author: HORTON, J. SADLER, J., concurring in part and dissenting in part. SADLER, J., concurring in part and dissenting in part.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Michael D. SMITH, Defendant-Appellant.
    No. 16AP-21
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 28, 2017
    On brief: Richard C. Pfeiffer, Jr., City Attorney, and Orly Ahroni, for appellee City of Columbus. Argued: Orly Ahroni.
    On brief: Yeura R. Venters, Public Defender, and John W. Keeling, for appellant. Argued: John W. Keeling.
    DECISION
   HORTON, J.

{¶ 1} Defendant-appellant, Michael D. Smith ("Smith"), appeals from a jury verdict finding him guilty of aggravated menacing, disorderly conduct, and ethnic intimidation. For the reasons set forth below, we affirm in part and reverse in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} On August 28, 2015, a five-count complaint was filed alleging that Smith had committed a series of misdemeanor offenses stemming from incidents at a California Fitness gym. The first count alleged that Smith had committed first degree misdemeanor assault, in violation of Columbus City Code 2303.13(A), when he knowingly attempted to cause physical harm to "Michael Harris, by means of charging after the victim to the point of having to be restrained by other members of the gym." The second count, aggravated menacing, a first degree misdemeanor under Columbus City Code 2303.21, alleged that Smith knowingly caused Dana Rocco to believe that Smith would cause him serious physical harm when he threatened to shoot up the gym and in a subsequent email correspondence. The third count also alleged aggravated menacing based on similar events, but identified a different person, Sean H. Scott, as the victim. The fourth count was ethnic intimidation, a first degree misdemeanor under Columbus City Code 2331.08(A). It alleged that Smith had violated Columbus City Code 2303.22 by committing menacing when he "ran up to Michael Harris in a violent manor [sic] and attempted to assault said victim, and the reason or one of the motives, reasons or purposes for the commission of the offense was the victim's sexual orientation." The final count, a fourth degree misdemeanor charge of disorderly conduct under Columbus City Code 2317.11(A), also identified Michael Harris as the victim. It alleged that Smith had "recklessly cause[d] inconvenience, annoyance & harm" to Harris "by threatening harm to [his] person and engaging in violent or turbulent behavior" when Smith "charged after the victim to do bodily harm and [had] to be restrained." (Aug. 28, 2015 Compl.)

{¶ 3} Smith entered a plea of not guilty to the charges on September 4, 2015, and requested a trial by jury. (Sept. 4, 2015 Demand for Jury Trial.) The trial commenced on January 4, 2016. Sean Scott, the alleged victim of one of the aggravated menacing charges, did not testify, and that charge was dismissed. (Jan. 4, 2016 Tr.; Jan 8, 2016 Entry.)

{¶ 4} The prosecution's first witness was Michael Harris. Harris testified that he was gay and had been a gym member since 2014. (Jan. 4, 2016 Tr. at 20-21.) On August 23, 2015, Harris was working out at the gym. On his way to an exercise machine, he said hi to Laverne Kemp, an acquaintance with whom he had not socialized outside of the gym. Kemp was working out on a treadmill next to Smith. (Tr. at 16-17.) Harris began to listen to music on his headphones while working out, but heard "someone yelling," although he could not make out the words. (Tr. at 18.) He turned around and saw Smith running on his treadmill while looking at him, and Kemp stopping her machine with a worried look on her face. Id. Harris then saw Smith jump off of his treadmill and "come after" him at "high speed." (Tr. at 18-19.) Harris testified that he felt "threatened" by Smith's body language, as his face looked angry and there was "a lot of huffing and puffing coming from him." (Tr. at 19.) Harris then removed his headphones and heard Kemp and another person ask Smith to calm down and grab him. Id. Harris testified that he did not know Smith, and had never seen or spoken to him before. (Tr. at 16, 23.)

{¶ 5} Laverne Kemp also testified about the incident. She stated that she was a corrections officer who had worked at Madison Correctional Institution for over 18 years. (Tr. at 34.) She described Harris as a "nice kid" that she talked to at the gym. (Tr. at 35-36.) On August 23, 2015, she was on a treadmill running when Harris walked by and said hi to her. Smith and another man were on treadmills on either side of her. (Tr. at 36.) After Harris passed by, Kemp testified that Smith started to scream that he "hate[d] fags, he'd kill all the fags," and would not "go in the locker room no more because of all the fags in there," even though "[n]obody had done anything to" Smith. (Tr. at 37.) Kemp said that she and the man on the other side of Smith "just kind of looked at him because we didn't know why he just went crazy." (Tr. at 37-38.) At first she was "stunned," but then realized that Smith was talking about Harris. (Tr. at 38.) Kemp saw Harris get up, take his headphones off, start to approach them, but then turned around and walked away. At that point, Smith "jumped off his treadmill" and said that he wanted to ask Harris if he wanted to "fight him" before starting to approach him. (Tr. at 39.) Kemp and the other man restrained Smith, who then went back to his treadmill. Id. Kemp described Smith as "enraged," and stated that Smith had gone "from zero to a hundred in a second." (Tr. at 40-41.) After the incident, Kemp found Harris in the activity room, where she "tried to explain to him" that Smith had gone after him because he was gay. (Tr. at 42, 24.)

{¶ 6} Towards the end of her testimony, Kemp testified as follows:

Q. All right. Do you know Mr. Smith?
A. No.
Q. Other than appearing in court?
A. No.
Q. You don't know Michael Harris other than being a gym member with him and coming to this court case, correct?
A. I-No, I ain't never-I don't recall ever seeing him at a prison or anything that I was at, you know, that I work at, so, I don't know. He could have been at our prison before because there's two sides to our jail so he could have been in there. But he did say when this incident was going on, and I told him that, he had been out for ten years.

(Tr. at 43.)

{¶ 7} Defense counsel objected to this statement as highly prejudicial to Smith and requested that it be stricken. (Tr. at 43, 50.) The prosecution claimed the statement was admissible as a statement by a party-opponent under Evid.R. 801(D). (Tr. at 44.) The trial court declined to strike the statement. (Tr. at 50.)

{¶ 8} After Kemp's testimony, the prosecution called Dana Rocco, the owner of the gym, as a witness. (Tr. at 70-71.) Rocco testified that he knew Smith, Harris, and Kemp. (Tr. at 73-74.) Sean Scott, a gym employee, reported to Rocco that Smith had come into the gym on August 25, 2015 and "threatened to shoot up all the faggots and gay people in the gym and just come shoot the gym up." (Tr. at 79.) After contacting a detective and the police, as well as talking to several people about the incident, Rocco decided to cancel Smith's gym membership. (Tr. at 74, 79, 90.) After unsuccessfully attempting to phone Smith, Rocco sent him an email stating that his membership had been terminated and a police report had been filed. (Tr. at 75; City's Ex. 1.)

{¶ 9} Rocco received what he described as a "very negative" response from Smith. (Jan. 4, 2016 Tr. at 76.) An email sent at 7:30 a.m. on August 26, 2015 from Smith read: "pussy ass honkey don't be sending me no mutha fuccin emails you fuccin HOMO. you bitch." (City's Ex. 1.) An email Smith sent four minutes later stated: "fuck your faggot ass gym you bitch. i will see you again. small world." (City's Ex. 2.)

{¶ 10} Rocco testified that the emails made him feel "stressed, scared" and threatened. (Jan. 4, 2016 Tr. at 78.) Based on the contents of the emails and the incident from the previous day, Rocco believed that Smith's threat was credible. Id. The police visited the gym the next couple mornings "to make sure nothing happened," and about 50 members canceled their memberships after hearing about the threat. (Tr. at 79-80.) Rocco testified that he was scared and continued to be scared that "something's going to happen." (Tr. at 80.)

{¶ 11} The prosecution's final witness was Larry Wilson, a detective from the Columbus Police Department. (Tr. at 105-08.) He testified that Rocco contacted him about Smith's threat and the incident with Harris. (Tr. at 110.) Wilson stated that he interviewed witnesses, including Kemp. He stated that Kemp "was pretty credible, because she does this for a living. She has-like cops, she reads people." (Tr. at 112.) Detective Wilson stated that his reaction to speaking to Harris was "yeah, he was telling me a story and I'm like, okay, okay, I believe you there. I believe you there. I believe you there. I believe you to a certain point." Id. Wilson then stated that he felt that he did not need to interview Smith about the allegations because he "got enough" after talking to Kemp: "I'm talking to someone that again does this for a living. She reads people like I do. If you work inside a prison or you're a guard, your life depends on it, you have to be able to read people. You see their intentions, you read their body language." (Tr. at 114.) Smith's attorney objected to each of these remarks, or attempted to, and each objection was overruled. (Tr. at 112, 114.)

{¶ 12} On redirect, the prosecution elicited the following statement from Wilson:

Then when you go to a person that has higher credibility, in my opinion, someone that has been sworn like myself to uphold the law like the Lavern lady, her's was the strongest to me, all the rest, okay, yeah, I hear what you're saying, but she's independent. She had nothing to lose or gain either way. She's used to seeing situations and evaluating them and telling you what she saw. When she said it, I was convinced at that point.

(Tr. at 128.)

{¶ 13} Smith presented no witnesses or evidence. The jury did not return a verdict on the assault charge, but did return guilty verdicts on the charges of aggravated menacing, ethnic intimidation, and disorderly conduct. (Jan. 8, 2016 Jury Verdict.)

{¶ 14} On appeal, Smith asserts the following assignments of error:

[I.] THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE DEFENDANT WHEN THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTION.
[II.] THE TRIAL COURT ERRED WHEN IT ENTERED JUDGMENT AGAINST THE DEFENDANT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
[III.] THE TRIAL COURT ERRED WHEN IT ALLOWED HEARSAY EVIDENCE OF OTHER ACTS TO BE ADMITTED INDICATING THAT THE DEFENDANT HAD THREATENED TO SHOOT GAY PEOPLE IN THE GYM AND TO SHOOT UP THE GYM IN VIOLATION OF THE RULES OF EVIDENCE AND THE CONFRONTATION CLAUSES OF THE UNITED STATES AND OHIO CONSTITUTIONS, THEREBY DEPRIVING THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW.
[IV.] THE TRIAL COURT ERRED WHEN IT ALLOWED THE CITY TO PRESENT EVIDENCE IN ITS CASE IN CHIEF, OVER OBJECTION, THAT THE DEFENDANT HAD SPENT TIME IN PRISON AS EVIDENCE OF THE DEFENDANT'S CHARACTER AND PROPENSITY TO COMMIT CRIME AND TO ESTABLISH THAT IT MADE IT MORE LIKELY THAT HE COMMITTED THE INSTANT OFFENSES BECAUSE OF HIS AGGRESSIVE CHARACTER AND DISREGARD OF THE LAW AS REFLECTED BY THE FACT THAT HE HAD SERVED TIME IN PRISON.
[V.] THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL AND DUE PROCESS OF
LAW WHEN A POLICE OFFICER WAS ALLOWED TO TESTIFY AT GREAT LENGTH ABOUT HIS PERSONAL BELIEFS REGARDING THE DEFENDANT'S GUILT AND THE CREDIBILITY OF WITNESSES FOR THE CITY.
[VI.] THE TRIAL COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY ON THE REQUIRED MENTAL INTENT REQUIRED TO SUSTAIN A CONVICTION FOR ETHNIC INTIMIDATION UNDER THE COLUMBUS CITY CODE.

{¶ 15} As explained in more detail below, the fourth and fifth assignments of error will be sustained in part and overruled in part. The charges of ethnic intimidation and disorderly conduct will be vacated and this cause remanded for a new trial on those charges. We must still address the legal challenges and the conviction for aggravated menacing raised in the first, second, and third assignments of error, but the sixth assignment of error will be overruled as moot.

II. FIRST AND SECOND ASSIGNMENTS OF ERROR

{¶ 16} Challenges to the legal sufficiency of evidence and the manifest weight of evidence require the application of different legal standards. See State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), paragraph two of the syllabus ("The legal concepts of sufficiency of the evidence and weight of the evidence are both quantitatively and qualitatively different."). Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Jennings , 10th Dist. No. 09AP-70, 2009-Ohio-6840, ¶ 37, 2009 WL 5062117, citing Thompkins . "Sufficiency is a test of adequacy." Id. "The standard when testing the sufficiency of the evidence " '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. Beverly , 143 Ohio St.3d 258, 2015-Ohio-219, ¶ 15, 37 N.E.3d 116, quoting State v. McKnight , 107 Ohio St.3d 101, 2005-Ohio-6046, ¶ 70, 837 N.E.2d 315, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. A reviewing court "will not disturb a verdict on appeal on sufficiency grounds unless 'reasonable minds could not reach the conclusion reached by the trier-of-fact.' " State v. Ketterer , 111 Ohio St.3d 70, 2006-Ohio-5283, ¶ 94, 855 N.E.2d 48, quoting State v. Dennis , 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997).

{¶ 17} The manifest weight of the evidence analysis, on the other hand, requires the appellate court to consider the state's evidence as an additional or "thirteenth juror." Thompkins at 387, 678 N.E.2d 541. After "reviewing the entire record," the appellate court " '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. , quoting State v. Martin , 20 Ohio App.3d 172, 485 N.E.2d 717 (1st Dist.1983). " 'The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction.' " Id. , quoting Martin.

{¶ 18} Smith's brief engages in a lengthy discussion of First Amendment principles and appears to argue that whatever anti-gay sentiments he expressed did not amount to "true threats" that were constitutionally acceptable to punish him for uttering. (Appellant's Brief at 18-23.)

To the extent that Smith presents either an as-applied or facial constitutional challenge to the ethnic intimidation ordinance in Columbus City Code 2331.08(A) on First Amendment grounds, we reject such a challenge. The city's ethnic intimidation ordinance prohibits a person from violating any number of other ordinances, including the underlying offense of menacing with which Smith was charged, "by reason of or where one of the motives, reasons or purposes for the commission of the offense is the victim's race, sex, sexual orientation, gender identity or expression, color, religion, national origin, ancestry, age, disability, familial status or military status." Columbus City Code 2331.08(A). We have previously held that Columbus City Code 2331.08(A) and R.C. 2927.12, Ohio's "general law prohibiting ethnic intimidation," are "in all material respects identical" to one another except for the city ordinance's inclusion of sexual orientation. Columbus v. Spingola , 144 Ohio App.3d 76, 81, 759 N.E.2d 473 (10th Dist.2001). See also State ex rel. King v. Summit Cty. Council , 99 Ohio St.3d 172, 2003-Ohio-3050, ¶ 41-42, 789 N.E.2d 1108 (noting the Spingola holding). It is well-settled that R.C. 2927.12"is constitutional under the United States and Ohio Constitutions." State v. Wyant , 68 Ohio St.3d 162, 624 N.E.2d 722 (1994), syllabus (following Wisconsin v. Mitchell , 508 U.S. 476, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993) ). Furthermore, Smith fails to understand the basis of the criminal charge against him by arguing that his words did not qualify as "true threat[s]." (Appellant's Brief at 21.) The state did not introduce evidence of anti-gay remarks made by Smith to prove the actus reus of a criminal offense. Rather, such evidence proved that "one of the motives, reasons or purposes" of the underlying offense of menacing was the victim's sexual orientation. Columbus City Code 2331.08(A).

{¶ 19} Smith also challenges the ethnic intimidation conviction on the grounds that Harris did not actually hear the anti-gay remarks Smith made. Harris testified that although he "could hear someone yelling," he "couldn't make out the words" because he was listening to music through his headphones. (Tr. at 18.) However, there is no requirement in Columbus City Code 2331.08(A) that the victim actually hear discriminatory language from a defendant. The ethnic intimidation ordinance is concerned with the defendant's motive, while the underlying offense contains the element of injury to the victim that a prosecutor must prove. Through Kemp's testimony describing Smith's anti-gay remarks made at the time he threatened Harris, the city provided adequate evidence to support its allegation that Harris' sexual orientation was the motive or purpose of the offense.

{¶ 20} Furthermore, the underlying offense of menacing provides that "[n]o person shall knowingly cause another to believe that the offender will cause physical harm to the person or property of such other person or member of his immediate family." Columbus City Code 2303.22(A). Through Harris' testimony, the city proved that Smith caused Harris to believe that Smith was going to cause him physical harm. Based on Smith's "facial expression and body language," Harris believed that Smith was going to attack him. (Tr. at 22.) Harris' testimony was legally sufficient to prove the offense of menacing. Accordingly, we reject Smith's argument that the city's evidence was legally insufficient to prove the ethnic intimidation charge.

{¶ 21} For similar reasons, we also disagree with Smith's contention that the complaint of ethnic intimidation was deficient because it failed to allege that he had "uttered any spoken threat" to the victim. (Appellant's Brief at 25.) Under Crim.R. 3, a complaint must contain a "statement of the essential facts constituting the offense charged." "The purpose of a complaint filed in a criminal case is to provide reasonable notice to the defendant of the nature of the offense." State v. Andrews , 10th Dist. No. 98AP-1098, 1999 WL 569268 (1999), citing State v. Sweeney , 72 Ohio App.3d 404, 406, 594 N.E.2d 1000 (10th Dist.1991). "A complaint provides sufficient notice to the defendant by including the nature of the offense, the time and place of the alleged offense, the statutory language, the statute number, and a brief description of the conduct alleged, thus stating all of the essential elements of the offense." Id. Here, the complaint for ethnic intimidation alleged that Smith:

At Franklin County/Columbus, Ohio, on or about the 23rd day of August, 2015 did: violate City Code 2303.22, menacing, to wit: ran up to Michael Harris in a violent manor [sic] and attempted to assault said victim, and the reason or one of the motives, reasons or purposes for the commission of the offense was the victim's sexual orientation.

(Aug. 28, 2015 Compl.)

{¶ 22} The utterance of spoken threat is not a required element of ethnic intimidation under Columbus City Code 2331.08(A). Smith was on notice that the city intended to prove that Harris' sexual orientation motivated Smith to commit menacing. The city identified the victim, the date, and jurisdictional location of the offense. The language of the complaint tracked the ethnic intimidation statute and referenced the underlying offense. This was sufficient to provide reasonable notice to Smith of the nature of the charge against him. See State v. Buehner , 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162 (holding that an indictment stating that the appellee "did violate Section 2903.21 of the Revised Code by reason of race, color, religion, or national origin of another person or group of persons" provided the appellant with adequate notice of the charges against him under Ohio's ethnic intimidation statute).

{¶ 23} Smith's sole argument concerning the aggravated menacing charge references his arguments made in the third assignment of error, in which he asserts that the city failed to prove its case because it depended on erroneously admitted hearsay statements. Because we reject those arguments in the third assignment of error, they cannot support a determination that the aggravated menacing conviction was based on legally insufficient evidence or the manifest weight of the evidence. Accordingly, the first and second assignments of error are overruled.

III. THIRD ASSIGNMENT OF ERROR

{¶ 24} Smith's third assignment of error alleges that the trial court erred by allowing Dana Rocco to testify regarding the threats that Sean Scott stated that Smith had made because the testimony amounted to inadmissible hearsay. (Appellant's Brief at 30-39.) In response, the city argues that the statements were admissible as either non-hearsay threats that qualified as "verbal acts" or double hearsay where each layer fell within an exception to the hearsay rule. (Appellee's Brief at 17-28.)

{¶ 25} Evid.R. 801(C) defines hearsay as "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." The Staff Notes to Evid.R. 801(C) elaborate on the definition as follows:

Hearsay is limited to statements offered into evidence to prove the truth of the assertion by the declarant not on the witness stand at the time of the declaration. The definition discloses its relative nature. If a statement is not offered to prove its truth but is offered for some other reason such as simply to prove the statement was made, if such fact is relevant, it is not hearsay. Words constituting conduct are not hearsay , e.g., words of a contract, libel, slander, threats and the like.

(Emphasis added.)

{¶ 26} Moreover, under Evid.R. 805, "[h]earsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules."

{¶ 27} In this case, Rocco's testimony was admissible because the statement attributed to Smith was admissible at each stage at which the statement was subject to a hearsay challenge. First, Smith's initial statement to Scott, in which he "threatened to shoot up all the faggots and gay people in the gym and just come shoot the gym up," was not hearsay. (Tr. at 79.) The statement was not offered to prove the truth of the matter it asserted because Smith never committed a mass shooting of the gym's homosexual patrons. Rather, the statement was a threat-"[w]ords constituting conduct [that] are not hearsay," according to the Staff Notes to Evid.R. 801(C). In addition, Smith's statement to Scott was also not hearsay because it was a statement by a party opponent under Evid.R. 801(D)(2).

{¶ 28} Second, the statement from Scott to Rocco was admissible as an "excited utterance" exception to the rule against hearsay under Evid.R. 803(2). The rule states: "A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." The exception applies "regardless of whether the declarant is available as a witness." Evid.R. 803. The Supreme Court of Ohio has set forth the following test for determining whether a statement qualifies as an excited utterance under Evid.R. 803(2) :

Testimony as to a statement or declaration may be admissible under an exception to the hearsay rule for spontaneous exclamations where the trial judge reasonably finds (a) that there was some occurrence startling enough to produce a nervous excitement in the declarant, which was sufficient to still his reflective faculties and thereby make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, and thus render his statement or declaration spontaneous and unreflective, (b) that the statement or declaration, even if not strictly contemporaneous with its exciting cause, was made before there had been time for such nervous excitement to lose a domination over his reflective faculties, so that such domination continued to remain sufficient to make his statements and declarations the unreflective and sincere expression of his actual impressions and beliefs, (c) that the statement or declaration related to such startling occurrence or the circumstances of such startling occurrence, and (d) that the declarant had an opportunity to observe personally the matters asserted in his statement or declaration.

State v. Duncan , 53 Ohio St.2d 215, 217, 373 N.E.2d 1234 (1978), paragraph one of the syllabus.

{¶ 29} Here, Smith's threat to commit a shooting at the gym was "startling enough to provide a nervous excitement" in Scott, the declarant, so that the declaration to Rocco was "spontaneous and unreflective." Duncan at 217, 373 N.E.2d 1234. Because Scott called Rocco and reported the threat immediately after Smith made it, the declaration "was made before there had been time for such nervous excitement to lose a domination over his reflective faculties." Id. Scott's declaration "related to such startling occurrence" because he repeated to Rocco what Smith had threatened to do. Id. Finally, Scott was present when Smith made the threat, and therefore personally observed it. Accordingly, the statement from Scott to Rocco qualified as an exception to the rule against hearsay under Evid.R. 803(2). Smith's assertion of error in the admission of this statement is not well-taken. The third assignment of error is overruled.

IV. FOURTH ASSIGNMENT OF ERROR

{¶ 30} In the fourth assignment of error, Smith argues that the trial court improperly allowed Kemp's mention of his prison record into evidence, and that the statement was inadmissible character evidence under Evid.R. 404(B). (Appellant's Brief at 40-43.)

{¶ 31} The city responds by pointing out that the prosecutor's question that prompted Kemp's response actually referenced Michael Harris, the victim, and not Michael Smith, the defendant. Thus, the city asserts that the prosecutor did not actually introduce evidence that Smith had been in prison. (Appellee's Brief at 34-35.)

{¶ 32} "The admission or exclusion of relevant evidence rests within the sound discretion of the trial court." State v. Sage , 31 Ohio St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus.

{¶ 33} Before reaching Smith's argument, we must address the city's assertion that this assignment of error should be overruled because the prosecutor's question actually referred to the victim, Michael Harris, instead of the defendant, Michael Smith. After a series of questions concerning Kemp's recollection of Smith's presence in the gym, the following exchange occurred:

Q. All right. Do you know Mr. Smith?
A. No.
Q. Other than appearing in court?
A. No.
Q. You don't know Michael Harris other than being a gym member with him and coming to this court case, correct?
A. I-No, I ain't never-I don't recall ever seeing him at a prison or anything that I was at, you know, that I work at, so, I don't know. He could have been at our prison before because there's two sides to our jail so he could have been in there. But he did say when this incident was going on, and I told him that, he had been out for ten years.

(Tr. at 43.)

{¶ 34} It is unlikely that the jury understood the prosecutor's last question and Kemp's answer as referring to anyone other than Smith. The victim and Smith have the same first name, Michael, a fact that continually caused confusion during the trial. (Tr. at 51, 55.) The prosecutor unquestionably misspoke, as the final question served as a confirmation and summation of the previous questions about Smith and his presence in the gym. When discussing the objection to Kemp's statement, the attorneys and the judge all assumed that the last question had referenced Smith. (Tr. at 44-50.) The judge even started the discussion by saying: "just so the record's clear, in my opinion, the witness was just about-just sort of saying that the defendant told her he'd done some time in prison and there was an objection." (Emphasis added.) (Tr. at 44.) Given that everyone conducting the trial believed that the prosecutor had asked about Smith, it is likely the jury did as well, and it therefore heard the question and Kemp's answer as they were intended. To overrule the assignment of error for the reason offered by the city would prioritize form over substance.

{¶ 35} During the discussion of the objection, the trial court acknowledged that Kemp's statement was "highly prejudicial," but nevertheless refused to strike the testimony because Smith himself had "made the statement" that Kemp recounted. (Tr. at 44, 50.) Thus, the trial court apparently accepted the prosecution's argument that the statement was admissible as an admission by a party-opponent under Evid.R. 801(D)(2), over the objection of Smith's attorney that the statement was inadmissible character evidence under Evid.R. 404(B).

{¶ 36} Evid.R. 404(B) states:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

{¶ 37} Smith's purported statement, as recounted by Kemp, was that he had been out of prison for ten years before the incident in question. This statement amounted to evidence that Smith had previously committed some crime or wrong. The prosecution asserted that the statement was admissible to show intent and motive, but failed to explain how the fact that Smith had served some unspecified time in prison for an unknown crime ten years before related to the intent or motive of any crime that he was currently on trial for. (Tr. at 48.) Tellingly, the prosecution also argued that Smith's statement "demonstrate[d] the defendant's demeanor" and "how aggressive he was at the scene." (Tr. at 47-48.) This argument shows that the prosecution wanted to use Smith's admission that he had a prison record to prove that he had acted in conformity with an aggressive demeanor. This is precisely the type of character evidence that is inadmissible under Evid.R. 404(B). The trial court erred by allowing Kemp's statement to be admitted.

{¶ 38} More fundamentally, the statement was inadmissible because it was completely irrelevant. Only relevant evidence is admissible, while irrelevant evidence is not admissible. Evid.R. 402. Relevant evidence is defined as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Evid.R. 401. The trial court stated that it was "trying to figure out how this is valuable to the elements of the offense that he's been to prison," but provided no subsequent explanation of the statement's relevancy. (Tr. at 47.) Whether Smith had been to prison ten years before had no tendency to make any fact that tended to prove the city's case more or less probable. Notably, the city has not defended the admissibility of the statement in this appeal on any grounds argued by the prosecutors at trial or accepted by the trial court. Regardless of whether a statement takes the form of an admission of a party opponent, and is possibly admissible under Evid.R. 801(D)(2), the statement must be relevant to be admissible. In this case, it was not relevant, and, as the trial court stated, "highly prejudicial." (Tr. at 47.)

{¶ 39} The admission of improper character evidence under Evid.R. 404(B) is subject to harmless error analysis. State v. Morris , 141 Ohio St.3d 399, 408, 2014-Ohio-5052, 24 N.E.3d 1153. Under harmless error analysis, "[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." Crim.R. 52(A). In Morris , the Supreme Court held that when "determining whether to grant a new trial as a result of the erroneous admission of evidence under Evid.R. 404(B), an appellate court must consider both the impact of the offending evidence on the verdict and the strength of the remaining evidence after the tainted evidence is removed from the record." Morris at 408, 24 N.E.3d 1153.

{¶ 40} Standing alone, the admission of Kemp's statement may have been harmless. However, Kemp went on to say the following during cross-examination:

A. Well, I'm going to say this, because I've been [working] in the prison for a long time. When somebody is at the-the state that he-the state of mind that he was in at that moment, yes, if me and that other guy wouldn't have stopped him, it probably would have been an assault.
Q. Probably?
A. Yes.
Q. Because that's what happens in prison.
A. Well, I'm going to say this. He told me that he was in Allen for ten years.
Q. That's not-
A. So that's what he said. That's what he told me.

(Tr. at 57.)

{¶ 41} Although the trial court did instruct the jury to disregard Kemp's "last comment," the substance of Kemp's statement went beyond her assertion that he had been in prison. (Tr. at 58.) Kemp explicitly linked Smith's "state of mind" to that of the prisoners she dealt with at the prison and asserted that her experience with them gave her the knowledge to understand Smith. This equivalency between Smith and the prisoners goes significantly beyond the mere mention of prior bad acts. Furthermore, as discussed in the next assignment of error, Detective Wilson's improper bolstering of Kemp's credibility during his testimony was another source of prejudice to Smith. In particular, Detective Wilson cited Kemp's experience as a prison guard as evidence of her judge of character, which she referenced in her assessment of Smith's mental state.

{¶ 42} Because Detective Wilson's testimony so colored the jury's assessment of Kemp, we cannot say that the charges of ethnic intimidation and disorderly conduct, both of which depended on her testimony, could withstand removing all of their prejudicial statements from the record. However, the evidence to support the aggravated menacing charge with Dana Rocco as a victim did not depend on Kemp's testimony, and was sufficiently strong to render harmless any prejudice created by Detective Smith or Kemp. Accordingly, Smith's fourth assignment of error is sustained in part and overruled in part. The assignment of error is sustained with regards to Smith's convictions for ethnic intimidation and disorderly conduct, but overruled with regards to the aggravated menacing charge.

V. FIFTH ASSIGNMENT OF ERROR

{¶ 43} In his fifth assignment of error, Smith argues that Detective Wilson's testimony deprived him of a fair trial and violated due process because Wilson improperly opined about Smith's guilt and the credibility of the witnesses. Smith points to numerous examples of statements made by Wilson where the detective expressed opinions about how the witnesses' statements and the emails corroborated each other, the credibility of Laverne Kemp, and Smith's guilt and mischaracterizations of his criminal record. (Appellant's Brief at 44-45.)

{¶ 44} In response, the City points out that because Detective Wilson did not opine about the credibility of Rocco, the aggravated menacing charge identifying him as a victim is not implicated by this assignment of error. (Appellee's Brief at 36.) The city states that it "concedes that it was improper for Detective Wilson to offer an opinion as to the truthfulness of Laverne Kemp," but contends that the error was harmless because defense counsel cross-examined her, allowing the jury "to perceive her credibility firsthand and decide for themselves whether she was being truthful." (Appellee's Brief at 40-41.) The city further argues that other statements made by Detective Wilson should be subjected to plain error analysis because they were not individually objected to, and that many of the statements were not prejudicial because they were in the nature of testimony about "police evidence-gathering procedures rather than an expressed opinion on a witness's veracity." (Appellee's Brief at 42-45.)

{¶ 45} Under Evid.R. 701, the testimony of a lay witness "in the form of opinions or inferences is limited to those opinions or inferences which are (1) rationally based on the perception of the witness and (2) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue." An abuse of discretion standard applies to a trial court's decision to admit testimony under Evid.R. 701. Urbana ex rel. Newlin v. Downing , 43 Ohio St.3d 109, 113, 539 N.E.2d 140 (1989) ; State v. Griffin , 10th Dist. No. 10AP-902, 2011-Ohio-4250, 2011 WL 3766751, ¶ 58.

{¶ 46} "On the trial of a case, either civil or criminal, the weight to be given the evidence and the credibility of the witnesses are primarily for the trier of the facts." State v. DeHass , 10 Ohio St.2d 230, 231, 227 N.E.2d 212 (1967), paragraph one of the syllabus. "In our system of justice it is the fact finder, not the so-called expert or lay witnesses, who bears the burden of assessing the credibility and veracity of witnesses." State v. Eastham , 39 Ohio St.3d 307, 312, 530 N.E.2d 409 (1988). Opinion testimony regarding another witness's credibility "infringe[s] upon the role of the fact finder, who is charged with making determinations of veracity and credibility." Id. Thus, "the opinion of a witness as to whether another witness is being truthful is inadmissible." State v. Potter , 8th Dist. No. 81037, 2003-Ohio-1338, ¶ 38, 2003 WL 1355230, citing State v. Miller , 2d Dist. No. 18102, 2001 WL 62793 (Jan. 26, 2001). See also State v. Pawlak , 8th Dist. No. 99555, 2014-Ohio-2175, ¶ 113, 2014 WL 2167887, citing State v. Kovac , 150 Ohio App.3d 676, 2002-Ohio-6784, ¶ 32, 782 N.E.2d 1185 (2d Dist.) (noting that "lay witnesses are prohibited from testifying as to another witness's veracity"). When such testimony is admitted, it is subject to a harmless error analysis on review. State v. Roush , 10th Dist. No. 12AP-201, 2013-Ohio-3162, ¶ 61-62, 2013 WL 3808173 ; State v. Bush , 10th Dist. No. 90AP-1190, 1991 WL 224231 (Oct. 3, 1991).

{¶ 47} Under harmless error analysis, "[a]ny error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded." Crim.R. 52(A). There are "two requirements that must be satisfied before a reviewing court may correct an alleged error." State v. Fisher , 99 Ohio St.3d 127, 2003-Ohio-2761, ¶ 7, 789 N.E.2d 222. "First, the reviewing court must determine whether there was an 'error'-i.e., a 'deviation from a legal rule.' " Id. , quoting United States v. Olano , 507 U.S. 725, 732-33, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). "Second, the reviewing court must engage in a specific analysis of the trial court record-a so-called "harmless error" inquiry-to determine whether the error 'affected substantial rights' of the criminal defendant." Id. To affect substantial rights, the error must be prejudicial, in that it affected the outcome of the trial. Id.

{¶ 48} The city concedes that Detective Wilson's opinion testimony was "improper." (Appellee's Brief at 40.) A more forthright description is that the trial court erred by allowing him to provide his opinions, particularly at such length and without any constraints. Detective Wilson offered multiple glowing assessments of Kemp's credibility. She was apparently "pretty credible" because she was a corrections officer, which, in Detective Wilson's eyes, meant that "like cops, she reads people." (Tr. at 112.) According to Detective Wilson, Kemp was so credible that he not only believed Harris's report of the events after talking to her, but he felt no obligation to contact Smith or get his side of the story to complete his investigation. He had "got[ten] enough" evidence from Kemp, who was "a person that has higher credibility, in my opinion, someone that has been sworn like myself to uphold the law," who was "independent" with "nothing to lose or gain either way." (Tr. at 128.) After talking to Kemp, Detective Wilson "was convinced at that point." Id.

{¶ 49} Detective Wilson's flagrant bolstering of Kemp's credibility goes far beyond what we have previously determined constitutes prejudicial error. In Bush , a prosecutor asked a detective to "elaborate" on his use of the word "hesitant" when describing a witness's reaction when asked to identify the defendant in a photo array. The detective responded: "I referred to hesitant as when a witness appears to be scared or frightened and he's trying to avoid telling me the truth" or if he "fears retaliation" by cooperating with police. Id. The identifying witness, who was subjected to cross-examination, testified that he hesitated when identifying the defendant "because he feared retaliation." Id. We found that the detective's "testimony amounted to his giving an impermissible opinion as to the credibility of a particular witness's testimony." Id. Furthermore, because the case "strictly depended upon the credibility of the witnesses," the detective's statement was prejudicial: "To have allowed a police officer to bolster a key witness's credibility by an opinion as to truthfulness, under the totality of the circumstances, was prejudicial error." Id.

{¶ 50} Allowing Detective Wilson's praise of Kemp's credibility and judge of character to continue at such length was prejudicial to Smith. Given that Kemp was the only witness to the anti-gay epithets that supported the city's ethnic intimidation charge, we cannot conclude that the error was harmless. As discussed in the previous assignment of error, her testimony was also crucial to the disorderly conduct charge. However, the aggravated menacing charge did not depend on her testimony. Accordingly, the fifth assignment of error is sustained in part and overruled in part.

VI. SIXTH ASSIGNMENT OF ERROR

{¶ 51} Because Smith's conviction for ethnic intimidation will be vacated, we overrule as moot the assignment of error asserting error in the drafting of the jury instruction on this charge.

VII. CONCLUSION

{¶ 52} For the foregoing reasons, the first, second, and third assignments of error are overruled. The fourth and fifth assignments of error are sustained in part and overruled in part. They are sustained concerning Smith's convictions for ethnic intimidation and disorderly conduct, but overruled regarding his conviction for aggravated menacing. Accordingly, the convictions for ethnic intimidation and disorderly conduct are vacated and this cause remanded for a new trial on those charges. The conviction for aggravated menacing is affirmed. Finally, the sixth assignment of error is overruled as moot.

Judgment affirmed in part and reversed in part; cause remanded.

BROWN, J., concurs.

SADLER, J., concurring in part and dissenting in part.

SADLER, J., concurring in part and dissenting in part.

{¶ 53} I concur with the majority's holding in the first, second, third, and sixth assignments of error. I disagree with the majority's holding in the fourth assignment of error that the admission of Laverne Kemp's alleged prior acts statement is not harmless. For the fifth assignment of error, I concur with the majority's holding in regard to the ethnic intimidation conviction but disagree with the majority's holding that Detective Larry Wilson's improper bolstering of Kemp's credibility warrants reversal of the disorderly conduct conviction. Accordingly, I respectfully concur in part and dissent in part.

{¶ 54} For purposes of clarity, I will begin by addressing the fifth assignment of error. In the fifth assignment of error, the majority opinion finds Wilson's bolstering of Kemp's credibility constitutes error and is not harmless in regard to both the disorderly conduct and ethnic intimidation convictions. The city concedes that Wilson's opinion testimony regarding Kemp was improper.

{¶ 55} In my opinion, the error in admitting Wilson's opinion testimony on Kemp's credibility was harmless as to appellant's conviction for disorderly conduct. As noted by the majority, only those prejudicial errors that affected the substantial rights of the criminal defendant, in other words, errors that affected the outcome of the trial, warrant reversal for a new trial. State v. Fisher , 99 Ohio St.3d 127, 2003-Ohio-2761, ¶ 7, 789 N.E.2d 222.

{¶ 56} First, I note the jury did not return a verdict on the assault charge, a charge in which the city attempted to prove appellant "knowingly" attempted to cause physical harm to Michael Harris largely based on Kemp's testimony as to her opinion of appellant's state of mind. I believe the jury's no-verdict result on the assault charge demonstrates that Kemp's credibility had a low impact on its overall verdict. State v. Armengau , 10th Dist. No. 14AP-679, 2017-Ohio-4452, ¶ 77, 2017 WL 2687434 ("[T]he jury's decision to reject some counts as to certain accusers, and all counts as to others, again indicates that the jury did not allow the contested evidence to taint the overall verdict.").

{¶ 57} Second, unlike the ethnic intimidation charge, evidence other than Kemp's testimony supports the disorderly conduct conviction. Disorderly conduct under Col. City Code 2317.11(A) required the city to prove appellant recklessly caused inconvenience, annoyance, and harm to Harris by threatening harm to his person and engaging in violent or turbulent behavior by charging Harris and needing to be restrained. Harris testified while he was working out on a treadmill at a gym, appellant, someone Harris did not know and had not seen before, jumped off his treadmill and came after Harris at a high speed "huffing and puffing" with an angry look on his face. (Tr. at 19.) Harris testified he felt threatened by appellant's body language, and Kemp and another person grabbed appellant and asked him to calm down. I believe Harris's testimony alone supports the disorderly conduct conviction.

{¶ 58} Therefore, unlike the majority, I do not believe Kemp's bolstered credibility was prejudicial to appellant in regard to the disorderly conduct verdict. As a result, I would overrule the fifth assignment of error in regard to the disorderly conduct and affirm that conviction.

{¶ 59} Under the fourth assignment of error, the majority holds the trial court's admission of Kemp's contention that "Michael Harris" previously served prison time constitutes reversible error. (Tr. at 43.) In my opinion, whether a prior act statement about appellant was made in the first place is questionable. I do not believe it is out of the realm of possibility that the jury understood the prosecutor's question about "Michael Harris" to elicit a response about Michael Harris.

{¶ 60} Regardless, the admission of Kemp's statement is harmless error. As noted by the majority, in State v. Morris , 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, syllabus, the Supreme Court of Ohio states in determining whether to grant a new trial as a result of the erroneous admission of evidence under Evid.R. 404(B), an appellate court must consider both "the impact of the offending evidence on the verdict and the strength of the remaining evidence after the tainted evidence is removed from the record."

{¶ 61} In my opinion, the impact of Kemp's statement was low. Even if the prosecutor meant to say appellant's name and Kemp's response was about appellant, Kemp actually said the victim's name, Michael Harris. The name mix up, at minimum, is confusing. The jury could have thought Kemp was stating the victim had a record, resulting in prejudice to the victim rather than appellant. In addition, the prosecutor did not solicit the remark or emphasize the point in front of the jury; the prosecutor's statements to the judge out of the jury's hearing are not prejudicial. State v. Barnes , 8th Dist. No. 92512, 2010-Ohio-1659, ¶ 38, 2010 WL 1500566. Furthermore, I believe the remaining evidence, Harris's testimony in particular, is strong and supports appellant's conviction for disorderly conduct. Therefore, I would find, on this record, the admission of Kemp's statement constitutes harmless error in regard to the disorderly conduct conviction. Because I agree with the majority in sustaining appellant's fifth assignment of error in regard to the ethnic intimidation conviction, appellant's argument regarding ethnic intimidation in the fourth assignment of error is rendered moot.

{¶ 62} Considering all the above, I would overrule appellant's first, second, third, and fourth assignments of error, overrule in part and sustain in part appellant's fifth assignment of error, and overrule appellant's sixth assignment of error as moot. The fifth assignment of error would be sustained in part concerning appellant's conviction for ethnic intimidation but overruled in part regarding his convictions for disorderly conduct and aggravated menacing. Accordingly, I would affirm appellant's convictions for disorderly conduct and aggravated menacing, vacate appellant's conviction for ethnic intimidation, and remand this cause for a new trial on that charge. Because the majority holds otherwise, I concur in part and dissent in part.


source: Caselaw Access Project

author: SADLER, J.

license: Public Domain

text:
    HAND & HAND MRDD RESIDENTIAL SERVICES, INC., Appellant-Appellant, v. OHIO DEPARTMENT OF DEVELOPMENTAL DISABILITIES, Appellee-Appellee.
    No. 17AP-116
    Court of Appeals of Ohio, Tenth District, Franklin County.
    Rendered on December 28, 2017
    On brief: Ronald B. Noga, Columbus, for appellant. Argued: Ronald B. Noga.
    On brief: Michael DeWine, Attorney General, and Stephanie Deters, Columbus, for appellee. Argued: Stephanie Deters.
    DECISION
   SADLER, J.

{¶ 1} Appellant-appellant, Hand & Hand MRDD Residential Services, Inc., appeals from the judgment entry of the Franklin County Court of Common Pleas affirming an adjudication order issued by appellee-appellee, Ohio Department of Developmental Disabilities, to revoke appellant's provider certifications. For the following reasons, we affirm the decision of the trial court.

I. FACTS AND PROCEDURAL HISTORY

{¶ 2} At the time of adjudication of this matter, appellant was an agency certified by appellee to provide services to individuals with developmental disabilities since approximately 2004. Specifically, appellant was certified to provide Individual Options Wavier, Level One Waiver, Self-Empowered Life Funding Waiver, and Supported Living Provider services to individuals with developmental disabilities. Appellant provided such services for approximately 14 adult clients between the ages of 30 and 50 who lived at 9 different sites. The sites were not owned by appellant but, rather, appellant's employees would travel to the clients' homes to provide 24-hour care and supervision. John Flemon is the owner and CEO of appellant.

{¶ 3} By two letters dated January 22, 2015, appellee suspended and also proposed the revocation of appellant's certifications pursuant to R.C. 5123.166. As the basis for the proposed revocation, appellee listed the result of appellant's December 2014 special provider compliance review which yielded 17 citations, prior provider compliance reviews yielding citations in 2006, 2008, and 2009, a suspension in 2010 based on the 2009 compliance review, and appellee's failure to implement and/or maintain its previously submitted plans of correction following previous compliance reviews.

{¶ 4} A hearing on the matter was held on September 29 and 30, 2015. The hearing examiner issued her report and recommendation on November 5, 2015. In it, the hearing examiner concluded that appellee demonstrated by a preponderance of the evidence that there is good cause to revoke appellant's provider certification, pursuant to R.C. 5123.166, because the evidence showed appellant "committed acts of misfeasance, nonfeasance, and other conduct that was, or could be, injurious to the individuals served by [appellant]" pursuant to R.C. 5123.166(B)(4), (6), and (9). (Hearing Examiner Report at 33.) The hearing examiner noted that some of the numerous violations cited as part of the December 2014 compliance review were of a "fairly innocuous nature," that appellee would not likely seek to revoke a certification on those issues alone, and that appellee's counsel agreed at the hearing this case is essentially about background checks, a process which includes checking a prospective employee's criminal record and with several registries, ensuring the person has certain valid, up-to-date certifications, and ensuring the person has at least a high school diploma or GED. (Hearing Examiner Report at 33.) The background checks are required "to make sure the prospective employee is a safe person to care for individuals with developmental disabilities." (Hearing Examiner Report at 34.) Regarding appellee's track record on this issue, the hearing examiner wrote:

The evidence presented at the hearing showed that Hand & Hand was found to have failed to complete those background checks several times, over a period of several years. Compliance reviews in 2006 and 2008 found instances where Hand & Hand had not completed the necessary background checks for employees who were working with developmentally-disabled clients. Both times, the provider submitted a plan of correction and gave assurances that it had addressed the problems. When a 2009 compliance review found the provider in violation of the same regulations, the Department suspended the provider's certification in early 2010. Manager Theresa Ryan testified that in response, Hand & Hand submitted one of the best plans of correction she had ever seen, thoroughly addressing how the violations had been corrected so that the Department could be assured that they would not occur again. An agent from the Department made a site visit and agreed that the provider had effectively changed its practices, so the suspension was lifted in March 2010. Then, when the 2014 compliance review was initiated, the reviewers found the same problems-employees were once again working without having had all of the required background checks, and one of them had disqualifying criminal offenses on her record. The fact that the same violations continued to occur even after repeated assurances that the deficiencies had been corrected is the basis for the Department's proposal to revoke Hand & Hand's certification.

(Hearing Examiner Report at 34.)

{¶ 5} The hearing examiner further discussed appellant is a provider that agreed to comply with certain standards in exchange for Medicaid reimbursement, and, as such, appellee is justified in seeking to revoke the provider's certification "[w]hen those regulations are continually disregarded after the provider has given numerous assurances that it will comply." (Hearing Examiner Report at 35.) Regarding appellant's recent acquisition of an experienced consultant to address the deficiencies, the hearing examiner noted appellee "justifiably does not have confidence that the deficiencies have been permanently addressed so that they will not be found again." (Hearing Examiner Report at 35.)

{¶ 6} The hearing examiner recognized there is no suggestions that appellant did anything to deliberately harm a client and that letters written on appellant's behalf attest to appellant's compassionate care for its clients. Nonetheless, the hearing examiner was persuaded background checks are a critical part of appellee's ability to protect consumers who have developmental disabilities which may limit their ability to advocate for themselves and who receive direct care from provider staff with limited supervision, and, therefore, citations involving the failure to conduct background checks are very serious. As a result, the hearing examiner recommended the revocation of appellant's certifications and, based on the mitigation evidence, recommended appellant be permitted to reapply for certification after a period of five years.

{¶ 7} Appellant submitted the following objections to the recommendation of the hearing examiner:

1. The facts do not support a decertification based on the legal standard for good cause utilized by the Hearing Examiner.
2. The Hearing Examiner's finding of "good cause" to decertify is unsupportable when the negative impact of that result is balanced against the alleged deficiencies.

(Appellant's Objections to the Report and Recommendation of the Hearing Examiner at 2, 3.) On January 8, 2016, appellee's director issued an adjudication order adopting the hearing examiner's findings of fact and conclusions of law, approving the recommendation, and revoking appellant's certifications. Appellant filed a timely appeal with the court of common pleas.

{¶ 8} On February 6, 2017, the court of common pleas issued its decision and entry upholding the adjudication order. In doing so, the court of common pleas noted appellant does not dispute any of the violations documented in the 2006, 2008, 2009, and 2014 compliance reviews occurred and found, based on the violations, appellee had good cause to revoke appellant's provider certification pursuant to R.C. 5123.166(B)(4) (misfeasance), R.C. 5123.166(B)(6) (nonfeasance), and R.C. 5123.166(B)(9) ("[o]ther conduct the director determines is or would be injurious to individuals who receive or would receive supported living from the person or government entity."). The court of common pleas determined appellant's first objection, which contended appellee had to prove actual harm as a result of appellant's violations under the nonfeasance and misfeasance section, was contrary to law based on the definition of both of those terms. The court of common pleas determined appellant's second objection, which concerned appellee violating the "Bill of Rights" codified in R.C. 5123.62, was not supported by any evidence and instead supported appellee's argument as to the importance of background checks. On considering the entire record, the court of common pleas found appellee's adjudication order supported by reliable, probative, and substantial evidence, to be in accordance with law, and, therefore, affirmed the order.

{¶ 9} Appellant filed a timely appeal to this court.

II. ASSIGNMENTS OF ERROR

{¶ 10} Appellant presents three assignments of error:

[1.] The Trial Court erred in interpreting the provisions of O.R.C. Section 5123.166 relied on by the Court to support revocation of Hand & Hand's provider status by failing to recognize the requirement of proof of injury or actual harm thereby rendering the statute unconstitutionally void for vagueness and a Violation of Due Process.
[2.] The Court of Common Pleas erred as a matter of law in failing to find the process utilized by ODDD in issuing a Revocation Order in this case violated O.R.C. Section 5123.62, (the "bill of rights" applicable to Appellant's consumers), and therefore was contrary to law.
[3.] The Court of Common Pleas erred in failing to find ODDD's violation of O.R.C. Section 5123.62 rendered any finding of "good cause" contrary to law.

III. STANDARD OF REVIEW

{¶ 11} In an administrative appeal, pursuant to R.C. 119.12, the court of common pleas reviews an agency's order to determine whether it is supported by reliable, probative, and substantial evidence and is in accordance with law. R.C. 119.12(M) ; Saxe v. Ohio Dept. of Mental Retardation & Dev. Disabilities , 10th Dist. No. 09AP-1022, 2010-Ohio-4377, 2010 WL 3611100, ¶ 7. Reliable, probative, and substantial evidence has been defined as follows:

"Reliable" evidence is dependable; that is, it can be confidently trusted. In order to be reliable, there must be a reasonable probability that the evidence is true. * * *
"Probative" evidence is evidence that tends to prove the issue in question; it must be relevant in determining the issue. * * *
"Substantial" evidence is evidence with some weight; it must have importance and value.

(Footnotes omitted.) Our Place, Inc. v. Ohio Liquor Control Comm. , 63 Ohio St.3d 570, 571, 589 N.E.2d 1303 (1992). "In applying this standard, the court must 'give due deference to the administrative resolution of evidentiary conflicts.' " Saxe at ¶ 7, quoting Univ. of Cincinnati v. Conrad , 63 Ohio St.2d 108, 111, 407 N.E.2d 1265 (1980). The court of common pleas " 'will not substitute its judgment for the [agency]'s where there is some evidence supporting the [agency]'s Order.' " Inrex Home Care, LLC v. Ohio Dept. of Dev. Disabilities , 10th Dist., 2016-Ohio-7986, 76 N.E.3d 681, ¶ 8, quoting Harris v. Lewis , 69 Ohio St.2d 577, 578, 433 N.E.2d 223 (1982).

{¶ 12} "On further appeal to this court, our standard of review is more limited." Saxe at ¶ 8. "Unlike the court of common pleas, a court of appeals does not determine the weight of the evidence." Id. , citing Bd. of Edn. of Rossford Exempted Village School Dist. v. State Bd. of Edn. , 63 Ohio St.3d 705, 707, 590 N.E.2d 1240 (1992). "Our role is limited to a determination of whether the court of common pleas abused its discretion in finding that the [agency's] order was or was not supported by reliable, probative, and substantial evidence." Saxe at ¶ 8, citing Roy v. Ohio State Med. Bd. , 80 Ohio App.3d 675, 680, 610 N.E.2d 562 (10th Dist.1992). The term "abuse of discretion" connotes more than an error of law or judgment; it implies that the court's attitude is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). However, on the question of whether the agency's order was in accordance with law, this court's review is plenary. Saxe at ¶ 8 ; Univ. Hosp., Univ. of Cincinnati College of Medicine v. State Emp. Relations Bd. , 63 Ohio St.3d 339, 343, 587 N.E.2d 835 (1992).

IV. DISCUSSION

A. First Assignment of Error

{¶ 13} Under the first assignment of error, appellant contends the trial court erred when it interpreted the applicable provisions of R.C. 5123.166 to not require "proof of injury or actual harm thereby rendering the statute unconstitutionally void for vagueness and a Violation of Due Process." (Appellant's Brief at v.) For the following reasons, we disagree.

{¶ 14} In Inrex Home Care , we considered a vagueness challenge to the good cause language in R.C. 5123.166(B)(4) in the context of reviewing an injunction motion. There, we stated:

"In enacting a statute, it is presumed that * * * [c]ompliance with the constitutions of the state and of the United States is intended." R.C. 1.47(A) ; see also State v. Carswell , 114 Ohio St.3d 210, 2007-Ohio-3723, ¶ 10, 871 N.E.2d 547. Courts have a duty to liberally construe statutes "to save them from constitutional infirmities." Desenco, Inc. v. Akron , 84 Ohio St.3d 535, 538, 1999-Ohio-368, 706 N.E.2d 323 (1999). "An enactment of the General Assembly is presumed to be constitutional, and before a court may declare it unconstitutional it must appear beyond a reasonable doubt that the legislation and constitutional provisions are clearly incompatible." State ex rel. Dickman v. Defenbacher , 164 Ohio St. 142, 128 N.E.2d 59 (1955), paragraph one of the syllabus.
* * * A statute is not void simply because it could be worded more precisely or with additional certainty. State ex rel. Rear Door Bookstore v. Tenth Dist. Court of Appeals , 63 Ohio St.3d 354, 588 N.E.2d 116 (1992), citing Roth v. United States , 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The question is whether the law affords reasonable individuals of ordinary intelligence fair notice and sufficient definition and guidance to enable them to conform their conduct to the law. Papachristou v. Jacksonville , 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972).

Id. at ¶ 10-11.

{¶ 15} R.C. 5123.166 governs appellee's authority to revoke certificates issued to agency providers such as appellant. R.C. 5123.166 states in pertinent part:

(A) If good cause exists as specified in division (B) of this section and determined in accordance with procedures established in rules adopted under section 5123.1611 of the Revised Code, the director of developmental disabilities may issue an adjudication order requiring that one of the following actions be taken against a person or government entity seeking or holding a supported living certificate:
* * *
(2) Revocation of a supported living certificate;
(B) The following constitute good cause for taking action under division (A) of this section against a person or government entity seeking or holding a supported living certificate:
(1) The person or government entity's failure to meet or continue to meet the applicable certification standards established in rules adopted under section 5123.1611 of the Revised Code ;
(2) The person or government entity violates section 5123.165 of the Revised Code ;
(3) The person or government entity's failure to satisfy the requirements of section 5123.081 or 5123.52 of the Revised Code ;
(4) Misfeasance;
(5) Malfeasance;
(6) Nonfeasance;
(7) Confirmed abuse or neglect;
(8) Financial irresponsibility;
(9) Other conduct the director determines is or would be injurious to individuals who receive or would receive supported living from the person or government entity.

{¶ 16} The adjudication order revoking appellant's certifications is based on R.C. 5123.166(B)(4), (6), and (9), covering misfeasance, nonfeasance, and other conduct the director determines is or would be injurious to individuals who receive or would receive supported living from the person or government entity.

{¶ 17} Appellant's first issue under this assignment of error contends R.C. 5123.166(B)(4), (6), and (9) must be interpreted as encompassing occurrences of injury or actual harm or else those sections are rendered unconstitutionally void for vagueness. Appellant gives example definitions of misfeasance and nonfeasance that it contends require receipt of an injury as a requirement in the context of revocation and argues these more specific definitions must be adopted to provide an agency notice of what conduct is prohibited and thereby prevent arbitrary and discriminatory enforcement. Appellant does not specify how R.C. 5123.166(B)(9) is unconstitutionally vague.

{¶ 18} First, the first time appellant raised the constitutional issues was in a reply brief to the court of common pleas. The court of common pleas did not address the constitutional arguments and contained its analysis to the two arguments corresponding to appellant's objections to the hearing examiner's report, which focused on whether the evidence here supported decertification. Appellate courts generally decline to address, for the first time, issues which could have been, but were not, properly raised in early proceedings. Leslie v. Ohio Dept. of Dev. , 171 Ohio App.3d 55, 2007-Ohio-1170, 869 N.E.2d 687, ¶ 47 (10th Dist.) ; State v. Quarterman , 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 18 ; Atkins v. Dir., Ohio Dept. of Job & Family Servs. , 10th Dist. No. 08AP-182, 2008-Ohio-4109, 2008 WL 3522452, ¶ 18-19 (noting that waiver applies to constitutional issues and finding that it need not consider, for the first time, constitutional arguments that an appellant failed to properly raise to the trial court).

{¶ 19} Regardless, we disagree with appellant that the three bases relied on by the hearing examiner specifically require "proof of injury or actual harm" based on definitions that appellant contends are specific to the context of this case rather than improper "general[ized]" definitions used by the court of common pleas. (Appellant's Brief at v, 8, 11.) The definitions provided by appellant for these two terms are not specific to revocation or decertification cases but are, instead, derived from removal from office cases and even acknowledge that actions "harmful to the public welfare" may suffice to support such removals. (Appellant's Brief at 11.)

{¶ 20} Contrary to appellant's position, a recent case addressing nonfeasance specifically under R.C. 5123.166(B)(6) in the context of appellee's revocation of a provider's certifications applied a definition similar to what the court of common pleas utilized in this case and did not require proof of injury or actual harm. Cty. Med, Inc. v. Ohio Dept. of Dev. Disabilities , 8th Dist. No. 104921, 2017-Ohio-5745, 2017 WL 2875922, ¶ 27-32, quoting Teagardin v. Metal Foils, L.L.C. , 11th Dist. No. 2001-L-235, 2003-Ohio-1975, 2003 WL 1904042, ¶ 11, quoting Black's Law Dictionary 861 (7th Ed.2000) ("Nonfeasance is ' "the failure to act when a duty existed." ' "). Using this definition, the Cty. Med court found that "a provider's conduct may at once constitute both nonfeasance and the failure to meet applicable certification standards." Cty. Med at ¶ 27. As a result, the Cty. Med court held evidence of a provider's repeated failure to comply with appellee's certification standards, including failure to document whether drivers had been subjected to criminal background checks, supported appellee's and the trial court's findings that the provider committed nonfeasance.

{¶ 21} The court of common pleas utilized a similarly general definition in addressing malfeasance, which describes a lawful act performed in a wrongful manner. Haycook v. Miller , 10th Dist. No. 74AP-485, 1975 WL 181224 (Mar. 18, 1975). We find, and appellant provides, no legal authority or compelling reason to differentiate misfeasance in this regard in order to impose a requirement of proof of injury or actual harm where nonfeasance has no such requirement. Considering all the above, we disagree with appellant that the court of common pleas' determination that misfeasance and nonfeasance under R.C. 5123.166(B)(4) and (6) do not require proof of actual harm is contrary to law.

{¶ 22} Regarding R.C. 5123.166(B)(9), appellant provides no discernable argument or authority in support for how R.C. 5123.166(B)(9) requires "proof of injury or actual harm" or is unconstitutionally vague. (Appellant's Brief at v, 8.) R.C. 5123.166(B)(9) expressly applies to "conduct the director determines is or would be injurious to individuals who receive or would receive supported living from the person or government entity." (Emphasis added.) The plain language of R.C. 5123.166(B)(9), in referencing prospective injury, does not require "proof of injury or actual harm" but, instead, allows appellee to revoke certifications to prevent future harm to persons receiving supported living care. (Appellant's Brief at v, 8.) Therefore, we likewise disagree that R.C. 5123.166(B)(9) must be interpreted as encompassing occurrences of injury or actual harm.

{¶ 23} In its second issue under this assignment of error, appellant contends if we were to interpret injury or actual harm is "inherent" in misfeasance and nonfeasance as used in R.C. 5123.166, reversal is nonetheless required. (Appellant's Brief at 16.) Appellant presents an array of arguments in support of this contention.

{¶ 24} Appellant first contends, in this case, the three bases relied on by the hearing examiner would be "eliminated" since there is no reliable, probative, or substantial evidence of any injury or actual harm having occurred as a result of any of the deficiencies found by appellee. (Appellant's Brief at 16.) We have already determined that R.C. 5123.166(B)(4), (6), and (9) do not require evidence of injury or actual harm. Therefore, this argument is moot.

{¶ 25} Appellant also raises two contentions in regard to the hearing examiner's report. Appellant contends the hearing examiner's failure to state what evidence supports each section of R.C. 5123.166(B) she relied on, in and of itself, "renders the Court's conclusion that there is reliable, probative or substantial evidence to support any of the three statutory bases * * * an impossibility." (Appellant's Brief at 17.) Appellant also contends, regarding R.C. 5123.166(B)(9), the hearing examiner's statement that the statute reads " 'could' be injurious when the statute reads 'would' be injurious" renders her conclusions of law "erroneous on its face as a matter of law." (Appellant's Brief at 18.) However, appellant cites no legal authority for either of these arguments, which both undermines its burden of affirmatively demonstrating error on appeal and violates of App.R. 16. Miller v. Johnson & Angelo , 10th Dist. No. 01AP-1210, 2002-Ohio-3681, 2002 WL 1578737, ¶ 2 ("The burden of affirmatively demonstrating error on appeal rests with the [appellant]."); see also App.R. 9 and 16(A)(7) ("The appellant shall include in its brief, under the headings and in the order indicated, all the following: * * * [a]n argument containing the contentions of the appellant with respect to each assignment of error presented for review and the reasons in support of the contentions, with citations to the authorities, statutes, and parts of the record on which appellant relies. "). (Emphasis added.) Inner City Living, Inc. v. Ohio Dept. of Dev. Disabilities , 8th Dist., 2017-Ohio-8317, 87 N.E.3d 253, ¶ 16 ("It is not an appellate court's responsibility to find and articulate legal authority to support an appellant's assigned error."). We also fail to see how these particular arguments support reversal based on the assignment of error as stated. Huntington Natl. Bank v. Burda , 10th Dist. No. 08AP-658, 2009-Ohio-1752, 2009 WL 989127, ¶ 21, citing App.R. 12(A)(1)(b) (stating that "a court of appeals shall * * * [d]etermine the appeal on its merits on the assignments of error set forth in the briefs"); Williams v. Barrick , 10th Dist. No. 08AP-133, 2008-Ohio-4592, 2008 WL 4174146, ¶ 28 (holding that appellate courts "rule[ ] on assignments of error only, and will not address mere arguments").

{¶ 26} Accordingly, appellant's first assignment of error is overruled.

B. Second Assignment of Error

{¶ 27} Under the second assignment of error, appellant contends the court of common pleas erred as a matter of law in failing to find the process utilized by appellee in issuing a revocation order in this case violated R.C. 5123.62, the "bill of rights" applicable to persons with developmental disabilities. For the following reasons, we disagree.

{¶ 28} Specifically, appellant argues that appellee's policy of not consulting with appellant's consumers or assessing the impact on consumers of decertification of their provider violates R.C. 5123.62(A), (G), (I), (Q), and (R), rendering the administrative action contrary to law. R.C. 5123.62 provides, in pertinent part, that the rights of persons with developmental disabilities include, but are not limited to, the following:

(A) The right to be treated at all times with courtesy and respect and with full recognition of their dignity and individuality;
* * *
(G) The right to receive appropriate care and treatment in the least intrusive manner;
* * *
(I) The right to communicate freely with persons of their choice in any reasonable manner they choose;
* * *
(Q) The right to participate in decisions that affect their lives;
(R) The right to select a parent or advocate to act on their behalf.

{¶ 29} As a preliminary issue, appellant has not provided any argument or legal authority for its ability, as a provider, to assert the rights of it clients to avoid appellee's revocation of its own license. Appellant likewise has not provided any argument or legal authority for the proposition that R.C. 5123.62 necessarily requires appellee to consult with appellant's consumers and assess the impact of decertification in its decision to revoke the license of their provider. Such an absence of legal authority or argument violates App.R. 16(A)(7) and does not support appellant's burden in demonstrating error on appeal. Miller ; Inner City Living .

{¶ 30} Furthermore, the plain language of the statutes at issue does not support appellant's argument. The process to revoke certification is governed by R.C. 5123.166, which provides that appellee may issue an adjudication order requiring revocation of certification if good cause exists, as specified in division (B) of that section, and the order is determined in accordance with procedures established in rules adopted under applicable statutes. R.C. 5123.166(A). Contrary to appellant's contention, no such requirement proposed by appellant is found in R.C. 5123.166.

{¶ 31} Finally, the court of common pleas looked at the record and concluded no record evidence exists that appellee violated R.C. 5123.62(A), (G), (I), (Q), and (R) while the order supported the issue of safe, compliant living environments as set forth in the bill of rights under R.C. 5123.62(B). We find the common pleas court did not abuse its discretion in this regard. Moreover, considering all the above, the court of common pleas did not err as a matter of law, and appellant's argument lacks merit.

{¶ 32} Accordingly, appellant's second assignment of error is overruled.

C. Third Assignment of Error

{¶ 33} Under the third assignment of error, appellant contends the court of common pleas erred in failing to find appellee's violation of R.C. 5123.62 rendered any finding of "good cause" contrary to law. (Appellant's Brief at 26.) Specifically, appellant takes issue with appellee's alleged failure to "balance the negative impact of that result against the alleged deficiencies." (Appellant's Brief at 26.)

{¶ 34} Appellant contends a "balancing test" is required under appellee's "good cause" determination in R.C 5123.166(A). (Appellant's Brief at 29, 30.) According to appellant, this test requires appellee to weigh facts before arriving at a sanction and specifically requires appellee to consider the positive actions taken by appellant, the negative impact of decertification on appellant's consumers, and residents' wishes against actual deficiencies found. According to appellant, had a proper weighing been conducted, "one cannot reach a conclusion as a matter of law that there is 'good cause' " for decertification. (Appellant's Brief at 29.)

{¶ 35} Appellant has not provided any legal authority to support a requirement for such a balancing test, and we decline to find such a test exists in the first instance. As stated in a recent revocation case, "[i]t is not an appellate court's responsibility to find and articulate legal authority to support an appellant's assigned error." Inner City Living at ¶ 16. Furthermore, even if such a test exists or should exist, the record of this case supports good cause to decertify appellant. As detailed in the report of the hearing examiner and the decision of the court of common pleas, appellant repeatedly failed to properly conduct and document required background checks despite appellee's prior opportunities to correct these deficiencies. Appellee attested to the seriousness of background checks within the special context of providers working with individuals with developmental disabilities. The hearing examiner acknowledged appellant's positive contributions and used those in mitigation to recommend permitting appellant to reapply in five years. On this record, the trial court clearly did not abuse its discretion in making the decision that the administrative decision was based on reliable, substantive, and probative evidence and is accordance with law. Appellant's argument lacks merit.

{¶ 36} Accordingly, appellant's third assignment of error is overruled.

V. CONCLUSION

{¶ 37} Having overruled appellant's three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.

Judgment affirmed.

BROWN and LUPER SCHUSTER, JJ., concur.


text:
    STATE of Ohio, Plaintiff-Appellee v. Aubrey TONEY, Defendant-Appellant
    NO. 16 MA 0124
    Court of Appeals of Ohio, Seventh District, Mahoning County.
    Dated: December 28, 2017
    Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, For Plaintiff-Appellee
    Atty. Desirae DiPiero, 7330 Market Street, Youngstown, Ohio 44512, For Defendant-Appellant
   JUDGES: Hon. Cheryl L. Waite, Hon. Gene Donofrio, Hon. Mary DeGenaro

OPINION

WAITE, J.

{¶ 1} Appellant Aubrey Toney appeals a July 13, 2016 Mahoning County Common Pleas Court judgment entry. This matter involves Appellant's resentencing. Appellant argues that the trial court erroneously imposed consecutive sentences on two firearm specifications that arise out of the same transaction. Appellant also argues that the trial court improperly imposed mandatory consecutive sentences and failed to properly make the R.C. 2929.14(C)(4) findings within its sentencing entry. Appellant's merger argument is without merit. However, Appellant's argument regarding consecutive sentences has merit. Accordingly, the trial court's imposition of consecutive sentences is vacated and the matter is remanded for the limited purpose of addressing consecutive sentences.

Factual and Procedural History

{¶ 2} On October 7, 2010, Appellant was indicted on one count of aggravated murder in violation of R.C. 2903.01(A), (F), with a death specification pursuant to R.C. 2929.04(A)(5) ; one count of attempted murder, a felony of the first degree in violation of R.C. 2923.02(A) ; one count of felonious assault, a felony of the second degree in violation of R.C. 2903.11(A)(1) ; and one count of felonious assault, a felony of the second degree in violation of R.C. 2903.11(A)(2). Each of these charges carried an attendant firearm specification in violation of R.C. 2941.145(A).

{¶ 3} Appellant was convicted by a jury of murder as the lesser-included offense of aggravated murder, both counts of felonious assault, and three counts of attendant firearm specifications. However, no verdict was reached on the attempted murder charge.

{¶ 4} On June 19, 2014, Appellant was sentenced as follows: fifteen years to life in prison for the murder conviction, eight years of incarceration for felonious assault, and six years for the attendant firearm specifications. The trial court merged the felonious assault convictions as well as the attendant firearm specifications. In the aggregate, Appellant was sentenced to twenty-nine years to life in prison

{¶ 5} On direct appeal, we affirmed Appellant's convictions but remanded the matter for resentencing, because the trial court failed to properly impose consecutive sentences. State v. Toney, 7th Dist. No. 14 MA 0083, 2016-Ohio-3296, 2016 WL 3152329. The trial court held a resentencing hearing and imposed the identical sentence. This timely appeal followed.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED WHEN IT IMPOSED TWO, THREE-YEAR CONSECUTIVE SENTENCES FOR FIREARM SPECIFICATIONS THAT AROSE FROM THE SAME TRANSACTION.

{¶ 6} Appellant argues that the trial court erroneously imposed consecutive sentences for the firearm specifications attached to his murder and felonious assault convictions. Appellant asserts that R.C. 2929.14(B)(1)(b) allows for only one prison term for offenses that are committed as part of the same act or transaction. Appellant argues that both of these convictions stem from his act of firing his weapon into a car, thus they arise from the same act or transaction.

{¶ 7} In response, the state argues that a trial court is required to impose consecutive sentences when a defendant has been convicted of two or more firearm specifications that stem from murder and felonious assault convictions.

{¶ 8} Pursuant to R.C. 2929.14(B)(1)(g) :

If an offender is convicted of or pleads guilty to two or more felonies, if one or more of those felonies are aggravated murder, murder, attempted aggravated murder, attempted murder, aggravated robbery, felonious assault, or rape, and if the offender is convicted of or pleads guilty to a specification of the type described under division (B)(1)(a) of this section in connection with two or more of the felonies, the sentencing court shall impose on the offender the prison term specified under division (B)(1)(a) of this section for each of the two most serious specifications of which the offender is convicted or to which the offender pleads guilty and, in its discretion, also may impose on the offender the prison term specified under that division for any or all of the remaining specifications.

{¶ 9} The state is correct that the trial court is required to impose mandatory prison terms for both of Appellant's R.C. 2929.14(B)(1)(a) firearm specifications. These were imposed due to Appellant's underlying murder and felonious assault convictions.

{¶ 10} Further, pursuant to R.C. 2929.14(C)(1)(a),

Subject to division (C)(1)(b) of this section, if a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(a) of this section for having a firearm on or about the offender's person or under the offender's control while committing a felony, if a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(c) of this section for committing a felony specified in that division by discharging a firearm from a motor vehicle, or if both types of mandatory prison terms are imposed, the offender shall serve any mandatory prison term imposed under either division consecutively to any other mandatory prison term imposed under either division or under division (B)(1)(d) of this section, consecutively to and prior to any prison term imposed for the underlying felony pursuant to division (A), (B)(2), or (B)(3) of this section or any other section of the Revised Code, and consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender.

{¶ 11} Accordingly, pursuant to the above statutes, the trial court was required to sentence Appellant on both of the firearm specifications and to run these sentences consecutively. See State v. Williams, 7th Dist. No. 11 MA 185, 2014-Ohio-1015, 2014 WL 1325907. Appellant's first assignment of error is without merit and is overruled.

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE SENTENCES WITHOUT CONDUCTING THE PROPER ANALYSIS AND MAKING THE PROPER FINDINGS IN ITS JUDGMENT ENTRY.

{¶ 12} Appellant argues that the trial court failed to make the requisite R.C. 2929.14(C)(4) findings at the sentencing hearing and within its sentencing entry. At the sentencing hearing, Appellant argues that the trial court improperly classified his consecutive sentences as mandatory. In the sentencing entry, Appellant asserts that the trial court merely recited verbatim the text of the statute without actually making any findings. Appellant urges that this is insufficient under Ohio law.

{¶ 13} Pursuant to R.C. 2929.14(C)(4), before a trial court can impose consecutive sentences on a defendant, the court must find:

[T]hat the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.
(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶ 14} A trial court must make the consecutive sentence findings at the sentencing hearing and must additionally incorporate the findings into the sentencing entry. State v. Williams , 2015-Ohio-4100, 43 N.E.3d 797, 806, ¶ 33-34 (7th Dist.), citing State v. Bonnell , 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. The court is not required to state reasons in support nor is it required to use any "magic" or "talismanic" words, so long as it is apparent that the court conducted the proper analysis. Id. , citing State v. Jones , 7th Dist. No. 13 MA 101, 2014-Ohio-2248, 2014 WL 2194503, ¶ 6 ; State v. Verity , 7th Dist. No. 12 MA 139, 2013-Ohio-1158, 2013 WL 1209491, ¶ 28-29.

{¶ 15} At the sentencing hearing, the trial court stated:

Anything-oh, hold on. Court further finds that consecutive sentences are mandatory because it is necessary to protect the public from future crime and to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public.
Court also finds that the offender committed one or more offenses while in-court further finds that multiple offenses were committed as part of a course of conduct and that the harm caused by multiple offenses was so great that not a single prison term for any of the offenses would adequately reflect the seriousness of the offender's conduct. Therefore, consecutive sentences are appropriate.

(7/12/16 Sentencing Hrg. Tr., pp. 8-9.)

{¶ 16} Appellant takes issue with the trial court's declaration that his consecutive sentences were "mandatory." Appellant contends that the court's statement is improper, because consecutive sentences are not mandatory in his case. There is no caselaw that addresses this exact issue.

{¶ 17} Generally, the imposition of consecutive sentences is discretionary, meaning the trial court has a choice. However, the imposition of consecutive sentences in some situations is mandatory pursuant to statute. As such, in the context of consecutive sentences, the word "mandatory" is a term of art. "Mandatory" has been defined to mean "[i]mperative. Required to be done or performed. Compulsory, not a matter of discretion." State v. Cravens , 42 Ohio App.3d 69, 536 N.E.2d 686 (1st Dist. 1988.), citing Ballentine's Law Dictionary (3 Ed. 1969) 771. Because the imposition of consecutive sentences is not mandatory in this case, it was error for the trial court to use this reference.

{¶ 18} As to the findings themselves, although it appears that they were an afterthought, the trial court did make the requisite findings pursuant to R.C. 2929.14(C) at the sentencing hearing. The trial court found that "it is necessary to protect the public from future crime and to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public." (7/12/16 Sentencing Hrg., pp. 8-9.) The court also found under subsection (c) that "the offender committed one or more offenses while in-the court further finds that multiple offenses were committed as part of a course of conduct and that the harm caused by multiple offenses was so great that not a single prison term for any of the offenses would adequately reflect the seriousness of the offender's conduct." (Id. at p. 9.)

{¶ 19} However, the trial court failed to properly incorporate its findings within its sentencing entry. There are two problems with the sentencing entry. The first is that the trial court copied the language of the entire statute with the exception of subsection (a). While virtually the entire statute was copied and pasted, the trial court failed to indicate which findings applied to this case. A trial court is only required to make one finding under subsections (a)-(c). However, the court recited all the language found in both subsections (b) and (c). The trial court appears to attempt to make findings under both subsections when the court made only a finding regarding subsection (b) at the sentencing hearing.

{¶ 20} The second problem is that this entry does not indicate that the trial court actually made the requisite findings. We have previously held that:

Quoting requirements from the statute is not problematic per se. While we do not require trial court's [sic] to use talismanic or magic words, we have urged trial courts to track the language of the statute. The problem here is the trial court did not alter the language of the statute to indicate it was actually making the findings. The finding as it was stated in the judgment entry provided, "if multiple prison terms are imposed," "the court may require," and "if the court finds." The "if" and "may" language does not indicate an actual finding by the trial court. It would have been simple for the trial court to reword the language to show that it was making the findings.

State v. Williams, 7th Dist. No. 16 MA 0041, 2017-Ohio-856, 2017 WL 944024, ¶ 20. Here, the trial court did not alter the statute and included the conditional words described in Williams . As such, the trial court did not properly incorporate its R.C. 2929.14(C)(4) findings into its sentencing entry. Appellant's second assignment of error has merit and is sustained.

Conclusion

{¶ 21} Appellant argues that the trial court erroneously imposed consecutive sentences on two firearm specifications that arose out of the same transaction. Appellant also argues that the trial court failed to properly make the requisite R.C. 2929.14(C)(4) factors before imposing consecutive sentences. Pursuant to R.C. 2929.14(B)(1)(g), the trial court properly imposed consecutive sentences on two firearm specifications. However, the court failed to properly make the requisite R.C. 2929.14(C)(4) findings. Based on this record, the matter is remanded to the trial court with instructions to complete the appropriate sentencing analysis in accordance with R.C. 2929.14(C)(4) should the trial court determine that consecutive sentencing is necessary.

Donofrio, J., concurs.

DeGenaro, J., concurs.