State v. Thompson

[Cite as State v. Thompson, 2016-Ohio-4689.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )

STATE OF OHIO C.A. No. 15AP0016

Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
STEPHEN M. THOMPSON COURT OF COMMON PLEAS
COUNTY OF WAYNE, OHIO
Appellant CASE Nos. 13-CR-0137
13-CR-0079

DECISION AND JOURNAL ENTRY

Dated: June 30, 2016

SCHAFER, Judge.

{¶1} Defendant-Appellant, Stephen Thompson, appeals the judgment of the Wayne

County Court of Common Pleas convicting him of several offenses and sentencing him to a total

prison term of eight years. For the reasons that follow, we affirm Thompson’s convictions but

reverse the imposition of consecutive sentences and remand the matter for the trial court to

engage in the necessary sentencing analysis under R.C. 2929.14(C)(4).

I.

{¶2} Sergeant Chris Conwill of the Wooster Police Department responded to a dispatch

indicating that there was a vehicle at a nearby fast food restaurant with a possibly intoxicated

driver. Thompson was later identified as the driver of the vehicle. After locating the vehicle

identified in the report, Sergeant Conwill followed it as it drove away from the restaurant and

observed the vehicle make several traffic infractions. Sergeant Conwill saw the vehicle make an

abrupt turn into a private driveway that went through the front yard of a residence. Sergeant
 2

Conwill interpreted this abrupt turn as an effort to evade police so he followed the vehicle,

parked behind it, and pointed a spotlight at it.

{¶3} Sergeant Conwill approached the vehicle, which was still in the driveway, facing

the residence, and he observed the person in the front passenger seat vomit outside of the

passenger side. Sergeant Conwill positioned himself behind the driver’s side of the vehicle and

he made eye contact with Thompson as Thompson looked over his shoulder. Around the time of

this interaction, Trooper Keith McClintock of the Ohio State Highway Patrol also arrived on the

scene, exited his cruiser, and drew his sidearm as the vehicle’s passenger door opened.

{¶4} After seeing Sergeant Conwill, Thompson revved his vehicle’s engine,

accelerated, and started to drive further down the driveway towards the residence. He then

turned left onto the yard and maneuvered his vehicle around a tree before driving back towards

the road as he straddled the driveway and the yard. Thompson was driving towards the road at

approximately 20 to 30 miles per hour while fishtailing and heading directly toward Trooper

McClintock, who was fearful for his life as he stood in a narrow area between a police cruiser

and a nearby embankment. Trooper McClintock subsequently moved left out of the vehicle’s

path and fired three rounds at it. Thompson then crashed the vehicle into the embankment, got

out of the vehicle, and began to flee on foot. Trooper McClintock chased Thompson on foot and

eventually tackled him. During the ensuing entanglement, Thompson hit Trooper McClintock in

the head with a flashlight before Sergeant Conwill reached their location and used a stun-gun to

immobilize Thompson.

{¶5} Thompson was arrested and transported to the hospital. After obtaining a warrant,

the hospital staff drew blood from Thompson, which revealed a blood alcohol content of .17,

over twice the legal limit, and the presence of marijuana. Once his medical treatment was
 3

completed, Thompson was escorted to the county jail. After Sheriff Deputy Kirk Shelly

instructed Thompson to use the restroom and change, Thompson grabbed the deputy by the

throat with such force that he drew blood and tore skin from the deputy’s neck.

{¶6} The Grand Jury indicted Thompson on the following: (1) two counts of felonious

assault on a peace officer in violation of R.C. 2903.11(A)(2), a felony of the first degree; (2) two

counts of assault on a peace officer in violation of R.C. 2903.13(A), a felony of the fourth

degree; (3) one count of obstructing official business in violation of R.C. 2921.31(A), a felony of

the fifth degree; (4) one count of OVI in violation of R.C. 4511.19(A)(1)(a), a misdemeanor of

the first degree; and (5) one count of OVI in violation of R.C. 4511.19(A)(1)(c), a misdemeanor

of the first degree.

{¶7} The matter proceeded to a jury trial during which the trial court allowed the State

to amend the indictment to include an allegation that the offenses occurred in Wayne County.

The trial court also granted Thompson’s Crim.R. 29 motion for acquittal on one of the felonious

assault counts. The jury found Thompson guilty on the remaining counts.

{¶8} At sentencing, the trial court merged Thompson’s OVI convictions for the

purposes of sentencing. It subsequently sentenced Thompson as follows: (1) five years on the

felonious assault conviction; (2) 18 months on each assault conviction; and (3) six months for the

OVI conviction. The sentences for the felonious assault and assault convictions were ordered to

run consecutively while the sentence for the OVI conviction was ordered to run concurrently,

which resulted in a total prison term of eight years. The trial court also ordered that Thompson

pay a $750 fine for the obstructing official business conviction.
 4

{¶9} Thompson timely appealed his convictions and sentence, presenting seven

assignments of error for our review. To facilitate our analysis, we elect to address the

assignments of error out of order.

II.

Assignment of Error IV

The trial court erred in amending the indictment to include the allegation
that the offenses were committed in Wayne County.

{¶10} In his fourth assignment of error, Thompson asserts that the trial court erred by

allowing the State to amend the indictment during the course of trial. We disagree.

{¶11} The parties dispute the proper standard of review on this point. Thompson argues

that we should apply de novo review because the amendment violated his constitutional right to

an indictment after grand jury review. We agree with the State, however, that the abuse of

discretion standard applies here since the amendment did not alter the identity of the crime

charged. See State v. Gray, 9th Dist. Summit No. 27365, 2015-Ohio-1248, ¶ 7 (“A trial court’s

decision to allow the amendment of an indictment is reviewed under an abuse-of-discretion

standard.”); State v. Frazier, 2d Dist. Clark No. 2008 CA 118, 2010-Ohio-1507, ¶ 23 (“If the

amendment does not change the name or identity of the crime charged, then we apply an abuse

of discretion standard to review the trial court’s decision to allow a Crim.R. 7(D) amendment.”).

An abuse of discretion is more than an error of judgment; it implies that the trial court’s decision

was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219

(1983). When applying the abuse of discretion standard, we may not simply substitute our own

judgment for that of the trial court. Pons v. Ohio State Med. Bd., 66 Ohio St.3d 619, 621 (1993).

“In addition to demonstrating that the trial court abused its discretion, the defendant must also
 5

show that the amendment prejudiced his defense in order to prove that the trial court committed

reversible error.” Gray at ¶ 7.

{¶12} Crim.R. 7(D) governs the amendment of indictments. State v. Bennett, 9th Dist.

Lorain No. 10CA009917, 2011-Ohio-6679, ¶ 8. The rule pertinently states that trial courts “may

at any time before, during, or after a trial amend the indictment * * * in respect to any defect,

imperfection, or omission in form or substance, or of any variance with the evidence, provided

no change is made in the name or identity of the crime charged.” Crim.R. 7(D). Because

allegations regarding the venue of charged offenses do not implicate the identity of the crime

charged, several districts of the Court of Appeals have previously determined that a trial court is

authorized under Crim.R. 7(D) to allow the amendment of an indictment to include such

allegations. See State v. Pheanis, 2d Dist. Montgomery No. 26560, 2015-Ohio-5015, ¶ 24

(determining that trial court did not abuse its discretion by allowing amendment to allege that

offenses occurred in Greene and Pike Counties because the amendment “did not change the

name or identity of the charges brought against [the defendant]”); In re Beeman, 11th Dist. Lake

No. 95-L-023, 1996 WL 494877, *6 (Aug. 16, 1996) (“[I]n applying Crim.R. 7(D), the courts of

this state have held that allegations as to the venue * * * can be amended at any time because

such amendments do not alter the nature of the charged offense.”); State v. Williams, 53 Ohio

App.3d 1, 5 (10th Dist.1988) (“Amending the indictment to allege that the offenses or elements

of them * * * occurred in Franklin County would not change the name or identity of the charges

brought against [the defendant]. Therefore, according to Crim.R. 7(D), the trial court should

have allowed the indictment to be amended as requested.”); see also State v. Smith, 87 Ohio

St.3d 424, 435 (2000) (“Venue is not a material element of any crime[.]”).
 6

{¶13} Here, the State requested to amend the indictment to include an allegation that the

charged offenses occurred in Wayne County. Such an amendment was permissible under

Crim.R. 7(D) and we can discern no abuse of discretion in the trial court’s allowance of the

amendment in this matter. There is no indication in the record that Thompson was unaware that

the incident giving rise to the charges occurred in Wayne County or that he was surprised by the

allegation. Indeed, Thompson has not made any argument that he was prejudiced by the

amendment. See App.R. 16(A)(7).

{¶14} Rather, Thompson’s arguments both below and on appeal emphasize that the

failure to include venue in the original indictment deprives him of his right to a grand jury

presentment. In support of this proposition, Thompson cites to State v. Headley, 6 Ohio St.3d

475 (1983). But, Headley is distinguishable because, in regard to venue, the Court addressed the

narrow issue of whether the State adequately proved its existence during the course of trial. And,

although the Court did discuss Crim.R. 7(D), it did so only within the context of an amended

indictment to include the controlled substance involved in the defendant’s charge for drug

trafficking. See id. at 478-479. Thompson’s reliance on State v. Hampton, 134 Ohio St.3d 447,

2012-Ohio-5688 (determining that defendant is entitled to acquittal if the State fails to prove

venue), and State v. Vitale, 96 Ohio App.3d 695 (8th Dist.1994) (determining that trial court

should not have allowed amendment to indictment regarding the date of the charged offense), is

similarly misplaced as neither case addresses whether a trial court may amend an indictment to

include an allegation regarding venue. Consequently, Thompson has not provided any authority

in support of his proposition that amending an indictment to include allegations regarding venue

violates the right to a grand jury presentment and we consequently reject his argument. See

App.R. 16(A)(7).
 7

{¶15} Accordingly, we overrule Thompson’s fourth assignment of error.

Assignment of Error VI

The trial court abused its discretion and violated Stephen Thompson’s due
process rights and right to an impartial jury by imposing an arbitrary time
limit on voir dire, and failing to excuse Juror 22.

{¶16} In his sixth assignment of error, Thompson contends that the trial court erred by

limiting the amount of time for voir dire.1 We disagree.

{¶17} R.C. 2945.27 states that “[t]he judge of the trial court shall examine the

prospective jurors under oath or upon affirmation as to their qualifications to serve as fair and

impartial jurors, but he shall permit reasonable examination of such jurors by the prosecuting

attorney and by the defendant or his counsel.” See also Crim.R. 24(B). “The manner in which

voir dire is to be conducted lies within the sound discretion of the trial [court].” State v.

Lorraine, 66 Ohio St.3d 414, 418 (1993). This discretion includes the discretion to limit the

length and scope of voir dire. State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 119. In

light of the broad discretion afforded trial courts in the handling of voir dire, we are unable to

find reversible error in the examination of the venire “[a]bsent a clear abuse of discretion.” State

v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, ¶ 44.

{¶18} The record does not reflect a clear abuse of discretion in the trial court’s decision

to limit the amount of time for voir dire. The trial court asked several questions regarding the

potential bias of the venire before allowing each side 30 minutes to engage in further

questioning. Consequently, the 30-minute time limitation for voir dire applied equally to both

1
Although the language of Thompson’s sixth assignment of error seems to challenge the
trial court’s failure to excuse Juror 22, his appellate brief only addresses this prospective juror in
regard to the argument that the time limitation precluded Thompson from following up on some
of Juror 22’s statements during the course of initial questioning. As a result, we decline to
address the non-excusal of Juror 22 and restrict our review to Thompson’s time limit argument.
 8

the State and Thompson, which removes any inference of prejudice to Thompson and we reject

his argument on this point. See State v. Harris, 5th Dist. Stark No. 2003CA00287, 2004-Ohio-

1557, ¶ 67 (determining that trial court’s limitation of voir dire to 30 minutes per side was not an

abuse of discretion in criminal trial for felonious assault and having a weapon under disability

charges); State v. Myers, 87 Ohio App.3d 92, 99 (9th Dist.1993) (determining that trial court’s

limitation of voir dire to 30 minutes per side in highly-publicized animal cruelty case was not an

abuse of discretion).

{¶19} Accordingly, we overrule Thompson’s sixth assignment of error.

Assignment of Error I

The jury was denied expert testimony regarding the defendant’s reaction
time and expert testimony regarding the position of Trooper McClintock; as
a result, the jury was deprived of evidence relevant to the issue of the
defendant’s intent as well as the credibility of various prosecution witnesses.

{¶20} In his first assignment of error, Thompson contends that the trial court abused its

discretion by precluding the defense from offering expert testimony regarding the police’s

actions during the incident and his ability to see Trooper McClintock when driving towards him.

We disagree.

{¶21} Thompson attempted to call three expert witnesses in his defense: Thomas

Tomasheski, Choya Hawn, and Henry Lipian. He argues that these expert witnesses’ expected

testimony would have created a reasonable doubt in regard to his felonious assault conviction for

driving his vehicle towards Trooper McClintock. The trial court excluded Mr. Tomasheski’s

testimony as irrelevant and it excluded Mr. Lipian’s and Mr. Hawn’s testimony under Evid.R.

403(A). Accordingly, we consider the trial court’s exclusion of Mr. Tomasheski’s testimony

separately from the exclusion of Mr. Hawn’s and Mr. Lipian’s testimony.
 9

A. Mr. Tomasheski’s Testimony

{¶22} Evid.R. 402 limits the admission of evidence to relevant evidence. Evidence is

relevant if it has “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. Trial courts are “‘vested with broad discretion’” in regard to the

admission or exclusion of evidence, and “‘an appellate court should not interfere [with the trial

court’s evidentiary ruling] absent a clear abuse of that discretion.’” State v. Yarbrough, 95 Ohio

St.3d 227, 2002-Ohio-2126, ¶ 40, quoting State v. Allen, 73 Ohio St.3d 626, 633 (1995). An

abuse of discretion “implies that the court’s attitude is unreasonable, arbitrary, or

unconscionable.” Blakemore, 5 Ohio St.3d at 219. We may not substitute our own judgment for

that of the trial court when applying the abuse of discretion standard. Berk v. Matthews, 53 Ohio

St.3d 161, 169 (1990).

{¶23} Here, Mr. Tomasheski’s expert report essentially criticizes the handling of the

incident by Sergeant Conwill and the various law enforcement agencies that responded to the

scene. Mr. Tomasheski opines that Sergeant Conwill violated protocol by failing to stop

Thompson’s vehicle in the fast food restaurant’s parking lot and by arranging for Trooper

McClintock to get involved. Mr. Tomasheski also opines that “what I see in this investigation

makes me sad” because the responding agencies disputed which agency was the proper one to

handle the investigation.

{¶24} After reviewing Mr. Tomasheski’s opinions and his report, we conclude that the

trial court did not abuse its discretion by precluding Mr. Tomasheski from testifying. The report

indicates that Mr. Tomasheski’s testimony would have been irrelevant in regard to Thompson’s

felonious assault conviction. Sergeant Conwill’s failure to stop Thompson’s vehicle in the
 10

restaurant’s parking lot and his decision to involve Trooper McClintock in the traffic stop does

not implicate whether Thompson knowingly drove his vehicle towards Trooper McClintock. See

State v. Belcher, 2d Dist. Montgomery No. 24968, 2013-Ohio-1234, ¶ 32 (determining that

assault victims’ failure to follow the controlling policies of their employers were irrelevant to the

defendant’s guilt and inadmissible). The responding agencies’ subsequent dispute over the

proper authority for the investigation is also irrelevant as it does nothing to illuminate whether

Thompson’s action of driving towards Trooper McClintock was more probable or less probable.

See State v. McCray, 103 Ohio App.3d 109, 118 (9th Dist.1995) (determining that expert

testimony regarding the defendant’s posttraumatic stress disorder after observing murder was

properly excluded since the evidence “would not offer a defense, justification or excuse” of the

defendant’s conduct). Consequently, we are unable to determine that the trial court erred by

excluding Mr. Tomasheski’s expert testimony.

B. Mr. Hawn’s and Mr. Lipian’s Testimony

{¶25} Turning to Mr. Hawn’s and Mr. Lipian’s testimony, we note that “[a]lthough

relevant, evidence is not admissible if its probative value is substantially outweighed by the

danger of unfair prejudice, or confusion of the issues, or of misleading the jury.” Evid.R.

403(A). We review the trial court’s exclusion of this testimony under Evid.R. 403(A) for an

abuse of discretion. State v. Norris, 9th Dist. Lorain No. 14CA010699, 2015-Ohio-5180, ¶ 20.

In conducting our review of this decision, we are mindful that “the exclusion of evidence under

Evid.R. 403(A) is even more of a judgment call than determining whether the evidence has

logical relevance in the first place.” Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, at ¶ 40.
 11

{¶26} Mr. Hawn’s expert report relates to the trajectory of the bullets fired by Trooper

McClintock.2 While the trajectory of the bullets may have some probative value regarding

Trooper McClintock’s position when he fired the bullets, Mr. Hawn’s report focuses on Trooper

McClintock’s reactions as opposed to Thompson’s actions, which were the exclusive focus of the

indictment. As a result, Mr. Hawn’s testimony would have confused the jurors in regard to the

proper focus of this criminal matter, which was whether Thompson knowingly caused or

attempted to cause physical harm to Trooper McClintock. See State v. Rodriguez, 12th Dist.

Butler No. CA2007-09-222, 2009-Ohio-549, ¶ 34 (determining that the trial court properly

excluded revised domestic relations forms in perjury trial because the forms did not address “the

central issue in the case[, which] involved [the defendant]’s understanding of the forms she

completed and whether she knowingly made false statements on such documents”).

Consequently, we determine that the trial court did not abuse its discretion by excluding Mr.

Hawn’s expert testimony.

{¶27} We likewise conclude that the trial court did not abuse its discretion by excluding

Mr. Lipian’s testimony under Evid.R. 403(A). Mr. Lipian’s expert report states his opinion that

Thompson was unable to detect Trooper McClintock during the incident and that he could not

make an “intentional decision” to drive towards Trooper McClintock. Mr. Lipian’s opinion was

partly based on evidence that Thompson was voluntarily intoxicated at the time of the incident.

By couching his opinion in terms of Thompson’s inability to make an “intentional decision,” Mr.

2
Both in the trial court and on appeal, the State argued that Mr. Hawn’s testimony should
be excluded because he could not qualify as an expert in ballistics. While the trial court noted
that the State “has a point with regard to Mr. Hawn’s qualifications,” it based its decision to
exclude Mr. Hawn’s testimony on the basis of Evid.R. 403(A). As a result, we limit our review
to the admissibility of the testimony under Evid.R. 403(A).
 12

Lipian plainly used Thompson’s voluntary intoxication as means to disprove that Thompson

“knowingly” drove toward Trooper McClintock.

{¶28} But, evidence of voluntary intoxication cannot be used in such a way as former

R.C. 2901.21(C) provides that “[v]oluntary intoxication may not be taken into consideration in

determining the existence of a mental state that is an element of a criminal offense.”3 See also

State v. Mitchell, 8th Dist. Cuyahoga No. 102499, 2015-Ohio-4379, ¶ 19 (“Voluntary

intoxication does not negate the ‘knowing’ state of mind required for a conviction of assault.”).

Allowing Mr. Lipian to testify regarding voluntary intoxication would confuse the jurors

regarding the availability of this defense and it would unfairly prejudice the State since it would

allow the impermissible defense to be presented to the jury. See State v. Rupp, 12th Dist. Butler

No. CA2001-06-135, 2002 WL 517968, *6 (Apr. 8, 2002) (determining that the defendant’s

failure to comply with the order of a police officer was not against manifest weight of the

evidence since the trial court could not consider evidence that the defendant was unable to

“willfully elude” the police officer due to his voluntary intoxication). As a result, the trial court

properly precluded Mr. Lipian from testifying due to “the danger of unfair prejudice, or

confusion of the issues, or of misleading the jury.” Evid.R. 403(A).

{¶29} In sum, the trial court did not abuse its discretion by precluding the testimony of

Mr. Tomasheski, Mr. Hawn, and Mr. Lipian. Accordingly, we overrule Thompson’s first

assignment of error.

3
2014 Am.S.B. No. 361, effective March 23, 2015, renumbered this provision as R.C.
2901.21(E). While S.B. 361 did change the numbering of this provision, it did not amend the
provision’s language.
 13

Assignment of Error II

The trial court erroneously failed to instruct the jury that, in order to find
the defendant guilty of the peace officer specifications alleged in Counts 1, 3,
and 7, the jury was required to find that the victim was acting in the line of
duty at the time of the assault.

{¶30} In his second assignment of error, Thompson argues that the trial court erred by

failing to instruct the jury that it had to find that the victim was acting in the line of duty at the

time of the assault. We disagree.

{¶31} Trial courts must provide jury instructions that “present a correct, pertinent

statement of the law that is appropriate to the facts.” State v. White, 142 Ohio St.3d 277, 2015-

Ohio-492, ¶ 46. When assessing the trial court’s jury instructions in this matter, we must be

mindful of the relevant statutory language. Thompson was convicted of one count of felonious

assault in violation of R.C. 2903.11(A)(2), which proscribes “knowingly * * * caus[ing] or

attempt[ing] to cause physical harm to another * * * by means of a deadly weapon or dangerous

ordinance.” Pursuant to R.C. 2903.11(D)(1)(a), “[i]f the victim of violation of [R.C.

2903.11(A)] is a peace officer * * *, felonious assault is a felony of the first degree.” Thompson

was also convicted of two counts of assault in violation of R.C. 2903.13(A), which states that

“[n]o person shall knowingly cause or attempt to cause physical harm to another[.]” Under R.C.

2903.13(C)(5), assault is a felony of fourth degree “[i]f the victim of the offense is a peace

officer * * * while in the performance of their official duties[.]”

{¶32} As to the charge of felonious assault, the trial court instructed the jurors that

“before you can find [Thompson] guilty, you must find beyond a reasonable doubt that on [the

date of the incident], in Wayne County, Ohio, [Thompson] knowingly caused or attempted to

cause physical harm to Trooper Keith McClintock by means of a deadly weapon, specifically a

motor vehicle.” In regard to the assault charges, the trial court instructed the jurors as follows:
 14

Before you find [Thompson] guilty of assault, you must find beyond a reasonable
doubt that on [the date of the incident, in Wayne County, Ohio, [Thompson]
knowingly caused or attempted to cause physical harm to Trooper McClintock * *
*. We have a second assault charge that you have to consider and before you can
find [Thompson] guilty of this assault charge, you must find beyond a reasonable
doubt that on [the date of the incident] in Wayne County, Ohio, [Thompson]
knowingly caused or attempted to cause physical harm to Deputy Kirk Shelly[.]

In so instructing the jury, the trial court denied Thompson’s request that the instruction include

the following language: “you will separately decide beyond a reasonable doubt whether the

victim of the offense was a peace officer, acting within his lawful jurisdiction and in the

performance of his official duties.”

{¶33} Even if the trial court’s denial of this proposed jury instruction was improper,

Thompson is only entitled to a reversal of his convictions if he can show that the denial

prejudiced his substantial rights. See Crim.R. 52(A) (“Any error, defect, irregularity, or variance

which does not affect substantial rights shall be disregarded.”); State v. Sanders, 9th Dist.

Summit No. 24654, 2009-Ohio-5537, ¶ 45 (“A trial court’s failure to give a proposed jury

instruction is only reversible error if the defendant demonstrates that the trial court abused its

discretion, and that the defendant was prejudiced by the court’s refusal to give the proposed

instruction.”). Thompson attempts to carry this burden on appeal by pointing out that Sergeant

Conwill was outside of the territorial jurisdiction of Wooster at the time of the charged assaults.

However, this is entirely immaterial because none of Thompson’s assault convictions related to

conduct directed against Sergeant Conwill. Instead, the convictions related to actions that

Thompson took against Trooper McClintock and Deputy Shelly. As a result, assuming, without

deciding, that the denial of Thompson’s proposed jury instruction was improper, he is still unable

to demonstrate that the denial prejudiced his rights. Thus, we must reject Thompson’s argument

and determine that the trial court’s denial of his proposed jury instruction did not amount to
 15

reversible error. See State v. Horne, 9th Dist. Summit No. 24672, 2010-Ohio-350, ¶ 22

(determining that any error in the trial court’s failure to give complicity instruction would not

amount to reversible error because the defendant was convicted of the principal offense).

{¶34} Accordingly, we overrule Thompson’s second assignment of error.

Assignment of Error III

The jury verdicts reflect a second-degree felony in Count 1 and first degree
misdemeanors in Counts 3 and 7.

{¶35} In his third assignment of error, Thompson asserts that the trial court erred by

convicting him of one count of first-degree felonious assault and two counts of fourth-degree

assault because the verdict forms fail to include findings that the victim was a peace officer

acting in the performance of his duties. Because Thompson has failed to preserve this argument

for appellate review, we decline to consider it on the merits.

{¶36} Thompson did not object to the verdict forms before the jury rendered its verdict.

As a result, he has forfeited all but plain error on this point. State v. Eafford, 132 Ohio St.3d

159, 2012-Ohio-2224, ¶ 11; see also State v. Napier, 105 Ohio App.3d 713, 725 (1st Dist.1995)

(determining that the defendant forfeited all but plain error in verdict forms where she “failed to

object to the content of the verdict form before the jury began deliberating”). Although

Thompson could still argue plain error, he has not done so. As a result, we decline to sua sponte

fashion such an argument on his behalf and then address it. See State v. Jackson, 9th Dist.

Lorain No. 14CA010555, 2015-Ohio-2473, ¶ 75 (declining to address merits of assignment of

error relating to verdict forms since the defendant failed to argue plain error).

{¶37} Accordingly, we overrule Thompson’s third assignment of error.
 16

Assignment of Error V

Stephen Thompson’s conviction for felonious assault of Trooper McClintock
in Count 1 is not supported by legally sufficient evidence as required by state
and federal due process.

{¶38} In his fifth assignment of error, Thompson contends that his conviction for

felonious assault is not supported by sufficient evidence. We disagree.

{¶39} A sufficiency challenge to a criminal conviction presents a question of law that

we review de novo. State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). In carrying out this

review, our “function * * * is to examine the evidence admitted at trial to determine whether

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

reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.

After such an examination and taking the evidence in the light most favorable to the prosecution,

we must decide whether “any rational trier of fact could have found the essential elements of the

crime proven beyond a reasonable doubt.” Id. Although we conduct de novo review when

considering a sufficiency challenge, “we neither resolve evidentiary conflicts nor assess the

credibility of witnesses, as both are functions reserved for the trier of fact.” (Internal quotation

and citation omitted.) State v. McMillen, 9th Dist. Summit No. 27666, 2016-Ohio-370, ¶ 5.

{¶40} The first basis of Thompson’s sufficiency challenge is that the State failed to offer

sufficient evidence that he was aware that his conduct of driving head-on towards Trooper

McClintock would probably result in an attempt to cause physical harm to Trooper McClintock.

This argument implicates the statutory definitions for “knowingly” and “attempt.” “A person

acts knowingly, regardless of purpose, when he is aware that his conduct will probably cause a
 17

certain result or will probably be of a certain nature.” Former R.C. 2901.22(B).4 R.C.

2923.02(A), meanwhile, relevantly defines “attempt” as “[n]o person, * * * knowingly, and

when * * * knowledge is sufficient culpability for the commission of an offense, shall engage in

conduct that, if successful, would constitute or result in the offense.”

{¶41} After reviewing the record, we conclude that it contains sufficient evidence to

establish that Thompson was aware his conduct could result in physical harm to Trooper

McClintock. Although there is no evidence that Trooper McClintock spoke with Thompson

before he drove the vehicle toward him, there is an indication that Thompson made eye contact

with Sergeant Conwill before driving towards the two sets of headlights behind his vehicle in the

driveway. Based on this, it is reasonable to infer that Thompson was aware of the presence of at

least two officers as he drove away from the residence toward the road. Additionally, both

Sergeant Conwill and Trooper McClintock testified that Thompson’s vehicle drove directly

toward Trooper McClintock while its headlights were on. This, along with evidence

demonstrating that Thompson was able to maneuver his vehicle around the driveway and yard,

indicates that Thompson was able to see the trooper as he accelerated and drove toward him.

From these items of evidence, we determine that the State offered sufficient evidence to establish

the required mental state of “knowingly.” See State v. Cash, 6th Dist. Lucas No. L-03-1198,

2005-Ohio-1382, ¶ 7 (rejecting sufficiency challenge to felonious assault of a peace officer

conviction where officers believed the vehicle was attempting to hit them and collision was only

avoided because the officers took evasive action).

4
S.B. 361 amended R.C. 2901.22’s definition of culpable mental states, including the
provision for “knowingly.” Since the charged offenses in this matter occurred before S.B. 361’s
effective date, we rely on the previous versions of the statutory language.
 18

{¶42} Thompson also challenges the sufficiency of the evidence regarding the deadly

weapon element of R.C. 2903.11(A)(2). We have previously recognized, however, that “[a]n

automobile is a deadly weapon when a driver attempts to run over someone.” State v. Jaynes,

9th Dist. Summit No. 20937, 2002-Ohio-4527, ¶ 12. In light of Sergeant Conwill’s and Trooper

McClintock’s testimony outlined above, we conclude that the jury could reasonably conclude

that Thompson’s action of driving directly toward Trooper McClintock reflected an attempt to

run Trooper McClintock over. As a result, we conclude that the State offered sufficient evidence

to prove the deadly weapon element of R.C. 2903.11(A)(2). See id. at ¶ 15 (rejecting sufficiency

challenge to felonious assault of a peace officer conviction where the defendant “‘drove directly

at [the officers’] cruiser”).

{¶43} Accordingly, we overrule Thompson’s fifth assignment of error.

Assignment of Error VII

The trial court failed to make the necessary statutory findings to support the
imposition of consecutive sentences.

{¶44} In his seventh assignment of error, Thompson argues that the trial court erred in

failing to sufficiently state and journalize the necessary statutory findings for the imposition of

consecutive sentences. At oral argument, the State confessed error on this point and requested

that the matter be remanded. We agree.

{¶45} R.C. 2953.08(G)(2) governs felony sentencing and it provides as follows:

The court hearing an appeal under division (A), (B), or (C) of this section shall
review the record, including the findings underlying the sentence or modification
given by the sentencing court.

The appellate court may increase, reduce, or otherwise modify a sentence that is
appealed under this section or may vacate the sentence and remand the matter to
the sentencing court for resentencing. The appellate court’s standard of review is
not whether the sentencing court abused its discretion. The appellate court may
 19

take any action authorized by this division if it clearly and convincingly finds
either of the following:

(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of [R.C.] 2929.13, division (B)(2)(e) or (C)(4) of [R.C.]
2929.14, or division (I) of [R.C. 2929.20], whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

Based on the terms of this statute, the Supreme Court of Ohio has held that “an appellate court

may vacate or modify any sentence that is not clearly and convincingly contrary to law only if

the appellate court finds by clear and convincing evidence that the record does not support the

sentence.” State v. Marcum, Slip Opinion No. 2016-Ohio-1002, ¶ 23. “Clear and convincing

evidence is that measure or degree of proof which is more certain than a mere ‘preponderance of

the evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable doubt’ in

criminal cases, and which will produce in the mind of the trier of facts a firm belief or conviction

as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph

three of the syllabus. “Simply stated, the language in R.C. 2953.08(G)(2) establishes an

‘extremely deferential standard of review’ for ‘the restriction is on the appellate court, not the

trial judge.’” State v. Crawford, 12th Dist. Clermont No. CA2012-12-088, 2013-Ohio-3315, ¶ 8,

quoting State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 21.

{¶46} R.C. 2929.14(C)(4) states as follows:

If multiple prison terms are imposed on an offender for convictions of multiple
offenses, the court may require the offender to serve the prison terms
consecutively if the court finds that the consecutive service is necessary to protect
the public from future crime or to punish the offender and that consecutive
sentences are not disproportionate to the seriousness of the offender’s conduct and
to the danger the offender poses to the public, and if the court also finds any of the
following:

(a) The offender committed one or more of the multiple offenses while the
offender was awaiting trial or sentence, was under a sanction imposed pursuant to
 20

[R.C.] 2929.16, 2929.17, or 2929.18 * * *, 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 course 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.

Under the terms of the statute, trial courts must make three findings before imposing consecutive

sentences:

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

(2) that consecutive sentences are not disproportionate to the seriousness of the
offender[’s] conduct and to the danger the offender poses to the public; and

(3) that one of the particular findings set forth in R.C. 2929.14(C)(4)(a)-(c)
applies.

State v. Giles, 9th Dist. Summit No. 27339, 2015-Ohio-2132, ¶ 16.

{¶47} The Ohio Supreme Court has required trial courts to not only make the required

R.C. 2929.14(C)(4) findings at the sentencing hearing, but to also “incorporate its findings into

its sentencing entry[.]” State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, syllabus.

Although the trial court must state the statutory findings at the sentencing hearing, it need not

provide a “word-for-word recitation” of the statutory language, id. at ¶ 29, nor state any “magic

or talismanic words” when imposing sentence, State v. Bever, 4th Dist. Washington No.

13CA21, 2014-Ohio-600, ¶ 17. Rather, “[a]s long as the reviewing court can discern that the

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

support the findings, consecutive sentences should be upheld.” Bonnell at ¶ 29.
 21

{¶48} Neither the sentencing entry nor the trial judge’s statements at the sentencing

hearing reflect that the trial court engaged in the necessary R.C. 2929.14(C)(4) analysis or made

the proper findings to support the imposition of consecutive sentences. During the sentencing

hearing, the trial judge stated that “the felony sentences will be consecutive” without stating any

of the findings outlined above. The sentencing entry similarly fails to address R.C.

2929.14(C)(4) and merely states that “[the felony sentences] are consecutive with each other.”

As a result, we must reverse the trial court’s imposition of consecutive sentences and remand the

matter for it to properly consider R.C. 2929.14(C)(4) and make the necessary findings. See State

v. Brooks, 9th Dist. Summit Nos. 26437, 26352, 2013-Ohio-2169, ¶ 15 (reversing trial court’s

imposition of consecutive sentences where “the sentencing transcript is devoid of the level of

detail that would allow this Court to conclude that the trial court engaged in the appropriate

analysis”).

{¶49} Accordingly, we sustain Thompson’s seventh assignment of error.

III.

{¶50} Having overruled Thompson’s first through sixth assignments of error, we affirm

the judgment of the Wayne County Court of Common Pleas convicting him of felonious assault,

assault, OVI, and obstructing official business. However, having sustained Thompson’s seventh

assignment of error, we reverse the judgment insofar as it imposes consecutive sentences for his

felonious assault and assault convictions. Consequently, we remand this matter for further

proceedings consistent with this opinion.

Judgment affirmed in part,
reversed in part,
and cause remanded.
 22

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Wayne, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

JULIE A. SCHAFER
FOR THE COURT

HENSAL, J.
CONCURS.

MOORE, P. J.
CONCURS IN JUDGMENT ONLY.

APPEARANCES:

MARK B. MAREIN and STEVEN L. BRADLEY, Attorneys at Law, for Appellant.

DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.