State v. Clark

[Cite as State v. Clark, 2017-Ohio-7633.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 27365
:
v. : Trial Court Case No. 16-CR-1817
:
ANTHONY CLARK : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:

...........

OPINION

Rendered on the 15th day of September, 2017.

...........

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301
West Third Street, 5th Floor, Dayton, Ohio 45402
Attorney for Plaintiff-Appellee

TRAVIS KANE, Atty. Reg. No. 0088191, 1015 East Centerville-Station Road, Centerville,
Ohio 45459
Attorney for Defendant-Appellant

.............

HALL, P.J.
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{¶ 1} Anthony Clark appeals from his convictions for felonious assault, discharge

of a firearm on or near prohibited premises, and having weapons under disability. Finding

no error, we affirm.

I. Background

{¶ 2} Kimber Baker was friends with Beth Ann Adams and knew Adams’s

boyfriend, Clark. According to Baker, in April or May 2016, she learned that Adams and

Clark were having relationship problems. It seems that Adams had met Baker’s step-

brother and that the two of them now had some sort of a relationship. One day, near the

end of May, Clark came to Baker’s house, put a gun through the mail slot and started

asking her where Beth was. Baker begged him to leave, and eventually he did.

Afterwards, Adams stopped being friendly with Baker and became angry.

{¶ 3} On May 30, about a week after the gun-through-the-mail-slot incident, Baker

left her house to pick up her sister-in-law. Baker had her three-year-old nephew and her

one-year-old son with her. According to Baker, while she was stopped at a red light,

Adams pulled up next to her and started yelling and swearing at her. Adams then jumped

out of her car and came towards Baker’s truck. Baker took off, running a red light to get

away. She turned around and went back home. She parked in front of her house and was

getting the children out when Baker saw Adams coming up the street behind her. Baker

quickly shepherded the children into the front seat and drove away.

{¶ 4} She turned into an alley to cut across to another street. But just as Baker

reached the end of the alley, Clark suddenly pulled up from the right and stopped in front

of her at an angle, almost nose-to-nose with her truck, facing the truck’s passenger side.
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Baker watched as he pointed a handgun and fired three times—first at the truck’s tires

and then twice more, with the last shot aimed right at Baker. Adams then pulled into the

alley behind Baker. Clark and Adams were out of their cars when Baker hit the gas, driving

over the left curb to get around Clark’s car. She drove straight to her father’s house where

she called the police.

{¶ 5} Dayton police officers Mitchell Olmstead and Christopher Fogle responded.

When the officers met with Baker, she appeared very upset and scared. Baker told them

what had happened and identified Clark as the shooter. While Olmstead spoke with

Baker, Fogle looked over Baker’s truck. He saw a bullet hole in the passenger-side fender

behind the tire and glancing strikes on the hood and windshield. Later, Dayton police

homicide detective Nathan Via examined the truck and also saw the bullet hole and the

two glancing strikes. He interviewed Clark, and Clark denied any involvement in the

incident.

{¶ 6} In July 2016, Clark was indicted on three counts of second-degree felonious

assault (deadly weapon), under R.C. 2903.11(A)(2), each of which included a three-year

and five-year firearm specification and a repeat-violent-offender specification; one count

of third-degree discharge of a firearm on or near prohibited premises, over a public road

or highway when there is a substantial risk of physical harm to any person or serious

physical harm to property, under R.C. 2923.162(A)(3) and (C)(2), along with a three-year

firearm specification; one count of third-degree having weapons under disability (prior

drug conviction), under R.C. 2923.13(A)(3); and another count of third-degree having

weapons under disability (prior offense of violence), under R.C. 2923.13(A)(2).

{¶ 7} A jury trial was held on the felonious-assault and discharge-of-a-firearm
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offenses, and the two having-weapons-under-disability offenses were tried to the court.

Clark was found guilty on all counts and specifications. At sentencing, when all was said

and done as to merger and consecutive service, Clark’s total prison sentence is 23 years.

{¶ 8} Clark appealed.

II. Analysis

{¶ 9} Clark presents six assignments of error challenging the weight of the

evidence, the effectiveness of trial counsel, the failure to merge certain offenses for

sentencing purposes, the imposition of consecutive sentences, his ability to impeach

Baker, and the denial of a continuance.

A. The manifest weight of the evidence

{¶ 10} The first assignment of error alleges that Clark’s convictions are against the

manifest weight of the evidence.

{¶ 11} Manifest weight “concerns ‘the inclination of the greater amount of credible

evidence * * * to support one side of the issue rather than the other.’ ” (Emphasis sic.)

State v. Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997), quoting Black’s Law

Dictionary 1594 (6th Ed.1990). “A manifest-weight challenge requires us to consider the

entire record, including the credibility of the witnesses, the weight of the evidence, and

any reasonable inferences and determine whether ‘ “the [panel] clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.” ’ ” State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71

N.E.3d 180, ¶ 75, quoting id., quoting State v. Martin, 20 Ohio App.3d 172, 175, 485

N.E.2d 717 (1st Dist.1983).

{¶ 12} Clark was convicted of three counts of felonious assault under R.C.
 -5-

2903.11(A)(2), which pertinently prohibits a person from attempting to harm another “by

means of a deadly weapon.” He was also convicted of discharge of a firearm on or near

prohibited premises under R.C. 2923.162(A)(3) and (C)(2). And Clark was convicted of

two counts of having weapons under disability under R.C. 2923.13(A)(2), which

pertinently prohibited him from “acquir[ing], hav[ing], carry[ing], or us[ing] any firearm.”

Clark argues that Baker’s testimony that he fired a gun at her is not clear or consistent

and is contradicted by the testimony of other witnesses.

{¶ 13} Baker testified that just as she reached the end of the alley that she had

driven down, Clark pulled up in his car from the right and stopped at an angle in front of

Baker’s truck, facing the truck’s passenger side. Baker said that, while still in his car, Clark

pointed a handgun and fired three times—first at her truck’s tires and then, moving

upwards from left to right, twice more, with the last shot aimed at her. Adams then pulled

in behind her truck, said Baker, and Clark and Adams both got out of their cars and walked

toward her truck. Officer Olmsted testified that when he met with Baker at her father’s

house she appeared very upset and scared. He also said that she identified Clark as the

shooter.

{¶ 14} The two police officers who examined Baker’s truck, Officer Fogle and

Detective Via, found evidence of three recent bullet strikes. They found a penetrating

strike, just behind the front wheel well; a glancing strike on the hood; and a glancing strike

on the windshield. This testimony is consistent with Baker’s claim that Clark fired three

times, first at the truck’s tires and then, moving upwards from left to right, two more times

with the last shot aimed at her. Both officers also testified that the bullet strikes were fresh.

Officer Fogle testified that the bullet hole was “fairly recent,” as there was no rust forming
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around the area where the paint was missing from the metal. Similarly, Detective Via

testified that the damage to the truck was consistent with fresh, new damage, because

there was no rust or flaking paint in or around the edges of the bullet hole that would

indicate age. The police officers’ testimony as to the angles at which the bullets struck the

truck also corroborate Baker’s testimony that when Clark fired the gun, he was to the right

of the truck, on the passenger side. Detective Via said that the angles suggest that the

gun was fired on the passenger side. He said that the penetrating strike entered at “a

slight angle, fired from, more over to the left.” (Tr. 139). Officer Fogle testified that the

hood strike “would have been traveling from the front passenger side, or front right side

of the vehicle, towards the driver’s side.” (Id. at 132). The penetrating strike, said Fogle,

“came from generally the same trajectory as the one on the hood.” (Id. at 134). No bullet

casings were found at the scene. But Detective Via testified that if the gun was a revolver,

no casings would have been ejected. And if the gun was semiautomatic, he said, given

Baker’s testimony about the angle that Clark fired the gun and that he fired the gun from

inside his car, the casings could have been ejected into the car. We note too that

Detective Via testified that he had approximately 20 years of police experience and had

investigated over 10,000 individual cases, well over 100 of which involved an individual

being fatally shot inside an automobile.

{¶ 15} Adams testified at trial, and her testimony contradicts Baker’s in many

respects. Adams testified that on the day of the incident she and Clark had returned home

from a camping trip. She said that it was Baker who pulled up alongside her at an

intersection and began screaming and swearing. Adams said that Baker got out of her

truck, walked over to her car, and reached in and grabbed her purse. She was following
 -7-

Baker, said Adams, because she wanted her purse back. When she pulled into the alley

after Baker, Adams said, she saw Baker’s truck stopped at the end. She also saw Clark’s

car, though she did not see Clark at first. Adams testified that she heard no gunshots,

that the shooting did not occur, and that Clark did not have a gun.

{¶ 16} There are at least two plausible explanations for Adams’s claims. One,

based on the sequence of events in Baker’s testimony, it is possible that Clark had already

fired the shots before Adams arrived and that she simply did not see the gun. Or two,

Adams lied. Both women testified that there was bad blood between them. (The reason

why is unclear.) Also, Adams’s testimony shows that she had a strong connection with

Clark. She had just returned from a camping trip with him. He was the father of her son

and her friend and “only family,” (Tr. 181). Also, the house in which Adams and her son

lived belonged to Clark’s brother. She admitted that she lived in the house only because

of her connection with Clark.

{¶ 17} Elaine Huddleston also testified at trial for the defense. She testified that on

May 12, a couple of weeks before the shooting, a woman in a blue truck that Huddleston

had never met before stopped to help her start her vehicle. The woman introduced herself

as “Kimber, or Kimbra.” (Id. at 191). Huddleston testified that while the woman was

working on the vehicle, Huddleston noticed a bullet hole in the woman’s truck in roughly

the same location as the hole that police found in Baker’s truck after her encounter with

Clark. Baker had expressly testified that that the bullet hole was not there before her

encounter with Clark.

{¶ 18} We note that Huddleston’s testimony does not definitively identify the truck

she saw as the truck that Baker was driving during her encounter with Clark. When shown
 -8-

a picture of the bullet hole in Baker’s truck, all that Huddleston could say was that “it very

well could have been this vehicle.” (Id. at 194). She could not identify the make or model.

The most that Huddleston could say about the truck was that it was blue. The testimony

also revealed that Huddleston is Clark’s aunt. And Huddleston testified that she had a

close relationship with Clark, Adams, and their son, who she frequently watched. We note

too that Huddleston admitted that after the first day of trial, when Baker testified, she

spoke to Clark on the phone and that he “mentioned one thing” about Baker’s testimony

and told her to tell Adams, which Huddleston did. (Id. at 196).

{¶ 19} Ultimately, it was entirely within the province of the jury to believe Baker

over Adams and Huddleston. See State v. White, 2d Dist. Montgomery No. 20324, 2005-

Ohio-212, ¶ 69. “The jury is the sole judge of the weight of the evidence and the credibility

of witnesses. It may believe or disbelieve any witness or accept part of what a witness

says and reject the rest. In reaching its verdict, the jury should consider the demeanor of

the witness and the manner in which he testifies, his connection or relationship with the

prosecution or the defendant, and his interest, if any, in the outcome.” State v. Antill, 176

Ohio St. 61, 67, 197 N.E.2d 548 (1964). Accordingly, the jurors were in the best position

to judge Baker’s, Huddleston’s, and Adams’s credibility and determine what testimony

should be given the most weight.

{¶ 20} Clark challenges Baker’s credibility based on her inability to identify which

hand Clark used to fire the gun. At trial, Baker testified she was “not sure” which hand

Clark used. (Tr. 97). She explained that she “didn’t pay no (sic) attention to what hand *

* * the gun was in,” “I just know that he shot the gun.” (Id. at 109-110). On cross-

examination, defense counsel tried to get Baker to say that at the preliminary hearing she
 -9-

had testified that Clark used his left hand. On re-direct, the State had Baker read from the

transcript of that hearing:

Question: “ ‘Which hand did he use to shoot with you at—or at you?’ ” (Id.

at 113).

Answer: “ ‘It looked like his left arm. I don’t know. I’m not sure. I didn’t

honestly—I don’t know.’ ” (Id.)

It appears that Baker simply did not remember in which hand Clark was holding the gun.

Given that a man was blocking her way and pointing and firing a gun at her and her

children, we believe evaluation of Baker’s testimony was for the jury to determine.

{¶ 21} Clark also challenges Baker’s credibility using Officer Olmsted’s testimony.

Olmsted testified that he understood that when Baker saw Clark with the handgun, Clark

was outside of his car. But Olmsted also said that he was “not real sure about the—the

order. If [Clark] was in the car or out of the car when he fired the gun.” (Id. at 121). After

reviewing his report, Olmstead said that the way he worded the event in his report is that

Clark exited his vehicle and then Baker saw the gun in his hand. But Olmstead testified

that he did not go to the scene with Baker and review the sequence of events step-by-

step. Nor did Baker ever review the report for accuracy. “As the finder of fact, the jury was

entitled to reconcile any differences and inconsistencies in the testimony and determine

that the manifest weight of the evidence supported a finding of guilt.” State v. Tyra, 2d

Dist. Montgomery No. 27040, 2017-Ohio-313, ¶ 21, citing State v. DeHass, 10 Ohio St.2d

230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. Upon review of this possible

inconsistency in light of the entire record we cannot say that the jury lost its way and

created a manifest miscarriage of justice.
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{¶ 22} The first assignment of error is overruled.

B. Ineffective assistance of counsel

{¶ 23} The second assignment of error alleges that Clark received ineffective

assistance of counsel.

{¶ 24} “To obtain relief on the basis of ineffective assistance of counsel, the

defendant as a general rule bears the burden to meet two standards. First, the defendant

must show deficient performance—that the attorney’s error was ‘so serious that counsel

was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’

Second, the defendant must show that the attorney’s error ‘prejudiced the defense.’ ”

Weaver v. Massachusetts, __ U.S. __, 137 S.Ct. 1899, 1910, 198 L.Ed.2d 420 (2017),

quoting Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). To show deficient performance, “a defendant must show that counsel’s

representation ‘fell below an objective standard of reasonableness.’ ” Lee v. United

States, __ U.S. __, 137 S.Ct. 1958, 1964, 198 L.Ed.2d 476 (2017), quoting Strickland at

692.

{¶ 25} Clark first argues that trial counsel acted unreasonably by not objecting

when Baker testified that Clark placed a gun through her mail slot. He says that Baker’s

testimony is speculative because she had no personal knowledge that it was Clark who

did it. By rule, “[a] witness may not testify to a matter unless evidence is introduced

sufficient to support a finding that the witness has personal knowledge of the matter.”

Evid.R. 602. Baker had testified that she knew Clark and was familiar with him before the

incident. She had said that there was conflict between her and Clark as a result of

Adams’s relationship with her step-brother. And Baker said that she heard Clark asking,
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“ ‘where’s Beth, where’s Beth’ ” and that she “begged him to leave.” (Tr. 82). This evidence

is sufficient to establish a foundation of personal knowledge of this matter.

{¶ 26} Clark also argues that counsel acted unreasonably by not objecting to

Detective Via’s lay testimony about the bullet strikes on Baker’s truck. Clark contends that

this testimony should not have been allowed without Via being admitted as an expert

witness. But Evid.R. 701 states that “[i]f the witness is not testifying as an expert, the

witness’ testimony 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.”

“Under Evid.R. 701, courts have permitted lay witnesses to express their opinions in

areas in which it would ordinarily be expected that an expert must be qualified

under Evid.R. 702.” State v. Primeau, 8th Dist. Cuyahoga No. 97901, 2012-Ohio-5172, ¶

74, citing State v. McKee, 91 Ohio St.3d 292, 744 N.E.2d 737 (2001). “Appellate courts

have * * * determined that ‘some testimony offered by officers/detectives is lay person

witness testimony even though it is based on the officer/detective’s specialized

knowledge.’ ” State v. Maust, 8th Dist. Cuyahoga No. 103182, 2016-Ohio-3171, ¶ 19,

quoting State v. Johnson, 7th Dist. Jefferson No. 13JE5, 2014-Ohio-1226, ¶ 57. Indeed,

we have found no error in admitting such testimony where an officer was testifying as to

the investigation and the officer’s observations and experience. See State v. Ashe, 2d

Dist. Montgomery No. 26528, 2016-Ohio-136, ¶ 28. In sum, if testimony is based on an

officer’s training and experience, related to the officer’s personal observations during an

investigation, and helpful to determine facts in issue, the testimony may properly be

admitted as lay testimony under Evid.R. 701. See Maust at ¶ 18; State v. Meddock, 2017-
 -12-

Ohio-4414, __ N.E.3d __, ¶ 21 (4th Dist.).

{¶ 27} Here, Detective Via’s testimony was based on his own observations of

Baker’s truck and his training and experience as a detective. He testified that he had been

a police officer for approximately 20 years and a detective since 2002. As a detective, Via

said, he had investigated over 10,000 cases and had investigated well over 100 cases in

which an individual was fatally shot inside an automobile. He also said that he had seen

bullet strikes on other vehicles like those on Baker’s truck. Detective Via’s testimony

satisfies Evid.R. 701 and was admissible. So it was reasonable for defense counsel not

to object.

{¶ 28} The second assignment of error is overruled.

C. Merger

{¶ 29} The third assignment of error alleges that the trial court erred by not merging

the offenses of having weapons under disability with the offenses of felonious assault

under R.C. 2941.25.

{¶ 30} Under R.C. 2941.25, “an accused may be convicted and sentenced for

multiple offenses when ‘(1) the offenses are dissimilar in import or significance—in other

words, each offense caused separate, identifiable harm, (2) the offenses were

committed separately, or (3) the offenses were committed with separate animus or

motivation.’ ” State v. Williams, 148 Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶

18, quoting State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 25. The

defendant must prove entitlement to merger. State v. Grissom, 2d Dist. Montgomery No.

25750, 2014-Ohio-857, ¶ 44.

{¶ 31} We have said that to prove that the offenses of felonious assault and having
 -13-

weapons under disability merge, the defendant must show that he acquired the weapon

with an immediate, virtually simultaneous intent to fire it at the victim and had no other

reason for possessing the weapon. Id. Here, the evidence shows only that Clark acquired

the gun some time before shooting it at Baker. There is no evidence that Clark acquired

the gun with an immediate intent to shoot it at Baker and that he had no other reason for

acquiring it. So it can only be concluded that Clark’s choice to possess the handgun while

under disability was separate and distinct from his choice to fire it at Baker and the

children, and therefore the offenses do not merge.

{¶ 32} The third assignment of error is overruled.

D. Consecutive-sentence factors

{¶ 33} The fourth assignment of error alleges that the trial court erred by failing to

consider the statutory consecutive-sentence factors. Clark argues that the trial court has

not shown that it considered the factors in R.C. 2929.14, because the court does not state

in the termination entry that it considered the statute.

{¶ 34} R.C. 2929.14 states that the court may require an offender to serve

consecutive sentences “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,” R.C. 2929.14(C)(4), and the court finds that

“[a]t 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
 -14-

conduct,” R.C. 2929.14(C)(4)(b).

{¶ 35} The termination entry here contains this paragraph stating the trial court’s

findings with respect to consecutive sentences:

Consecutive sentence finding: consecutive sentences are necessary to

punish the defendant. Consecutive sentences are not disproportionate to

the seriousness of defendant’s conduct and to the danger defendant poses

to the public. Consecutive sentences are necessary as the harm the

defendant’s conduct caused is so great a single sentence will not represent

the seriousness of defendant’s conduct.

As for what happened at the sentencing hearing, we don’t know, because no transcript of

the hearing was submitted for the record. (The praecipe for transcript requests a transcript

of only the “[j]ury trial.”) In the absence of a sentencing-hearing transcript, we must

presume the regularity of that proceeding. See State v. Rice, 2d Dist. Montgomery No.

27045, 2017-Ohio-122, ¶ 16 (“In the absence of a plea hearing transcript, we must

presume the regularity of the proceedings below.”).

{¶ 36} “[A] word-for-word recitation of the language of the statute is not required,

and as 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.” State v. Bonnell, 140 Ohio St.3d 209, 2014-

Ohio-3177, 16 N.E.3d 659, ¶ 29. Given the presumption that all was well at the sentencing

hearing and the statements in the termination entry, we conclude that the trial court

properly considered the consecutive-sentence factors. The evidence in the record

supports the trial court’s consecutive-sentence findings.
 -15-

{¶ 37} The fourth assignment of error is overruled.

E. Witness impeachment

{¶ 38} The fifth assignment of error alleges that the trial court erred by not

permitting defense counsel to impeach Baker with testimony from Officer Olmsted about

a statement that she made to him that is inconsistent with her trial testimony.

{¶ 39} Evid.R. 613(B) governs the admission of extrinsic evidence of the prior

inconsistent statement of a witness. The rule states that a foundation must first be

established by (1) presenting the witness with the prior statement; (2) asking the witness

whether she made the statement; (3) giving the witness an opportunity to admit, deny, or

explain the statement; and (4) giving the opposing party an opportunity to question the

witness on the inconsistent statement. State v. Richardson, 2d Dist. Montgomery No.

26649, 2016-Ohio-8081, ¶ 51. This foundation may be established through direct or

cross-examination. Id.

{¶ 40} After Baker had testified, Officer Olmsted took the stand. During cross-

examination, defense counsel asked him about statements that Baker had made to him

as to Clark’s location when he fired the gun. Olmsted testified that, according to his report,

Baker had told him that Clark had gotten out of his car before firing. This contradicts

Baker’s trial testimony that Clark had fired the gun from inside his car. Before defense

counsel got any further, the State objected to the attempt to impeach Baker, and the trial

court sustained the objection.

{¶ 41} There can be no dispute here that a proper impeachment foundation was

not established. Baker was never given an opportunity to admit, deny, or explain her prior

statement to Officer Olmsted, because neither the State nor defense counsel specifically
 -16-

asked Baker about what she had told Olmsted on this matter. What Clark argues, though,

is that the State waived the right to assert that Baker was never given the opportunity to

explain her statement. Clark says that the State knew that Officer Olmsted’s police report

contained Baker’s inconsistent statement, so on direct examination the State could have

given her the opportunity to explain. The State, says Clark, simply chose not to ask.

{¶ 42} Clark cites no legal authority for his waiver proposition, and we are not

inclined to endorse it. Clark seems to ignore that he too knew about the inconsistent

statement in Olmsted’s report and that he could have asked Baker about it during cross-

examination. “Absent an error of law, the admission or exclusion of evidence is a matter

committed to the discretion of the trial court, and its decision regarding the admission and

exclusion of evidence will not be reversed absent a demonstration of an abuse of that

discretion.” (Citation omitted.) State v. Ashe, 2d Dist. Montgomery No. 26528, 2016-Ohio-

136, ¶ 24. The trial court here did not abuse its discretion.

{¶ 43} The fifth assignment of error is overruled.

F. Continuance

{¶ 44} The sixth assignment of error alleges that the trial court erred by not

granting Clark a continuance for his attorney to review the entirety of four hours of

recordings of Clark’s telephone conversations that he had while he was in jail that the

State provided to the defense after the State had rested its case-in-chief. The record

reflects that the State had played for defense counsel the portions of the recordings they

might use for purposes of impeachment. Appellate counsel argues that the other portions

of the recordings could contain “possible exculpatory evidence.” Brief of Appellant at 14.

{¶ 45} A determination of whether to grant or to deny a continuance is a matter left
 -17-

to the sound discretion of the trial court, and an appellate court may not disturb the trial

court’s ruling absent an abuse of discretion. State v. Unger, 67 Ohio St.2d 65, 67, 423

N.E.2d 1078 (1981). In exercising its discretion, the court should consider “the length of

the delay requested; whether other continuances have been requested and received; the

inconvenience to litigants, witnesses, opposing counsel and the court; whether the

requested delay is for legitimate reasons or whether it is dilatory, purposeful, or contrived;

whether the defendant contributed to the circumstance which g[a]ve rise to the request

for a continuance; and other relevant factors, depending on the unique facts of each

case.” (Citation omitted.) State v. Bocock, 2d Dist. Montgomery No. 22481, 2008-Ohio-

5641, ¶ 23.

{¶ 46} Clark argues that defense counsel had not been provided a recording of

these jail calls before the trial and never had the opportunity to listen to them.

Consequently Clark says that counsel never had the chance to listen to the other parts to

see if they contained anything potentially exculpatory. When the motion was made, the

State had rested its case and the defense had yet to begin, and granting a short delay to

allow defense counsel to listen to the recordings, says Clark, would not have caused a

severe delay of the trial. The State responds that it had provided counsel with the parts

that it intended to play at trial and that the rest was not relevant and was not used.

{¶ 47} The only jail call referred to at trial by the State was during its cross-

examination of Huddleston and concerned a telephone conversation that she had had

with Clark after the first day of trial discussing that day’s testimony. None of the jail calls

were actually played during the trial. But perhaps most interesting is the reason that the

State had not discovered the calls sooner. According to the State, it only found the calls
 -18-

when it later searched the jail’s phone records for particular phone numbers. The calls

did not show up when the State earlier searched the records using Clark’s name because

Clark had used another inmate’s name to make the calls. Indeed, in the calls, the State

said, Clark admits that he did this intentionally in an effort to hide evidence from the State.

{¶ 48} We cannot say that the trial court abused its discretion by denying Clark a

continuance. And even if the court did err, Clark fails to show prejudice. He does not say

what the recordings contain, let alone that they contain evidence that would have

exonerated him. Moreover, Clark was a party to the conversations and would already

have knowledge of what was said. Finally, if any of Clark’s own statements during the

phone conversions were potentially exculpatory, they would be inadmissible under

Evid.R. 802. State v. Beeson, 2d Dist. Montgomery No. 19312, 2002–Ohio–4341, ¶ 56

(“Defendant's out-of-court exculpatory statement that he sought to introduce through the

testimony of other witnesses was clearly offered to prove the truth of the matter asserted

* * * and constitutes hearsay .”).

{¶ 49} The sixth assignment of error is overruled.

III. Conclusion

{¶ 50} We have overruled all of the assignments of error presented. The trial

court’s judgment is therefore affirmed.

.............

WELBAUM, J., concurs.

DONOVAN, J., concurring in part and dissenting in part:

{¶ 51} In my view the language of the judgment entry of conviction is deficient. It

lacks a finding pursuant to R.C. 2929.14(C)(4) that “at least two of the multiple offenses
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were committed as part of one or more courses of conduct.” This lack of course of

conduct language, in my view, and the actual wording of the judgment entry, undermines

any presumption of regularity. Thus, we have a dilemma on this record. Normally, a

nunc pro tunc order would apply to reflect what actually occurred in open court. See

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659. Because I cannot

say what actually occurred, I would order the sentencing transcript be prepared before

either remanding for a nunc pro tunc order, or reversing for lack of both oral findings and

a sufficient judgment entry.

Copies mailed to:

Mathias H. Heck
Heather N. Jans
Travis Kane
Hon. Gregory F. Singer