling the offer or the trial court refusing to accept the plea; and (3) the end result would have been more favorable due to a lesser charge or a shorter sentence. Id. at 147, 132 S.Ct. 1399. The Court remanded to the state court for consideration of the second element, instructing: "If, as the Missouri court stated here, the prosecutor could have canceled the plea agreement, and if Frye fails to show a reasonable probability the prosecutor would have adhered to the agreement, there is no Strickland prejudice. Likewise, if the trial court could have refused to accept the plea agreement, and if Frye fails to show a reasonable probability the trial court would have accepted the plea, there is no Strickland prejudice." Id. at 151, 132 S.Ct. 1399 (noting there was reason to doubt the prosecution would have adhered to the agreement or the trial court would have accepted it because of a new arrest).

{¶ 22} Appellant states there was an unconveyed plea offer of eight years; his counsel violated his duty by failing to communicate it to him before trial; he would have accepted the deal; and he would have be sentenced to eight years instead of 30 years to life for aggravated murder. (He does not mention the five-year consecutive firearm specification.) Appellant's affidavit states counsel conveyed two plea offers to him: the first offer was 25 years to life; and the subsequent offer, about a month later, was 15 years to life. (He does not mention what offense was involved in the offers, but we note 15 years to life would apply to the lesser included offense of murder, which does not require prior calculation and design.)

{¶ 23} Appellant said the conveyance of these offers made him believe counsel had "turned against" him because counsel previously supported his theory that he was under the heat of passion after being subjected to gunfire and having to return past the location of the gunfire. Appellant then asked for new counsel. Disregarding that it is the court who decides whether counsel would be replaced, Appellant said he gave counsel a second chance after his attorney reassured him about his theory of the case. Appellant was not unavoidably prevented from raising issues regarding the advice of counsel as to these two plea offers or the theory of the case. He therefore focuses on his allegations of a third plea offer.

{¶ 24} Appellant submitted the February 28, 2017 affidavit of his co-defendant, which confirmed the receipt of plea offers for 25 years to life and 15 years to life. The co-defendant's affidavit then stated: his attorney advised him of an offer of 8 years if he testified against Appellant and said Appellant "was the brains of the operation and did this purposely"; his attorney told him the deal was sent to Appellant as well; and his attorney believed it would "come down to which one will take the deal first, you or him." The co-defendant said he rejected the offer, signed a time waiver, waited until after Appellant's trial, and accepted a new offer of 9 years for manslaughter plus three years for the firearm specification.

{¶ 25} Appellant's affidavit attests he would have taken the third plea offer as he believed he should only have been charged with manslaughter and the recommended sentence was better than the maximum sentence for manslaughter. Although he does not specifically say so, this means he is asserting he would have testified against his cousin. He believes his attorney did not advise him of the third offer because he was "still holding a grudge for trying to have [him] fired off my case!" Appellant's affidavit states he did not learn about the third offer until his co-defendant told him about it on February 20, 2017. Appellant urges he was unavoidably prevented from discovering the third offer because his attorney failed to convey it to him at any time. He concludes the trial court should have conducted an evidentiary hearing.

{¶ 26} "In postconviction cases, a trial court has a gatekeeping role as to whether a defendant will even receive a hearing." State v. Gondor , 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 51. The trial court's decision on whether to grant a hearing is discretionary and reviewed for an abuse of discretion. Id. at ¶¶ 51-52, citing State v. Calhoun , 86 Ohio St.3d 279, 286, 714 N.E.2d 905. A petitioner filing for postconviction relief is not automatically entitled to a hearing as the statute specified the trial court shall determine whether there are substantive grounds for relief before granting an evidentiary hearing on the petition. Calhoun , 86 Ohio St.3d at 283, 714 N.E.2d 905, citing R.C. 2953.21. Before a hearing can be granted on ineffective assistance of counsel occurring outside of the record, "the petitioner bears the initial burden to submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness."See id. , quoting State v. Jackson , 64 Ohio St.2d 107, 112, 413 N.E.2d 819 (1980).

{¶ 27} In Calhoun , the court of appeals reversed and remanded a trial court's denial of a timely postconviction petition without a hearing; the appellate court assumed the affidavits presented in support of a petition must be accepted as true and any conflicts in the affidavits submitted by the petitioner should not be resolved without a hearing. The Ohio Supreme Court rejected both of these assumptions. Calhoun , 86 Ohio St.3d at 284, 714 N.E.2d 905. The Court held "a trial court should give due deference to affidavits sworn to under oath and filed in support of the petition, but may, in the sound exercise of discretion, judge their credibility in determining whether to accept the affidavits as true statements of fact." Id. ("To hold otherwise would require a hearing for every postconviction relief petition"). Although noting an affidavit should not lightly be deemed false, the Supreme Court concluded a trial court ruling on a postconviction relief petition "may deem affidavit testimony to lack credibility without first observing or examining the affiant." Id. (relying on "common sense, the interests of eliminating delay and unnecessary expense, and furthering the expeditious administration of justice").

{¶ 28} In assessing the credibility of affidavits, the trial court should consider all relevant factors, including but not limited to the following: (1) whether the judge reviewing the postconviction relief petition also presided at the trial; (2) whether multiple affidavits contain nearly identical language or otherwise appear to have been drafted by the same person; (3) whether the affidavits contain or rely on hearsay; (4) whether the affiants are relatives of the petitioner or otherwise interested in petitioner's success; and (5) whether the affidavits contradict evidence proffered by the defense or by the same witness at trial or are internally inconsistent. Id. at 285, 714 N.E.2d 905. "Depending on the entire record, one or more of these or other factors may be sufficient to justify the conclusion that an affidavit asserting information outside the record lacks credibility." Id.

{¶ 29} Appellant acknowledged this law in his petition and asked the trial court to apply the Calhoun factors in his favor. As to these factors: (1) the judge reviewing the petition was not the same judge who presided at the trial, which was held 9.5 years earlier; (2) Appellant's affidavit and the co-defendant's affidavit do not contain similar language or otherwise appear to drafted by the same person; (3) issues of hearsay are apparent; (4) the affiant is the co-defendant and Appellant's cousin; and (5) Appellant's affidavit suggests he was not the shooter, while evidence presented by the defense at trial included a statement that the co-defendant was the driver, and Appellant's affidavit states he was defending his life from attack by the victims but then differentiates "Shooter Chuck" from the victim.

{¶ 30} More specifically as to the third factor, Appellant's affidavit states his attorney failed to convey a third plea offer to him at any time. In describing the source of knowledge for the third offer, Appellant's affidavit stated: the co-defendant told him about the offer; the co-defendant's attorney told the co-defendant about the offer; an unnamed prosecutor told the co-defendant's attorney about the offer; and the prosecutor told the co-defendant's attorney (who told his client, who told Appellant 9 years later) that the prosecutor told Appellant's counsel about the offer. One layer of hearsay is eliminated by Appellant's submission of the co-defendant's affidavit. However, the co-defendant is still stating what his attorney told him which was based on what an unnamed prosecutor told the attorney (about what the prosecutor told another attorney). See Calhoun , 86 Ohio St.3d at 287, 714 N.E.2d 905 ("defendant's supporting affidavits from himself and his mother are based on out-of-court statements allegedly made by defendant's trial counsel").

{¶ 31} Furthermore, the Frye Court remanded to the state appellate court to consider whether the prosecutor would have withdrawn the plea offer or the trial court would have rejected it (and the Court suggested there were indications the plea would not have remained available). Here, there were statements from multiple witnesses that Appellant was the front seat passenger and the shooter (and the codefendant was the driver). We also point out there is no indication the alleged offer was a "formal offer" as was the limited situation in the Frye case, and it allegedly involved a race between the co-defendants to see if they would agree to testify against each other. The prosecutor may have been employing a negotiation tactic in bargaining with the co-defendant and may not have conveyed an additional offer to Appellant's attorney. Any mention of Appellant may have been an incentivizing strategy.

{¶ 32} As to the fourth factor, the key affidavit was written by a co-defendant who was jointly indicted for aggravated murder, and who said he was offered another deal after Appellant's trial. (He said he received 9 years for manslaughter plus three years for a gun specification). He had nothing to lose by assisting Appellant as he had already been convicted. In addition, he was Appellant's cousin. We also note a notary certifies the person coming before the notary acknowledged he signed the instrument and provided evidence he was the person whose name was signed.

Kight v. Miller , 2017-Ohio-5714, 94 N.E.3d 60, ¶ 44, citing R.C. 147.53 (the person taking an acknowledgment shall certify that the person acknowledging appeared before him and acknowledged he executed the instrument and the person acknowledging was known to the person taking the acknowledgment, or that the person taking the acknowledgment had satisfactory evidence that the person acknowledging was the person described in and who executed the instrument). An affidavit is "by definition a statement that the affiant has sworn to be truthful, and made under penalty of perjury * * *." Calhoun , 86 Ohio St.3d at 284, 714 N.E.2d 905. Although Appellant's affidavit states that he swears the contents are true under penalty of perjury, there is no similar statement in the co-defendant's affidavit.

{¶ 33} Additionally, this was an untimely filed petition. Appellant states he learned of the third plea offer from the co-defendant on February 20, 2017. His burden was to show he was unavoidably prevented from discovering the facts upon which his petition relies, which is more than simply showing he was unaware of a fact. "Unavoidably prevented from discovering" typically means the defendant was unaware of the facts upon which the petition was based and he was unable to discover them through reasonable diligence. See, e.g. , State v. Burton , 9th Dist. No. 28359, 2017-Ohio-7588, 2017 WL 4078938, ¶ 9. Appellant does not explain why he could not or did not learn of his cousin's story about the third plea offer until more than 9 years after the offer was made. In fact, his cousin's affidavit does not mention when he told Appellant about the offer. Furthermore, Appellant waited until June 2, 2017 to file the petition.

{¶ 34} We conclude the trial court properly exercised its discretion in determining the allegations in the untimely petition and the affidavits submitted in support were unworthy of an evidentiary hearing. Appellant's first and second assignments of error are overruled.

SUBJECT MATTER JURISDICTION

{¶ 35} Appellant's third assignment of error contends:

"The trial court had no Probable Cause and/or Subject Matter Jurisdiction of the charging instruments from the police reports to the Indictment, where the prosecutor filed a Notice of Correction to the original Police Report."

{¶ 36} Appellant's petition for postconviction relief complained about a Notice of Correction filed by the state on November 23, 2007, which he stated changed a police report on a backseat passenger's statement as to who was the driver and who was the shooter. In his affidavit submitted with the postconviction petition, Appellant complained his attorney characterized this issue with the police report as a clerical mistake. In his postconviction petition, Appellant reasoned the police report could not be amended as it was the source of the affidavit and complaint and the complaint was the source of the indictment. On appeal, he reiterates these arguments and concludes the indictment was void.

{¶ 37} Appellant's arguments do not meet the requirements for filing an untimely postconviction petition. He does not rely on a new retroactive right, and there is no indication he was unavoidably prevented from discovering the facts he relies upon in addressing this perceived issue with contradicting records. See R.C. 2953.23(A)(1)(a). He admits the issue was known to him before trial but was not raised. To the extent Appellant's arguments rely on issues in the record and items which could have been raised to the trial court before trial or on direct appeal, the state asserts the doctrine of res judicata.

{¶ 38} Pursuant to the res judicata doctrine, "a final judgment of conviction bars the convicted defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial which resulted in that judgment of conviction or on an appeal from that judgment." State v. Perry , 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967). "Where defendant, represented by new counsel upon direct appeal, fails to raise therein the issue of competent trial counsel and said issue could fairly have been determined without resort to evidence dehors the record, res judicata is a proper basis for dismissing defendant's petition for postconviction relief." State v. Cole , 2 Ohio St.3d 112, 443 N.E.2d 169 (1982), syllabus.

{¶ 39} In an apparent attempt to avoid the res judicata bar or the time requirements for postconviction relief, Appellant's petition asserted this was a matter of subject matter jurisdiction, resulting in a void judgment. A judgment rendered by a court lacking subject matter jurisdiction is void ab initio, and courts have inherent authority to vacate a void judgment. Patton v. Diemer , 35 Ohio St.3d 68, 518 N.E.2d 941 (1988), paragraph three and four of syllabus. See also State v. Wilson , 73 Ohio St.3d 40, 44, 652 N.E.2d 196 (1995) (general division lacked subject matter jurisdiction to convict a juvenile offender were there was no transfer from the juvenile court). When a judgment is void ab initio, the issue can be raised at any time. Bank of Am., N.A. v. Kuchta , 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040, ¶ 17, citing Pratts v. Hurley , 102 Ohio St.3d 81, 2004-Ohio-1980, 806 N.E.2d 992, ¶ 11 ; Lingo v. State , 138 Ohio St.3d 427, 2014-Ohio-1052, 7 N.E.3d 1188, ¶ 44. Accordingly, the doctrine of res judicata does not bar a claim that a judgment is void for lack of subject matter jurisdiction. See Kuchta , 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040 at ¶ 17 ; Wilson , 73 Ohio St.3d at 44-45, 652 N.E.2d 196, fn. 6 (lacking subject matter jurisdiction could not be defeated by arguments of res judicata, waiver, or lack of prejudice); Perry , 10 Ohio St.2d at 178-79, 226 N.E.2d 104 ("where a judgment of conviction is rendered by a court having jurisdiction over the person of the defendant and jurisdiction of the subject matter, such judgment is not void, and the cause of action merged therein becomes res judicata as between the state and the defendant").

{¶ 40} Appellant's arguments fail for various reasons. Appellant was not bound over on the complaint. Rather, he was indicted by direct presentment. Contrary to his contention, the earlier reports used for prior filings were not "building blocks" alteration of which would cause the indictment to fall. Appellant also assumes the grand jury based its indictment on a police report, but there is no support for this assumption. See State v. Nields , 93 Ohio St.3d 6, 19, 752 N.E.2d 859 (2001) ("the record does not reflect what evidence was presented before the grand jury; hence, whether the indictment was based on 'inadequately presented evidence' cannot be evaluated"). Appellant states the police report transposed his position in the vehicle with the position of Jason Clay, and was thereafter corrected. It appears the uncorrected version, which Appellant believes was provided to the grand jury, would have favored Appellant. Appellant's petition conceded the original police report contained a statement contradicting the recorded statements, which he watched on DVD prior to trial; one of those DVDs was a trial exhibit.

{¶ 41} Notably, Appellant Jonathan Clay was jointly indicted with his cousin, Jason Clay. A person who is complicit in the commission of an offense shall be prosecuted and punished as if he were a principal offender. R.C. 2923.03(F). A charge of complicity may be stated in terms of the complicity statute or in terms of the principal offense. Id. In addition, Appellant states the notice of correction changed a police report. The indictment was not amended. Contrary to Appellant's suggestion, there was no constructive amendment of the indictment. Furthermore, "an accused cannot attack an indictment valid on its face on the ground that the grand jury lacked sufficient credible evidence to indict." Nields , 93 Ohio St.3d 6, 752 N.E.2d 859,

{¶ 42} Subject matter jurisdiction is "the power of a court to entertain and adjudicate a particular class of cases." Kuchta , 141 Ohio St.3d 75, 2014-Ohio-4275, 21 N.E.3d 1040 at ¶ 19 (a mere error in the invocation or exercise of jurisdiction over a particular case can cause a judgment to be voidable, but it does not cause the judgment to be void). "[T]he court of common pleas is a court of general jurisdiction, with subject-matter jurisdiction that extends to 'all matters at law and in equity that are not denied to it.' " Id. at ¶ 20. Appellant's allegations regarding a corrected police report and assumptions about the evidence presented to the grand jury do not involve subject matter jurisdiction. See generally id. ; In re Bryant , 171 Ohio St. 16, 167 N.E.2d 500 (1960). Appellant's third assignment of error is overruled.

LACK OF PEREMPTORY CHALLENGE IN VOIR DIRE

{¶ 43} Appellant's fourth assignment of error alleges:

"Counsel was ineffective when he failed to peremptor[il]y challenge and object to the bias prejudice of a Female Juror."

{¶ 44} Appellant contends his attorney should have challenged a prospective juror who said her brother had been killed and who voiced concern at voir dire over whether it would be fair for her to sit on the jury. (Tr. 38). As aforementioned, res judicata bars a defendant from seeking postconviction relief on any matter he could have raised on direct appeal. Cole , 2 Ohio St.3d 112, 443 N.E.2d 169 at syllabus. See also State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131 (1997) ; Perry , 10 Ohio St.2d at 180, 226 N.E.2d 104. Voir dire occurred on the record. Appellant suggests he was unaware of the right to challenge a juror. However, the transcript shows the exercise of multiple challenges for cause and peremptory challenges by both sides. It also reflects the questioning of this prospective juror (and her assurances she could be fair and follow the court's instructions). (Tr. 37-40, 104-105, 131-132).

{¶ 45} Accordingly, the issue with voir dire Appellant presented in his petition could have been raised in the direct appeal and is now barred by res judicata. See id. See also State v. Jackson , 10th Dist. No. 01AP-808, 2002-Ohio-3330, 2002 WL 1379001, ¶ 51 ("The trial court did not abuse its discretion when it overruled, without a hearing, appellant's first ground for postconviction relief, in which appellant argued that his trial counsel failed to adequately question prospective jurors during voir dire concerning their views about race."). We note Appellant's affidavit alleges counsel told him to let him do his job when he expressed concern over this prospective juror. However, the mere addition of counsel's comments de hors the record will not change the fact that the reasons supporting a challenge were contained in the record.

{¶ 46} In addition, Appellant's petition was untimely. He was not unavoidably prevented from discovering the facts upon which this portion of the petition was based and no new rights to challenges in voir dire was suggested. See R.C. 2953.23(A)(1)(a). (We note the same res judicata and untimeliness analyses would apply to other contentions mentioned in his petition but not briefed on appeal, such as a failure to test a hat for DNA, which was mentioned in defense counsel's closing argument.)

{¶ 47} Regardless and most notably, Appellant's argument (that defense counsel was ineffective by failing to challenge this juror due to bias) is wholly unsupported by the transcript. The state exercised a peremptory challenge as to this juror; she did not sit on the jury. (Tr. 199). Accordingly, this argument has absolutely no basis in law or fact. Appellant's fourth assignment of error is overruled.

{¶ 48} The trial court's judgment is hereby affirmed.

Donofrio, J., concurs.

Waite, J., concurs.

      Division (A)(1)(b) of R.C. 2953.23 also provides a method for challenging a constitutional error at death sentencing. Division (A)(2) applies to an offender for whom DNA testing was performed.

      Appellant asks us to apply the holding in the Fifth District's Riley case regarding findings and conclusions. However, that case involved a timely petition. See State v. Riley , 5th Dist. No. 2007 CA 00279, 2008-Ohio-3125, 2008 WL 2571689, ¶ 3, 5, 15-16.

      Appellant did not argue the statutory untimeliness alternative to being unavoidably prevented from discovering the facts upon which the petition was based. The alternative on the first-prong for an untimely petition requires a petitioner to show: "after the time expired, the United States Supreme Court recognized a new federal or state right that applies retroactively to his situation and the petition asserts a claim based on that right * * *." R.C. 2953.23(A)(1)(a). As Frye pointed out, Strickland was already applied to the plea bargaining process in the 1985 Hill case. Frye , 566 U.S. at 140, 132 S.Ct. 1399 ("Hill established that claims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland"), citing Hill , 474 U.S. at 57, 106 S.Ct. 366. See also id. at 148, 132 S.Ct. 1399 ("This application of Strickland to the instances of an uncommunicated, lapsed plea does nothing to alter the standard laid out in Hill ."). Various appellate court have concluded the Frye and Lafler cases did not create a new retroactive right for purposes of post-conviction relief. See, e.g. , State v. Burton , 4th Dist. No. 13CA12, 2014-Ohio-2549, 2014 WL 2700898, ¶ 15 (citing cases from the Second, Tenth, and Eleventh Districts); State v. Thomas , 8th Dist. No. 99972, 2014-Ohio-1512, 2014 WL 1408129, ¶ 9-10. In any event, the Frye and Lafler cases were released in March 2012, and Appellant's petition was filed in June 2017.


source: Caselaw Access Project

author: HORTON, J.

license: Public Domain

text:
    Joshua BOND, Plaintiff-Appellee, v. Gianna PANDOLFI DE RINALDIS, Defendant-Appellant.
    No. 16AP-756
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 13, 2018
    On brief: Joshua Bond, Knoxville, pro se. Argued: Joshua Bond.
    On brief: Sowald, Sowald, Anderson, Hawley & Johnson, Beatrice K. Sowald, and Eric W. Johnson, Columbus, for appellant. Argued: Eric W. Johnson.
    DECISION
   HORTON, J.

{¶ 1} In the second appeal in this child custody case, defendant-appellant, Gianna Pandolfi de Rinaldis ("Pandolfi"), appeals from the decision of the Franklin County Court of Common Pleas, Division of Domestic Relations, Juvenile Branch, that sustained her motion for relief from judgment under Civ.R. 60(A). After this court affirmed a shared parenting plan in the first appeal, Pandolfi requested that the trial court amend the judgment to adopt a different plan in the record due to a purported clerical error. She now appeals that judgment, asserting that the adopted plan is inequitable. For the reasons set forth below, we hold that the doctrine of invited error precludes Pandolfi from challenging the trial court's decision. Furthermore, we recognize the error identified by plaintiff-appellee, Joshua Bond ("Bond"), who opposed Pandolfi's motion before the trial court and on appeal yet did not file a notice of cross-appeal, as the error is apparent from the record. Thus, we also hold that the trial court erred because its ruling made a substantive change to the judgment not authorized by Civ.R. 60(A), as the rule only allows the correction of clerical errors. Accordingly, we reverse the judgment of the trial court and remand with instructions to vacate that judgment entry and reinstate the previous parenting plan.

{¶ 2} The following summary of the factual and procedural background relevant to this appeal is from the opinion resolving the first appeal, Bond v. Pandolfi de Rinaldis , 10th Dist. No. 15AP-646, 2016-Ohio-3342, 2016 WL 3216281 (hereinafter " Bond I "):

Pandolfi and plaintiff-appellee, Joshua Bond, are the parents of a son named Andrew. Although the parties were engaged for a short period, they never married.
Andrew was born on September 27, 2012. As Andrew's mother, Pandolfi had the discretion to determine how Andrew's surname would appear on his birth certificate. See R.C. 3705.09(F)(2). Without consulting Bond, Pandolfi chose the surname "Pandolfi de Rinaldis Cano" for Andrew.
On December 11, 2012, Bond filed a complaint seeking a judgment (1) determining the existence of a parent/child relationship between him and Andrew, (2) changing Andrew's surname to include Bond's surname, and (3) establishing a child custody arrangement and the amount of child support owed. Shortly after filing his complaint, Bond moved for an order allocating the parental rights and responsibilities for Andrew in accordance with the shared parenting plan that Bond filed with his motion.
The parties submitted to genetic testing, which established a 99.99 percent probability that Bond was Andrew's father. Subsequent to the testing, the trial court issued an agreed judgment entry that determined that a father/child relationship existed between Bond and Andrew. The trial court reserved ruling on the remaining issues in the case.
On March 19, 2013, the magistrate issued temporary orders requiring Bond to pay child support to Pandolfi and granting Bond parenting time with Andrew. Additionally, at Pandolfi's request, the magistrate appointed a guardian ad litem for Andrew.
Over the course of five days in November 2013, the parties presented evidence at a hearing before the magistrate. During the hearing, the parties primarily focused on two issues: (1) whether Andrew's surname should be changed, and (2) the appropriate custody arrangement. * * *
With regard to the custody arrangement, Bond sought shared parenting according to the plan that he had submitted to the trial court. That plan gave the parties equal parenting time with Andrew. Pandolfi resisted shared parenting and, instead, asked to be named the sole residential parent and legal custodian of Andrew. Pandolfi planned to return to her home in Puerto Rico, and she wanted to take Andrew with her. She proposed that Bond would exercise parenting time through video chatting, as well as four face-to-face visits per year.
The guardian ad litem recommended that the trial court adopt shared parenting, with Bond exercising parenting time every Monday from 5:45 p.m. until Tuesday at 7:30 a.m., every Wednesday from 5:30 p.m. until 7:30 p.m., and alternating weekends from Friday at 5:45 p.m. until Sunday at 6:00 p.m. The guardian also recommended that the parties follow the applicable local rule in determining which parent would have Andrew on the holidays, with the exception that the regular parenting time schedule would apply during winter and summer breaks. Finally, the guardian recommended that the trial court preclude Bond from leaving Andrew alone with Bond's father, Jeffrey Bond.
The magistrate issued a decision on September 3, 2014. In that decision, the magistrate concluded that a change of Andrew's surname to "Bond-Pandolfi de Rinaldis" was in Andrew's best interest. The magistrate also concluded that shared parenting was in Andrew's best interest. The magistrate, however, did not approve the shared parenting plan that Bond had submitted. The magistrate found the parenting time schedule recommended by the guardian more appropriate for Andrew than the schedule in Bond's shared parenting plan, with one exception. Instead of maintaining the regular parenting time schedule during the winter break, as the guardian recommended, the magistrate found it more appropriate to give each parent a ten-day block of parenting time during the winter break. The magistrate ordered Bond to submit an amended shared parenting plan that comported with the magistrate's findings regarding parenting time. Finally, with regard to child support, the magistrate deviated downward from the guideline child support amount and ordered Bond to pay $600 per month effective January 1, 2013. The trial court approved and adopted the magistrate's decision on the same day that it was filed.
Bond complied with the magistrate's order that he file an amended shared parenting plan. The magistrate then reviewed the amended plan. On October 21, 2014, the magistrate issued a decision finding the amended plan in Andrew's best interest and adopting that plan as the shared parenting decree. The trial court approved and adopted the magistrate's decision on the same day that it was filed.
Pandolfi objected to both of the magistrate's decisions. The trial court held a hearing on Pandolfi's objections. At the hearing, both Pandolfi and Bond testified. In a judgment issued June 12, 2015, the trial court found one of Pandolfi's objections moot and denied the remaining objections.

Id. at ¶ 2-12.

{¶ 3} Pandolfi appealed, raising six assignments of error. Relevant to the present appeal is her fourth assignment of error:

THE TRIAL COURT IMPROPERLY APPROVED AND ADOPTED A PARENTING PLAN THAT PROVIDED APPELLANT WITH LITTLE MEANINGFUL OPPORTUNITY TO RETURN TO HER HOME IN PUERTO RICO AT ANY TIME WITH THE MINOR CHILD.

Id. at ¶ 13.

{¶ 4} We overruled this assignment of error, reasoning as follows:

By her fourth assignment of error, Pandolfi argues that the trial court abused its discretion in approving a shared parenting plan that only allows for one ten-day trip to Puerto Rico every other year. This argument presumes that the trial court approved the amended shared parenting plan that Bond submitted upon the magistrate's order. However, the trial court instead approved Bond's original shared parenting plan, which was admitted as Exhibit 9 at the hearing. The original shared parenting plan follows the model parenting time schedule set forth in former Loc.R. 22 with regard to holidays and vacations. Pandolfi, therefore, may arrange a two-week vacation with Andrew every summer. Pandolfi will also receive parenting time with Andrew during one-half of every winter break, as well as the entirety of spring break every other year. The trial court found the original shared parenting plan was in Andrew's best interest because it afforded Pandolfi sufficient periods of time throughout the year to travel. We see no abuse of discretion in this finding. Accordingly, we overrule Pandolfi's fourth assignment of error.

Id. at ¶ 46.

{¶ 5} We overruled Pandolfi's other assignments of error and affirmed the trial court's judgment. Id. at ¶ 59. The decision was released on June 9, 2016.

{¶ 6} On August 12, 2016, Pandolfi filed a motion in the trial court under Civ.R. 60(A), the rule allowing a trial court to correct clerical mistakes in judgments. She requested that the trial court correct the June 12, 2015 judgment entry that formed the basis for her previous appeal, asserting that the judgment contained a "mistaken reference" to the wrong parenting plan (the unmodified original plan filed on January 18, 2013). (Aug. 12, 2016 Def.'s Mot. for Relief Pursuant to Civ.R. 60(A).) Pandolfi requested that the court adopt the September 16, 2014 shared parenting plan instead. Her memorandum in support of the motion omitted any mention of this court's affirmance of the trial court's adoption of the January 28, 2013 original parenting plan. Id.

{¶ 7} Bond opposed the motion. He argued that it would be "inappropriate" to apply Civ.R. 60(A) because "no clerical mistake occurred and the issue at hand was already reviewed and affirmed as correct" by this court. (Aug. 12, 2016 Pl.'s Request for Denial of Def.'s Mot. for Relief Pursuant to Civ.R. 60(A).) Bond also argued that the modified plan that Pandolfi was asking the trial court to adopt actually provided her with "less extended time" than the originally adopted plan, and that Pandolfi had never argued that the trial court had made a clerical error by adopting it during the first appeal. Id.

{¶ 8} On October 24, 2016, the court sustained Pandolfi's motion. In a one-page judgment entry, the trial court stated only that it had "mistakenly referenced 'Plaintiff's Exhibit 9' rather than the Amended Shared Parenting Plan," and adopted the September 16, 2014 plan instead. (Oct. 24, 2016 Jgmt. Entry.)

{¶ 9} After the trial court sustained her motion and granted the relief she requested, Pandolfi filed a notice of appeal on November 4, 2016. Her sole assignment of error is a verbatim reiteration of the fourth assignment of error from Bond I :

THE TRIAL COURT IMPROPERLY APPROVED AND ADOPTED A PARENTING PLAN THAT PROVIDED APPELLANT WITH LITTLE MEANINGFUL OPPORTUNITY TO RETURN TO HER HOME IN PUERTO RICO AT ANY TIME WITH THE MINOR CHILD.

{¶ 10} In support of her appeal, Pandolfi argues that the trial court abused its discretion by adopting a parenting plan that only provides her with "only an extremely limited opportunity to travel to Puerto Rico (or elsewhere) during her allotted parenting time." (Appellant's Brief at iv.) She argues that even under the model parenting time schedule in the trial court's local rules, she would have received substantially more uninterrupted parenting time than the ten-day period during winter break allowed by the final plan adopted by the trial court. (Appellant's Brief at 11.) She cites Bond's own testimony, during which he stated that he would have "no problem" with each parent having two weeks of uninterrupted parenting time during the summer. (Appellant's Brief at 12.) Pandolfi describes the trial court's allocation of vacation time as "completely arbitrary" and asks that this court remand this case with instructions to allow "appropriate vacation time" in the parenting plan. (Appellant's Brief at 14.)

{¶ 11} In response, Bond agrees with Pandolfi's characterization of his testimony, and that he has always been in favor of "equal holiday time and summer vacation" for each parent to spend with the child. (Appellee's Brief at 9.) He attributes the abbreviated ten-day period to an "oversight" by the guardian ad litem in her original recommendation. Id. However, he questions Pandolfi's motives for appealing a motion she prevailed on in the trial court. (Appellee's Brief at 15.) Bond asserts that the trial court erred when it sustained Pandolfi's Civ.R. 60(A) motion because the substituted parenting plan created a substantive change in the judgment. (Appellee's Brief at 15-16.)

{¶ 12} Pandolfi replies by asserting that Bond cannot challenge the trial court's judgment because he failed to file a notice of cross-appeal, as required by App.R. 4, and has therefore waived any challenge to the judgment. (Reply Brief at 7-8.)

{¶ 13} Appellate courts apply an abuse of discretion standard when reviewing a trial court's decision under Civ.R. 60(A) to correct clerical mistakes in a judgment. Star Merch., LLC v. Haehn , 10th Dist. No. 16AP-39, 2016-Ohio-8018, 2016 WL 7131068, ¶ 11. The same standard applies to appellate review of a trial court's "allocation of parental rights and responsibilities" under R.C. 3109.04. Lumley v. Lumley , 10th Dist. No. 09AP-556, 2009-Ohio-6992, 2009 WL 5174121, ¶ 9.

{¶ 14} We first note that the doctrine of invited error prevents Panfoldi from challenging the trial court's judgment. "Under the doctrine of invited error, an appellant, in either a civil or a criminal case, cannot attack a judgment for errors committed by himself or herself, for errors that the appellant induced the court to commit, or for errors which the appellant is actively responsible." In re J.B. , 10th Dist. No. 11AP-63, 2011-Ohio-3658, 2011 WL 3077311, ¶ 10. "Under this principle, a party cannot complain of any action taken or ruling made by the court in accordance with that party's own suggestion or request." Id. Here, Pandolfi moved the trial court under Civ.R. 60(A) to amend its judgment by adopting a different shared parenting plan. Having prevailed, she now appeals from a judgment entered at her own request. Although her assignment of error highlights the merits by asserting that the trial court erred by adopting a parenting plan with an unduly restrictive vacation schedule, it was her use of the procedural mechanism of Civ.R. 60(A) to obtain a "new" judgment that has allowed her to appeal.

{¶ 15} It must be emphasized that the plan adopted by the trial court when sustaining Pandolfi's motion is considerably less favorable to her goal of having extended vacation time than the one previously adopted and affirmed by this court. In the first plan, each parent was expressly allowed to "arrange an uninterrupted vacation of not more than two (2) weeks with the child" during the summer, as well as being given half of winter break every year and half of spring break in alternating years, whereas in the second plan the maximum uninterrupted vacation duration is ten days during winter break, with no provision for summer vacations or spring break. Pandolfi convinced the trial court to adopt a plan less favorable to her goal of uninterrupted vacation time than the existing one, and, by doing so, provided a basis for this appeal. In short, it is difficult to interpret her post-appeal Civ.R. 60(A) motion and the instant appeal as anything other than an attempt to relitigate the issue of the allocation of vacation time.

{¶ 16} The proper course of action is to seek modification of the plan under R.C. 3109.04. She may argue for a change in circumstances under R.C. 3109.04(E)(1). Or, Pandolfi could negotiate with Bond and seek a joint modification of the plan under subsection R.C. 3109.04(E)(2)(a), which states that "[b]oth parents under a shared parenting decree jointly may modify the terms of the plan for shared parenting approved by the court and incorporated by it into the shared parenting decree." Such a stipulated modification "may be made at any time." Id. What Pandolfi may not do is avoid the statutory process with a procedural sleight of hand under Civ.R. 60(A) that returns her previous arguments (many of which are expressed verbatim from the briefing in Bond I ) to this court in the guise of a new judgment.

{¶ 17} Furthermore, we reject Pandolfi's argument that Bond's failure to file a notice of cross-appeal precludes his attack on the trial court's Civ.R. 60(A) ruling. This argument is not well-taken, particularly in light of her invitation to the trial court to commit an error that allowed this appeal. As appellee, Bond is free to counter Pandolfi's argument with " 'an attack upon the reasoning of the lower court or an insistence upon a matter overlooked or ignored by it' " without filing a notice of cross-appeal. Kaplysh v. Takieddine , 35 Ohio St.3d 170, 175, 519 N.E.2d 382 (1988), quoting United States v. American Ry. Express Co. , 265 U.S. 425, 435, 44 S.Ct. 560, 68 L.Ed. 1087 (1924).

{¶ 18} We also note that an appellate court is authorized under App.R. 12 to decide any assignment of error not raised by the parties where the error is evident from the record. Hungler v. Cincinnati , 25 Ohio St.3d 338, 341, 496 N.E.2d 912 (1986) ("an appellate court may pass on errors not assigned by the parties"). In order to "recognize error not assigned by the parties, there must be sufficient basis in the record before it upon which the court can decide that error." (Emphasis sic.) Id. at 342, 496 N.E.2d 912. See also State v. Peagler , 76 Ohio St.3d 496, 499, 668 N.E.2d 489 (1996) (stating that App.R. 12"allows a court of appeals discretion in deciding to address an issue not briefed or raised below, the court of appeals must base any factual conclusions reached upon evidence that exists in the record"). As mentioned, Bond opposed the trial court's ruling and contends that the substitution of one parenting plan for another under Civ.R.60 (A) is a substantive change beyond what the rule allows. For the following reasons, we conclude that Bond's argument has merit, and the error he highlights is obvious from the record.

{¶ 19} Civ.R. 60(A) states that "[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders." The rule " 'permits a trial court, in its discretion, to correct clerical mistakes that are apparent on the record, but does not authorize a trial court to make substantive changes in judgments.' " Brewer v. Brewer , 10th Dist. No. 09AP-146, 2010-Ohio-1319, 2010 WL 1229096, ¶ 13, quoting Atwater v. Delaine , 155 Ohio App.3d 93, 2003-Ohio-5501, 799 N.E.2d 216 (8th Dist.). " 'The term "clerical mistake" refers to a mistake or omission, mechanical in nature and apparent on the record that does not involve a legal decision or judgment.' " Id. We have explained the difference between clerical and substantive mistakes as follows:

"[T]he basic distinction between clerical mistakes that can be corrected under Civ.R. 60(A) and substantive mistakes that cannot be corrected is that the former consists of "blunders in execution" whereas the latter consists of instances where the court changes its mind, either because it made a legal or factual mistake in making its original determination, or because, on second thought, it has decided to exercise its discretion in a different manner."

Brewer at ¶ 13, quoting Wardeh v. Altabchi , 158 Ohio App.3d 325, 331, 2004-Ohio-4423, 815 N.E.2d 712, ¶ 10 (10th Dist.).

{¶ 20} In Wardeh , we held that a trial court's ruling under Civ.R. 60(A) that deleted a paragraph from a civil protection order allowing a father only supervised visitation with his child was a substantive change not permitted by the rule. Wardeh at ¶ 12. Here, similarly, the trial court's substitution of one parenting plan for another that altered the number of uninterrupted vacation days available to each parent effected a substantive change to the original judgment. The differences between the two plans were litigated before the magistrate. The trial court's first judgment adopted the plan that it found to be equitable and in the best interests of the child, and this court affirmed that decision by considering and evaluating the substance of the vacation schedule at issue. As in Wardeh , the change created by the trial court's action "exceeded the scope" of its authority under Civ.R. 60(A).

{¶ 21} In conclusion, we overrule Pandolfi's assignment of error because the doctrine of invited error prevents her from challenging a judgment that she induced the trial court to adopt. Her remedy for modifying the parenting plan exists under R.C. 3109.04. We recognize the error raised by Bond concerning the trial court's Civ.R. 60(A) ruling, which effected a substantive change to the judgment not authorized by the rule. The judgment of the trial court is reversed, and this case is remanded to the trial court with instructions to vacate the judgment entry that forms the basis of this appeal and reinstate the parenting plan affirmed in Bond I .

Judgment reversed; case remanded.

BROWN, P.J. and KLATT, J., concur.


author: BRUNNER, J.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Frederick A. PRATER, Jr., Defendant-Appellant.
    No. 17AP-374
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on March 13, 2018
    On brief: Ron O'Brien, Prosecuting Attorney, and Michael P. Walton, for appellee. Argued: Michael P. Walton.
    On brief: Wolfe Law Group, LLC, and Stephen T. Wolfe, Columbus, for appellant.
    DECISION
   BRUNNER, J.

{¶ 1} Defendant-appellant, Frederick A. Prater, Jr., appeals a judgment of the Franklin County Court of Common Pleas entered on April 25, 2017, sentencing him to serve 23 years in prison for three counts of felonious assault, three gun specifications, and one count of weapon under disability. Because his convictions were sufficiently supported by the evidence introduced and not against the manifest weight of the evidence, because it was not necessary to merge any of the counts, and because any potential error in admitting an unclear video of the events was harmless, we affirm.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} On February 19, 2016, a Franklin County Grand Jury indicted Prater for four counts of felonious assault with gun specifications and one count of possessing a weapon while under disability. (Feb. 19, 2016 Indictment.) Prater pled not guilty and the case was tried before a jury (except for the weapon under disability count which was tried to the court). (Feb. 26, 2017 Plea Form; Tr. Vols. 1-3, filed June 19, 2017.) During trial, eight witnesses testified: three men at whom Prater fired a revolver (Juan Mullins, Lewis Pettey, and Darius White), a female bystander whom Prater shot (Stephanie Norvett), an officer who responded to the scene, the detective who investigated the case, and a detective and forensic analyst who obtained and edited a video which may show the shooting.

{¶ 3} The first witness who testified was the responding officer. He recounted that on May 11, 2015 at around 10:50 p.m. he was called to a scene near the intersection of South Champion and McAllister Avenues. (Tr. Vol. 1 at 52.) He found one victim near the intersection, Norvett, with a bullet wound in her abdomen. Id. at 53-54. The police eventually located three men whom they believed to have been the targets of the shooting and who gave the police a description of the shooter. Id. at 58-59, 66. The description was of a tall thin black man with braids or dreadlocks. Id. at 66.

{¶ 4} At trial these three men at whom Prater allegedly shot, Mullins, Pettey, and White, testified that they were in the vicinity of 1117 McAllister Ave. on May 11, 2015. (Tr. Vol. 1 at 68, 74; Tr. Vol. 2 at 215-17, 269-70.) While Mullins, Pettey, and White were at the scene of the eventual shooting, a different trio (two men and one woman) who were evidently having car trouble appeared and asked to borrow a phone. (Tr. Vol. 1 at 69; Tr. Vol. 2 at 216, 270.) Pettey agreed to lend them his phone. Id. After a period of time, White or Pettey or both, asked the man seated in the passenger seat of the car to return the phone. (Tr. Vol. 1 at 70-71; Tr. Vol. 2 at 217-18, 272.) The man responded that they could have it back when he was done. Id. Around the time of this exchange, Pettey noticed that the man in the front passenger seat had a gun, a revolver. (Tr. Vol. 2 at 244-45.) White or Pettey or both told the man in the passenger seat that he could just keep the phone (which was apparently a free telephone distributed as part of a government program). (Tr. Vol. 1 at 71; Tr. Vol. 2 at 217-18, 272.) Mullins, Pettey, and White began to walk away when the man who had been sitting in the passenger seat got out of the car and lobbed the phone after them. (Tr. Vol. 1 at 71; Tr. Vol. 2 at 220, 272.) It broke when it struck the ground and Pettey or White or both made a remark to the effect of, "Touchdown, he scored!" (Tr. Vol. 1 at 71-72; Tr. Vol. 2 at 220, 272.)

{¶ 5} Immediately after the remark, all three men heard at least one gunshot and started running away. (Tr. Vol. 1 at 71-72; Tr. Vol. 2 at 220, 272-73.) Mullins reported that he heard approximately six gunshots. (Tr. Vol. 1 at 77, 79.) Pettey recounted that he heard two gunshots. (Tr. Vol. 2 at 220, 265.) White said he heard one shot. Id. at 283. Pettey said he saw the person (who was formerly seated in the front passenger seat) standing by the passenger side door. Id. at 222-23, 226, 247, 265. Pettey testified that this man was the same person who threw the phone and, after the "Touchdown" remark, produced a gun and shot. Id. Pettey saw the first shot but only heard the second shot because after the first shot he ran. Id. at 265. White saw the passenger assume what he considered to be an angled shooting position and then heard a shot. Id. at 282-83. But White admitted it was very dark and he could not see clearly. Id. Mullins and White noticed that Norvett had been struck by a bullet as they escaped the scene but could not risk stopping to render aid. (Tr. Vol. 1 at 80; Tr. Vol. 2 at 273, 300.) After escaping from the immediate scene, Pettey asked two female bystanders to telephone the police. (Tr. Vol. 2 at 227-29.)

{¶ 6} An enhanced video taken from a nearby Central Ohio Transit Authority camera was shown to Pettey, White, and Mullins with the result that all identified it as appearing to generally depict the scene and the incidents in question. (Tr. Vol. 1 at 89-91; Tr. Vol. 2 at 234, 239, 288.) But none of those three could testify definitively about what the video (which is extremely dark and blurry) shows. (State's Ex. J.; Tr. Vol. 1 at 89-91; Tr. Vol. 2 at 234-39, 288-90.) None of the three men identified Prater as the passenger. (Tr. Vol. 1 at 76; Tr. Vol. 2 at 231-32, 302, 304-05.) All three men described the passenger as black with short dreadlocks. (Tr. Vol. 1 at 97; Tr. Vol. 2 at 219, 274, 287.)

{¶ 7} The person who was struck by the bullet, Norvett, also testified. Norvett testified that she knew two of the people in the car, Prater and the other male companion, and had known them since childhood. (Tr. Vol. 2 at 141-43, 181.) She testified that she saw them both on May 11, 2015 but that her memories of that evening were somewhat erratic. Id. at 143, 157. She admitted that she had smoked some marijuana and had drunk some Hennessy cognac that evening. Id. at 182-83. She testified that she did not witness any of the altercation involving the cell phone. Id. at 146-49. As she remembered it, Prater and his two companions were in a car and needed a jump-start. Id. at 145. She had walked across the street to see if she could find some help when she was shot. Id. at 145-46. She testified that she did not know who shot her. Id. She only heard one shot. Id. at 195.

{¶ 8} Norvett admitted that initially, at the hospital, she identified Prater as the one who shot her. Id. at 159-60. She admitted that she picked Prater from a photo lineup and wrote on the associated identification form that, "he pulled the gun out and shot." (State's Ex. C1; Tr. Vol. 2 at 161-64.) However, at trial, she insisted that she had been confused and on medication and that she did not actually know who shot her. (Tr. Vol. 2 at 160.) She admitted that she signed an affidavit approximately ten months after the shooting in which she swore that Pater was not the shooter. Id. at 167, 192-93, 206. She had denied having told the prosecutor that she signed the affidavit because she was scared, but she did confess that she told the prosecutor she was frightened for her children. Id. at 167-68. She stated that Prater never threatened her and that she made the affidavit of her own free will. Id. at 200. However, she admitted that she spoke to Prater's family between her original interview with the police detective and signing the affidavit ten months later. Id. at 206-07. Norvett confirmed that she spoke to Prater on the telephone while she was still in the hospital and said he denied having shot her. Id. at 164-65. She confirmed that she changed hospital rooms after that phone call, but testified that the change was not because she was nervous about Prater knowing what room she was in. Id. at 165-66. Although she insisted at trial that she did not know who shot her, she admitted she could not definitively say that it was not Prater and she confirmed that Prater had been seated on the passenger side of the car. Id. at 156, 168-69, 175-76, 179.

{¶ 9} The investigating detective testified that he interviewed Norvett at Grant Medical Center approximately four days after the shooting. (Tr. Vol. 3 at 409, 414.) Although he did not review her records or obtain a list of the medications she was on, and although he admitted she must have been in pain and on some medications, he maintained that Norvett had not appeared to be conspicuously under the influence of medication at the time of the interview. Id. at 409-10, 418-19. The detective testified that Norvett identified Prater by name as the person who shot her, picked him out of a photographic lineup administered by a "blind" administrator, and wrote on the identification form that Prater "pulled the gun out and shot." Id. at 410-13; State's Ex. C1. The detective admitted, however, that he also interviewed Norvett in September 2016 and, at that time, Norvett opined that Prater's companion in the driver's seat of the car was the one who shot her. (Tr. Vol. 3 at 421-22.) The detective also explained that he obtained video of the scene from the Central Ohio Transit Authority, whose nearby building cameras had recorded what took place. Id. at 407-08. He testified that he took that raw footage to a unit of the Ohio Attorney General to see if it could be digitally clarified. Id.

{¶ 10} An expert forensic analyst from the Ohio Organized Crime Investigation Commission testified that, at the request of the police, he clarified, brightened, and magnified the video to enable its contents to be more easily observed. (Tr. Vol. 3 at 372-73, 377-78.) He explained that, other than a red box, which he drew around potentially relevant portions of the video, he did not alter the substance of the video. Id. at 377-78. He agreed that flashes of light seen on the video are consistent with gunshots but could also have been caused by any number of other things. Id. at 381, 388-90.

{¶ 11} The crime scene search detective documented the location of the Central Ohio Transit Authority camera from which video was taken and enhanced. (Tr. Vol. 2 at 335-36; State's Exs. P40-42.) He also testified (and the State's exhibits confirmed) that two .45-caliber shell casings were recovered near the driver's side of the car and seven 9mm shell casings were recovered, one from near the passenger side of the car, and the rest from against the curb across the street (on the driver's side of the car). (Tr. Vol. 2 at 343-45; State's Exs. E3, P3, P10-11, P17-24.) Additional exhibits and the detective's testimony to identify them were offered to establish that the police recovered pieces of an LG cellular telephone near the intersection of McAllister and South Champion Avenues. (Tr. Vol. 2 at 331-35, 343; State's Exs. P25-P26, P28, P32, P34-36.)

{¶ 12} On March 24, 2017, the jury found Prater guilty of felonious assault with gun specifications concerning shots fired at Norvett, White, and Pettey, one specification for each. (Mar. 24 2017 Verdict Forms, filed Mar. 29, 2017.)

{¶ 13} One month later, on April 25, 2017, the trial court held a hearing. (Sentencing Tr., filed June 19, 2017.) Based on the evidence at trial and a stipulation to a prior disabling conviction, the trial court found Prater guilty of possessing a weapon while under disability for a previous felony conviction. Id. at 3. It then sentenced Prater as follows: one year on the weapon while under disability conviction, seven years plus a three-year firearm specification for the felonious assault on Norvett, and five years plus three-year firearm specifications for each of the other two felonious assaults for shots fired at White and Pettey. Id. at 12-13. Based in part on Prater's stated and considerable criminal history, the trial court required Prater to serve the sentences for the three felonious assault counts consecutively to each other and consecutively to two of the firearm specifications, for a total of 23 years. Id. at 13-14; Apr. 25, 2017 Jgmt. Entry at 2. The remaining sentences (for one of the firearm specifications and the weapon under disability offense) were imposed concurrently with the other sentences. (Sentencing Tr. at 13-14; Apr. 25, 2017 Jgmt. Entry at 2.)

{¶ 14} Prater now appeals.

II. ASSIGNMENTS OF ERROR

{¶ 15} Prater assigns five assignments of error for our review:

[1.] THE TRIAL COURT ERRED WHEN IT ALLOWED THE INTRODUCTION OF AN UNAUTHENTICATED VIDEO INTO EVIDENCE
[2.] THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO SUPPORT THE CONVICTIONS
[3.] THE TRIAL COURT ERRED WHEN IT OVERRULED APPELLANT'S MOTION FOR ACQUITTAL PURSUANT TO CRIMINAL RULE 29
[4.] THE JURY'S VERDICTS WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE
[5.] THE FELONIOUS ASSAULTS WERE ALLIED OFFENSES OF SIMILAR IMPORT THAT SHOULD HAVE MERGED FOR PURPOSES OF SENTENCING

III. DISCUSSION

A. Second, Third, and Fourth Assignments of Error-Whether the Verdicts were Against the Manifest Weight of the Evidence, Whether They were Supported by Sufficient Evidence, and Whether a Criminal Rule 29 Motion for Acquittal Should have been Granted

{¶ 16} In his second assignment of error, Prater alleges that his convictions were not supported by sufficient evidence. Sufficiency is:

"[A] term of art meaning that legal standard which is applied to determine 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." * * * In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law.

Eastley v. Volkman , 132 Ohio St.3d 328, 2012-Ohio-2179, 972 N.E.2d 517, ¶ 11, quoting State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997) ; Black's Law Dictionary 1433 (6th Ed. 1990). "In reviewing a record for sufficiency, '[t]he 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.' " State v. Monroe , 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 47, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

{¶ 17} Although Prater's third assignment of error challenges the denial of his motion for acquittal, this does not necessitate a separate review because "[a] motion for acquittal under Crim.R. 29(A) is governed by the same standard as the one for determining whether a verdict is supported by sufficient evidence." State v. Tenace , 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, ¶ 37, citing State v. Carter , 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995) ; Thompkins at 386, 678 N.E.2d 541.

{¶ 18} Prater's fourth assignment of error challenges the manifest weight of the evidence. The Supreme Court of Ohio has "carefully distinguished the terms 'sufficiency' and 'weight' * * *, declaring that 'manifest weight' and 'legal sufficiency' are 'both quantitatively and qualitatively different.' " Eastley at ¶ 10, quoting Thompkins at paragraph two of the syllabus.

Weight of the evidence concerns "the inclination of the greater amount of credible evidence , offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict * * *. Weight is not a question of mathematics, but depends on its effect in inducing belief ."

(Emphasis sic.) Eastley at ¶ 12, quoting Thompkins at 387, 678 N.E.2d 541 ; Black's at 1594. In manifest weight analysis "the appellate court sits as a 'thirteenth juror' and disagrees with the jury's resolution of the conflicting testimony." Thompkins at 388, 678 N.E.2d 541, quoting Tibbs v. Florida , 457 U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). " 'The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.' " Id. at 387, 678 N.E.2d 541, quoting State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

{¶ 19} The Ohio Revised Code defines the offense of felonious assault in relevant part as follows:

(A) No person shall knowingly do either of the following:
* * *
(2) Cause or attempt to cause physical harm to another * * * by means of a deadly weapon * * *.

R.C. 2903.11(A)(1) and (2). Physical harm to another "means any injury, illness, or other physiological impairment, regardless of its gravity or duration." R.C. 2901.01(A)(3). A deadly weapon is "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).

{¶ 20} There seems to be no dispute in the briefs that felonious assault is the crime at issue concerning Norvett, White, and Pettey. A gun is a deadly weapon and intentionally shooting at someone with one is an attempt to cause physical harm. Rather than contest these points, Prater's argument is essentially that no one consistently or convincingly identified him as the shooter and that, even if he was the shooter, testimony that fewer than three bullets were fired means he could not have been guilty of three counts of felonious assault. (Prater Brief at 12-14.)

{¶ 21} Based on Prater's identity argument there is also only a narrow dispute as to the weapon under disability offense. See R.C. 2923.13. That is, Prater stipulated to a disqualifying prior conviction at trial. (Sentencing Tr. at 3.) On appeal, he also does not dispute that, if it were he who shot at Norvett, White, and Pettey, it was proper that the trial court found him guilty of "hav[ing], carry[ing], or us[ing] any firearm" while under disability. R.C. 2923.13(A).

{¶ 22} On the identity issue, the evidence was inconsistent as between Norvett, White, and Pettey, but there was evidence identifying Prater as the shooter. Norvett identified Prater as the shooter in her initial interview with the police and in writing when she selected him from a photographic lineup. (Tr. Vol. 2 at 161-64; State's Ex. C1.) Though she subsequently recanted (signing an affidavit stating that Prater was not the shooter), at the time of trial she maintained that she just did not know who had shot her. (Tr. Vol. 2 at 160-64, 168-69, 192-93.) Though she denied having been frightened into changing her story, she admitted that she feared for her children and that she had spoken with Prater's family between the shooting and the trial. Id. at 167-68, 206-07. Furthermore, though Norvett proved unwilling or unable to ultimately testify that Prater shot her, she never recanted her testimony that Prater was the man seated in the passenger side of the stranded vehicle before the shooting. Id. at 156, 168-69, 175-76, 179. White and Pettey testified that the passenger fired at them and that Norvett was hit in the shooting. Id. at 265, 282-83; Tr. Vol. 1 at 80; Tr. Vol. 2 at 273, 300. While White and Pettey could not directly identify Prater as the shooter, the jury could find that their testimony, in conjunction with Norvett's, effectively identifies Prater.

{¶ 23} "[V]iewing the evidence in a light most favorable to the prosecution, a[ ] rational trier of fact could have found the essential element" of identity to have been "proven beyond a reasonable doubt." Monroe at ¶ 47. As for the manifest weight question, although evidence exists from which the jury could have reached a different conclusion about whether Prater was the shooter, we cannot say that the evidence is so against conviction that "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." Thompkins at 387, 678 N.E.2d 541.

{¶ 24} The evidence was also mixed on the question of how many shots were fired. Mullins reported that he heard approximately six gunshots. (Tr. Vol. 1 at 77, 79.) Pettey recounted that he heard two gunshots. (Tr. Vol. 2 at 220, 265.) White said he heard one shot. Id. at 283. Norvett only heard one shot. Id. at 195. The crime scene search detective recovered nine shell casings from the scene, fired from two different guns. (Tr. Vol. 2 at 343-45; State's Exs. E3, P3, P10-11, P17-24.) But Pettey testified that the gun the passenger had was a revolver (which would not have automatically ejected spent shell casings) and some of the casings were crushed or dented when recovered. (Tr. Vol. 2 at 244-45; State's Exs. P19-20.) The jury heard testimony that it is possible that the casings recovered at the scene have nothing to with the crime at issue in this appeal. (Tr. Vol. 2 at 353-59.)

{¶ 25} Given the mixed state of the evidence about how many shots were fired, we do not conclude that the evidence was insufficient or manifestly against any of Prater's felonious assault convictions. "[V]iewing the evidence in a light most favorable to the prosecution, a[ ] rational trier of fact could have found" that Prater shot multiple times. Monroe at ¶ 47. Nor is it against the manifest weight of the evidence that Prater shot multiple times such that "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." Thompkins at 387, 678 N.E.2d 541.

{¶ 26} Even if only one shot had been fired in Norvett's direction and that of the fleeing men, such evidence is not necessarily incompatible with multiple felonious assault convictions. Several courts have upheld multiple felonious assault convictions where the evidence established that a single shot was fired by a defendant toward multiple victims in the line of fire. State v. Massalay , 10th Dist. No. 15AP-544, 2016-Ohio-779, 2016 WL 807653, ¶ 34-38 ; see also State v. Mills , 62 Ohio St.3d 357, 369, 582 N.E.2d 972 (1992) ; State v. Gowdy , 6th Dist. No. E-06-071, 2009-Ohio-385, 2009 WL 223883, ¶ 23-27 ; State v. Neal , 2d Dist. No. 82 CA 82, 1984 WL 5433, *14-15 (Jan. 20, 1984) ; see also, e.g. , State v. Jones , 18 Ohio St.3d 116, 480 N.E.2d 408 (1985) (holding that a person who drives recklessly and kills more than one person in a single collision may be properly convicted of a separate count of aggravated vehicular homicide for each death). However many shots the jury may have found that Prater fired, there was evidence to indicate that he knowingly fired a gun at Norvett, White, and Pettey. That constitutes felonious assault with gun specification as to each of them and suffices (in conjunction with his stipulated prior conviction) to show that he carried and used a firearm while under disability.

{¶ 27} Prater's second, third, and fourth assignments of error are overruled.

B. First Assignment of Error-Whether the Trial Court Erred in Admitting the Video Evidence at Trial

{¶ 28} Generally, a decision to admit or exclude evidence is reviewed under an abuse of discretion standard. State v. Morris , 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 11-22. Prater argues that the Central Ohio Transit Authority video, as enhanced by the forensic analyst, should not have been permitted into evidence by the trial court because it was not authenticated and not an original version under Ohio Rules of Evidence 901 and 1002. (Prater Brief at 7-11.)

{¶ 29} Ohio Rule of Evidence 901 requires that evidence be authentic. To introduce an exhibit for which authenticity is disputed, the proponent must produce "evidence sufficient to support a finding that the matter in question is what its proponent claims." Evid.R. 901(A). One method of authentication is through testimony of a witness with knowledge that the matter is what it is claimed to be. Evid.R. 901(B)(1). In this case, the witnesses to the shooting all testified that the video appeared to depict the scene on the night in question. (Tr. Vol. 1 at 89-91; Tr. Vol. 2 at 174, 234-39, 288-90.) Though none of the shooting witnesses could be very definite about the particulars of what the extremely dark and blurry video showed, none of them testified that the video was anything other than what it was offered to represent. (State's Ex. J.; Tr. Vol. 1 at 89-91; Tr. Vol. 2 at 176-77, 234-39, 288-90.) In addition, the State established a chain of custody of the video shown, eliminating inference of spoliation or tampering such as could affect its reliability. The investigating detective testified that he obtained video of the area where the shooting took place that had been recorded by the Central Ohio Transit Authority's building cameras. (Tr. Vol. 3 at 407-08.) The detective also testified that he took this raw video footage to a unit of the Ohio Attorney General for digital clarification. The analyst from the Ohio Attorney General's office who performed the digital enhancement identified the video and testified about his work on it. (Tr. Vol. 3 at 372-73, 377-78.) The trial court did not abuse its discretion in concluding that the video was sufficiently authenticated.

{¶ 30} Ohio Rule of Evidence 1002 requires that when seeking to prove the contents "of a writing, recording, or photograph, the original writing, recording, or photograph is required," except as otherwise provided by law. (Emphasis added.) Evid.R. 1002. Here an original version of the video that had been enhanced was offered into evidence and not the original, unaltered video.

{¶ 31} The Ohio Rules of Evidence define a duplicate item of evidence as:

[A] counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduce the original.

Evid.R. 1001(4). A duplicate version of the video would have been admissible to the same extent as the original unless a genuine question were raised about the authenticity of the original or unless circumstances would have made it unfair to admit the duplicate in lieu of the original. Evid.R. 1003. The problem here is that no exact duplicate of the original video as taken from Central Ohio Transit Authority's camera was tendered in discovery or presented at trial, only an enhanced version of it. Neither party disputes this fact.

{¶ 32} At least one Ohio court has permitted enhanced recordings into evidence despite not specifically being an exact "duplicate" under the rule. State v. Burnett , 3d Dist. No. 15-86-20, 1987 WL 20300 (Nov. 24, 1987). But in Burnett , the original version also was admitted. Id. at * 3. Other courts have not admitted duplicates where the duplicate was an altered version and the original was not produced. Shaw Publications v. Adams & Sons Well Drilling , 5th Dist. No. 2003CA00271, 2004-Ohio-4117, 2004 WL 1753389, ¶ 11 ; State v. Brown , 108 Ohio App.3d 489, 496-97, 671 N.E.2d 280 (8th Dist.1995).

{¶ 33} At trial, Prater's counsel objected to the admission of the video on the grounds that it had been admittedly edited and yet the original, or even an exact copy of the original, was not provided in discovery. (Tr. Vol. 3 at 431.) Instead, Prater's attorney asserted and filings on the docket show, that although the defense requested broad discovery of items listed in Ohio Rule of Criminal Procedure 16(B)(1), the prosecution only turned over videos that were edited by a unit of the Ohio Attorney General's office, the Organized Crime Investigations Commission. Id. ; Mar. 8, 2016 Discovery Req.; Dec. 27, 2016 Supp. Discovery; Mar. 17, 2017 Supp. Discovery. Specifically, two edited videos were provided (one which was shown at trial and one which was not). (Tr. Vol. 3 at 431.) But the original or even an unedited copy of the original, was never provided or played. Id.

{¶ 34} While the trial court's justification for admitting only an edited original video was that the defense had "power of subpoena," we need not determine whether it abused its discretion by doing so. (Tr. Vol. 3 at 432.) We have reviewed the transcript in this case and the video. The witnesses differed among each other about many aspects of the events of May 11, 2016, but all were unified in their observation that it was difficult to ascertain substantially any specific details from this video, even as enhanced. (State's Ex. J.; Tr. Vol. 1 at 89-91; Tr. Vol. 2 at 175-79, 234-39, 288-90; Tr. Vol. 3 at 381, 388-91.) Our own review of the recording confirms that it is dark, extremely grainy, and other than showing a white car, a street, and a couple of indistinct figures flitting across the screen, it is essentially unintelligible as evidence. (State's Ex. J.) Since we have already concluded that the trial court did not abuse its discretion in determining that the video was sufficiently authenticated, we cannot say that an original video that is unenhanced would be of any better quality or affect the result of this trial. Even if it was an abuse of discretion to have admitted the altered copy, the error was harmless beyond a reasonable doubt. See State v. DeMarco , 31 Ohio St.3d 191, 195, 509 N.E.2d 1256 (1987) ;

State v. Rahman , 23 Ohio St.3d 146, 150, 492 N.E.2d 401 (1986) ; Crim.R. 52(A).

{¶ 35} Prater's first assignment of error is overruled.

C. Fifth Assignment of Error-Whether the Trial Court Erred in Failing to Merge the Felonious Assault Counts

{¶ 36} The determination of whether offenses are allied offenses of similar import is reviewed de novo. State v. Williams , 134 Ohio St.3d 482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 26-28. The Ohio statute on allied offenses provides that:

(A) Where the same conduct by [the] defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

R.C. 2941.25.

{¶ 37} The Supreme Court requires that R.C. 2941.25 be interpreted and applied by evaluating three separate factors-the conduct, the animus, and the import of the offenses involved. State v. Ruff , 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph one of the syllabus. While an indictment may set forth counts separately for a single act, the key analysis under the statute is whether the courses of conduct underlying the counts are dissimilar enough to constitute separate crimes. Two or more offenses that are of dissimilar import exist under division (B) of R.C. 2941.25"when the defendant's conduct constitutes offenses involving separate victims or if the harm that results from each offense is separate and identifiable." Ruff at paragraph two of the syllabus. And, under division (B) of R.C. 2941.25, a defendant may be convicted of multiple offenses when any one of the following is true: "(1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately, or (3) the conduct shows that the offenses were committed with separate animus." Ruff at paragraph three of the syllabus.

{¶ 38} The evidence admitted at trial did not require merger. The felonious assaults Prater was convicted of involved different victims (Norvett, Pettey, and White) and different harms to Norvett (who was actually shot) as compared to Pettey and White (who were only shot at). Id. at paragraph two of the syllabus. Only one of the two factors, "separate victims" or "separate and identifiable" harm is required to create "dissimilar import." Id. at paragraph two of the syllabus. And "dissimilar import" is but one of the three circumstances in which "a defendant whose conduct supports multiple offenses may be convicted of all the offenses." Id. at paragraph three of the syllabus. The State provided evidence to satisfy Ruff . The trial court was not required to merge any of the felonious assault convictions.

{¶ 39} Prater's fifth assignment of error is overruled.

IV. CONCLUSION

{¶ 40} Prater's convictions were not against the manifest weight of the evidence or insufficiently supported. Any error by the trial court in admitting the unclear video of the scene was harmless. The three felonious assault counts concerned three different victims and different harms among them and did not necessitate merger. We overrule all five of Prater's assignments of error and affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

TYACK and HORTON, JJ., concur.

      Prater's companion was tried for the same offenses in the same trial as Prater and acquitted by the jury, and our discussion of him is thus limited.

      We express no opinion on the issue of whether withholding the original video (if that video was "favorable" to the defense), might have impacted Prater's substantial rights. Brady v. Maryland , 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The question of whether there was prejudice in failing to introduce the video "in its original, unenhanced (for clarity) form" is not specifically before us and nothing in the record indicates that an original, unaltered version still exists.