[Cite as State v. Tubbs, 2020-Ohio-730.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                            STATE OF OHIO,

                                            Plaintiff-Appellee,

                                                    v.

                                           JERMAINE TUBBS,

                                           Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                           Case No. 18 MA 0094


                                   Criminal Appeal from the
                       Court of Common Pleas of Mahoning County, Ohio
                                      Case No. 17CR439

                                          BEFORE:
                   Gene Donofrio, Cheryl L. Waite, Carol Ann Robb, Judges.


                                               JUDGMENT:
                                                 Affirmed.



 Atty. Paul Gains, Prosecuting Attorney and Atty. Ralph Rivera, Assistant Prosecutor,
 Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6th Floor,
 Youngstown, Ohio 44503, for Plaintiff-Appellee, and

 Atty. John Juhasz, 7081 West Boulevard, Suite 4, Youngstown, Ohio 44512, for
 Defendant-Appellant.
                                                                                      –2–



                                        Dated:
                                   February 24, 2020

 DONOFRIO, J.

       {¶1}    Defendant-appellant, Jermaine Tubbs, appeals from a Mahoning County
Common Pleas Court judgment convicting him of murder with a firearm specification and
having weapons under disability and sentencing him to 21 years to life in prison, following
a jury trial on the murder charge and a bench trial on the having weapons under disability
charge.
       {¶2}    Around midnight on April 10, 2017, Shawnee Jones texted her mother,
Sophia Brooks, telling her of a fight between her and her boyfriend, appellant. At the
time, Sophia was in the car with her estranged husband Michael Brooks, Michael’s adult
son Mikhail Brooks, and Shawnee’s young son. After Sophia received the text, Michael
drove them to Shawnee’s apartment in Youngstown.
       {¶3}    When they arrived at Shawnee’s apartment, Michael retrieved his cane
from the car and walked up to the front door. Shawnee and her young daughter came
out of the apartment to talk with Michael. Next, appellant exited the apartment. Michael
and appellant got into a verbal argument. The argument turned physical when appellant
pushed Michael in an attempt to get him to move away from the door. Michael then began
hitting appellant on the legs and ankles with his cane. Appellant pulled a gun from his
waistband and shot Michael twice in the head. Michael died from the gunshot wounds.
       {¶4}    A Mahoning County Grand Jury indicted appellant on one count of murder
in violation of R.C. 2903.02(A)(D) with a firearm specification and one count of having
weapons under disability, a third-degree felony in violation of R.C. 2923.13(A)(2)(B).
       {¶5}    Appellant elected to have the murder count tried to a jury and the having
weapons under disability count tried to the court. The case proceeded to a jury trial on
the murder count. Appellant testified that he shot Michael in self-defense. The jury found
appellant guilty of murder and of the firearm specification. At the bench trial, the court
found appellant guilty of having weapons under disability
       {¶6}    The trial court subsequently sentenced appellant to 15 years to life on the
murder count and three mandatory years on the firearm specification to be served prior



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to and consecutive to the murder sentence. The court also sentenced appellant to three
years on the having weapons under disability count to be served consecutive to his other
sentences for a total sentence of 21 years to life.
       {¶7}     Appellant filed a timely notice of appeal on September 5, 2018. He now
raises three assignments of error.
       {¶8}     We will address appellant’s third assignment of error out of order for ease
of discussion. Appellant’s third assignment of error states:

               APPELLANT’S CONVICTION IS AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE AND THEREFORE IS AN AFFRONT TO
       DUE PROCESS.

       {¶9}     Appellant asserts that his conviction was against the manifest weight of
the evidence. He claims the evidence demonstrated that Michael was the aggressor, that
Michael would not be deterred, and that Michael was looking to harm him. Additionally,
he points out that Sophia told Detective Rodway that she did not see the shooting. Yet
she described the shooting in detail at trial.
       {¶10} In determining whether a verdict is against the manifest weight of the
evidence, an appellate court must review the entire record, weigh the evidence and all
reasonable inferences and determine 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. State v. Thompkins, 78 Ohio St.3d
380, 387, 678 N.E.2d 541 (1997). “Weight of the evidence concerns ‘the inclination of
the greater amount of credible evidence, offered in a trial, to support one side of the issue
rather than the other.’” Id. (Emphasis sic.) In making its determination, a reviewing court
is not required to view the evidence in a light most favorable to the prosecution but may
consider and weigh all of the evidence produced at trial. Id. at 390.
       {¶11} Yet granting a new trial is only appropriate in extraordinary cases where
the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist.1983).          This is because determinations of witness
credibility, conflicting testimony, and evidence weight are primarily for the trier of the facts
who sits in the best position to judge the weight of the evidence and the witnesses'



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credibility by observing their gestures, voice inflections, and demeanor. State v. Rouse,
7th Dist. Belmont No. 04-BE-53, 2005-Ohio-6328, ¶ 49, citing State v. Hill, 75 Ohio St.3d
195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212
(1967), paragraph one of the syllabus. Thus, “[w]hen there exist two fairly reasonable
views of the evidence or two conflicting versions of events, neither of which is
unbelievable, it is not our province to choose which one we believe.” State v. Dyke, 7th
Dist. Mahoning No. 99-CA-149, 2002-Ohio-1152.
       {¶12} In order to reverse a jury verdict as against the manifest weight of the
evidence, all three judges must concur. Thompkins, 78 Ohio St.3d at 389.
       {¶13} We must examine the evidence presented at trial in order to determine if
the jury’s verdict was against the manifest weight of the evidence.
       {¶14} Sophia testified that on April 9, 2017, she, Michael, Shawnee, and
Shawnee’s children were at her house eating and drinking. (Tr. 341-342). Shawnee left
Sophia’s house between 11:15 and 11:30 p.m. (Tr. 343). Michael and Sophia then left
to pick up Mikhail and his girlfriend. (Tr. 344). They dropped Mikhail’s girlfriend off around
midnight. (Tr. 344). While they were driving, Sophia received a text from Shawnee. (Tr.
345-346). The text prompted her to call 911. (Tr. 346). Sophia stated this was “not the
first time we had to call the police with these two [appellant and Shawnee].” (Tr. 345).
They then drove to Shawnee’s apartment to see what was happening. (Tr. 347).
       {¶15} Sophia stated that when they arrived, she remained in the car and Michael
walked up to Shawnee’s door with his cane. (Tr. 356). She saw Shawnee and her
daughter come out. (Tr. 356). Then she saw appellant come out. (Tr. 356). Sophia
watched appellant and Michael talking and it appeared to be a heated conversation. (Tr.
357). She then saw appellant do something to Michael. (Tr. 358). Next, Michael hit
appellant’s ankles with his cane. (Tr. 358-359).        Sophia stated that appellant then
reached into his waistband and shot Michael twice. (Tr. 359-360). Appellant then ran off.
(Tr. 361).
       {¶16} Sophia also testified as to Michael’s health. She stated that over the years
he had suffered a brain aneurysm, a massive stroke, and a heart attack. (Tr. 338).
Consequently, Sophia stated, Michael was not an “able-bodied” man. (Tr. 339). He was
weak on his left side and used a cane to walk when they went out. (Tr. 339).



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       {¶17} Shawnee testified that after she left Sophia’s house on the night in
question, she picked up appellant and they went to her apartment. (Tr. 386-387). She
stated that she and appellant got into an argument because she would not let him take
her car. (Tr. 390-391). Shawnee then went into the bathroom with her daughter and
locked the door. (Tr. 391). From the bathroom, she contacted Sophia and asked her to
come over. (Tr. 391). Soon thereafter, Shawnee heard a car horn beep so she and her
daughter went outside. (Tr. 392-393).
       {¶18} Once outside, Shawnee tried to stop Michael from approaching her
apartment because she did not want him to get into a fight with appellant. (Tr. 393). She
stated that Michael pushed her out of his way and continued up to her apartment. (Tr.
393). Shawnee stated that appellant came outside and he and Michael argued. (Tr. 396).
Appellant tried to go back inside, but Michael was holding the door. (Tr. 396). Shawnee
heard appellant tell Mikhail to get Michael “out of his face” before he killed him. (Tr. 396).
Next, she saw appellant push Michael’s head and then saw Michael hit appellant on the
leg with his cane. (Tr. 397-399). Shawnee then saw appellant reach for the gun in his
waistband. (Tr. 400). She saw appellant hold the gun above his head and shoot Michael
twice. (Tr. 400). Shawnee testified that appellant was never on the ground during the
altercation and that he was standing when he shot Michael. (Tr. 401-402). Shawnee
testified that appellant later told her he shot Michael in self-defense. (Tr. 407).
       {¶19} Mikhail testified that after they arrived at Shawnee’s apartment, Michael and
appellant were arguing outside. (Tr. 444). When appellant tried to go back into the
apartment, Michael blocked his way. (Tr. 444-445). Appellant shoved Michael. (Tr. 447).
Mikhail stated that Michael and appellant then started physically fighting. (Tr. 447). He
saw Michael hitting appellant with his cane and appellant hitting Michael. (Tr. 448).
Mikhail heard appellant tell him to get Michael “out of my face before I shoot him.” (Tr.
471). Then he saw appellant shoot Michael. (Tr. 448).
       {¶20} Youngstown Police Officer Mark Crissman photographed appellant later
during the day on April 10, 2017. He testified that he did not observe any injuries to
appellant’s face. (Tr. 545). Officer Crissman stated that appellant had a number of small
cuts and abrasions on both his right and left shins. (Tr. 545-546).




Case No. 18 MA 0094
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       {¶21} Dr. Thomas Gilson is the medical examiner who performed the autopsy in
this case. Dr. Gilson testified that one gunshot was to the side of Michael’s head and the
other was to his nose. (Tr. 615, 623). Neither was to the top of his head. (Tr. 634). Dr.
Gilson also testified that, at the time of his death, Michael had a blood alcohol
concentration of .171 and also had an antidepressant in his system. (Tr. 635).
       {¶22} Youngstown Detective-Sergeant Ronald Rodway testified that appellant
turned himself in approximately nine hours after the shooting. (Tr. 650). Detective-
Sergeant Rodway also testified that when he interviewed Sophia she indicated that she
“heard” two gunshots and then saw Michael fall to the ground, not that she “saw” the
shooting. (Tr. 663). He also stated that when he interviewed Shawnee she described
Michael as being “drunk and belligerent” that night. (Tr. 667).
       {¶23} Finally, appellant testified in his defense. He stated that on the night in
question, he and Shawnee got into an argument about her car. (Tr. 694-695). She locked
herself in the bathroom and he went downstairs. (Tr. 695). Shortly thereafter, Shawnee
came down and went outside. (Tr. 695). He got up to see what was going on and found
Michael, drunk, standing on the porch by the front door. (Tr. 695-697). Shawnee tried to
push Michael away. (Tr. 697).
       {¶24} Appellant stated that he tried to go back in the apartment but Michael
pushed him. (Tr. 698). Appellant pushed him back. (Tr. 698). Michael then hit appellant
with his cane. (Tr. 698). Appellant testified that he fell to the ground and Michael
continued beating him with his cane. (Tr. 698, 701). Appellant stated that he “balled up”
on the ground while Michael was beating him. (Tr. 701). Appellant stated that he “feared
for his life” and “had to defend himself.” (Tr. 704). He stated he could not get up and shot
twice from the ground. (Tr. 704). Appellant claimed he only “glanced” at where he was
shooting. (Tr. 706). He stated he then stood up and was shocked so he ran. (Tr. 706).
Appellant testified he never intended to kill Michael. (Tr. 708). His intent was to defend
himself. (Tr. 709).
       {¶25} On cross examination, appellant admitted that he knew Michael had some
health problems and used a cane. (Tr. 712-713).
       {¶26} The jury convicted appellant of murder in violation of R.C. 2903.02(A),
which provides that no person shall purposely cause the death of another. The evidence



Case No. 18 MA 0094
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here clearly proved that appellant caused Michael’s death. The only questions were
whether he acted “purposely” and whether he acted in self-defense.
       {¶27} A defendant acts purposely when it is his specific intention to cause a
certain result. R.C. 2901.22(A). In this case, the jury did not lose its way in finding that
appellant acted purposely.
       {¶28} Mikhail testified that appellant told him to get Michael “out of my face before
I shoot him.” (Tr. 471). Then he saw appellant shoot Michael. (Tr. 448). And Shawnee
testified that she too heard appellant tell Mikhail to get Michael “out of his face” before he
killed him. (Tr. 396). These statements indicated that appellant’s specific intention was
to shoot Michael. Moreover, appellant deliberately removed a gun from his waistband
and fired two shots while he was involved in a fight with Michael. Appellant’s actions were
those of a man acting to purposely shoot someone.
       {¶29} Appellant claimed he acted in self-defense. The defense of self-defense
through the use of deadly force has three elements: (1) the defendant was not at fault in
creating the violent situation; (2) the defendant had a bona fide belief that he was in
imminent danger of death or great bodily harm and that the only means of escape was
the use of such force; and (3) the defendant did not violate any duty to retreat or avoid
the danger. State v. Thomas, 77 Ohio St.3d 323, 326, 1997-Ohio-269, 673 N.E.2d 1339
(1997). In order to support a claim of self-defense, the defendant must demonstrate that
he acted out of fear or he felt that his life was threatened. State v. Herron, 2d Dist.
Montgomery No. 28146, 2019-Ohio-3292, ¶ 42.
       {¶30} The evidence indicated that both appellant and Michael were at fault for
creating the situation. The evidence demonstrated that both men were arguing, both men
pushed one another, Michael hit appellant with his cane, and appellant hit Michael. But
the evidence does not support the idea that appellant had a bona fide belief that his only
means to escape death or great bodily harm was the use of deadly force.
       {¶31} Appellant testified that he “balled up” on the ground while Michael was
beating him with his cane. (Tr. 701). Appellant further testified that he “feared for his life”
and “had to defend himself.” (Tr. 704). He claimed that he never intended to kill Michael
but only meant to defend himself. (Tr. 708-709).




Case No. 18 MA 0094
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         {¶32} But there was a significant amount of evidence to contradict appellant’s
testimony. Firstly, appellant knew that Michael was in poor health and required a cane to
walk. Second, the other eyewitnesses testified that appellant was standing when he shot
Michael as opposed to be being “balled up” on the ground. And third, police observed
appellant just nine hours after the shooting. The only injuries observed on appellant were
some minor scrapes and abrasions on his shins. Thus, the evidence did not demonstrate
that appellant feared for his life such that his only means of escape was the use of deadly
force.
         {¶33} Moreover, there is a duty to retreat before using deadly force unless the
person using such force is in his own home. State v. Morris, 7th Dist. Monroe No. 03 MO
12, 2014-Ohio-6810, ¶ 12; City of Parma v. Treanor, 8th Dist. Cuyahoga No. 106275,
2018-Ohio-3166, ¶ 29. Here, the evidence demonstrated that appellant could have
retreated from Michael instead of shooting him. Michael was disabled and required a
cane to walk. Appellant could have easily retreated from the affray but instead chose to
fire his gun at Michael. Thus, appellant could have retreated to avoid being struck by
Michael’s cane.
         {¶34} Appellant also argues that Sophia told Detective Rodway that she did not
see the shooting; however, she described it in detail at trial. This matter would go to
Sophia’s credibility. And as stated above, witness credibility is a matter left to the jury.
         {¶35} Based on the above evidence, we cannot conclude that the jury clearly lost
its way in finding appellant guilty of murder.
         {¶36} Accordingly, appellant’s third assignment of error is without merit and is
overruled.
         {¶37}   Appellant’s first assignment of error states:

                 DEFICIENCIES IN THE TRIAL COURT’S INSTRUCTIONS TO THE
         JURY DEPRIVED APPELLANT OF DUE PROCESS AND FREEDOMS
         GUARANTEED UNDER THE OHIO CONSTITUTION AND CONSTITUTE
         PLAIN ERROR.

         {¶38} Appellant asserts that in this case, voluntary manslaughter was an inferior-
degree offense of murder, as opposed to a lesser included offense.                  Voluntary



Case No. 18 MA 0094
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manslaughter is an inferior degree of murder because its elements are identical to those
of murder except for the additional mitigating element of serious provocation. In this case,
appellant argues, the trial court erred by instructing the jury that it should consider the
greater charge first and only consider the inferior-degree charge if it found appellant not
guilty of the greater offense.
       {¶39} The trial court instructed the jury as follows:

                 If all of you are unable to agree on a verdict of either guilty or not
       guilty of the offense of murder, then you will continue your deliberations to
       decide whether the state has proved beyond a reasonable doubt all the
       essential elements of the inferior degree offense of voluntary manslaughter.

       ***

              The defendant claims that at the time of the offense, the defendant
       acted knowingly while under the influence of sudden passion or a sudden
       fit of rage, either of which was brought on by serious provocation
       occasioned by Michael Brooks that was reasonably sufficient to incite the
       defendant into using deadly force, this is known as voluntary manslaughter.

              Before you can find the defendant guilty of voluntary manslaughter,
       you must find that the state has proved beyond a reasonable doubt that on
       or about April 20, 2017, in Mahoning County, Ohio, the defendant, while
       under the influence of sudden passion or in a sudden fit of rage, either of
       which is brought on by serious provocation, occasioned by the victim that it
       is reasonably sufficient to incite the person into using deadly force,
       knowingly causing the death of Michael Brooks.

(Tr. 819-820).
       {¶40} Appellant contends these instructions were confusing to the jurors. He
notes the court told the jurors that if they were unable to agree on a verdict for murder,
they should then continue deliberations to decide whether the state proved all of the
elements of voluntary manslaughter. But then, the court instructed the jurors:



Case No. 18 MA 0094
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                If you find that the state proved beyond a reasonable doubt all of the
       essential elements of murder, you must separately decide whether the
       defendant proved by a greater weight of the evidence that he knowingly
       acted while under the influence of sudden passion or a sudden fit of rage,
       either of which was brought on by serious provocation occasioned by
       Michael Brooks that was reasonably sufficient to incite the defendant into
       using deadly force. However, if you find that the state failed to prove beyond
       a reasonable doubt all the essential elements of murder, then your verdict
       must be not guilty of that offense and you will not make that determination.

(Tr. 823).
       {¶41}     Thus, appellant argues the court first told the jurors only to consider
voluntary manslaughter if they could not agree on a verdict for murder. Then it told them
to consider voluntary manslaughter only if they all agreed that the state met all of the
elements of murder.        The two instructions, one correct and one incorrect, were
inconsistent.
       {¶42}     Moreover, appellant points out, the jurors were confused as evidenced by
their question to the court. The jury asked the court, “If we can’t come to a verdict of 12
for murder, do we then debate voluntary manslaughter charge or do we debate until we
are in agreement of one or the other? Please clarify.” (Tr. 835).
       {¶43} Appellant did not object to the jury instructions at trial. The failure to object
to jury instructions waives all but plain error. State v. Palmer, 7th Dist. Jefferson No. 04-
JE-41, 2006-Ohio-749, ¶ 58. Plain error is one in which but for the error, the outcome of
the trial would have been different. State v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804
(1978).
       {¶44} A defendant is entitled to have the trial court give complete and accurate
jury instructions on all the issues raised by the evidence. State v. Sneed, 63 Ohio St.3d
3, 9, 584 N.E.2d 1160 (1992). In examining the jury instructions we must review the
court's charge as a whole, not in isolation, in determining whether the jury was properly
instructed. State v. Burchfield, 66 Ohio St.3d 261, 262, 611 N.E.2d 819 (1993).
       {¶45} In this case, while the court did give a conflicting instruction regarding when
the jury was to consider a charge of voluntary manslaughter, no plain error resulted


Case No. 18 MA 0094
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because the jury could not have found appellant guilty of voluntary manslaughter under
the facts of this case.
       {¶46} The Eighth District has specifically held that instructions on both voluntary
manslaughter and self-defense are erroneous because the two legal theories are
incompatible. State v. Jefferson, 8th Dist. Cuyahoga No. 97331, 2012-Ohio-2387, 971
N.E.2d 469, ¶ 26. In support, the court noted that “[v]oluntary manslaughter requires that
the defendant be under the influence of sudden passion or a fit of rage, while self-defense
requires the defendant to be in fear for his own personal safety.” Id.
       {¶47} This court has refused to accept a steadfast rule to that effect but has stated
that while “an instruction on voluntary manslaughter is generally incompatible with and
contradictory to self-defense, there is no blanket rule holding the two theories inconsistent
or contradictory.” State v. Stanley, 7th Dist. Mahoning No. 14 MA 0106, 2016-Ohio-7284,
¶ 22. In Stanley, we went on to examine whether the defendant presented sufficient
evidence at trial to support the elements of voluntary manslaughter.
       {¶48} In analyzing the issue, we examined State v. Platt, 9th Dist. Wayne No.
18835, 1998 WL 887220 (Dec. 16, 1998). Id. at ¶ 29. We noted that in Platt, the victim
allegedly threatened the defendant with a baseball bat. Id. At trial, the defendant testified
that he shot the victim because he feared for his life. Id.   The trial court refused to give
an instruction on voluntary manslaughter based on the defendant’s testimony that he shot
the victim out of fear rather than anger or passion. Id. We pointed out that the Ninth
District affirmed the trial court's ruling and held that the testimony produced at trial was
only relevant to self-defense. Id.
       {¶49} We then went on to find:

              This Court has previously acknowledged that “[f]ear is insufficient to
       demonstrate the emotional states of sudden passion or a fit of rage, and
       these latter emotional states are essential elements of the definition of
       voluntary manslaughter.” State v. Williams, 7th Dist. No. 11 JE 7, 2012-
       Ohio-5256, ¶ 24.

              Appellant testified that he shot the victim because he feared that the
       victim would shoot and kill him. Consistent with the above-cited caselaw



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       and based on Appellant's testimony, he failed to establish that the evidence
       showed he acted pursuant to an emotional state of sudden passion or fit of
       rage. Instead, his testimony reflects self-defense.

Id. at ¶ 31-32.
       {¶50} In this case too, appellant’s testimony reflects self-defense as opposed to
an emotional state of a sudden fit of rage.
       {¶51} In describing the events leading up to the shooting, appellant testified that
he fell to the ground as Michael beat him with his cane. (Tr. 698, 701). Appellant stated
that he “balled up” on the ground while Michael was beating him. (Tr. 701). Appellant
told the jury that he “feared for his life” and “had to defend himself.” (Tr. 704). He stated
he could not get up and shot twice from the ground. (Tr. 704). Noticeably absent from
appellant’s testimony is any indication that he acted in a sudden fit of rage.
       {¶52}      Thus, even if the trial court gave an erroneous instruction regarding
voluntary manslaughter, no plain error exists because appellant’s testimony described
acting in self-defense as opposed to acting in a sudden fit of rage or passion.
       {¶53}      Appellant additionally, argues that trial court’s instruction on self-defense
was deficient. He claims the instruction should have, but failed to, instruct the jurors that
evidence of self-defense, even if not established by a preponderance of the evidence,
may be sufficient to create reasonable doubt about the defendant’s guilt.
       {¶54}      While the trial court did not specifically state that evidence of self-defense
may be sufficient to create reasonable doubt regarding defendant’s guilt, the court
specifically instructed the jurors several times to consider all of the evidence in reaching
their verdict:

       Reasonable doubt is present when, after you have carefully considered all
       of the evidence, you cannot say that you are firmly convinced of the truth of
       the charge.

       ***




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       Evidence is all of the testimony received from the witnesses, the exhibits
       admitted during trial, facts stipulated to or agreed to by counsel, and any
       facts which the court requires you to accept as true.

       ***

       It is your duty to carefully weigh the evidence, to decide all disputed
       questions of fact, to apply the instructions of the court to your findings, and
       to render your verdict accordingly. * * * Consider all the evidence[.]”

(Emphasis added; Tr. 803-804; 830).
       {¶55}     Given the court’s repeated instructions to consider all of the evidence, the
jury would have considered appellant’s testimony regarding his claim of self-defense
when determining his guilt.      The trial court did not commit plain error by failing to
separately instruct the jury to consider appellant’s evidence of self-defense.
       {¶56}     Accordingly, appellant’s first assignment of error is without merit and is
overruled.
       {¶57}     Appellant’s second assignment of error states:

                 A MAXIMUM SENTENCE FOR HAVING WEAPONS UNDER A
       DISABILITY, IMPOSED CONSECUTIVELY TO A LIFE SENTENCE,
       DENIES DUE PROCESS AND THE RIGHT TO REMAIN FREE FROM
       CRUEL AND UNUSUAL PUNISHMENTS.

       {¶58}     Here appellant contends the trial court erred by sentencing him to the
maximum sentence for having weapons under disability and by ordering him to serve that
sentence consecutive to his life sentence. Appellant acknowledges that the trial court
made the statutorily-required findings for sentencing him to consecutive sentences. But
he urges this court to require more from sentencing courts when it comes to maximum
and consecutive sentences. He asks us to require sentencing courts to give reasons
supporting those findings. He then asserts that we are to review his sentence for abuse
of discretion.
       {¶59} First, it must be noted that we no longer apply an abuse of discretion
standard when reviewing felony sentences. When reviewing a felony sentence, an


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appellate court must uphold the sentence unless the evidence clearly and convincingly
does not support the trial court's findings under the applicable sentencing statutes or the
sentence is otherwise contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-
1002, 59 N.E.3d 1231 ¶ 1. Thus, “appellate courts may not apply the abuse-of-discretion
standard in sentencing-term challenges.” Id. at ¶ 10.
        {¶60} In this case, the trial court sentenced appellant to 15 years to life for murder,
three years for the firearm specification, and three years for having weapons under
disability.
        {¶61} The 15-years-to-life sentence on the murder conviction was mandatory.
R.C. 2929.02(B)(1). Likewise, the three-year sentence on the firearm specification was
mandatory. R.C. 2929.14(B)(1)(a)(ii). The possible sentences for the having weapons
under disability were nine, twelve, eighteen, twenty-four, thirty, or thirty-six months. R.C.
2929.14(A)(3)(b). The trial court selected the maximum 36-month term. Thus, each of
appellant’s sentences was consistent with the applicable sentencing statute.
        {¶62} In sentencing a felony offender, the court must consider the overriding
principles and purposes set out in R.C. 2929.11, which are to protect the public from
future crime by the offender and others and to punish the offender. The trial court shall
also consider various seriousness and recidivism factors as set out in R.C.
2929.12(B)(C)(D)(E).     The trial court indicated both at the hearing and again in its
judgment entry that it considered both the principles and purposes of sentencing and the
seriousness and recidivism factors. (Sentencing Tr. 13-14). The court did not elaborate
on its findings regarding these factors, but it was not required to do so. “[N]either R.C.
2929.11 nor R.C. 2929.12 requires the sentencing court to make specific findings
regarding the purposes and principles of sentencing, or seriousness and recidivism
factors at the sentencing hearing or in the sentencing judgment entry.” State v. Taylor,
7th Dist. Mahoning No. 15 MA 0078, 2016-Ohio-1065, ¶ 14, citing State v. Henry, 7th
Dist. Belmont No. 14 BE 40, 2015-Ohio-4145, ¶ 22, State v. Wilson, 129 Ohio St.3d 214,
2011-Ohio-2669, 951 N.E.2d 381, ¶ 31, and State v. Arnett, 88 Ohio St.3d 208, 215, 724
N.E.2d 793 (2000).
        {¶63} The trial court sentenced appellant to a maximum sentence for having
weapons under disability. But although the General Assembly has reenacted the judicial



Case No. 18 MA 0094
                                                                                       – 15 –


fact-finding requirement for consecutive sentences, it has not revived the requirement for
maximum sentences. State v. Riley, 7th Dist. Mahoning No. 13 MA 180, 2015-Ohio-94,
¶ 34. Therefore, the trial court was not required to make any special findings before
sentencing appellant to a maximum sentence.
      {¶64} Appellant acknowledges that the trial court made the findings required to
sentence him to consecutive sentences. (Sentencing Tr. 15-16). But he now asks us to
require sentencing courts to give reasons supporting those findings.          This is not
something this court can do.
      {¶65} R.C. 2929.14(C)(4) requires a trial court to make specific findings when
imposing consecutive sentences:

             (4) If multiple prison terms are imposed on an offender for convictions
      of multiple offenses, the court may require the offender to serve the prison
      terms consecutively if the court finds that the consecutive service is
      necessary to protect the public from future crime or to punish the offender
      and that consecutive sentences are not disproportionate to the seriousness
      of the offender's conduct and to the danger the offender poses to the public,
      and if the court also finds any of the following:

             (a) The offender committed one or more of the multiple offenses
      while the offender was awaiting trial or sentencing, was under a sanction
      imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised
      Code, or was under post-release control for a prior offense.

             (b) At least two of the multiple offenses were committed as part of
      one or more courses of conduct, and the harm caused by two or more of
      the multiple offenses so committed was so great or unusual that no single
      prison term for any of the offenses committed as part of any of the courses
      of conduct adequately reflects the seriousness of the offender's conduct.

             (c) The offender's history of criminal conduct demonstrates that
      consecutive sentences are necessary to protect the public from future crime
      by the offender.



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Nothing in the statute requires the trial court to give reasons for its findings.

       {¶66} In discussing the legislature’s requirements in the consecutive-sentencing-
findings statute, the Ohio Supreme Court has stated:

       Notably, however, rather than also reviving the language of former R.C.
       2929.19(B)(2), which we severed in Foster, the General Assembly repealed
       that language and eliminated the substantive requirement for a court to give
       reasons for imposing consecutive sentences. We recognize that some
       statutes require a trial court to give reasons in support of its findings, e.g.,
       R.C. 2929.03(F) and 2929.19(D), but no statute directs a sentencing court
       to give or state reasons supporting imposition of consecutive sentences.
       Thus, a trial court is not required by Crim.R. 32(A)(4) to give reasons
       supporting its decision to impose consecutive sentences.

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 27.
       {¶67}    Neither the statute itself nor the Ohio Supreme Court require a sentencing
court to give reasons in support of its consecutive-sentence findings. Thus, this court is
not in a position to require the trial court to give such reasons.
       {¶68}    In sum, there is no indication that the evidence clearly and convincingly
does not support the trial court's findings under the applicable sentencing statutes.
Moreover, the sentence is not contrary to law.       Therefore, we must uphold appellant’s
sentence.
       {¶69}    Accordingly, appellant’s second assignment of error is without merit and
is overruled.
       {¶70} For the reasons stated above, the trial court’s judgment is hereby affirmed.




Waite, P. J., concurs.

Robb, J., concurs.




Case No. 18 MA 0094
[Cite as State v. Tubbs, 2020-Ohio-730.]




         For the reasons stated in the Opinion rendered herein, the assignments of error
 are overruled and it is the final judgment and order of this Court that the judgment of
 the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.


         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                           NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
