[Cite as State v. Jones, 2019-Ohio-5237.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                            No. 108050
                 v.                               :

GREGGORY JONES,                                   :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED IN PART; VACATED IN PART
                 RELEASED AND JOURNALIZED: December 19, 2019


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-17-617001-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Brian D. Kraft, Assistant Prosecuting
                 Attorney, for appellee.

                 Britt Newman, for appellant.


MICHELLE J. SHEEHAN, J.:

                  Greggory Jones appeals from his convictions of felonious assault and

tampering with evidence and the firearm specifications accompanying tampering

with evidence. He also challenges the maximum term he received for tampering
with evidence. On appeal, he raises the following assignments of error for our

review:

   1. Appellant’s conviction for felonious assault was not based on
      sufficient evidence and was against the manifest weight of the
      evidence.

   2. Appellant’s conviction for tampering with evidence was not based on
      sufficient evidence and was against the manifest weight of the
      evidence.

   3. The trial court erred in sentencing appellant to serve a three-year
      firearm specification attached to the tampering with evidence charge
      due to the state’s failure to prove the elements of the specification.

   4. The trial court erred in sentencing appellant to serve a one-year
      firearm specification attached to the tampering with evidence charge
      since the alleged tampering rendered the firearm inoperable.

   5. The trial court erred when it sentenced appellant to consecutive
      firearm specifications in violation of his constitutional protection
      against cruel and unusual punishment in violation of his right to
      substantive due process.

   6. Appellant was denied his right to effective assistance of counsel due
      to the cumulative effect of counsel’s errors.

   7. The trial court erred in sentencing appellant to a maximum term of
      imprisonment on his conviction for tampering with evidence.

             After a careful review, we affirm Jones’s convictions of felonious

assault, tampering with evidence, and the one-year gun specifications

accompanying his offenses, and his sentence for these offenses. We, however, find

merit to the third assignment of error and, accordingly, vacate the three-year

firearm specification associated with his offense of tampering with evidence.
              The indictment against Jones stemmed from the death of Raymond

Laster. On September 15, 2016, Laster’s half-naked, bullet-ridden body was found

in a deserted backyard. On that same day, Jones, naked and in a PCP-induced haze,

was found walking in a street, and the clothing scattered around him had Laster’s

blood on it. The lab test subsequently showed Laster’s body to be positive for PCP

as well.

              In connection with Laster’s death, Jones was indicted for aggravated

murder (R.C. 2903.01(A)), murder (R.C. 2903.02(B)), felonious assault

(R.C. 2903.11(A)(1)), felonious assault (R.C. 2903.11(A)(2)), and tampering with

evidence. Each of the five counts was accompanied with one- and three-year firearm

specifications.

Trial Testimony

              At trial, the state presented the testimony from the police officers who

investigated the shooting, the pathologist who performed the autopsy, a crime

analyst specialized in cell-tower mapping, two forensic scientists, a firearm

examiner, Jones’s ex-girlfriend, and Laster’s girlfriend. The testimony reflects that

on September 15, 2016, a half-naked body was discovered in a deserted backyard on

Parkview Avenue in the east side of Cleveland. The police received the call about the

body around 2:40 p.m. The victim was shirtless, and his pants were pulled down.

He had multiple gunshot wounds, and a 9 mm shell casing was located near the

body. His cell phone and wallet were still in his possession.
              Sometime in mid-afternoon, the police also responded to a dispatch

call indicating a man was “taking his clothes off and also possibly wielding a gun.”

When the police arrived, they saw a naked man getting in and out of a vehicle, a gold

Chrysler, and walking around. The police found a pair of pants, a shirt, and a cell

phone near him.

              The man, Greggory Jones, was eventually arrested without incident.

The police suspected he was high on PCP because people under the influence of PCP

have a tendency to take their clothes off. Jones was taken to the hospital after he

was arrested, and a toxicology test showed him to be indeed high on PCP. When he

awoke from his disoriented state, he told the police that people were trying to rob

and kill him. A vial of PCP was later found inside the car.

              There was a pool of fresh blood on the front passenger seat of the

Chrysler. The blood was subsequently matched to Laster’s DNA. Laster’s blood was

also detected on Jones’s shorts retrieved from where Jones was found.

              Although the victim sustained seven “through-and-through” shots

(meaning the bullets passed through the body), no bullets were found inside the

vehicle. Inside the vehicle, however, the police found a 9 mm H&K semiautomatic

handgun “broken into pieces” and nine, 9 mm shell casings. The police did not

perform DNA testing on the shell casings found inside the car, and the DNA testing

performed on the shell casing found near the body did not produce a useful profile.

However, James Kooser of the Cuyahoga County Regional Forensic Science

Laboratory, a firearms examiner, testified that he compared all ten shell casings —
nine from inside the vehicle and one found near the victim’s body — with the firearm

found in the Chrysler. Although the firearm was missing the barrel and the side

return spring, he used a loaner barrel and spring for test-firing. Kooser was able to

determine that all ten, 9 mm casings were fired from the same firearm and that they

were fired from the firearm found inside the vehicle.

              Laster, the victim, lived with his girlfriend on South Moreland Road,

several blocks from Parkview Avenue where his body was found. Laster had

dropped off his girlfriend at her workplace at 9:00 a.m. The last time she spoke with

him was around 9:50 a.m.

              A detective from the police department testified regarding video

footage shot from multiple camera angles covering the area outside Laster’s

apartment building. The footage showed that around 10:00 a.m., Laster was seen

exiting his apartment building, and at 10:25 a.m., the video showed a gold vehicle

pull up. The detective also testified that he was able to determine from his viewing

of the video footage that Laster went inside the vehicle.

              A crime analyst with the Cleveland Police Department conducted cell-

tower mapping of the cell phone found with Jones when he was arrested. The cell-

tower records showed that sometime before 10 a.m., the cell phone was in the

general area of the South Moreland Road location where Laster was last seen and

the Parkview Avenue location where his body was found.

              The Chrysler’s owner turned out to be Arruth Glass, who used to date

Jones but their relationship had ceased to be romantic before the incident. She was
also the owner of the dismantled handgun found in the vehicle. The defense’s theory

is that Maurice Grey, Glass’s younger brother, shot and killed Laster and that the

bullets that killed Laster came from a different gun, not the gun found in the vehicle.

              Glass testified that she lived on Langley Avenue with her mother. Her

brother Maurice Grey, who was 18 years old in 2016, also resided there. She worked

the night shift as a security guard at Case Western Reserve University, and she kept

the gun locked in the glove compartment of the vehicle. On the day of the incident,

she dropped her children off at their school at 7:30 a.m. and returned to her house

at 7:45 a.m. She parked her vehicle in her driveway and placed her keys, including

the keys to her vehicle and the glove compartment, on the kitchen table. She then

took a bath and a long nap in preparation for her night shift at the university.

              Sometime after noon, she was awakened by a phone call from Jones’s

mother about the shooting incident and saw that her vehicle was missing from her

driveway. Glass testified that she did not give Jones permission to use her vehicle

or the firearm in the glove compartment.

              Glass also testified that she had seen Jones socialize with Laster on a

few occasions. Regarding her brother, Glass testified on direct examination that he

was home that morning and, to her knowledge, he never left the house. She knew

that because when she received the phone call from Jones’s mother about the

shooting, her brother was still in the same pajamas when she saw him earlier that

morning. She testified that “[h]e looked like he didn’t go anywhere. He was walking
around with his hair all messed up on his head. You can tell he didn’t go anywhere.

You could tell.” She also testified she had never seen her brother with the victim.

               The defense did not introduce its own witnesses, but tried to link

Glass’s brother to the shooting during its cross-examination of Glass. She was asked

if she had told a detective that, while she was taking a bath, Jones came into the

house and took the keys from her brother, and she learned about it from her brother.

In response, Glass testified that she remembered telling the detective that while she

was taking a bath, her brother let Jones into the house but her brother did not realize

Jones took the keys off the table.

               On redirect examination, Glass testified that she moved in with her

mother after breaking up with Jones. She was in an abusive relationship with Jones,

and she wanted to get away from him.

               At the close of the state’s case-in-chief, the defense moved for an

acquittal of all charges.    The trial court denied the motion but granted the

prosecutor’s motion to amend the aggravated murder count to the lesser-included

charge of purposeful murder under R.C. 2903.02(A).

               The defense rested without presenting its own witnesses. At closing

argument, defense counsel offered its interpretation of the testimony presented at

trial: that Maurice Grey, rather than Jones, was the shooter. Without elaboration,

defense counsel suggested to the jury that “Maurice Grey was on the phone in the

car when those [cell] towers pinged, and Greggory Jones got into the car

afterwards.”
Verdict

              The jury found Jones not guilty of the two murder counts — under

R.C. 2903.02(A) (“purposely cause the death of another”) or under R.C. 2903.02(B)

(“cause the death of another as a proximate result of the offender’s committing or

attempting to commit an offense of violence that is a felony of the first or second

degree”). The jury also found Jones not guilty of felonious assault as defined in R.C.

2903.11(A)(2) (“knowingly * * * [c]ause or attempt to cause physical harm to

another * * * by means of a deadly weapon”). The jury found him guilty of felonious

assault as defined in R.C. 2903.11(A)(1) (“knowingly * * * [c]ause serious physical

harm to another”). The jury also found him guilty of tampering with evidence in

dismantling the firearm.

              Regarding the firearm specifications in connection with felonious

assault, the jury found Jones guilty of the one-year firearm specification (possessing

a firearm) but not guilty of the three-year firearm specification (displaying,

brandishing, or indicating the possession of the firearm, or using it to facilitate the

offense). Regarding the firearm specifications in connection with tampering with

evidence, the jury found Jones guilty of both the one-year and the three-year firearm

specifications.

              The jury verdicts were seemingly inconsistent — Jones was found not

guilty of the murder counts and also not guilty of felonious assault in causing the

victim physical harm by means of a deadly weapon, yet he was found guilty of

felonious assault in causing the victim serious physical harm. In addition, the jury
found that, while committing the latter offense, Jones had a firearm under his

possession (one-year firearm specification) but did not display or brandish the

firearm, indicate he possessed the firearm, or use it to facilitate the assault (three-

year firearm specification). Understandably, among the claims raised by Jones on

appeal is the claim that the jury’s verdicts were inconsistent, and the inconsistency

reflects that the jury lost its way and, therefore, his convictions were against the

manifest weight of the evidence.

Sentence

              The trial court sentenced Jones to a maximum eight-year term for his

felonious assault conviction in addition to one year for the accompanying firearm

specification. The court also sentenced him to a maximum three-year term for his

conviction of tampering with evidence and a merged three-year term for the three-

year and one-year firearm specifications accompanying tampering with evidence.

His prison term totals 15 years.

              Jones raises seven assignments of error for our review. The first and

second assignments of error concern the sufficiency and manifest weight of the

evidence for his convictions of felonious assault and tampering with evidence.

Standard of Review for Sufficiency and Manifest Weight of Evidence

              When assessing a challenge of the sufficiency of the evidence, a

reviewing court examines the evidence admitted at trial and determines whether

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

beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492
(1991), paragraph two of the syllabus. “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.” Id. A reviewing court is not to assess “whether the state’s

evidence is to be believed, but whether, if believed, the evidence against a defendant

would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380, 390, 678

N.E.2d 541 (1997) (Cook, J., concurring).

               Unlike sufficiency of the evidence, manifest weight of the evidence

raises a factual issue.

       “The court, reviewing the entire record, weighs the evidence and all
       reasonable inferences, considers the credibility of witnesses and
       determines whether in resolving conflicts in the evidence, the jury
       clearly lost its way and created such a manifest miscarriage of justice
       that the conviction must be reversed and a new trial ordered. The
       discretionary power to grant a new trial should be exercised only in
       the exceptional case in which the evidence weighs heavily against the
       conviction.”

Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d

717 (1st Dist.1983). “[T]he weight to be given the evidence and the credibility of

the witnesses are primarily for the trier of the facts.” State v. DeHass, 10 Ohio St.2d

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

Felonious Assault

               Under the first assignment of error, Jones argues his conviction for

felonious assault as defined in R.C. 2903.11(A)(1) (“cause serious physical harm to

another”) was not based on sufficient evidence and was against the manifest weight
of the evidence. He claims there was inadequate evidence to show he was the one

who fired the shots that killed Laster.

              Our review of the trial transcript shows the state presented evidence

showing that Laster was picked up from his South Moreland apartment by a gold-

colored vehicle the morning of the shooting. His half-naked body turned up in a

backyard on Parkview Avenue, only several blocks away. A 9 mm shell casing was

found near his body. Jones was found sometime in mid-afternoon, naked and in a

PCP-induced haze, getting in and out of a gold Chrysler. Inside the vehicle, the

police found a dismantled firearm and nine shell casings. The state’s ballistic testing

matched the firearm found inside the vehicle to the shell casings retrieved from the

vehicle as well as the single shell casing near the victim’s body. In addition, the

victim’s blood was found on the passenger seat and on Jones’s shorts. The cell-tower

record also supported the state’s claim that Jones picked up Laster in the Chrysler

and later shot him with the firearm stored in the glove compartment of the vehicle.

Our review of the trial testimony indicates that the state produced sufficient

evidence to support Jones’s conviction of felonious assault.

              Regarding the manifest weight of the evidence, Jones argues that the

jury “lost its way” in weighing the evidence, as reflected by the inconsistent verdicts

it rendered: the jury found him not guilty of the murder counts and not guilty of

felonious assault under R.C. 2903.11(A)(2) (causing another serious harm with a

deadly weapon), yet found him guilty of R.C. 2903.11(A)(1) (causing serious physical

harm). Jones’s claim is not supported by the case law authority.
              It has long been settled that inconsistent verdicts between

independent counts do not create a reversible error. “‘Consistency in the verdict is

not necessary. Each count in an indictment is regarded as if it was a separate

indictment.’” United States v. Powell, 469 U.S. 57, 62, 105 S.Ct. 471, 83 L.Ed.2d 461

(1984), quoting Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356

(1932). “The several counts of an indictment containing more than one count are

not interdependent and an inconsistency in a verdict does not arise out of

inconsistent responses to different counts, but only arises out of inconsistent

responses to the same count.” State v. Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112

(1997), paragraph one of the syllabus. In other words, inconsistent responses to

different counts do not create inconsistent verdicts. “An inconsistent verdict may

very well be a result of leniency and compromise by the jurors, rather than being

caused by [jury] confusion.” State v. Fraley, 5th Dist. Perry No. 03 CA 12,

2004-Ohio-4898, ¶ 15, citing Powell. This court has also observed that “the validity

of a conviction does not depend on consistency between verdicts on various counts

of a multiple count indictment when a jury finds the defendant guilty of one or more

offenses and not guilty on others even though the difference in the verdicts cannot

rationally be reconciled.” Brecksville v. Malone, 8th Dist. Cuyahoga Nos. 75466 and

75651, 2000 Ohio App. LEXIS 587 (Feb. 17, 2000), appeal not allowed, 89 Ohio

St.3d 1451, 731 N.E.2d 1139 (2000). See also State v. Amey, 2018-Ohio-4207, 120

N.E.3d 503, ¶ 16 (8th Dist.) (it must be remembered that inconsistent verdicts

should not necessarily be interpreted as a windfall for the prosecution at the
defendant’s expense); State v. Taylor, 8th Dist. Cuyahoga No. 89629, 2008-Ohio-

1626 (inconsistent verdicts on different counts of a multi-count indictment do not

justify overturning a verdict of guilt).

               Here, the jury acquitted Jones of murder and also acquitted him of

felonious assault defined in R.C. 2903.11(B) (knowingly causing or attempting to

cause physical harm to another by means of a deadly weapon) but convicted him of

felonious assault defined in R.C. 2903.11(A) (knowingly causing serious physical

harm to another). In addition, although the jury acquitted him of felonious assault

by means of a deadly weapon, the jury found him guilty of the one-year firearm

specification (possession) but not guilty of the three-year firearm specification

(displaying, brandishing, indicating the possession of a firearm, or using the

firearm). The jury could have rendered these seemingly inconsistent verdicts for

any number of reasons. While the state presented compelling evidence showing

Jones to be the shooter, the jury acquitted him of the two counts of murder and

felonious assault under R.C. 2903.11(B) and only convicted him of felonious assault

under R.C. 2903.11(A) with a one-year, rather than three-year, firearm specification.

The seemingly inconsistent verdicts were likely a product of compromise and

leniency.

               “[I]t would be incongruous for a defendant to accept the benefits of an

inconsistent verdict without also being required to accept the burden of such

verdicts.” Taylor at ¶ 10, citing Powell. Consequently, the courts have consistently

rejected the argument that inconsistent verdicts would render a defendant’s
conviction against the manifest weight of the evidence. See, e.g,. State v. Norman,

10th Dist. Franklin No. 10AP-680, 2011-Ohio-2870, ¶ 14; State v. Gravelle, 6th Dist.

Huron No. H-07-010, 2009-Ohio-1533, ¶ 76-77; State v. Parker, 8th Dist. Cuyahoga

No. 90298, 2008-Ohio-3538; ¶ 22-25; and State v. King, 5th Dist. Guernsey

No. 09 CA 000019, 2010-Ohio-2402, ¶ 32-34.          Having reviewed the evidence

presented by the state, we are not persuaded that the jury created a manifest

miscarriage of justice by convicting Jones of felonious assault with a one-year

firearm specification. The first assignment of error lacks merit.

Tampering with Evidence

              Under the second assignment of error, Jones claims his conviction for

tampering with evidence was not supported by sufficient evidence and was against

the manifest weight of the evidence. While the assignment of error raises both a

sufficiency and manifest-weight claim, his argument only pertains to the sufficiency

of the evidence. Specifically, he claims that the state did not present sufficient

evidence to show that he had knowledge of a likely investigation at the time he

purportedly dismantled the gun.         Tampering with evidence is defined in

R.C. 2921.12(A)(1), which states:

      No person, knowing that an official proceeding or investigation is in
      progress, or is about to be or likely to be instituted, shall * * *:

      (1) Alter, destroy, conceal, or remove any record, document, or thing,
      with purpose to impair its value or availability as evidence in such
      proceeding or investigation[.]
               As the Ohio Supreme Court explained, there are three elements to

tampering with evidence: “(1) the knowledge of an official proceeding or

investigation in progress or likely to be instituted[;] (2) the alteration, destruction,

concealment, or removal of the potential evidence[; and] (3) the purpose of

impairing the potential evidence’s availability or value in such proceeding or

investigation.” State v. Straley, 139 Ohio St.3d 339, 2014-Ohio-2139, 11 N.E.3d 1175,

¶ 11. A conviction for tampering with evidence under this statute necessarily requires

proof that the defendant intended to impair the availability of the evidence that is

related to an existing or likely investigation. Id. at ¶ 19.

               Jones argues that even if the state proved that he was the person who

dismantled the gun, the state failed to prove he had knowledge of a likely

investigation, an essential element of the offense of tampering with evidence.

               Regarding the requisite mental element, the offense of tampering

with evidence as defined in R.C. 2921.12(A)(1) requires a person to act with purpose,

meaning that the person has a specific intention to cause a certain result. State v.

Skorvanek, 182 Ohio App.3d 615, 2009-Ohio-1709, 914 N.E.2d 418, ¶ 21 (9th Dist.).

When determining whether the defendant acted purposely, a defendant’s state of

mind may be inferred from the surrounding circumstances. State v. Rock, 3d Dist.

Seneca No. 13-13-38, 2014-Ohio-1786. Therefore, the state must demonstrate that

the defendant knew that an investigation was likely at the time of concealing the

evidence. Knowledge that a criminal investigation is imminent is based upon a
reasonable person standard. State v. Workman, 2015-Ohio-5049, 52 N.E.3d 286,

¶ 51 (3d Dist.).

               Jones cites State v. Barry, 145 Ohio St.3d 354, 2015-Ohio-5449, 49

N.E.3d 1248, to support his claim that the state must present additional evidence

beyond the fact that a crime had been committed to show a defendant’s knowledge

of likely investigation, evidence such as the defendant taking the gun apart while the

police were surrounding him, or disposing of a piece of the gun after he had been

taken into custody.

               In Barry, the defendant was convicted of heroin possession and the

tampering offense was the defendant’s concealment of the heroin in her body cavity.

The court noted that, when the defendant concealed the heroin, she had no reason

to believe that the police would investigate her and there was no evidence showing

that she thought it likely that she would be stopped by law enforcement. Id. at

¶ 27. On those facts, the issue before the court was “whether knowledge that an

official proceeding or investigation is pending or likely to be instituted can be

imputed to one who commits a crime, regardless of whether that crime is likely to

be reported to law enforcement.” Id. at ¶ 17. As the court explained:

       Ohio does not recognize the “unmistakable crime” doctrine in
       connection with the offense of tampering with evidence because that
       doctrine erroneously imputes to the perpetrator constructive
       knowledge of a pending or likely investigation into a crime; merely
       establishing that the crime committed is an unmistakable crime is
       insufficient to prove that the accused knew at the time the evidence
       was altered, destroyed, concealed, or removed that an official
       proceeding or investigation into that crime was ongoing or likely to be
       instituted.
Barry at syllabus.

              The Supreme Court of Ohio, however, subsequently limited the

application of Barry. In State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90

N.E.3d 857, the defendant was charged with tampering with evidence for burning

the clothes he wore during a shooting. The Supreme Court of Ohio distinguished

Barry. Although the court continued to acknowledge that in Ohio the law does not

impute constructive knowledge of an impending investigation based solely on the

commission of an offense, the court stressed that “[a]s a matter of common sense,

we can infer that a person who had shot two people and left them for dead in a

residential neighborhood would know that an investigation was likely.”

(Emphasis added.) Id. at ¶ 116. The court held accordingly that there was sufficient

evidence for tampering because the defendant knew that an official investigation

was about to be or likely to be instituted. Pursuant to Martin, we find no merit to

Jones’s claim predicated based on Barry.

              Under this assignment of error, Jones also argues there is no evidence

that he touched the firearm, much less took it apart. While the police could have

been more diligent in its investigation, such as dusting the firearm for prints or

swabbing it for DNA evidence, the lack of direct, physical evidence connecting Jones

to the firearm does not render the state’s evidence insufficient. The state produced

circumstantial evidence to show Jones dismantled the firearm — as the police

approached, he was observed to exit the vehicle where the dismantled firearm was
found. Circumstantial evidence is as probative as direct evidence. Jenks, 61 Ohio

St.3d at 272, 574 N.E.2d 492. The second assignment of error is without merit.

Firearm Specifications

               The third, fourth, and fifth assignments of error all concern firearm

specifications associated with Jones’s offense of tampering with evidence.         A

specification is a sentencing provision that imposes an enhanced penalty upon

certain findings and is contingent upon an underlying felony conviction. State v.

Ford, 128 Ohio St.3d 398, 2011-Ohio-765, 945 N.E.2d 498, ¶ 16. The one-year

firearm specification is defined in R.C. 2941.141, and it applies when “the offender

had a firearm on or about the offender’s person or under the offender’s control while

committing the offense.” The three-year firearm specification is defined in

R.C. 2941.145, and it applies when “the offender had a firearm on or about the

offender’s person or under the offender’s control while committing the offense and

displayed the firearm, brandished the firearm, indicated that the offender possessed

the firearm, or used it to facilitate the offense.”

               For his conviction of felonious assault, Jones was found guilty of the

one-year firearm specification. For his conviction of tampering with evidence, Jones

was found guilty of both the one-year and three-year firearm specifications. On

appeal, he only challenges the firearm specifications accompanying the offense of

tampering with evidence.         He assigns three errors regarding these firearm

specifications. Under the third assignment of error, Jones argues he should not be

found guilty of the three-year firearm specification accompanying the offense of
tampering with evidence without any proof that he displayed, brandished, indicated

that he possessed the firearm, or used the firearm to facilitate the tampering offense.

Under the fourth assignment of error, he argues he should not be found guilty of the

one-year firearm specification accompanying tampering with evidence because the

tampering act rendered the firearm inoperable. Under the fifth assignment of error,

he argues that the close proximity of the tampering offense to felonious assault

rendered the two crimes part of a single transaction, which required the merger of

the firearm specifications for these two offenses. We address these claims in turn.

      a.     Three-Year Firearm Specification

              Under the third assignment of error, Jones argues the state’s evidence

was insufficient to find him guilty of the three-year firearm specification

accompanying the tampering-with-evidence count. We find merit to this claim.

              Pursuant to R.C. 2941.145, the three-year firearm specification

statute, an offender’s sentence for the underlying offense is enhanced if the offender

“displayed the firearm, brandished the firearm, indicated that the offender

possessed the firearm, or used it to facilitate the offense.” Therefore, in order for

Jones’s sentence to be enhanced with a three-year firearm specification, the state

must produce evidence to show that he displayed the firearm, brandished it,

indicated that he possessed it, or used it to facilitate the offense of tampering with

evidence.

              There is no evidence that, in the course of dismantling the gun, Jones

displayed it, brandished it, or indicated to another that he possessed it. The only
question is whether Jones “used it to facilitate the offense” of tampering with

evidence under the statute. “A thing that ‘facilitates’ ‘make[s] (an action or process)

easy or easier.’” State v. Myrick, 2d Dist. Montgomery No. 23843, 2011-Ohio-244,

¶   85,     quoting     Oxford     English     Dictionary     Online,    available    at

http://oxforddictionaries.com. In Myrick, the defendant tossed his gun when a

police officer approached. He was convicted of tampering with evidence regarding

the gun and a three-year firearm specification. The appellate court reversed the

three-year firearm specification conviction (and remanded to allow the trial court to

enter a judgment of conviction for a one-year firearm specification), reasoning that

“[h]aving the gun did not make it easier for [the defendant] to conceal or remove the

gun — the gun was the thing concealed or removed.” Id. Similarly here, having the

gun did not “make it easier” for Jones to dismantle the gun — rather, the gun was

the very thing dismantled.

               Our application of the three-year firearm specification statute

comports with the legislative intent behind the statute. Interpreting the statute, the

Supreme Court of Ohio in State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29

N.E.3d 939, recognized that “‘the primary goal in construing a statute is to ascertain

and give effect to the intent of the legislature.’” Id. at ¶ 29, quoting State v. Taylor,

138 Ohio St.3d 194, 2014-Ohio-460, 5 N.E.3d 612, ¶ 14. It determined that “[t]he

purpose of a firearm specification is to enhance the punishment of criminals who

voluntarily introduce a firearm while committing an offense and to deter criminals

from using firearms.” Id. at ¶ 31. Furthermore, “[i]n enacting firearm specifications,
the General Assembly recognized that ‘a criminal with a gun is both more dangerous

and harder to apprehend than one without a gun.’” Id., quoting State v. Powell, 59

Ohio St.3d 62, 63, 571 N.E.2d 125 (1991).

              Here, by dismantling the gun, Jones made himself less dangerous and

easier to apprehend. Under the guidance from the Supreme Court of Ohio, it

appears unreasonable and contrary to the intent of the legislature to consider

Jones’s act of dismantling the gun as “using” the gun to “facilitate” the offense of

tampering with evidence (the very act of dismantling the gun) when what he did was

to render the gun unusable.

              We therefore conclude that the unique circumstances of this case do

not support the state’s claim that Jones displayed or brandished a firearm, indicated

he possessed the firearm, or used the firearm to facilitate the offense under the

three-year gun specification statute. Jones’s sentence for tampering with evidence

cannot be enhanced by the three-year firearm specification under the circumstances

of this case. The third assignment of error is sustained.

   b. One-Year Firearm Specification

              Under the fourth assignment of error, Jones argues he should not be

found guilty of the one-year firearm specification accompanying tampering with

evidence because the state did not produce evidence to show that the firearm was

operable at the time of the offense.

              The gun specification statute enhances a sentence when “the offender

had a firearm on or about the offender’s person or under the offender’s control while
committing the offense.” Furthermore, a gun “must be operable or readily rendered

operable at the time of the offense in order to be a ‘firearm’ that would support a

firearm specification[.]” In re J.T., 143 Ohio St.3d 516, 2015-Ohio-3654, 39 N.E.3d

1240, ¶ 7, citing State v. Murphy, 49 Ohio St.3d 206, 208, 551 N.E.2d 932 (1990),

citing State v. Gaines, 46 Ohio St.3d 65, 545 N.E.2d 68 (1989), syllabus.

              Jones argues that although the state produced evidence to show that

the gun was operable at the time Laster was shot, there was no evidence that the gun

was operable at the time Jones committed the offense of tampering with evidence.

Jones’s claim lacks merit. The law is settled that the state’s burden as to operability

can be met by circumstantial evidence. Gaines. Here, the state produced evidence

to establish a timeline showing that Jones committed the offense of tampering with

evidence within a short time after he fired the gun at Laster. As such, the evidence

is sufficient for the jury to find that the gun was operable when Jones committed the

offense of tampering with evidence.

              We recognize that it may appear to be unfair to apply the one-year

firearm specification to additionally punish Jones for being in possession of the

firearm when the tampering act cannot be committed without the firearm in his

possession and furthermore his tampering act destroyed the firearm. The Tenth

District has addressed a similar issue in State v. Wright, 10th Dist. Franklin No.

09AP-207, 2009-Ohio-6773, discretionary appeal not allowed, 125 Ohio St.3d

1415, 2010-Ohio-1893, 925 N.E.2d 1003. In that case, the defendant hid a gun in

the center console of his vehicle when the police approached because it would violate
his parole to be in possession of a gun. He was convicted of tampering with evidence

for hiding the gun as well as the accompanying one-year gun specification. The

defendant argued on appeal that it was fundamentally unfair for his sentence for

tampering with evidence to be enhanced for a gun specification relating to the same

gun.

                  The Tenth District rejected the claim, based on the language set forth

in R.C. 2929.14(D)(1)(e) (now R.C. 2929.14(B)(1)(e)), which excluded several

firearm offenses from enhancement.1 Under the statute, certain firearm offenses —

carrying concealed weapons, illegal conveyance of deadly weapon or dangerous

ordnance into courthouse, improperly handling firearms in a motor vehicle, illegal

possession of firearm in a liquor permit premises — are not enhanceable. The

offense of tampering with evidence is not one of the non-enhanceable offenses

enumerated in the statute. The Tenth District, reasoning that the statute on its face


       1   R.C. 2929.14(B)(1)(e) states:

       The court shall not impose any of the prison terms described in division
       (B)(1)(a) of this section or any of the additional prison terms described in
       division (B)(1)(c) of this section upon an offender for a violation of section
       2923.12 [Carrying concealed weapons] or 2923.123 [Illegal conveyance of
       deadly weapon or dangerous ordnance into courthouse; illegal possession
       or control in courthouse] of the Revised Code. The court shall not impose
       any of the prison terms described in division (B)(1)(a) or (b) of this section
       upon an offender for a violation of section 2923.122 [Illegal conveyance or
       possession of deadly weapon or dangerous ordnance or illegal possession of
       object indistinguishable from firearm in school safety zone]that involves a
       deadly weapon that is a firearm other than a dangerous ordnance, section
       2923.16 [Improperly handling firearms in a motor vehicle], or section
       2923.121 [Illegal possession of firearm in liquor permit premises of the
       Revised Code].
does not prohibit enhancement by a firearm specification when the underlying

felony is tampering with evidence, concluded that the court was constrained by the

language of the statute and it affirmed the firearm specification. Id. at ¶ 32. We

agree with the reasoning of the Tenth District. Without an express prohibition by

the statute, Jones can be sentenced on both the tampering count and the

accompanying one-year gun specification. See also State v. Elersic, 11th Dist. Lake

No. 2000-L-145, 2002-Ohio-2945 (the defendant argued the trial court erred in

enhancing his offense of receiving stolen property involving a firearm with a one-

year firearm specification and the court affirmed the gun specification, reasoning

that receiving stolen property was not one of the enumerated non-enhanceable

offenses in R.C. 2929.14(D)(1)(e)). The fourth assignment of error is without merit.

   c. Merging (Fifth Assignment of Error)

              Under the fifth assignment of error, Jones argues that the firearm

specifications accompanying felonious assault and tampering with evidence should

be merged because the two felonies were part of a single criminal transaction.

              Firearm specifications may be subject to merger under R.C. 2929.14.

State v. Sheffey, 8th Dist. Cuyahoga No. 98944, 2013-Ohio-2463, ¶ 26. Jones cites

R.C. 2929.14(B)(1)(b) (former R.C. 2929.14(D)(1)(b)) for his claim that the trial

court is not permitted to impose a sentence on multiple firearm specifications for

felonies “committed as part of the same act or transaction.” However, Jones fails to

mention that R.C. 2929.14(B)(1)(g) (former R.C. 2929.14(D)(1)(g)) provides an

exception to the “same-transaction” rule. See State v. Vanderhorst, 8th Dist.
Cuyahoga No. 97242, 2013-Ohio-1785, ¶ 10; State v. Cassano, 8th Dist. Cuyahoga

No. 97228, 2012-Ohio-4047, ¶ 33. R.C. 2929.14(B)(1)(g) states:

      If an offender is convicted of or pleads guilty to two or more felonies,
      if one or more of those felonies are aggravated murder, murder,
      attempted aggravated murder, attempted murder, aggravated
      robbery, felonious assault, or rape, 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 [firearm specifications statute] 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 or to which the offender pleads guilty and, in its
      discretion, also may impose on the offender the prison term specified
      under that division for any or all of the remaining specifications.

(Emphasis added.)

              Pursuant to the statute, although multiple firearm specifications

should be merged if the felonies were committed as “part of the same act or

transaction,” when one of the felonies is a felony such as murder, aggravated

robbery, felonious assault, or rape, the “same transaction” rule does not apply. In

other words, R.C. 2929.14(B)(1)(g) permits the imposition of multiple prison terms

for multiple firearm specifications if the defendant is convicted of one or more

felonies such as murder, aggravated murder, or felonious assault. Here, one of the

felonies Jones was convicted of was felonious assault.       Therefore, the “same

transaction” rule does not apply, and therefore it would be unnecessary to reach the

question of whether the two felonies Jones was convicted of, felonious assault and

tampering with evidence, were part of the same act or transaction. The fifth

assignment of error lacks merit.
Ineffective Assistance of Counsel

              Under the sixth assignment of error, Jones claims his trial counsel

provided ineffective assistance of counsel.     To establish a claim of ineffective

assistance of counsel, an appellant must prove (1) his counsel was deficient in some

aspect of his representation, and (2) there is a reasonable probability that, were it

not for counsel’s errors, the result of the trial would have been different. Strickland

v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Ohio, every

properly licensed attorney is presumed to be competent and, therefore, a defendant

claiming ineffective assistance of counsel bears the burden of proof. State v. Smith,

17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Counsel’s performance will not be

deemed ineffective unless and until the performance is proven to have fallen below

an objective standard of reasonable representation and, in addition, prejudice arises

from counsel’s performance. State v. Iacona, 93 Ohio St.3d 83, 105,

2001-Ohio-1292, 752 N.E.2d 937. Jones claims his trial counsel provided ineffective

assistance of counsel in failing to object to hearsay and other prejudicial testimony.

               Hearsay, under Ohio’s Rules of Evidence, is defined as an out-of-

court statement offered in court to prove the truth of the matter asserted.

Evid.R. 801(C). Evid.R. 802 provides that, with certain exceptions, hearsay is not

admissible at trial. The analysis of hearsay requires a court to determine whether or

not a statement is hearsay. If it is, the court must then determine whether any

exception is applicable.
      a. Alleged Hearsay Testimony from the Investigating Officers

                Jones claims several officers’ testimony that the suspect on Lawn

Street possibly had a gun was hearsay and his counsel should have objected to their

testimony. He points specifically to testimony from Officer Christopher Lozinak and

Officer John Cho. The transcript reflects the following testimony from Officer

Lozinak:

      Q.       Were you — did you respond to this area on September 15,
               2016?
      A.       Yes, I did.
      Q.       What was the nature of the call?
      A.       Another [police] car * * * received a Code 1 assignment for a
               male taking his clothes off and also possibly wielding a gun,
               firearm.
      Q.       What did you do when you got to the scene?
      A.       * * * I tried to go in some backyards on the north side of the
               street, kind of establish a plank maneuver, establish a
               perimeter. Not sure what this man was going to do. * * * We
               tried to get him surrounded, so we can keep him contained. * * *

(Emphasis added.) The transcript also reflects the following testimony from

Officer Cho:

      Q.       What is State’s Exhibit 352?
      A.       It’s a photo of a vehicle.
      Q.       Do you recognize that vehicle?
      A.       Yes.
      Q.       What — how do you recognize that vehicle?
      A.       That was the vehicle that was on [the] scene.
      Q.       And you were referring to what scene?
      A.       Over on Lawn. This is [the] vehicle that the gentleman was
               getting in and out of.
      Q.       You personally observed him getting in and out of the vehicle?
      A.       Yes.
      Q.       Did you personally observe him doing anything else while you
               were responding?
      A.     I believe we were trying to get a tactical advantage. They stated
             he had a gun. I don’t believe I recall if I saw the gun in his hand.
             My partner and I went through the yards.

(Emphasis added.)

              When statements are offered to explain an officer’s conduct while

investigating a crime, such statements are not hearsay. State v. Thomas, 61 Ohio

St.2d 223, 232, 400 N.E.2d 401 (1980). However, because the potential for abuse in

admitting such statements is great, in order to be admitted, the officer’s conduct to

be explained should be “relevant, equivocal and contemporaneous with the

statements.” State v. Blevins, 36 Ohio App.3d 147, 521 N.E.2d 1105 (10th Dist.1987),

citing 6 Wigmore, Evidence, Section 1772, at 267-268 (Chadbourn Rev.1976) while

also meeting the standard of Evid.R. 403(A) (evidence not admissible if its probative

value is substantially outweighed by the danger of unfair prejudice, of confusion of

the issues, or of misleading the jury). Id.

              Our review shows the testimony from Officer Lozinak and Officer Cho

regarding the suspect having a gun was part of their testimony explaining how the

officers conducted themselves during the course of their investigation — in response

to a dispatch call regarding a suspect potentially armed, the police tried to obtain

tactical advantage as they approached the suspect at Lawn Street. The testimony

meets the prescribed standard; moreover, the testimony cannot be deemed unfairly

prejudicial because this is not the only evidence linking Jones with a gun — the

police retrieved a gun in the vehicle Jones was in.
      b. Alleged Hearsay Testimony by Glass

              Jones also claims his counsel elicited hearsay testimony from Glass,

his ex-girlfriend. The record reflects that, during the defense counsel’s cross-

examination of Glass regarding her vehicle, she testified as follows:

      Q.     And do you remember telling the detective the following: That
             you didn’t know that anyone took your car because you were
             taking a bath at the time and that he — speaking of Greggory
             Jones — came into the house, took the keys from your brother,
             Maurice Grey, Gregg got the keys, and drove off. After you got
             out of the tub, your brother told you that Gregg took the car;
             do you remember saying that to Detective Shoulders?
      A.     I do not remember saying that. I remember saying my brother
             let him in, and he did not know that he took the keys off the
             table. That’s what I remember.
      Q.     So you’re saying that Detective Shoulders lied when he put this
             report together?
      A.     I’m not saying that. Just maybe he didn’t hear me right. I don’t
             know.
      Q.     Do you remember telling him that you didn’t call the police
             about the car missing because you already heard that Mr. Jones
             was arrested on Lawn Avenue?
      A.     Yes.
      Q.     Well, that would [have] to come at the time around noon that
             you talked to Greggory Jones’[s] mom?
      A.     Yes.
      Q.     But you already noticed that the keys were missing when you
             got out of the tub?
      A.     I did not notice that the keys were missing when I got out of the
             tub. I didn’t know the keys [were] missing at all. I got a phone
             call out of my sleep. I was sleeping. And when I got the phone
             call, then I looked, I said, oh, my god, my keys are missing.
      Q.     Did you not just say that your brother Maurice told you —
      A.     That he let him in —
      ***
      Q.  So the part that your brother said that * * * Greggory Jones
          came in, took the keys and took the car, that was never your
          statement to the police?
      A.  I don’t remember saying that. I was in shock, maybe I did say
          that.
      ***
      Q.  Do you remember telling the police what I just said to you; is
          that a yes or no?
      A.  Yes.
      Q.   So you did say [to the detective] that you were in the tub, you
          didn’t know that Mr. Jones came in, that your brother Maurice
          said that he took the car?
      A.  Not that part.
      Q.  So you remember parts and not others?
      A.  I remember everything. I just — I don’t recall at all, period * * *
          that part you put in there.
      Q.  That was because you were in shock?
      A.  That’s because I didn’t say it. I don’t recall saying that at all.

(Emphasis added.)

              It appears that defense counsel may have tried to implicate Glass’s

brother Maurice Grey in the cross-examination of Glass and plant in the jury’s minds

the possibility that Grey may somehow be involved in the shooting.           Glass’s

testimony, however, did not turn out to be favorable to the defense. On appeal,

Jones does not complain about his counsel’s trial strategy of claiming Maurice Grey

as the shooter, only that Glass’s testimony contained hearsay. However, our review

of the testimony does not reflect hearsay testimony from Glass. She steadfastly

denied she had told the detective that her brother told her Jones took the vehicle.

In any event, even if there was hearsay testimony about Jones taking Glass’s vehicle,

the admission of the testimony was not unduly prejudicial because Jones himself

was observed to be exiting the vehicle when the police approached.

      c. Purported “Bad Acts” Evidence

              During the cross-examination, Glass revealed that Jones had taken

her vehicle without her permission on the day before the incident, she called the
police to report the theft, and Jones returned the vehicle to her immediately. During

the redirect examination, Glass also revealed that she moved in with her mother

because “I was in [an] abusive relationship with Gregg.” Jones claims her testimony

was improper “bad acts” evidence and his counsel should have objected or moved to

strike the testimony.

               Pursuant to Evid.R. 404(B), “[e]vidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in

conformity therewith.”     In general, “[e]vidence that [a defendant] committed a

crime other than the one for which he is on trial is not admissible when its sole

purpose is to show the accused’s propensity or inclination to commit crime or that

he acted in conformity with bad character.” State v. Williams, 134 Ohio St.3d 521,

2012-Ohio-5695, 983 N.E.2d 1278, ¶ 15

              Even if Glass’s testimony were indeed “bad acts” evidence, and

counsel had preserved the error for our review, the admission of the testimony was

harmless error, because the evidence presented by the state contains overwhelming

proof of the defendant’s guilt. State v. Dailey, 8th Dist. Cuyahoga No. 89289,

2007-Ohio-6650, ¶ 23 (“[w]here evidence has been improperly admitted, the

admission is harmless beyond a reasonable doubt if the remaining evidence alone

demonstrates overwhelming proof of defendant’s guilt.”) As such, counsel’s failure

to object did not constitute an ineffective assistance of counsel.
      d. The Firearm Examiner’s Testimony

              Jones also argues his trial counsel should have objected to Firearm

Examiner Kooser’s testimony during the redirect examination.           In his direct

examination, Kooser testified that he was able to determine that all 9 mm shell

casings retrieved by the police were fired from the gun found in the vehicle, even

though the gun was missing a barrel. He explained that although a “donor” barrel

was used for testing, it did not affect his ability to perform the comparison analysis

on the shell casings. In his redirect examination, he mentioned he had participated

in a “Miami-Dade Ruger” program run by a firearm expert and he learned from the

program that every firing pin on any firearm will always leave its unique mark on a

shell casing, which helps identifying the source weapon from the spent shell casings.

Jones argues the testimony referencing the program was inadmissible because the

witness used this “self-serving anecdote” to buttress his opinion that the shell

casings found were from the gun found in the vehicle.

              Jones’s claim is without merit. The record reflects the parties had

stipulated to Kooser’s qualifications as an expert in firearms examination.

Evid.R. 702 (“Testimony by experts”) permits a witness to testify as an expert when

“[t]he witness is qualified as an expert by specialized knowledge, skill, experience,

training, or education regarding the subject matter of the testimony.” Rather than

a “self-serving anecdote” as characterized by Jones, Kooser’s testimony fell within

the permissible expert testimony regarding the expert witness’s “experience,
training, or education.” Jones’s counsel did not provide ineffective assistance in

failing to object to the testimony. The sixth assignment of error lacks merit.

Maximum Term

               Jones argues the trial court erred in sentencing him to a maximum

term of imprisonment for tampering with evidence. This claim lacks merit.

               Under the current law, the trial court is no longer required to make

findings before imposing a maximum sentence. Instead, our review of a felony

maximum sentence is limited to a determination of whether the maximum sentence

is contrary to law. State v. East, 8th Dist. Cuyahoga No. 102442, 2015-Ohio-4375;

State v. Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13. A trial court’s

imposition of a maximum term of imprisonment for a felony conviction is not

contrary to law as long as the sentence is within the statutory range for the offense

and the court considers the purposes and principles of felony sentencing outlined in

R.C. 2929.11 and the seriousness and recidivism factors outlined in R.C. 2929.12.

State v. Wright, 2018-Ohio-965, 108 N.E.3d 1109, ¶ 16 (8th Dist.); State v. West,

8th Dist. Cuyahoga No. 105568, 2018-Ohio-956, ¶ 9, 10 (stressing a trial court’s full

discretion to impose the maximum sentence as long as the sentence is within the

statutory range and the court considered the relevant statutory purposes and

guidelines).

               Here, the statutory range for Jones’s third-degree felony offense of

tampering with evidence was 9 to 36 months and he was sentenced to the maximum

term of three years (36 months), within the statutory range. Moreover, our review
of the sentencing transcript shows that the trial court considered the statutory

purposes and principles prescribed in R.C. 2929.11 as well as the seriousness and

recidivism factors set forth in R.C. 2929.12. In addressing the recidivism factors,

the court emphasized Jones’s extensive criminal history.         Jones’s maximum

sentence for tampering with evidence is not contrary to law. The seventh assignment

of error is overruled.

               Judgment affirmed in part and vacated in part. Jones’s conviction

and sentence on the three-year firearm specification associated with tampering with

evidence is vacated.

      It is ordered that appellant and appellee share the costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

      A certified copy of this entry shall constitute the mandate pursuant to Rule

27 of the Rules of Appellate Procedure.



MICHELLE J. SHEEHAN, JUDGE

MARY EILEEN KILBANE, A.J., and
MARY J. BOYLE, J., CONCUR
