State v. Wimbush

[Cite as State v. Wimbush, 2016-Ohio-7567.]

COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

JUDGES:
STATE OF OHIO : Hon. Sheila G. Farmer,, P.J.
: Hon. W. Scott Gwin, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. 16CA14
THOMAS E. WIMBUSH :
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County
Court of Common Pleas, Case No. 15-CR-
0452

JUDGMENT: Affirmed in part, Reversed in part and
Remanded

DATE OF JUDGMENT ENTRY: October 28, 2016

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

DANIEL ROGERS JEFFEREY STIFFLER
Assistant Prosecuting Attorney 21 North Walnut Street
Richland County Prosecutor’s Office Mansfield, OH 44902
38 S. Park Street
Mansfield, OH 44902
Richland County, Case No. 16CA14 2

Gwin, J.,

{¶1} Appellant, Thomas Wimbush [“Wimbush”] appeals his convictions and

sentences after a jury trial in the Richland County Court of Common Pleas for two counts of

drug trafficking, in violation of R.C. 2925.03(A)(1) &(C)(4)(b), Count One being a felony of

the fourth degree upon the jury’s verdict finding that the offense occurred within the vicinity

of a juvenile, and Count Two being a felony of the fifth degree.

Facts and Procedural History

{¶2} On June 5 2014, Brian Boroski, a confidential informant with Metrich

Enforcement Unit [“MEU”] since 1998, advised MEU detectives that he could execute a

controlled buy of cocaine from Wimbush. Boroski reported to MEU and completed a

controlled phone call with Wimbush. Boroski and Wimbush arranged for Boroski to

purchase cocaine at Church's Chicken at 276 Park Avenue West in Mansfield.

{¶3} Following the controlled phone call, MEU Detective Blust searched

Boroski's person and vehicle and confirmed that Boroski did not possess any contraband.

MEU Detectives equipped Boroski with video and audio recording equipment and

provided Boroski with $100.00 to purchase the drugs.

{¶4} Boroski proceeded to Church's Chicken driving his own vehicle. MEU

Detectives Wheeler and Schivinski following in a second vehicle and MEU Detective Blust

and Sergeant Petrycki followed in a third vehicle. Boroski parked in the parking lot of

Church's Chicken. Detectives Wheeler and Schivinski parked in the parking lot of MVP

Bar and Lounge across from Church's Chicken in order to observe the controlled buy.

Detective Blust and Sergeant Petrycki remained mobile in the area around Church's

Chicken in case of an emergency.
Richland County, Case No. 16CA14 3

{¶5} Boroski made contact with Wimbush, who arrived at Church's Chicken in a

Cadillac. Both Boroski and Detective Wheeler observed a small child sitting in the front

passenger seat of Wimbush’s Cadillac.

{¶6} Wimbush exited the Cadillac and provided Boroski with cocaine wrapped in

cellophane in exchange for $100.00. After a brief discussion regarding the amount and

value of the cocaine, Boroski agreed to owe Wimbush at their next sale.

{¶7} Boroski and the MEU officers returned to MEU. Detective Wheeler de-

activated and removed Boroski's recording equipment. Detective Blust searched

Boroski's person and vehicle and confirmed Boroski did not possess any contraband.

Detective Wheeler collected the cocaine wrapped in cellophane and sent it to the MPD

Crime Lab for testing. Detective Blust created a photo array including Wimbush's

photograph. Boroski viewed the photo array and identified Wimbush as the person who

sold him cocaine.

{¶8} Anthony Tambasco from the Mansfield Police Department Crime Lab

completed a Report of Analysis confirming the substance in cellophane sold to Boroski

by Wimbush on June 5, 2014 as .95 grams of cocaine.

{¶9} On June 17, 2014, Boroski reported to MEU and conducted several

controlled phone calls with Wimbush. During the calls, Boroski and Wimbush discussed

the controlled buy from June 5, 2014 and the money owed by Boroski. Wimbush and

Boroski eventually arranged for Boroski to pay $50.00 owed from the previous controlled

buy on June 5, 2014 and purchase an additional $100.00 worth of "stuff,” from Wimbush.

Boroski and Wimbush arranged for this sale to once again occur at Church's Chicken. At
Richland County, Case No. 16CA14 4

the end of the controlled calls, Wimbush advised Boroski that he would be at Church's

Chicken in ten to fifteen minutes.

{¶10} Detectives searched Boroski's person and vehicle and confirmed that

Boroski did not possess any contraband. Detective Blust equipped Boroski with video

and audio recording equipment and provided Boroski with $150 to execute the controlled

buy from Wimbush. Boroski then proceeded to Church's Chicken, with Detectives Blust

and Rodriguez following in a separate vehicle. Boroski parked in the parking lot of

Church's Chicken. Detectives Blust and Rodriguez parked in the parking lot of MVP Bar

and Lounge in order to observe the controlled buy.

{¶11} Approximately forty-five minutes after the conclusion of the controlled

phone call, Wimbush arrived at Church's Chicken. Wimbush, who did not have any drugs

with him, asked Boroski to take a ride with him. Boroski declined. Wimbush told Boroski

that Wimbush’s girlfriend was bringing the "stuff' from Ontario. Wimbush asked Boroski

to follow him to Joe & Mary's, a convenient store located on Sturges Avenue, to pick up

the "stuff' from Wimbush’s girlfriend. Boroski told Wimbush he would follow him to Joe &

Mary's.

{¶12} After Wimbush left Church's Chicken, Boroski contacted Detective Blust.

Detective Blust advised Boroski not to go to Joe & Mary's out of concern for Boroski's

safety. Boroski and Detective Blust met at St. Peter's Church, where Detective Blust

called off the controlled sale and de-activated Boroski's recording equipment. Boroski

and Detectives Blust and Rodriguez then returned to MEU.

{¶13} Upon returning to MEU, Boroski completed another controlled phone call

with Wimbush. During this final controlled call, Wimbush became agitated about Boroski
Richland County, Case No. 16CA14 5

owing him money and claimed that Boroski owed him $100.00 from the controlled buy on

June 5, 2014 rather than $50.

{¶14} On February 19, 2016, the jury convicted Wimbush on both counts of the

indictment. The trial court immediately sentenced Wimbush to prison terms of eighteen

months on Count 1 and one year on Count 2, with those terms to be served consecutively.

The trial court also imposed three years of discretionary post-release control and imposed

$40 in restitution to be paid to the Mansfield Police Department Crime Lab.

Assignments of Error

{¶15} Wimbush raises three assignments of error,

{¶16} “I. THE DEFENDANT'S CONVICTIONS FOR DRUG TRAFFICKING (TWO

COUNTS) WERE NOT SUPPORTED BY SUFFICIENT EVIDENCE TO SUSTAIN SAID

CONVICTIONS.

{¶17} “II. THE DEFENDANT'S CONVICTIONS FOR DRUG TRAFFICKING (2

COUNTS) WERE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

PRESENTED AT TRIAL.

{¶18} “III. THE CONSECUTIVE SENTENCES IMPOSED BY THE TRIAL COURT

WAS CONTRARY TO LAW.”

I & II.

{¶19} In his first assignment of error, Wimbush challenges the sufficiency of the

evidence. In his second assignment of error, Wimbush contends his conviction is against

the manifest weight of the evidence produced at trial.

{¶20} Our review of the constitutional sufficiency of evidence to support a criminal

conviction is governed by Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61
Richland County, Case No. 16CA14 6

L.Ed.2d 560 (1979), which requires a court of appeals to determine whether “after viewing

the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found the essential elements of the crime beyond a reasonable doubt.” Id.; see also

McDaniel v. Brown, 558 U.S. 120, 130 S.Ct. 665, 673, 175 L.Ed.2d 582(2010) (reaffirming

this standard); State v. Fry, 125 Ohio St.3d 163, 926 N.E.2d 1239, 2010–Ohio–1017,

¶146; State v. Clay, 187 Ohio App.3d 633, 933 N.E.2d 296, 2010–Ohio–2720, ¶68.

{¶21} Weight of the evidence addresses the evidence's effect of inducing belief.

State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678 N.E.2d 541 (1997), superseded by

constitutional amendment on other grounds as stated by State v. Smith, 80 Ohio St.3d

89, 684 N.E.2d 668, 1997-Ohio–355. Weight of the evidence concerns “the inclination of

the greater amount of credible evidence, offered in a trial, to support one side of the issue

rather than the other. It indicates clearly to the jury that the party having the burden of

proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall

find the greater amount of credible evidence sustains the issue, which is to be established

before them. Weight is not a question of mathematics, but depends on its effect in

inducing belief.” (Emphasis sic.) Id. at 387, 678 N.E.2d 541, quoting Black's Law

Dictionary (6th Ed. 1990) at 1594.

{¶22} When a court of appeals reverses a judgment of a trial court on the basis

that the verdict is against the weight of the evidence, the appellate court sits as a

“’thirteenth juror’” and disagrees with the fact finder’s resolution of the conflicting

testimony. Id. at 387, 678 N.E.2d 541, quoting Tibbs v. Florida, 457 U.S. 31, 42, 102

S.Ct. 2211, 72 L.Ed.2d 652 (1982). However, an appellate court may not merely

substitute its view for that of the jury, but must find that “‘the jury clearly lost its way and
Richland County, Case No. 16CA14 7

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

a new trial ordered.’” State v. Thompkins, supra, 78 Ohio St.3d at 387, quoting State v.

Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717, 720–721 (1st Dist. 1983). Accordingly,

reversal on manifest weight grounds is reserved for “‘the exceptional case in which the

evidence weighs heavily against the conviction.’” Id.

“[I]n determining whether the judgment below is manifestly against

the weight of the evidence, every reasonable intendment and every

reasonable presumption must be made in favor of the judgment and the

finding of facts.

***

“If the evidence is susceptible of more than one construction, the

reviewing court is bound to give it that interpretation which is consistent with

the verdict and judgment, most favorable to sustaining the verdict and

judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn.

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

{¶23} To find Wimbush guilty of trafficking in the vicinity of a juvenile, the trier of

fact would need to find that Wimbush knowingly sold or offered to sell a controlled

substance in the vicinity of a juvenile. R.C. 2925.03(A)(1) &(C)(4)(b).

{¶24} Wimbush concedes he sold cocaine to Boroski on June 5, 2014. He argues

only that the evidence concerning the presence of a juvenile at that time is suspect.

{¶25} As used in the Revised Code chapter defining drug offenses, "juvenile"

means a person under 18 years of age. R.C. 2925.01(N). An offense is committed in the
Richland County, Case No. 16CA14 8

vicinity of a juvenile if the offender commits the offense within 100 feet of a juvenile or

within the view of a juvenile, regardless of whether the offender knows the age of the

juvenile, whether the offender knows the offense is being committed within 100 feet of or

within view of the juvenile, or whether the juvenile actually views the commission of the

offense. R.C. 2925.01(BB).

{¶26} In the case at bar, Boroski testified that he observed a small black child

under the age of 10 years old in Wimbush’s car on June 5, 2014. 1T. at 122; 148.

Detective Perry Wheeler testified that he observed through binoculars a male juvenile

between the age of 9 and 11 years old in Wimbush’s car. 1T. at 160; 165.

{¶27} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that a juvenile was present in Wimbush’s car on June 5, 2014 when

Wimbush purchased cocaine from Boroski.

{¶28} We hold, therefore, that the state met its burden of production regarding

each element of the crime of trafficking in the vicinity of a juvenile and, accordingly, there

was sufficient evidence to support Wimbush’s conviction.

{¶29} Concerning the June 17, 2014 transaction, Wimbush argues that there was

never any mention of cocaine; rather the deal was for “stuff.”

{¶30} It is well-settled in Ohio that a person may be convicted of a trafficking

offense under R.C. 2925.03(A)(1) based on evidence establishing that he knowingly

offered to sell a controlled substance, even in cases where (1) the drug offered actually

was counterfeit; or (2) the sale was not consummated and the substance was never
Richland County, Case No. 16CA14 9

recovered. State v. Chandler, 109 Ohio St.3d 223, 2006-Ohio-2285, 846 N.E.2d 1234, ¶

9.

{¶31} In the case at bar, Boroski testified that “stuff” referred to “cocaine. 1T. at

132. Boroski testified that on June 17, 2014 he expected to purchase cocaine from

Wimbush just as he had on June 5, 2014. 1T. at 142. Boroski testified that he was going

to meet Wimbush to purchase cocaine. 1T. at 151.

{¶32} Viewing the evidence in the case at bar in a light most favorable to the

prosecution, we conclude that a reasonable person could have found beyond a

reasonable doubt that Wimbush’s offered to sell Boroski cocaine on June 17, 2014.

{¶33} We hold, therefore, that the state met its burden of production regarding

each element of the crime of trafficking and, accordingly, there was sufficient evidence to

support Wimbush’s conviction.

{¶34} As an appellate court, we are not fact finders; we neither weigh the evidence

nor judge the credibility of witnesses. Our role is to determine whether there is relevant,

competent and credible evidence, upon which the fact finder could base his or her

judgment. Cross Truck v. Jeffries, 5th Dist. Stark No. CA–5758, 1982 WL 2911(Feb. 10,

1982). Accordingly, judgments supported by some competent, credible evidence going

to all the essential elements of the case will not be reversed as being against the manifest

weight of the evidence. C.E. Morris Co. v. Foley Construction, 54 Ohio St.2d 279, 376

N.E.2d 578(1978). The Ohio Supreme Court has emphasized: “‘[I]n determining whether

the judgment below is manifestly against the weight of the evidence, every reasonable

intendment and every reasonable presumption must be made in favor of the judgment

and the finding of facts. * * *.’” Eastley v. Volkman, 132 Ohio St.3d 328, 334, 972 N.E.
Richland County, Case No. 16CA14 10

2d 517, 2012-Ohio-2179, quoting Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77,

80, 461 N.E.2d 1273 (1984), fn. 3, quoting 5 Ohio Jurisprudence 3d, Appellate Review,

Section 603, at 191–192 (1978). Furthermore, it is well established that the trial court is

in the best position to determine the credibility of witnesses. See, e.g., In re Brown, 9th

Dist. No. 21004, 2002–Ohio–3405, ¶ 9, citing State v. DeHass, 10 Ohio St.2d 230, 227

N.E.2d 212(1967).

{¶35} Ultimately, “the reviewing court must determine whether the appellant or the

appellee provided the more believable evidence, but must not completely substitute its

judgment for that of the original trier of fact ‘unless it is patently apparent that the fact

finder lost its way.’” State v. Pallai, 7th Dist. Mahoning No. 07 MA 198, 2008-Ohio-6635,

¶31, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964

(2nd Dist. 2004), ¶ 81. In other words, “[w]hen there exist two fairly reasonable views of

the evidence or two conflicting versions of events, neither of which is unbelievable, it is

not our province to choose which one we believe.” State v. Dyke, 7th Dist. Mahoning No.

99 CA 149, 2002-Ohio-1152, at ¶ 13, citing State v. Gore, 131 Ohio App.3d 197, 201, 722

N.E.2d 125(7th Dist. 1999).

{¶36} The weight to be given to the evidence and the credibility of the witnesses

are issues for the trier of fact. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212(1967),

paragraph one of the syllabus; State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960

N.E.2d 955, ¶118. Accord, Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86

L.Ed. 680 (1942); Marshall v. Lonberger, 459 U.S. 422, 434, 103 S.Ct. 843, 74 L.Ed.2d

646 (1983).
Richland County, Case No. 16CA14 11

{¶37} The jury as the trier of fact was free to accept or reject any and all of the

evidence offered by the parties and assess the witness’s credibility. "While the jury may

take note of the inconsistencies and resolve or discount them accordingly * * * such

inconsistencies do not render defendant's conviction against the manifest weight or

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP-739, 1999 WL

29752 (Mar 23, 2000) citing State v. Nivens, 10th Dist. Franklin No. 95APA09-1236, 1996

WL 284714 (May 28, 1996). Indeed, the jury need not believe all of a witness' testimony,

but may accept only portions of it as true. State v. Raver, 10th Dist. Franklin No. 02AP-

604, 2003-Ohio-958, ¶21, citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548

(1964); State v. Burke, 10th Dist. Franklin No. 02AP-1238, 2003-Ohio-2889, citing State

v. Caldwell, 79 Ohio App.3d 667, 607 N.E.2d 1096 (4th Dist. 1992). Although the

evidence may have been circumstantial, we note that circumstantial evidence has the

same probative value as direct evidence. State v. Jenks, 61 Ohio St.3d 259, 272, 574

N.E.2d 492 (1991), paragraph one of the syllabus, superseded by State constitutional

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4,

684 N.E.2d 668 (1997).

{¶38} In the case at bar, the jury heard the witnesses, heard the audio recordings,

viewed the video of the transactions and heard Wimbush’s arguments.

{¶39} We find that this is not an “‘exceptional case in which the evidence weighs

heavily against the conviction.’” State v. Thompkins, 78 Ohio St.3d 380, 386-387, 678

N.E.2d 541 (1997), quoting Martin, 20 Ohio App.3d at 175, 485 N.E.2d 717. The jury

neither lost his way nor created a miscarriage of justice in convicting Wimbush of the

charges.
Richland County, Case No. 16CA14 12

{¶40} Based upon the foregoing and the entire record in this matter, we find

Wimbush’s convictions are not against the sufficiency or the manifest weight of the

evidence. To the contrary, the jury appears to have fairly and impartially decided the

matters before them. The jury as a trier of fact can reach different conclusions concerning

the credibility of the testimony of the state’s witnesses and Wimbush and his arguments.

This court will not disturb the jury's finding so long as competent evidence was present to

support it. State v. Walker, 55 Ohio St.2d 208, 378 N.E.2d 1049 (1978). The jury heard

the witnesses, evaluated the evidence, and was convinced of Wimbush’s guilt.

{¶41} Finally, upon careful consideration of the record in its entirety, we find that

there is substantial evidence presented which if believed, proves all the elements of each

crime. Wimbush’s first and second assignments of error are overruled.

III.

{¶42} In his third assignment of error, Wimbush challenges the imposition of the

consecutive terms on the ground that the trial court failed to make the findings required

by R.C. 2929.14(C)(4).

{¶43} The two-step approach set forth in State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, 896 N.E.2d 124 no longer applies to appellate review of felony sentences.

We now review felony sentences using the standard of review set forth in R.C. 2953.08.

State v. Marcum, __Ohio St.3d__, 2016–Ohio–1002, __N.E.3d ___, ¶22; State v. Howell,

5th Dist. Stark No. 2015CA00004, 2015-Ohio-4049, ¶31. R.C. 2953.08(G)(2) provides

we may either increase, reduce, modify, or vacate a sentence and remand for

resentencing where we clearly and convincingly find that either the record does not

support the sentencing court’s findings under R.C. 2929.13(B) or (D), 2929.14(B)(2)(e) or
Richland County, Case No. 16CA14 13

(C)(4), or 2929.20(I), or the sentence is otherwise contrary to law. See, also, State v.

Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16 N.E.2d 659, ¶28.

{¶44} Clear and convincing evidence is that evidence “which will provide 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, 120 N.E.2d 118(1954), paragraph three of the

syllabus. See also, In re Adoption of Holcomb, 18 Ohio St.3d 361 (1985). “Where the

degree of proof required to sustain an issue must be clear and convincing, a reviewing

court will examine the record to determine whether the trier of facts had sufficient

evidence before it to satisfy the requisite degree of proof.” Cross, 161 Ohio St. at 477

120 N.E.2d 118.

{¶45} In Ohio, there is a statutory presumption in favor of concurrent sentences

for most felony offenses. R.C. 2929.41(A). The trial court may overcome this

presumption by making the statutory, enumerated findings set forth in R.C. 2929.14(C)(4).

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This statute

requires the trial court to undertake a three-part analysis. State v. Alexander, 1st Dist.

Hamilton Nos. C–110828 and C–110829, 2012-Ohio-3349, 2012 WL 3055158, ¶ 15.

{¶46} R.C. 2929.14(C)(4) provides,

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 **665 the

offender and that consecutive sentences are not disproportionate to the
Richland County, Case No. 16CA14 14

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

to the public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender’s conduct.

(c) The offender’s history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶47} Thus, in order for a trial court to impose consecutive sentences the court

must find that consecutive sentences are necessary to protect the public from future crime

or to punish the offender. The court must also find that consecutive sentences are not

disproportionate to the offender’s conduct and to the danger the offender poses to the

public. Finally, the court must make at least one of three additional findings, which include

that (a) the offender committed one or more of the offenses while awaiting trial or

sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or

while 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
Richland County, Case No. 16CA14 15

or more of the offenses 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 would adequately reflect the

seriousness of the offender’s conduct; or (c) the offender’s criminal history demonstrates

that consecutive sentences are necessary to protect the public from future crime by the

offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶36.

{¶48} Recently, in State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177, 16

N.E.2d 659, syllabus, the Supreme Court of Ohio stated that:

In order to impose consecutive terms of imprisonment, a trial court

is required to make the findings mandated by R.C. 2929.14(C)(4) at the

sentencing hearing and incorporate its findings into its sentencing entry,

but it has no obligation to state reasons to support its findings.

{¶49} Furthermore, the sentencing court is not required to recite “a word-for-word

recitation of the language of the statute.” Bonnell, ¶29. “[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.” Id. A failure to make the findings required by R.C. 2929.14(C)(4) renders a

consecutive sentence contrary to law. Bonnell, ¶34. The findings required by R.C.

2929.14(C)(4) must be made at the sentencing hearing and included in the sentencing

entry. Id. at the syllabus. However, a trial court’s inadvertent failure to incorporate the

statutory findings in the sentencing entry after properly making those findings at the

sentencing hearing does not render the sentence contrary to law; rather, such a clerical

mistake may be corrected by the court through a nunc pro tunc entry to reflect what

actually occurred in open court. Bonnell, ¶30.
Richland County, Case No. 16CA14 16

{¶50} In this case, the record does not support a conclusion that the trial court

made all of the findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive

sentences.

{¶51} In the case at bar, the trial court stated,

THE COURT: In this particular case we have one sale of cocaine,

and a second offer to sell. In terms of the factors I have to weigh, the

offense was committed as part of an organized criminal activity, drug

trafficking.

In terms of recidivism being more likely, the offender has a history of

criminal convictions which we just heard here, particularly having to do with

drugs. He's not responded favorably to sanctions previously imposed in

adult or juvenile court. He shows no genuine remorse. So those are the

factors I have to weigh.

2T. at 224-225.

{¶52} The trial court did not find pursuant to R.C. 2929.14(C)(4) that the

consecutive sentence 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.

{¶53} Nor did the trial court find pursuant to R.C. 2929.14(C)(4)(b) that 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.
Richland County, Case No. 16CA14 17

{¶54} Nor did the trial court find pursuant to R.C. 2929.14(C)(4)(c) that the

offender’s history of criminal conduct demonstrates that consecutive sentences are

necessary to protect the public from future crime by the offender.

{¶55} We find that the record in the case at bar does not clearly and convincingly

supports the trial court’s findings under 2929.14(C)(4).

{¶56} Wimbush’s third assignment of error is sustained.

{¶57} For the foregoing reasons, the judgment of the Richland County Court of

Common Pleas, Richland County, Ohio is affirmed in part and reversed in part.

Appellant’s sentence in the Richland County Court of Common Pleas is vacated, and the

matter remanded for resentencing.

By Gwin, J.,

Farmer, P.J., and

Delaney, J., concur