State v. Phillips

[Cite as State v. Phillips, 2017-Ohio-7107.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY

State of Ohio Court of Appeals Nos. WD-16-020
WD-16-028
Appellee WD-16-029

v. Trial Court Nos. 2015CR0349
2015CR0388
Terrance Lavander Phillips
DECISION AND JUDGMENT
Appellant
Decided: August 4, 2017

*****

Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.

Lawrence A. Gold, for appellant.

*****

MAYLE, J.

Introduction

{¶ 1} In these consolidated appeals, appellant Terrance Phillips, appeals a jury

verdict finding him guilty as to two, multiple count indictments. The events alleged in
the indictments occurred on August 15 and 16, 2015. According to the state, Phillips

fired two bullets from his vehicle at a Ohio State Highway Patrol cruiser. Both cars

crashed, and Phillips fled the scene. Phillips then committed a series of breaking and

enterings and one home invasion, before he was apprehended.

{¶ 2} Appellant was found guilty of all charges and specifications against him and

was found to be a repeat violent offender. The Wood County Court of Common Pleas

sentenced Phillips to 41.5 years in prison. Appellant appeals.

{¶ 3} For the reasons that follow, we affirm the judgment below.

Facts and Procedural History

{¶ 4} The following evidence was offered at trial: Ohio State Highway Patrol

Trooper Anthony J. Scherley was working the night shift on the evening of August 15,

2015, when he responded to a serious, vehicular accident on I-75 in Wood County. After

the driver was transported by medical helicopter to a hospital in Toledo, Scherley

followed in his cruiser and headed north, on I-75. The cruiser was clearly marked with

reflective decals, identifying it as a police vehicle.

{¶ 5} Sometime after 10 p.m., Trooper Scherley came upon Phillips’ blue Dodge

Charger. Both were in the left lane, and Scherley, who was traveling about 85 miles per

hour, changed lanes to go around Phillips. Scherley passed Phillips and continued on his

way north.

{¶ 6} According to Scherley, Phillips then increased his speed to catch up with

Scherley’s cruiser. Scherley testified, “I heard a loud bang, all of my lights in my patrol

car from my dashboard audio they all lit up and I had no more brakes.” As Scherley tried

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to “figure out what was going on to my car, [Phillips’] Dodge Charger that was in the left

lane just takes off, and is easily doing 100 miles an hour plus, takes off northbound.”

{¶ 7} Trooper Scherley coasted his cruiser off of the highway, onto an exit ramp,

that was closed for construction, until it came to a stop. He observed Phillips’ Charger

ahead of him, about 150 feet, also on the closed-exit ramp, which had crashed. Witnesses

from a third vehicle stopped to offer assistance to Scherley and reported that two people

had exited Phillips’ Charger and had taken off running.

{¶ 8} While examining his cruiser to understand why the brakes had failed,

Scherley saw a bullet hole in the left front quarter panel of the vehicle. He radioed

dispatch to report a problem with his vehicle and to request a “BOLO” (be on the

lookout) for two people who should be considered armed and dangerous.

{¶ 9} The other person traveling in Phillips’ car that night was Carl Spruiel.

Spruiel, who lives in Detroit, testified that he had spent August 15, 2015, drinking in

Columbus, Ohio with a girlfriend. When he was ready to return home, he called Phillips,

who was traveling back home to Detroit, from West Virginia. Phillips offered to come

get him. Spruiel denied that he accompanied Phillips to West Virginia.

{¶ 10} Spruiel described himself as very intoxicated and claimed that, while riding

home, he “passed out” with head phones on, listening to music. Headphones were

recovered from Phillips’ vehicle, and the passenger side seat was in the full recline

position.

{¶ 11} Spruiel testified that he was awakened when the Charger crashed and he hit

his head on the front seat airbags that deployed. He denied that he heard the sounds of a

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weapon being discharged from inside the car. Spruiel also denied that he fled the scene

with Phillips. Instead, he testified that he climbed out of an open window of the vehicle

and looked around for Phillips. He said he “was trying to figure out what is going on,

like, why is the car crashed? Why is [Phillips] missing?].”

{¶ 12} Within 15 minutes of the incident, Carl Spruiel was apprehended. At the

time, he was walking along the shoulder of I-75. He was initially charged with several

crimes, and his hands were tested for gunshot residue (“GSR”). Spruiel tested negative

for GSR, and all charges against him were ultimately dropped. Spuiel testified freely at

trial, not as part of any plea agreement.

{¶ 13} Efforts to capture Phillips included a manhunt by air and foot. Around

11:30 a.m. on August 16, 2015, Trooper Charles Grizzard received word that a

Perrysburg Township resident had observed a person matching Phillips’ description, who

was riding a bicycle down a street. Grizzard drove to the location and observed Phillips

on a bicycle, carrying a gas can and a bottle of water. Grizzard told Phillips to “stop.”

Phillips ignored the command and instead tossed the bottle of water at the squad car.

With the help of two Perrysburg Township police officers, Grizzard forced Phillips off

the road. At that point, Grizzard used a “taser” on Phillips, who immediately “seized up”

and “dropped to the ground.”

{¶ 14} When Phillips was taken into custody, a key fob was removed from his

front shirt pocket which fit the abandoned Dodge Charger. Also, a photograph taken at

the scene shows Phillips covered in bug bites and mud, as a result of having spent much

of the night in a muddy soy bean field near the highway.

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 {¶ 15} Phillips confessed immediately, and several more times, over the next

couple of days. The first person Phillips confessed to was Ohio State Highway Patrol

Lieutenant R.J. Ashenfelter, who was at the scene after Phillips was apprehended.

Ashenfelter testified,

I walked over to the suspect at this point and briefly checked on him

and asked him if he was okay. * * * [A]ll I did was ask him if he was okay.

[I said,] “What we are going to do is take you to the hospital, just

cooperate,” and he said, “I didn’t meant to shoot the trooper. I didn’t mean

to shoot him.” He goes, “I didn’t know it was a trooper. There were black

cars or trucks coming all of the way from West Virginia chasing me, I

didn’t know it was a trooper. I didn’t mean to shoot a trooper.”

{¶ 16} Later, at the hospital, Phillips repeated his confession to Ashenfelter.

Ashenfelter described the scene:

I walked in, he immediately started saying to me, “I didn’t mean to

shoot at the Trooper. I said, “Look, now is not the time. I am not asking

you any questions. You are going to have your time to tell your story

later.” He said, “I didn’t mean to shoot at the trooper.” He starts talking to

me again about the black trucks and people following him from West

Virginia, “I didn’t mean to shoot at the trooper.” And at this point I told

him, Stop. I’m going to read you your rights.” And I said, “Because you

are just telling me too much and I don’t need to know anymore. I am not

asking you questions, but I am going to ask you for consent to the GSR

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 kit.” * * * As I am reading them to him, he is reciting them with me like he

knows them better than I do. So I said, “Do you understand?” He goes,

“Yes.” I said, “Okay. Stop talking to me. I’m asking you now, will you

give consent for me to take the GSR kit?” He goes, “You will only need

my right hand, that’s the one I shot with.” Then I said, “Okay.” I did both

hands.

{¶ 17} Phillips also told Ashenfelter that “my buddy in the car [Carl Spruiel] had

nothing to do with this.”

{¶ 18} Phillips tested negative for GSR on his hands.

{¶ 19} Trooper Elizabeth Petro also interviewed Phillips on the day of his arrest,

after his release from the hospital. Phillips’ interview was videotaped, and the tape was

received as an exhibit at trial. During the interview, Phillips told the following story:

{¶ 20} An unnamed individual from West Virginia, who had given him drugs, was

trying to kill him. Phillips told Petro that he had snorted “meth” and that he had not eaten

or slept in four days. Phillips reported that he fired two shots from his vehicle, and he

expressed remorse for doing so. Phillips never told Trooper Petro that Spruiel had fired

the shots at the trooper’s vehicle. He also never expressed any fear of Spruiel or claimed

that Spruiel threatened to harm him.

{¶ 21} Finally, Phillips confessed to a Sergeant Rod Smith with the Wood County

Sheriff’s Office, who interviewed Phillips while in custody. The taped interview was

played for the jury. During the interview, Phillips claimed that he was being chased as he

traveled from West Virginia by a “couple of trucks” and “that the truck was coming up

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behind him again so he [Phillips] pulled the gun out.” Phillips also told Smith that he

took the gas can which he said was outside, not inside, of a garage.

{¶ 22} A semiautomatic weapon was recovered from Phillips’ vehicle, as were

two “spent” shell casings. Kevin Belcik is a firearms expert with the Ohio Bureau of

Criminal Investigations (“BCI”). Belcik examined the firearm, the two shell casings and

the bullet recovered from Trooper Scherley’s cruiser. Based upon his testing and

analysis, he concluded that the bullet and shell casings were all fired from the handgun.

{¶ 23} Devonie Herdeman is an expert in DNA comparison with the BCI, and she

analyzed the DNA collected from the trigger of the handgun. According to her, the

sample taken from the trigger of the handgun matched Phillips’ DNA profile.

{¶ 24} Five homeowners, who live along Mercer Road, in Wood County, all

testified. The first testified that, on August 16, 2016, he discovered that a door to his

“outbuilding” had been kicked in and damaged. The second witness said that his wife’s

bicycle was taken from their property, which he did not realize until it was returned by a

sheriff, following Phillips’ arrest. A third witness, a man, testified that, at around 3:00 or

4:00 a.m. on August 16, 2015, he was asleep in his home, when his dog, who was in his

garage “started going nuts.” The next day he found that his camper door was open and

the framework on his horse barn door was cracked. Inside the barn, he found his newly

washed ATV had mud on it. He testified that the clothes that Phillips was wearing when

captured, belonged to him, including a long sleeve “Harley Davidson” shirt and a hat.

His wife, the fourth witness, testified that she found a wad of clothes, not belonging to

them, hidden in a towel in the camper. A fifth witness testified that she received a call at

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work on August 16, 2015, from her home alarm company that the alarm had been

activated. She went home and found her back door ajar.

{¶ 25} At trial, Phillips’ story diametrically changed from the one he reported at

the time of his arrest. Phillips testified that it was Spruiel, not him, who shot at the

trooper’s vehicle. According to Phillips, he, Spruiel, and a woman, “C.F.”, drove from

Detroit to West Virginia on August 15, 2016. While there, Spruiel argued with another

man about money. Phillips and Spruiel left, to return to Detroit, and saw trucks following

them. Phillips admits that both he and Spruiel were paranoid, which he attributed to the

drugs they had used. By the time they reached Wood County, Phillips said he felt more

logical but Spruiel was still “antsy” and “tripping.” Spruiel insisted to Phillips that they

were still being followed. Phillips assured him that they were not, until they heard “a

boom.” He explained,

When you hear the boom, I hit the gas. I said, “I swear to [G]od you

are right, they are shooting at us.” We get a quarter mile up and you hear

another boom. When you hear the boom, I go, “Uh-oh,” and then that is

when I lost control of the car, the car spinned, the airbag deployed in my

face.

{¶ 26} Phillips does not know the source of the first “boom,” but said the second

one came from inside the car when Carl Spruiel fired a gun. After the car came to a stop,

Spruiel pointed the gun at him and said, “Bitch, you better not tell on me. I swear to

[G]od you better eat this. I will get your people. You run. * * *.”

8.
 {¶ 27} Phillips admits to stealing a gas can that was left outside of a garage and a

bicycle from another property. He further admits that he took some clothing, including a

Harley Davidson shirt, shorts, and hat, but insists he found them outside, in a field. He

denies that he ever went into a camper or anyone’s home.

{¶ 28} By way of explanation, Phillips offered that he initially admitted to the

shooting because he was afraid of Spruiel. He testified that Spruiel was known to be

violent and that Spruiel had lied about how they knew each other. Phillips claims that

they met while serving time together in prison, from 2009-2012. He also claims that

Spruiel could not have been listening to music while in the car, as Spruiel testified,

because he had left his phone in West Virginia. Also, given the angle at which the bullet

landed, Phillips claims he could not have fired the gun, given where he was seated in the

driver’s seat.

{¶ 29} Phillips was indicted in two separate cases. In case No. 2015CR0349,

Phillips was indicted on one count of Felonious Assault, in violation of R.C.

2903.11(A)(2)D)(1)(a), a felony of the first degree, one count of Having Weapons While

Under Disability, in violation of R.C. 2923.13(A)(2)(B), a felony of the third degree and

two counts of Carrying Concealed Weapons, in violation of R.C. 2923.12(A)(2)(F)(1),

felonies of the fourth degree. The charged counts included multiple specifications.

{¶ 30} In case No. 2015CR0388, Phillips was indicted on one count of Trespass in

a Habitation, in violation of R.C. 2911.12(B)(E), a felony of the fourth degree and four

counts of Breaking and Entering, in violation of R.C 2911.13(A)(C), all felonies of the

9.
fifth degree. Prior to trial, the last count of breaking and entering, Count 5, was

dismissed by the state.

{¶ 31} At the conclusion of the evidence, a jury found Phillips guilty with regard

to all counts, in each case. The trial court sentenced Phillips to 41.5 years in prison.

Phillips was appointed appellate counsel and raises the following assignments of error for

our review.

Assignments of Error

1. Appellant received ineffective assistance of counsel in violation

of his rights under the Sixth and Fourteenth Amendments to the United

States Constitution and Article I, §10 of the Ohio Constitution.

2. The trial court committed error to the prejudice of appellant by

imposing costs of prosecution without consideration of appellant’s present

or future ability to pay.

3. The trial court erred to the prejudice of appellant in denying his

rule 29 motion upon completion of the state’s case in chief.

4. The jury’s verdict was against the manifest weight of evidence

presented at trial.

Costs

{¶ 32} We begin with Phillips’ second assignment of error. The judgment entry in

both cases is identical with regard to costs. In each, the court stated, “Defendant shall

pay the costs associated with these cases and judgment for such costs is hereby awarded

to Wood County.” Likewise, during the sentencing hearing, the court ordered, “[Phillips]

10.
will have to pay the costs of this matter for which judgment is awarded to Wood

County.”

{¶ 33} Phillips argues that the record is unclear as to what type of “costs” the trial

court imposed. To the extent that the trial court imposed the costs of prosecution,

confinement, and/or appointed counsel, Phillips objects.

{¶ 34} Our standard of review on this issue is whether the imposition of costs and

financial sanctions was contrary to law. R.C. 2953.08(A)(4) and (G)(2)(b). State v.

Farless, 6th Dist. Lucas Nos. L-15-1060, 2016-Ohio-1571, ¶ 4 citing State v. Collins,

12th Dist. Warren No. CA2014-11-135, 2015-Ohio-3710, ¶ 30 (“An appellate court may

not modify a financial sanction unless it finds by clear and convincing evidence that it is

not supported by the record or is contrary to law.”).

{¶ 35} With regard to the costs of prosecution, R.C. 2947.23(A)(1)(a) provides

that the trial court shall include in every sentencing judgment the costs of prosecution

without consideration of whether the defendant has the ability to pay such costs. State v.

Rohda, 6th Dist. No. F-06-007, 2006-Ohio-6291, ¶ 13.

{¶ 36} If the offender files a motion for waiver of payment of the court costs, the

trial court has the discretion to waive payment of court costs. R.C. 2949.092; State v.

Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278, ¶ 11. Although Phillips did

not file a motion for a waiver, he may do so in the future. R.C. 2947.23(C) provides that

the trial court retains jurisdiction to address the waiver, suspension, or modification of the

payment of the court costs. Therefore, Phillips need not have moved at the time of

sentencing for waiver of the payment of costs. State v. Farnese, 4th Dist. Washington No.

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15CA11, 2015-Ohio-3533, ¶ 12-16. The decision of whether to seek a waiver at the time

of sentencing or a later date is a matter of strategy and cannot be reviewed on appeal.

State v. Pultz, 6th Dist. Wood No. WD-14-083, 2016-Ohio-329. State v. Farless, 6th

Dist. Lucas Nos. L-15-1060, 1061, 2016-Ohio-1571, ¶ 6-7. Accordingly, we conclude

that the trial court did not err by imposing the costs of prosecution.

{¶ 37} Prior to imposing the costs of confinement and assigned counsel, the trial

court must first find that the defendant has, or will have, the ability to pay. For example,

R.C. 2929.18(A)(5)(a)(ii) requires that the trial court impose against all convicted

defendants a financial sanction for the costs of confinement in a state institution “to the

extent he is able to pay.” Likewise, R.C. 2941.51(D) provides that the cost of appointed

counsel must be paid by the county as approved by the court. The court can order the

defendant to pay all or a part of the cost of appointed counsel but only if the court

determines that the offender “has, or reasonably may be expected to have, the means to

meet some part of the costs of the services rendered.” Id.

{¶ 38} Although the court is not required to conduct a hearing on a defendant’s

ability to pay, the record must contain some evidence that the court considered the

defendant’s financial ability to pay. State v. Maloy, 6th Dist. Lucas No. L-10-1350,

2011-Ohio-6919, ¶ 13.

{¶ 39} We cannot ascertain from the record what “costs” the trial court intended to

impose. We agree with Phillips that, to the extent the trial court intended to impose the

costs of confinement and/or the costs of appointed counsel, the record does not support

imposition of either, absent a finding that Phillips has, or reasonably will have, the ability

12.
to pay them. On that limited basis, we find Phillips’ second assignment of error well-

taken. We vacate those portions of the sentencing entries, to the extent that the lower

court imposed the costs of his confinement and/or appointed counsel. See, e.g. State v.

Jones, 6th Dist. Lucas No. L-13-1193, 2015-Ohio-629, ¶ 104.

Effective Assistance of Trial Counsel

{¶ 40} The Sixth Amendment right to counsel exists “in order to protect the

fundamental right to a fair trial.” Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). To prove a claim of ineffective assistance of counsel, a

defendant must show that: (1) counsel’s performance was deficient and (2) the deficient

performance prejudiced the defense. State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989), paragraphs one and two of the syllabus, citing Strickland at 688.

{¶ 41} A reviewing court must determine whether trial counsel’s assistance fell

below an objective standard of reasonable advocacy. Bradley at 141-142. Moreover, the

deficient performance must have been so serious that, “were it not for counsel’s errors,

the result of the trial would have been different.” Id. at 141-142.

{¶ 42} Moreover, trial strategy “must be accorded deference and cannot be

examined through the distorting effect of hindsight.” State v. Conway, 109 Ohio St.3d

412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 115. “An error by counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal

proceeding if the error had no effect on the judgment.” Strickland, at 691.

{¶ 43} Phillips cites five instances of ineffective assistance of counsel.

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 {¶ 44} First, he alleges that counsel should have requested a psychological

examination for purposes of determining his competency. Given the extreme nature of

his conduct – shooting at a trooper’s vehicle and then confessing to it multiple times –

Phillips argues that a psychological expert may have supported a not guilty by reason of

insanity (“NGRI”) defense. We find no merit to Phillips’ argument.

{¶ 45} Appellant’s theory at trial was that he fabricated his confession because he

feared that Spruiel would harm his family. While the jury did not find Phillips’

explanation believable, it is a rational argument and points to Phillips’ ability to assist in

his own defense.

{¶ 46} Phillips also cites Trooper Ashenfelter’s description of him as “delusional

but coherent” to support his argument that his attorney should have investigated his

competency. We find, however, that the trooper’s off-hand description of Phillips’

demeanor was more than overshadowed by other evidence of his competence. Indeed,

Phillips’ confessions, to three separate police officers, were consistent and were offered

voluntarily, not the result of pressure or coercion by the police. State v. Nelson, 6th Dist.

Lucas No. L-15-1190, 2016-Ohio-7115, ¶ 33-35 (Failure to call a “false confession

expert” did not amount to ineffective assistance of counsel where confessions were

consistent throughout police interviews and there was no evidence that police pressured

the defendant to confess.) Further, during his interview with Trooper Petro, Phillips

expressed remorse and cried, demonstrating his understanding of right from wrong, the

antithesis to an NGRI defense. Moreover, Phillips’ decision to flee the scene in an

attempt to evade capture indicates an understanding of wrongfulness which, as a matter

14.
of law, does not support a NGRI defense. State v. Myers, 10th Dist. Franklin No. 09AP-

926, 2010-Ohio-4602, ¶ 17, citing State v. Saleh, 10th Dist. Franklin No. 07AP-431,

2009-Ohio-1542, ¶ 86 (Engaging in furtive conduct is reflective of a consciousness of

guilt.) We find that trial counsel’s decision not to retain a psychological expert was a

strategic decision and does not give rise to a claim for ineffective assistance of counsel.

{¶ 47} Second, Phillips claims that trial counsel should have impeached Carl

Spruiel by calling C.F. as a witness, whom he argues would have supported his story that

Spruiel lied on the witness stand about going to West Virginia. Phillips also claims that

record evidence would have shown that he and Spruiel met in prison, contrary to the

latter’s testimony. Matters pertaining to trial counsel’s cross-examination and whether to

call certain witnesses are matters of trial tactics. See State v. Clayton, 62 Ohio St.2d 45,

402 N.E.2d 1189 (1980). Moreover, counsel aggressively cross-examined Spruiel as to

Spruiel’s truthfulness on these two points, i.e. how they met and/or whether or not

Spruiel accompanied Phillips to West Virginia. State v. Treesh, 90 Ohio St.3d 460, 489,

439 N.E.2d 749 (2001) (“[Trial] counsel’s decision whether to call a witness falls within

the rubric of trial strategy and will not be second-guessed by a reviewing court.”).

{¶ 48} Third, Phillips questions his counsel’s failure to obtain expert witnesses.

He argues that a ballistics expert may have supported his theory that, given the trajectory

of the bullet, he could not have fired the weapon from his position in the driver’s seat.

Deciding whether or not to call an expert witness is solely a matter of trial strategy.

Indeed, “trial counsel’s decision not to seek expert testimony is unquestionably tactical

because such an expert might uncover evidence that further inculpates the defendant.”

15.
(Citations omitted.) State v. Jackson, 10th Dist. Franklin No. 02AP-867, 2003-Ohio-

6183, ¶ 76. We find that trial counsel’s decision not to retain a ballistics expert falls

within the ambit of trial tactics and does not support his case of ineffective assistance of

trial counsel.

{¶ 49} Next, Phillips challenges his attorney’s decision not to present expert

testimony to oppose the information provided by the state’s expert on DNA

identification. Phillips’ trial counsel was not bound to utilize a DNA expert in order to

provide a competent defense. A review of the record demonstrates that trial counsel

performed a knowledgeable cross-examination of the state’s DNA expert, wherein the

expert conceded that it was “possible” that a “secondary transfer” of DNA could occur,

whereby a person’s DNA can be transferred from one surface to another. This supported

Phillips’ theory of the case - that his DNA landed on the trigger of the gun when Spruiel

was threatening him with a gun near his face. The decision not to call an expert and

instead to rely on cross-examination does not constitute ineffective assistance of counsel.

State v. Nicholas, 66 Ohio St.3d 431, 436, 613 N.E.2d 225 (1993), citing State v.

Thompson, 33 Ohio St.3d 1, 10-11, 514 N.E.2d 407 (1987).

{¶ 50} Finally, Phillips alleges that “given the length of the sentence imposed by

the trial court, 41 years and 6 months, an objection should have been made by counsel to

the imposition of court costs.”

{¶ 51} As previously discussed, we have found that the costs of prosecution were

properly imposed. On the other hand, we vacated imposition of the costs of confinement

and appointed counsel. Given our decision, therefore, we also find that Phillips suffered

16.
no prejudice by his counsel’s failure to object to those costs because he is not subject to

them. Therefore, under Strickland, Phillips did not, as a matter of law, receive ineffective

assistance of counsel as to costs. State v. Gibson, 6th Dist. Lucas No. L-14-1162, 2015-

Ohio-3613, ¶ 14-15.

{¶ 52} For these reasons, Phillip did not receive ineffective assistance of counsel,

and his first assignment of error is found not well-taken.

Phillips’ Motion for Acquittal under Crim.R. 29 Motion

{¶ 53} In his third assignment of error, Phillips argues that the trial court erred in

denying his Crim.R. 29 motion at the close of the state’s case-in-chief.

{¶ 54} We review a ruling on a Crim.R. 29 motion for acquittal under the same

standard used to determine whether there was sufficient evidence to sustain a conviction.

State v. Merritt, 6th Dist. Fulton No. F-12-009, 2013-Ohio-4834, ¶ 8. Crim.R. 29

provides that, upon a defendant’s motion or the court’s own motion, after the evidence of

either side is closed, the court shall order entry of judgment of acquittal if the evidence is

insufficient to sustain a conviction of the charged offense.

{¶ 55} “A sufficiency of the evidence argument challenges whether the State has

presented adequate evidence on each element of the offense to allow the case to go to the

jury or to sustain the verdict as a matter of law.” State v. Shaw, 2d Dist. Montgomery

No. 21880, 2008-Ohio-1317, ¶ 28, citing State v. Thompkins, 78 Ohio St.3d 380, 387,

678 N.E.2d 541 (1997).

{¶ 56} During a sufficiency of the evidence review, an appellate court’s function

is to “examine the evidence admitted at trial to determine whether such evidence, if

17.
believed, would convince the average mind of the defendant’s guilt beyond a reasonable

doubt.” State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the

syllabus, superseded by state constitutional amendment on other grounds as stated in

State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668 (1997). “The relevant inquiry is

whether, after viewing the evidence in a light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime proven beyond a

reasonable doubt.” Jenks at paragraph two of the syllabus.

{¶ 57} Phillips makes one argument with regard to the trial court’s denial of his

motion for an acquittal:

[Phillips] denies firing the weapon but argues, nonetheless, that

given his position as the driver of the car, he could not have seen that the

vehicle alongside his Charger was in fact a police vehicle. * * * Because

the state did not meet [its] burden with regard to all the elements of the

Felonious Assault charge, particularly with regard to the attendant mens rea

for a Felonious Assault, the trial court erred in denying [his] Crim.R. 29

motion.

{¶ 58} Phillips was charged under R.C. 2903.11(A)(2)(D)(1) which provides, in

pertinent part:

(A) No person shall knowingly do * * * the following:

(2) Cause or attempt to cause physical harm to another * * *by

means of a deadly weapon* * *.

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 (D)(1)(a) Whoever violates this section is guilty of felonious assault.

* * * If the victim of a violation of division (A) of this section is a peace

officer * * * felonious assault is a felony of the first degree.

{¶ 59} The mens rea for felonious assault is knowingly, which pursuant to R.C.

2901.22(B), is defined as follows:

A person acts knowingly, regardless of purpose, when the person is

aware that the person’s conduct will probably cause a certain result or will

probably be of a certain nature. A person has knowledge of circumstances

when the person is aware that such circumstances probably exist. When

knowledge of the existence of a particular fact is an element of an offense,

such knowledge is established if a person subjectively believes that there is

a high probability of its existence and fails to make inquiry or acts with a

conscious purpose to avoid learning the fact.

{¶ 60} Phillips’ lone argument - that the evidence was legally insufficient to

support a conviction because the state failed to prove that he knew he was

shooting at a police officer’s vehicle - is not well-taken. The state need not have

proved that Phillips knew that he was shooting at a police vehicle in order to

enhance the offense under R.C. 2903.11(A)(2)(D)(1), the peace officer

specification. State v. Mundy, 9th Dist. Medina No. 05CA0025-M, 2005-Ohio-

6608, ¶ 9-10. See also State v. Middleton, 5th Dist. Stark No. 1997CA00158,

1998 Ohio App. LEXIS 325 (Jan. 20, 1998) (“In order to enhance the offense of

felonious assault with a peace officer specification, it is not necessary that the

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offender knew the victim was a police officer.”) and State v. Cantrell, 2d Dist.

Montgomery No. 11030, 1989 Ohio App. LEXIS 932 (Mar. 24, 1989)

(“Defendant’s knowledge that the victim is a peace officer is not required in order

to invoke the enhanced penalty under R.C. 2903.11.”).

{¶ 61} We also find that, despite Phillips’ contention to the contrary, ample

evidence was presented at trial from which the trier-of-fact could determine that Phillips

fired his gun at the police cruiser. When viewing the evidence presented in the light most

favorable to the prosecution, we cannot find that insufficient evidence was presented to

convict Phillips of felonious assault or the accompanying specification. Accord State v.

Hicks, 3d Dist. Seneca No. 13-14-9, 2014-Ohio-5630, ¶ 37. Accordingly, Phillips’ third

assignment of error is not well-taken.

The Manifest Weight of the Evidence

{¶ 62} In his final assignment of error, Phillips argues that the jury’s verdict was

against the manifest weight of the evidence. In determining whether a verdict is against

the manifest weight of the evidence, we sit as a “thirteenth juror.” Thompkins, 78 Ohio

St.3d at 387, 678 N.E.2d 541. We review the entire record, weigh the evidence and all

reasonable inferences, and consider the credibility of witnesses. Id. Additionally, we

determine “whether in resolving conflicts in the evidence, the [trier of fact] clearly lost its

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

reversed and a new trial ordered.” Id. We reverse a conviction on manifest weight

grounds for only the most “exceptional case in which the evidence weighs heavily against

the conviction.” Thompkins at 387. “‘[I]t is inappropriate for a reviewing court to

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interfere with factual findings of the trier of fact * * * unless the reviewing court finds

that a reasonable juror could not find the testimony of the witness to be credible.’” State

v. Miller, 6th Dist. Lucas No. L-08-1056, 2009-Ohio-2293, ¶ 21, quoting State v. Brown,

10th Dist. No. 02AP-11, 2002-Ohio-5345, ¶ 10.

{¶ 63} Phillips makes five arguments in support of his claim that the verdict was

against the manifest weight of the evidence. First, he cites the testimony of Jessica

Mendofik, the state’s fingerprint expert, who testified that she could not conclude, to a

reasonable degree of certainty, who had handled the firearm prior to her testing. We note

that Mendofik also testified that it is uncommon to be able to find “usable latent prints”

on firearms.

{¶ 64} Second, Phillips cites the testimony of DNA expert Herdeman who, while

under cross examination, said that it was “possible” that Phillips’ DNA was found on the

trigger of the gun as a result of a secondary transfer, meaning that his skin cells could

have been transferred from one surface to another, here the trigger of the gun. If

believed, then there was no DNA evidence connecting him to the gun. Again, we note

that Herdeman also said that it was “not feasible or likely for there to be a secondary

transfer.”

{¶ 65} Third, Phillips cites the absence of any gunshot residue on him. As

explained by Trooper Ashenfelter, however, many factors could account for the

absence of any residue on his hands, including the amount of time, in this case 11

hours, that elapsed between the shooting and the test, the wind in Phillips’ vehicle

that would have been generated by opening up the car window while driving in

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excess of 85 miles per hour, the fact that Phillips spent hours crawling through the

mud in soy bean fields, not to mention the evidence gathered that suggested

Phillips may have used hand wipes and/or sanitizer.

{¶ 66} Fourth, without elaborating, Phillips argues that Carl Spruiel “lacked all

credibility in his testimony.”

{¶ 67} Finally, Phillips argues that it was physically impossible for him to drive

his vehicle and shoot at the cruiser, given the trajectory of the bullet.

{¶ 68} “[W]eight and credibility [of evidence] are primarily for the trier of fact.”

State v. Pena, 6th Dist. Lucas No. L-12-1309, 2014-Ohio-423, ¶ 22. This is because the

trier of fact is in the best position to “view the witnesses and observe the credibility of the

proffered testimony,” (Quotation omitted.) Id. A jury, or a judge may believe all, part, or

none of a witness’s testimony. Id.

{¶ 69} The jury heard all of the evidence cited above by Phillips and made

judgments about what weight, if any, to give it. The central issue in this case was

whether Phillips was the shooter. Based upon its verdict, the jury clearly was persuaded

by Phillips’ multiple confessions to the police, in which he consistently acknowledged

that he shot at the trooper’s vehicle. We have reviewed the entire record, and we find no

basis to interfere with the findings of the jury inasmuch as there is no indication that it

“lost its way and created a manifest miscarriage of justice,” necessitating a new trial

under Thompkins. We conclude that the jury’s verdict was not against the manifest

weight of the evidence. Accordingly, appellant’s fourth assignment of error is not well-

taken.

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 Conclusion

{¶ 70} Based on the foregoing, the judgment of the Wood County Court of

Common Pleas is affirmed, in part, and reversed, in part. To the extent that the lower

court’s sentencing order required Phillips to pay the costs of his confinement and/or

appointed counsel, those portions of the sentencing entries are vacated. See, e.g. Jones,

6th Dist. Lucas No. L-13-1193, 2015-Ohio-629, at ¶ 104. The judgments of conviction

are affirmed in all other respects.

{¶ 71} Phillips is ordered to pay the costs of this appeal pursuant to App.R. 24(A).

Judgment affirmed, in part,
and reversed, in part.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________
JUDGE
James D. Jensen, P.J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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