State v. Rulong

[Cite as State v. Rulong, 2020-Ohio-4022.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

TRUMBULL COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2019-T-0055
- vs - :

RYAN NEIL RULONG, :

Defendant-Appellant. :

Criminal Appeal from the Trumbull County Court of Common Pleas.
Case No. 2019 CR 00431.

Judgment: Affirmed.

Dennis Watkins, Trumbull County Prosecutor, and Ashleigh Musick, Assistant
Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH
44481-1092 (For Plaintiff-Appellee).

Michael A. Scala, 244 Seneca Avenue, N.E., P.O. Box 4306, Warren, OH 44482 (For
Defendant-Appellant).

TIMOTHY P. CANNON, P.J.

{¶1} Appellant, Ryan Neil Rulong, appeals from the judgment entry of sentence

issued by the Trumbull County Court of Common Pleas on August 2, 2019. The trial

court sentenced appellant to an indefinite prison term of 39 to 40 and one-half years for

offenses and specifications that stemmed from a drive-by shooting of an occupied bar

and an armed robbery of a gas station. Finding his arguments on appeal without merit,

the judgment is affirmed.
 Procedural History

{¶2} On May 23, 2019, the Trumbull County Grand Jury presented a

seventeen-count indictment against appellant, to wit:

Counts One through Eight: Attempted Murder (F1), in violation of
R.C. 2923.02(A)&(E)(1) and 2903.02(A)&(D), each count carrying
two firearm specifications under R.C. 2941.145 and 2941.146;

Counts Nine through Sixteen: Felonious Assault (F2), in violation of
R.C. 2903.11(A)(2)&(D)(1)(a), each count carrying two firearm
specifications under R.C. 2941.145 and 2941.146;

Count Seventeen: Aggravated Robbery (F1), in violation of R.C.
2911.01(A)(1)&(C), with one firearm specification under R.C.
2941.145.

At arraignment, bond was set at $750,000.00 cash or surety.

{¶3} Counts One through Sixteen stem from a drive-by shooting of the

occupied University at Larchmont bar in the city of Warren on May 10, 2019. Count

Seventeen stems from an armed robbery of the True North gas station in Howland

Township that occurred four days later, on May 14, 2019. Following his arrest,

appellant was Mirandized and eventually admitted to police that he was involved in both

incidents.

{¶4} A jury trial was scheduled for July 15, 2019.

{¶5} At a pre-trial held June 27, 2019, appellant orally moved for a

continuance. The prosecution indicated the trial must be had by August 10, 2019,

pursuant to appellant’s statutory right to a speedy trial. The trial court granted a

continuance within that time frame.

{¶6} Trial was rescheduled for July 29, 2019. The trial court stated, “[t]hat date

will be set in stone, counsel. That will not be continued for any reason.”

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 {¶7} On July 16, 2019, appellant filed a motion for relief from prejudicial joinder.

Specifically, appellant requested a separate trial for Count Seventeen, the Aggravated

Robbery charge. The state filed a response in opposition to the request for a separate

trial. Appellant also filed a motion for competency exam, requesting evaluation of his

competency to stand trial.

{¶8} A motion hearing was held July 18, 2019. Defense counsel orally moved

for another continuance of trial on the basis that the prosecutor had turned over

additional discovery the day prior. The trial court denied all three motions.

{¶9} The trial court issued a judgment entry to this effect on July 23, 2019. The

court found “no prejudice to the Defendant in trying all counts in the same jury trial”

because he “was indicted in one indictment, used the same gun in both crimes,

evidence from both crimes were found at the same time, has the same officers involved

in both cases, has common facts to both events and the events were close enough

together in time[.]”

{¶10} Further, the trial court found “no sufficient indicia of incompetency to justify

the ordering of a competency evaluation.” “Despite the Defendant’s mental illness

diagnoses,” the court stated, “nothing about his courtroom demeanor or ability to

participate in the trial raised sufficient doubt regarding his ability to understand the

proceedings or assist with his own defense.”

{¶11} Finally, the trial court found “no good cause exists to continue the matter,

which had already been continued from July 15, 2019,” because “[t]he additional

discovery consists of pictures and videos and poses no additional burden in preparing

for trial.”

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 {¶12} Defense counsel submitted Proposed Jury Instructions, on which the trial

court reserved its ruling until trial. The trial court ordered the matter to proceed to trial

without delay.

{¶13} On July 29, 2019, the morning of trial, the state filed a motion to amend

the indictment pursuant to Crim.R. 7(D), submitting that Counts One through Eight of

the indictment should not have included the mens rea of “knowingly” for Attempted

Murder. Defense counsel did not object. The motion was granted, and the indictment

was amended to reflect the mens rea of “purposely.”

{¶14} Defense counsel again orally moved for a continuance, which the trial

court overruled. The matter proceeded to trial, where the following testimony was

adduced. Surveillance video was also submitted to the court and viewed by the jury.

Testimony

{¶15} On Friday evening, May 10, 2019, appellant was patronizing the University

at Larchmont Bar (“the UAL”) located at 1706 Larchmont Avenue in the city of Warren,

Ohio. The bar was busy. Richard Rolfe, a co-owner of the UAL, told appellant to

remove his feet from two bar stools. Appellant had a few drinks and then went outside

to the patio.

{¶16} Two men were smoking on the patio. Appellant attempted to jump the

fence but tripped and fell on his face. Appellant began to walk away with his beer, but

one of the men told appellant he could not take his beer out of the fenced area.

Appellant smashed his beer bottle on the ground as he walked across the street, and

words were exchanged. The man told appellant to clean it up, appellant refused, and

the man told appellant to leave and not come back. Appellant left and walked to a

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nearby residence. The two men later saw appellant drive past the UAL in an old white

Ford truck.

{¶17} Sometime just before 10:00 p.m., several bullets were fired into the bar.

Three women who were smoking outside on the patio saw a white truck outside the bar

when the gun shots started. The door to the bar was shattered. One patron was hit

with something on the side of his head, his eye filled with blood, and he fell to the floor.

The three women ran inside from the patio. A short time later, several more bullets

were fired into the bar. Two other patrons were struck with shrapnel, debris, and glass.

{¶18} The detectives dispatched to the scene found three projectiles that night:

one underneath a bar stool, one in the exterior west wall of the bar, and one outside in

the street. The bar owner later turned in a fourth projectile he had found on the patio.

{¶19} Detective Laprocina testified that at least eight projectiles were fired into

the bar. At least one bullet went through the front window, three were found in the

masonry, at least three were stuck in the front door or framing, and two struck near a

window of a second story apartment.

{¶20} The following morning, the bar owner found more bullet impacts on the

north and south sides of the building. He testified that at least thirteen projectiles had

been fired at the bar.

{¶21} Detective Marsico reviewed the bar’s surveillance video and determined to

which residence appellant walked when he left the bar earlier that evening. The

detective drove past the residence and saw a white pickup truck in the driveway that

matched the description of the vehicle seen at the time of the shooting. Appellant was

not arrested at that time.

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 {¶22} Four days later, on May 14, 2019, the True North gas station located on

East Market Street in Howland Township, Ohio, was robbed at gunpoint. A man

entered the station wearing a hooded sweatshirt, mask, and dark goggles. He pointed a

firearm at the clerk and ordered her to “give me everything you have.” The man left with

the cash from the drawer, approximately $192.00, and fled in a truck.

{¶23} An employee and a customer called 911. Two customers identified

appellant’s vehicle as the truck involved in the robbery. One stated it was a white Ford

F-150 pickup truck with blue duct tape covering the license plates. The other described

the truck as white with multi-colored spray paint.

{¶24} Officer Bowker headed toward the gas station and observed a vehicle

matching the description—an old Ford F-150 with orange and black paint and purple

duct tape covering the license plate. The officer initiated a traffic stop. When additional

officers arrived, appellant was taken into custody without incident. Officer Bowker

observed, in plain view inside the vehicle, the handle of a firearm, a ski mask, a pair of

gloves, and a bag consistent with a description of the one used during the robbery.

{¶25} Detective Sean Stephens, who reported to the gas station, indicated

appellant matched descriptions of the individual involved in the robbery as well as a

photograph recovered from the gas station’s surveillance video.

{¶26} The firearm recovered from appellant’s vehicle was a Sturm Ruger P90

.45 caliber semiautomatic handgun. Inside appellant’s pockets at the time of his arrest

were a yellow container with three spent .45 caliber casings and $206.00 in cash.

{¶27} At the police department, appellant waived his Miranda rights and gave a

video and audio recorded statement to a Howland Township detective and a Warren

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City detective. Appellant eventually admitted robbing the True North gas station with an

unloaded gun and shooting at the UAL. He admitted to shooting two loaded magazines

at the bar, each of which held eight projectiles.

{¶28} Detectives obtained a search warrant for an apartment in Girard, where

detectives located a 9mm pistol, a box of ammunition, a magazine, and a barrel

extension. A local pawn broker had sold appellant two firearms on April 19, 2019: a

Masterpiece 9mm pistol and a Ruger Model P90 .45 caliber pistol. The serial numbers

matched the numbers on the firearms recovered from appellant’s vehicle and

apartment.

{¶29} A forensic scientist with BCI determined the projectiles found at the UAL

were fired from both of these firearms. The cartridge casings found in appellant’s

pockets were from the .45 caliber firearm. Another forensic scientist with BCI found

DNA consistent with appellant’s profile on the trigger, handle, magazine, and barrel

extension of the 9mm pistol, with statistical probabilities of 1 in 5 billion and 1 in 5 trillion

random people.

Conviction

{¶30} On July 31, 2019, the jury found appellant guilty of all seventeen counts

and accompanying firearm specifications.

{¶31} Defense counsel filed a sentencing memorandum, providing exhibits to

the trial court in support of mitigation due to appellant’s mental illness diagnoses.

{¶32} A sentencing hearing was held August 2, 2019. The state stipulated that

Counts One through Eight merged with Counts Nine through Sixteen for purposes of

sentencing and elected to proceed on Counts One through Eight and the accompanying

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firearm specifications. The trial court sentenced appellant to a total aggregate prison

term of 39 to 40 and one-half years.

{¶33} The trial court imposed the following sentences on the underlying

offenses:

Count One: indefinite 3 to 4 and one-half years, consecutive to all
other counts;

Counts Two and Three: 3 years on each, consecutive to each other
and to Count One;

Counts Four, Five, Six, Seven, and Eight: 3 years on each,
concurrent to each other and concurrent to all other counts;

Count Seventeen: 3 years, consecutive to all other counts.

{¶34} Counts One through Eight each had two firearm specifications. The trial

court sentenced appellant to 3 years mandatory for the first specification on each count

and 5 years mandatory for the second specification on each count. The trial court found

that Counts One, Two, and Three involved three different victims and were committed

with a separate animus. Thus, the sentences imposed on the specifications for Counts

One, Two, and Three were ordered to be served consecutively to each other and prior

to the sentences imposed on the underlying offenses. The sentences imposed on the

specifications for Counts Four, Five, Six, Seven, and Eight were ordered to be served

concurrently to each other and concurrently to the other specifications.

{¶35} Count Seventeen had one firearm specification. The trial court sentenced

appellant to 3 years mandatory for the specification, to be served consecutively to the

terms imposed on all other specifications. These specification sentences amount to an

aggregate 27 years mandatory, to be served consecutively and prior to the sentences

imposed on the underlying offenses.

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 {¶36} The trial court’s entry on sentence was issued August 19, 2019.

Assignments of Error

{¶37} Appellant noticed this appeal and raises seven assignments of error for

our review:

[1.] The Trial Court erred, to the detriment of Appellant, by failing to
grant Appellant reasonable time to prepare for trial.

[2.] The Trial Court erred, to the detriment of Appellant, by failing to
give Appellant a competency exam.

[3.] The Trial Court erred, to the detriment of Appellant, by finding a
separate animus for three sets of gun specifications instead of one
total set.

[4.] The Trial Court erred, to the detriment of Appellant, by
“stacking” the 5 year prison term gun specification for shooting from
a motor vehicle to the 3 year prison term for the use of a gun in a
crime.

[5.] The Trial Court erred, to the detriment of Appellant, by making
the 17 counts consecutive and given [sic] the maximum sentence to
Count 17.

[6.] The Trial Court erred, to the detriment of Appellant, by failing to
give a directed verdict of acquittal for Counts 1 – 7 Attempted
Murder.

[7.] The Trial Court erred, to the detriment of Appellant, by failing to
give the jury an instruction on Negligent Assault (O.R.C. 2903.14).

Pre-Trial

Motion to Continue Trial

{¶38} Under his first assigned error, appellant argues the trial court erred by

denying him a continuance of trial, thereby depriving defense counsel of a reasonable

amount of time to prepare.

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 {¶39} “The grant or denial of a continuance is a matter which is entrusted to the

broad, sound discretion of the trial judge. An appellate court must not reverse the

denial of a continuance unless there has been an abuse of discretion.” State v. Unger,

67 Ohio St.2d 65, 67 (1981) (citations omitted).

{¶40} “‘There are no mechanical tests for deciding when a denial of a

continuance is so arbitrary as to violate due process. The answer must be found in the

circumstances present in every case, particularly in the reasons presented to the trial

judge at the time the request is denied.’” Id., quoting Ungar v. Sarafite, 376 U.S. 575,

589 (1964). “In determining whether the trial court abused its discretion, a reviewing

court must weigh the potential prejudice to the defendant against the trial court’s right to

control its own docket and the public’s interest in the prompt and efficient dispatch of

justice.” State v. McDade, 11th Dist. Lake No. 97-L-059, 1998 WL 682360, *7 (Sept.

25, 1998), citing State v. Powell, 49 Ohio St.3d 255, 259 (1990).

{¶41} Appellant contends the trial court’s refusal to grant additional time for trial

preparation was an abuse of discretion due to the gravity and number of charges

against him, appellant’s mental health, and the fact that the state released discovery

over time. Appellant contends on appeal that he offered to waive his right to a speedy

trial in order to accommodate his requests, but there is no indication in the record that

he ever waived or offered to waive this right. In fact, it appears from the following

colloquy at the close of all evidence that such a waiver was never offered:

[DEFENSE COUNSEL]: Your Honor, also, I would like the Court to
take judicial notice of the date of the indictment, May 23rd, I would
like to use that in my closing.

THE COURT: The date of the indictment? * * * For what purpose?

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 [DEFENSE COUNSEL]: To show the haste involved in this matter.

THE COURT: Denied. Your client has a right to speedy trial. He
did not waive. He had to be tried within 90 days of being arrested,
which would have expired in a couple weeks. And the Court
accommodated a speedy schedule. You’re instructed – you’re not
allowed to make any argument on how fast this thing came to trial
because that’s as a result of you and your client, nobody else.

[DEFENSE COUNSEL]: Thank you.

{¶42} “It is a basic due process right and indeed essential to a fair trial that a

defense counsel be afforded the reasonable opportunity to prepare his case.” State v.

Sowders, 4 Ohio St.3d 143, 144 (1983) (citations omitted). However, jailed defendants

also have a statutory right to be brought to trial within 90 days of arrest. R.C.

2945.71(C)(2)&(E).

{¶43} Trial was set for the latest available date on the court’s docket prior to the

speedy trial clock running out. Because appellant did not waive his right to a speedy

trial, preparation for trial was necessarily hastened for both the defense and the

prosecution. We have not been given any reason to conclude, however, that appellant

was prejudiced by the court’s refusal to continue the trial date. Nothing in the record

indicates the trial court’s decision was made arbitrarily, unreasonably, or

unconscionably.

{¶44} Appellant’s first assignment of error is without merit.

Motion for Competency Evaluation

{¶45} Under his second assigned error, appellant argues the trial court erred by

denying his request for a competency evaluation and by failing to hold a competency

hearing before doing so.

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 {¶46} “A defendant is presumed to be competent to stand trial.” R.C.

2945.37(G). The court must find by a preponderance of the evidence that the

defendant is incompetent to stand trial. Id. The test for incompetency to stand trial is

whether, “because of the defendant’s present mental condition, the defendant is

incapable of understanding the nature and objective of the proceedings against the

defendant or of assisting in the defendant’s defense[.]” Id.

{¶47} A defendant has a fundamental due process right not to be tried or

convicted while incompetent. State v. Were, 94 Ohio St.3d 173, 174 (2002). In Ohio,

this right is protected by R.C. 2945.37. When the issue of defendant’s competence to

stand trial is raised before the trial has commenced, “the court shall hold a hearing on

the issue.” R.C. 2945.37(B) (emphasis added). At the hearing, “[t]he prosecutor and

defense counsel may submit evidence on the issue of the defendant’s competence to

stand trial.” R.C. 2945.37(E).

{¶48} “Thus, there is no question that where the issue of the defendant’s

competency to stand trial is raised prior to the trial, a competency hearing is

mandatory.” State v. Bock, 28 Ohio St.3d 108, 109 (1986). Nevertheless, “the failure to

hold a mandatory competency hearing is harmless error where the record fails to reveal

sufficient indicia of incompetency.” Id. at 110, following Pate v. Robinson, 383 U.S. 375

(1966) and Drope v. Missouri, 420 U.S. 162 (1975). Accord State v. Hackathorn, 11th

Dist. Ashtabula No. 2004-A-0008, 2004-Ohio-6694, ¶29, and State v. Bekesz, 75 Ohio

App.3d 436, 441 (11th Dist.1991).

{¶49} On July 16, 2019, defense counsel filed a Motion for Competency Exam.

In support, counsel stated that appellant has been on medication since he was a child

12
for “severe and persistent mental illness” and attached a summary outlining appellant’s

diagnosis of schizoaffective disorder, bipolar type, which causes him to have

depression, anxiety, panic attacks, auditory hallucinations, and paranoia. Counsel

further stated these issues persist and that the jail medical staff had altered appellant’s

medication in kind and dosage. Counsel indicated he had seen a continuous decline in

appellant’s overall mental state, which he felt jeopardized his ability to defend

appellant’s case.

{¶50} On July 18, 2019, a motion hearing was held, at which the Motion for

Competency Exam was discussed. The trial court heard from defense counsel and

engaged in a lengthy colloquy with appellant.

{¶51} Appellant contends this hearing was not in compliance with the statute

and that the trial court merely conducted its own inquiry with mostly leading questions.

He argues the statute requires the court to hold an “actual hearing on the matter, not

simply respond to the motion that was filed, as the court did in this case without an

actual hearing upon proper notice to the appellant.”

{¶52} We disagree and conclude that the trial court did comply with the statute.

Appellant was provided notice of the July 18, 2019 motion hearing, which was held two

days after he filed the request for a competency exam. Appellant was represented by

counsel, who did not raise an objection or request a separate hearing at that time. The

trial court did not prevent any evidence or argument concerning the issue of

competency. It has been held, in fact, that the language of R.C. 2945.37 does not

prohibit a competency hearing from occurring even on the same day as or immediately

following an oral request for a competency evaluation. See State v. Austin, 7th Dist.

13
Mahoning No. 09MA167, 2010-Ohio-6583, ¶34 (“There is nothing in the statute which

could be read to indicate that if a competency hearing is requested, that hearing cannot

occur on the same day as the request.”); State v. Scott, 8th Dist. Cuyahoga No. 100980,

2014-Ohio-4925, ¶30-31 (“immediately after the request for [a competency hearing] was

made, the trial court provided its analysis and made a finding that the defendant was

competent to stand trial”); State v. Smith, 9th Dist. Summit No. 27389, 2015-Ohio-2842,

¶13-14 (“The fact that [the defendant] did not attempt to introduce any evidence in

support of his contention that he was incompetent to stand trial does not mean that he

was precluded from doing so.”).

{¶53} The trial court determined at this hearing that appellant was competent to

stand trial because he was clearly able to understand and said he would cooperate with

his attorney. The court acknowledged appellant’s mental illness diagnosis but stated

that does not necessarily mean he is incompetent to stand trial. The court did not hear

one thing during the colloquy that gave any indication appellant was incompetent to

stand trial.

{¶54} Thus, the trial court denied the request for a competency evaluation,

which was a decision within its discretion. See R.C. 2945.371(A); Smith, supra, at ¶10;

and Scott, supra, at ¶27. We find no basis upon which to conclude the trial court

abused its discretion in this regard.

{¶55} “We must give deference on these issues to those ‘who see and hear

what goes on in the courtroom.’” State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164,

¶62, quoting State v. Cowans, 87 Ohio St.3d 68, 84 (1999). “A defendant may be

emotionally disturbed or even psychotic and still be capable of understanding the

14
charges against him and of assisting his counsel.” Bock, supra, at 110; see also

R.C.2945.37(F). Nothing in the record indicates otherwise.

{¶56} Appellant’s second assignment of error is without merit.

Trial

Motion for Acquittal

{¶57} Under his sixth assigned error, appellant argues the trial court erred in

denying his Crim.R. 29 motion for judgment of acquittal as to each count of Attempted

Murder.

{¶58} “The court on motion of a defendant or on its own motion, after the

evidence on either side is closed, shall order the entry of a judgment of acquittal of one

or more offenses charged in the indictment, information, or complaint, if the evidence is

insufficient to sustain a conviction of such offense or offenses.” Crim.R. 29(A).

{¶59} Crim.R. 29(A) requires the trial court to grant a motion for judgment of

acquittal if the evidence is insufficient to sustain a conviction on the charged offense(s).

“Thus, when an appellant makes a Crim.R. 29 motion, he or she is challenging the

sufficiency of the evidence introduced by the state.” State v. Patrick, 11th Dist. Trumbull

Nos. 2003-T-0166 & 2003-T-0167, 2004-Ohio-6688, ¶18.

{¶60} “With respect to sufficiency of the evidence, ‘“sufficiency” is a term of art

meaning that legal standard which is applied to determine whether the case may go to

the jury or whether the evidence is legally sufficient to support the jury verdict as a

matter of law.’” State v. Thompkins, 78 Ohio St.3d 380, 386 (1997), quoting Black’s

Law Dictionary 1433 (6th Ed.1990). “In essence, sufficiency is a test of adequacy.

Whether the evidence is legally sufficient to sustain a verdict is a question of law. In

15
addition, a conviction based on legally insufficient evidence constitutes a denial of due

process.” Id. at 386-387, citing State v. Robinson, 162 Ohio St. 486 (1955) and Tibbs v.

Florida, 457 U.S. 31, 45 (1982). We review whether the evidence is legally sufficient to

sustain a verdict de novo. Id. at 386.

{¶61} Appellant was charged with and convicted of eight counts of Attempted

Murder. In order to prove appellant was guilty of Attempted Murder, the state had to

prove beyond a reasonable doubt that appellant engaged in conduct that, if successful,

would result in purposely causing the death of another. R.C. 2923.02(A) & 2903.02(A);

State v. Williams, 124 Ohio St.3d 381, 2010-Ohio-147, ¶23.

{¶62} Appellant first argues there was insufficient evidence to prove that he

acted “purposely” because he could not see inside the bar from the street and had no

knowledge of who was or was not in the bar at the time of the shooting.

{¶63} “A person acts purposely when it is the person’s specific intention to cause

a certain result, or, when the gist of the offense is a prohibition against conduct of a

certain nature, regardless of what the offender intends to accomplish thereby, it is the

offender’s specific intention to engage in conduct of that nature.” R.C. 2901.22(A). “‘It

is a fundamental principle that a person is presumed to intend the natural, reasonable

and probable consequences of his voluntary acts.’” State v. Conway, 108 Ohio St.3d

214, 2006-Ohio-791, ¶143, quoting State v. Johnson, 56 Ohio St.2d 35, 39 (1978).

{¶64} Thus, “[t]he element of purpose required by R.C. 2903.02 may be

presumed where the natural and probable consequences of a wrongful act are to

produce death.” State v. Shue, 97 Ohio App.3d 459, 466 (9th Dist.1994), citing State v.

Robinson, 161 Ohio St. 213 (1954), paragraph five of the syllabus. A specific intent to

16
commit murder may reasonably be inferred from “the fact that a firearm is an inherently

dangerous instrumentality, the use of which is reasonably likely to produce death[.]”

State v. Widner, 69 Ohio St.2d 267, 270 (1982) (citation omitted).

{¶65} Here, appellant admitted to the police that he had been in the bar earlier

that evening and that when he returned in his truck, he fired multiple bullets into a bar

he knew to be open and occupied. He also knew there were patrons outside on the

patio. Appellant drove past the bar, shooting two waves of bullets from two different

firearms. Because death was a natural and probable consequence of this act, it was

reasonable for the jury to infer an intention to kill. In addition, there was testimony that

most of the bullets were found on the first floor of the building, where the bar was

located. Thus, the evidence was sufficient to allow a rational trier of fact to conclude

beyond a reasonable doubt that appellant attempted to purposely cause the death of

another.

{¶66} Appellant next argues there was insufficient evidence to support eight

counts of Attempted Murder. This argument is also not well taken. Detective Laprocina

testified that at least eight projectiles were fired into the UAL—seven impacted the front

of the building, at a reasonable level for someone or something to be hit. The morning

after the incident, more bullet impacts were discovered. The UAL’s co-owner testified

that at least one projectile went through the front window of the bar, three were found in

the masonry, two struck near a window of the second story apartment, and at least

three more were stuck in the door or door frame. Based on this testimony, there was

sufficient evidence for the jury to find appellant guilty of eight counts of Attempted

Murder.

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 {¶67} The trial court did not err by denying appellant’s Crim.R. 29 motion for

judgment of acquittal on the Attempted Murder charges.

{¶68} Appellant’s sixth assignment of error is without merit.

Jury Instructions

{¶69} Under his seventh assigned error, appellant argues the trial court erred by

denying his request for a jury instruction on a lesser included offense. His assignment

of error identifies this request as one for “reckless assault,” while his argument identifies

the request as one for “negligent assault.” Appellant never requested an instruction for

either reckless or negligent assault. The reference to the docket in his appellate brief

points us to his Proposed Jury Instructions filed prior to trial. In this document, appellant

proposed an instruction for “attempted reckless homicide.”

{¶70} At a pre-trial motion hearing, the trial court reserved its ruling on

appellant’s requested jury instruction until trial. Appellant renewed the request at the

close of all evidence. The trial court denied the instruction.

{¶71} “The trial court must give an instruction on a lesser included offense if

under any reasonable view of the evidence it is possible for the trier of fact to find the

defendant not guilty of the greater offense and guilty of the lesser offense.” State v.

Wine, 140 Ohio St.3d 409, 2014-Ohio-3948, ¶34 (emphasis added); accord State v.

Shane, 63 Ohio St.3d 630, 632-633 (1992). Instruction on the lesser offense is required

where the evidence presented at trial could “‘reasonably support both an acquittal on

the crime charged and a conviction upon the lesser included offense.’” Id. at ¶21,

quoting State v. Thomas, 40 Ohio St.3d 213 (1988), paragraph two of the syllabus

(emphasis added). “‘[T]he trial court must view the evidence in the light most favorable

18
to the defendant.’” Id., quoting State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282,

¶37.

{¶72} Because the trial court engages in an analysis of the sufficiency of the

evidence, we review the trial court’s denial of a requested jury instruction de novo, as a

matter of law, without deference to the trial court. State v. Harper, 11th Dist. Trumbull

No. 2017-T-0096, 2018-Ohio-2581, ¶58.

{¶73} For the trial court to have granted the request for an instruction on

Attempted Reckless Homicide, the evidence must have been sufficient to acquit

appellant of Attempted Murder and sufficient to find appellant engaged in conduct that, if

successful, would have resulted in recklessly causing the death of another. R.C.

2903.041(A); R.C. 2923.02(A).

{¶74} “A person acts recklessly when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk that the

person’s conduct is likely to cause a certain result or is likely to be of a certain nature. A

person is reckless with respect to circumstances when, with heedless indifference to the

consequences, the person disregards a substantial and unjustifiable risk that such

circumstances are likely to exist.” R.C. 2901.22(C).

{¶75} Here, the evidence is insufficient to reasonably support a finding that

appellant acted recklessly, as opposed to purposely. Appellant retrieved two loaded

firearms and drove past the UAL twice while shooting two waves of bullets at the

building. He engaged in this conduct knowing the bar was open and occupied and that

patrons were outside on the patio. It would be unreasonable to conclude that these

actions were merely reckless. Appellant did not disregard a substantial and unjustifiable

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risk, he intentionally engaged in conduct with a deadly weapon, the use of which was

reasonably likely to cause death.

{¶76} The trial court’s decision not to instruct the jury on Attempted Reckless

Homicide was not error.

{¶77} Appellant’s seventh assignment of error is without merit.

Sentencing

Firearm Specifications

{¶78} Appellant’s next arguments relate to the sentences he received for the

firearm specifications on Counts One through Eight. Each count included a firearm

specification under R.C. 2941.145(A), which requires a mandatory 3-year prison term if

the offender displayed, brandished, indicated possession of, or used a firearm while

committing the offense. See R.C. 2929.14(B)(1)(a)(ii). Each count also included a

specification under R.C. 2941.146(A), which requires a mandatory 5-year prison term if

the offender discharged the firearm from a motor vehicle. See R.C. 2929.14(B)(1)(c)(i).

{¶79} The trial court found that Counts One, Two, and Three involved three

different victims and were committed with a separate animus. The court imposed the

mandatory 3-year and 5-year terms for the specifications on each of the three counts,

all to be served consecutively to each other, for a total mandatory prison term of 24

years. The court also imposed the mandatory 3-year and 5-year terms for the

specifications on Counts Four, Five, Six, Seven, and Eight, ordering them to be served

concurrently with each other and concurrently with the specifications on Counts One,

Two, and Three.

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 {¶80} Under his third assigned error, appellant argues the trial court erred by

failing to merge the two specifications on each of Counts One, Two, and Three because

they all occurred from the same act. Under his fourth assigned error, appellant argues

the trial court erred by “stacking” the sentences for the two specifications because they

each occurred with the same animus, which subjected him to double jeopardy.

{¶81} Initially, we note that specifications are penalty enhancements, not

criminal offenses, and therefore are not subject to the same constitutional or statutory

protections against double jeopardy. See State v. McDivitt, 11th Dist. Lake No. 2011-L-

129, 2012-Ohio-2243, ¶63 (“A firearm specification, though requiring a separate finding

from the jury, acts as a sentencing enhancement to a pre-existing offense rather than a

separate, respective offense.”), citing State v. Ford, 128 Ohio St.3d 398, 2011-Ohio-

765, paragraph two of the syllabus (“Penalties for a specification and its predicate

offense do not merge under R.C. 2941.25.”).

{¶82} Pursuant to R.C. 2929.14(B)(1)(b) and (c)(iii), the general rule is that “a

court shall not impose more than one additional prison term on an offender” for either of

the specifications described above “for felonies committed as part of the same act or

transaction.” An exception is noted in these divisions, however, which is found in R.C.

2929.14(B)(1)(g):

If an offender is convicted of * * * two or more felonies, if one or
more of those felonies are * * * attempted murder, aggravated
robbery, [or] felonious assault, * * * 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 * * * and, in its discretion, also may impose on the

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 offender the prison term specified under that division for any or all
of the remaining specifications.

(Emphasis added.)

{¶83} This has been interpreted to mean that in a case such as this—where

appellant was convicted of two or more felonies, including attempted murder and

aggravated robbery—the trial court is required to impose additional prison terms for the

two most serious specifications under division (B)(1)(a) (i.e., under R.C. 2941.145(A)),

and it also has discretion to impose a sentence for any or all other specifications. See,

e.g., State v. Jarmon, 8th Dist. Cuyahoga No. 106727, 2018-Ohio-4710, ¶31; State v.

Coffman, 10th Dist. Franklin No. 09AP-727, 2010-Ohio-1995, ¶11; State v. Ropp, 2d

Dist. Champaign No. 2018-CA-44, 2020-Ohio-824, ¶56-57; State v. Dixson, 1st Dist.

Hamilton No. C-030227, 2004-Ohio-2575, ¶39; State v. Welninski, 6th Dist. Wood Nos.

WD-16-039 & WD-16-040, 2018-Ohio-778, ¶104.

{¶84} Thus, as provided in R.C. 2929.14(B)(1)(g), the trial court was required to

impose additional prison terms on appellant for two of the R.C. 2941.145 specifications,

and it had discretion to impose additional prison terms for all remaining specifications

without the need to consider whether the conduct was part of the same act or

transaction. The trial court did not err, therefore, in failing to merge the specifications

for Counts One, Two, and Three.

{¶85} Further, consecutive sentences are statutorily required in this situation.

Pursuant to R.C. 2929.14(C)(1)(a), if a mandatory prison term is imposed upon an

offender for either a R.C. 2941.145 specification, a R.C. 2941.146 specification, or both,

then “the offender shall serve any mandatory prison term imposed under either division

consecutively to any other mandatory prison term imposed under either division * * *,

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consecutively to and prior to any prison term imposed for the underlying felony * * *, and

consecutively to any other prison term or mandatory prison term previously or

subsequently imposed upon the offender.”

{¶86} Thus, the trial court was statutorily mandated to impose the sentences for

these firearm specifications to be served consecutively to each other and to the

underlying offense—or, as appellant describes it, the trial court was required to “stack”

these sentences. See State v. Fant, 7th Dist. Mahoning No. 14 MA 0067, 2016-Ohio-

7429, ¶58; State v. Bass, 10th Dist. Franklin Nos. 14AP-992 & 14AP-993, 2015-Ohio-

3979, ¶22-23; State v. Hill, 5th Dist. Stark No. 2017CA00183, 2018-Ohio-3901, ¶45-47.

{¶87} Appellant’s double jeopardy argument is not well taken. The trial court did

not err by failing to merge the specifications or by imposing consecutive sentences for

the specifications.

{¶88} Appellant’s third and fourth assignments of error are without merit.

Underlying Offenses

{¶89} Finally, under his fifth assigned error, appellant argues the trial court erred

by imposing consecutive sentences.

{¶90} The imposition of consecutive sentences is governed by R.C.

2929.14(C)(4):

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:

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 (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.

{¶91} An appellate court may increase, reduce, or otherwise modify a felony

sentence or may vacate the felony sentence and remand the matter to the sentencing

court for resentencing if it clearly and convincingly finds that the record does not support

the sentencing court’s findings under R.C. 2929.14(C)(4). R.C. 2953.08(G)(2)(a).

{¶92} At appellant’s sentencing hearing, the trial court made the following

findings:

The Court further finds pursuant to 292[9].14 of the Revised Code
that consecutive sentences are necessary to protect the public from
future crime by the Defendant, and consecutive sentences are
necessary to punish the Defendant. Consecutive sentences are
not disproportionate to the seriousness of the Defendant’s conduct
and the clear danger the Defendant poses to the public.

At least two of the offenses were committed as part of one or more
courses of conduct. The harm caused by the multiple offenses was
so serious that no single prison term for any of the offenses
committed adequately reflects the seriousness of the Defendant’s
criminal conduct.

The Defendant’s criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from future crime
committed by the Defendant.

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These findings were also incorporated into the sentencing entry.

{¶93} Appellant contends the trial court erred because he did not testify at trial

and because a pre-sentence investigation was not ordered. The facts of the incident,

however, speak for themselves. The trial court did not base its decision on a criminal

history, for which a pre-sentence investigation would have been relevant. Rather, the

trial court relied on the harm that was caused by appellant’s criminal conduct in this

matter. The record supports the trial court’s findings. Appellant’s argument is not well

taken.

{¶94} Appellant further argues the trial court erred by relying on R.C. 2929.144

to impose a 13 and one-half years prison term for one count of Aggravated Robbery.

This argument is wholly without merit. The trial court sentenced appellant to a 3-year

prison term for the Aggravated Robbery count. The aggregate prison sentence for all of

appellant’s underlying offenses is an indefinite sentence of no less than 12 years and no

more than 13 and one-half years.

{¶95} Appellant’s fifth assignment of error is without merit.

{¶96} The judgment of the Trumbull County Court of Common Pleas is affirmed.

MATT LYNCH, J.,

MARY JANE TRAPP, J.,

concur.

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