[Cite as State v. Williams, 2018-Ohio-1526.]


                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT

State of Ohio,                                       :

                 Plaintiff-Appellee,                 :
                                                                      No. 17AP-522
v.                                                   :             (C.P.C. No. 16CR-5429)

Dezmond N. Williams,                                 :           (REGULAR CALENDAR)

                 Defendant-Appellant.                :



                                               D E C I S I O N

                                      Rendered on April 19, 2018


                 On brief: Ron O'Brien, Prosecuting Attorney, and Michael P.
                 Walton, for appellee.

                 On brief: Barnhart Law Office LLC, and Robert B.
                 Barnhart, for appellant.

                  APPEAL from the Franklin County Court of Common Pleas

BRUNNER, J.
        {¶ 1} Defendant-appellant, Dezmond N. Williams, appeals an amended judgment
entry of the Franklin County Court of Common Pleas filed on July 5, 2017 sentencing him
to serve eight years in prison for two counts of drug possession with firearm specifications.
Because both parties agree that the trial court erred in sentencing Williams to consecutively
serve two one-year firearm specifications, we modify the judgment of the trial court to
reflect concurrent sentences for those one-year specifications resulting in a total sentence
of seven years. In all other respects, we affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
        {¶ 2} On September 30, 2016, a Franklin County Grand Jury indicted Williams for
one count of heroin possession and one count of oxycodone possession, each with a one-
year firearm specification. (Sept. 30, 2016 Indictment.) Williams pled not guilty on
October 5, 2016. (Oct. 5, 2016 Plea Form.)
No. 17AP-522                                                                                2


       {¶ 3} The parties selected a jury on June 19, 2017 and began trial on June 20, 2017.
(Tr. Vol. I, filed Oct. 20, 2017; Tr. Vol. II, filed Oct. 20, 2017.) The jury was released to
deliberate at approximately 10:24 a.m. on June 21, 2017. (Tr. Vol. II at 349-50.) On the
afternoon of June 21, while the jury was deliberating, it submitted the following written
question to the trial court, "[d]oes the jury have to agree on the specifications of the charge,
i.e., gun charge?" Id. at 352. The trial court, with agreement of counsel for both parties,
prepared and transmitted to the jury a written response, "[y]our verdict must be unanimous
as to all charges and specifications." Id. One hour later, the jury announced it had reached
a verdict finding Williams guilty on all charges and specifications. Id. at 353-55.
       {¶ 4} Five days later the trial court held a sentencing hearing. While sentencing
Williams, the trial court remarked, "I also believe that I'm required by law to impose the
gun specs consecutive to each other pursuant to that - - that part of statute for sentencing
as to the firearm specifications." Id. at 371. Accordingly, it sentenced Williams to five years
for possession of heroin, one year for possession of oxycodone, and one year on each
firearm specification, each sentence to be served consecutively to the others for a total term
of imprisonment of eight years. Id. at 371-72.
       {¶ 5} Williams now appeals.
II. ASSIGNMENTS OF ERROR
       {¶ 6} Williams presents two assignments of error for review:
               1. THE TRIAL COURT PLAINLY ERRED WHEN IT
               CONCLUDED THAT IT MUST IMPOSE CONSECUTIVE
               SENTENCES FOR THE FIREARM SPECIFICATIONS.

               2. THE TRIAL COURT PLAINLY ERRED WHEN IT
               INSTRUCTED THE JURY THAT IT MUST BE UNANIMOUS
               TO BOTH THE CHARGES AND THE SPECIFICATIONS.

III. DISCUSSION
   A. First Assignment of Error – Whether the Trial Court Erred in
      Consecutively Imposing the Sentences for the Firearm Specifications
       {¶ 7} R.C. 2929.14(B)(1)(a)(iii) required the trial court to impose a one-year prison
sentence for Williams' conviction of having a firearm on or about his person or under his
control according to R.C. 2941.141. But R.C. 2929.14(B)(1)(b) prohibited the trial court
from imposing more than one prison term under division (B)(1)(a) "for felonies committed
as part of the same act or transaction." Williams' charges and their specifications arose
No. 17AP-522                                                                                  3


from the same incident, act, or transaction. As both parties agree, Williams' circumstance
did not authorize the trial court to sentence him to two consecutive one-year terms of
imprisonment for the firearm specifications.
        {¶ 8} Having found an error of law in Williams' sentencing, we are specifically
empowered by both App.R. 12(A)(1)(a) and R.C. 2953.08(G)(2) to "modify" the sentence
imposed by the trial court. For the sake of judicial economy, rather than require a new
sentencing hearing, we exercise that power and hold that Williams' sentence is hereby
modified to reflect that the one-year sentences for the firearm specifications are to be served
concurrently with one another and thus that only a single one-year "prison term" has been
"impose[d]" for both. R.C. 2929.14(B)(1)(b).
        {¶ 9} Williams' first assignment of error is sustained.
   B. Second Assignment of Error – Whether the Trial Court Plainly Erred in
      Answering the Jury's Question with the Instruction, "Your verdict must
      be unanimous as to all charges and specifications."
        {¶ 10} This Court has previously held:
               A criminal defendant is entitled to have the trial court give
               complete and accurate jury instructions on all of the issues
               raised by the evidence. State v. Williford (1990), 49 Ohio St.3d
               247, 251, 551 N.E.2d 1279. A trial court is vested with
               discretion, however, when charging the jury so long as the
               instructions accurately reflect the law. State v. Scudder (Oct.
               20, 1992), Franklin App. No. 91AP-506, 1992 Ohio App. LEXIS
               5454.

State v. Jackson, 10th Dist. No. 06AP-1267, 2008-Ohio-1277, ¶ 27. "Where, during the
course of its deliberations, a jury requests further instruction, or clarification of instructions
previously given, a trial court has discretion to determine its response to that request."
State v. Carter, 72 Ohio St.3d 545 (1995), paragraph one of the syllabus. This discretion is
not unlimited, and "[t]he trial court's response to a jury's question, when viewed in its
entirety, must be a correct statement of law and be consistent with or supplement the
instructions previously given to the jury." State v. Jones, 10th Dist. No. 15AP-670, 2017-
Ohio-1168, ¶ 17, citing State v. Preston-Glenn, 10th Dist. No. 09AP-92, 2009-Ohio-6771,
¶ 28.
        {¶ 11} In Williams' case, the jury asked, "[d]oes the jury have to agree on the
specifications of the charge, i.e., gun charge?" (Tr. Vol. II at 352.) The trial court, with
No. 17AP-522                                                                                  4


agreement of counsel for both parties, prepared and transmitted to the jury the following
written response: "Your verdict must be unanimous as to all charges and specifications."
Id. The record does not contain any discussion between the trial court and counsel. We
cannot and do not determine the defense "invited" any error in this supplemental
instruction. But there is no record the defense objected to it. The only legal theory we can
use to examine its propriety is according to plain error. Crim.R. 52(B); State v. Rogers, 143
Ohio St.3d 385, 2015-Ohio-2459, ¶ 22. And for there to be plain error, this instruction
would have to be an "obvious" defect or deviation from a legal rule and of such magnitude
that there is a "reasonable probability" that it has resulted in prejudice to Williams. Rogers
at ¶ 22.
       {¶ 12} Williams argues that the supplemental instruction offered by the trial court
"implied that unanimity was required as to all charges and that they should be unanimous
to one another." (Emphasis added.) (Williams Brief at 7.) We do not perceive how the trial
court's instruction would cause a jury to believe its verdict had to be the same on each
charge and specification. Even if it could have elicited such a belief when viewed quite
literally and out-of-context, we hold the remainder of the trial court's instructions were
sufficiently clear to dispel any potential confusion. For instance, the trial court stated:
               If you find that the State has proved beyond a reasonable doubt
               that all the elements of the offense of possession of heroin as
               defined here, your verdict must be guilty as to this charge. If the
               State has failed to prove beyond a reasonable doubt any of the
               elements of the offense, your verdict must be not guilty as to
               this charge.

               If you find the Defendant guilty of Count One for possession of
               heroin, you must make two additional factual findings. The
               first factual question you must determine is whether the
               amount of heroin involved in the offense equals or exceeds 10
               grams but is less than 50 grams.

               The second factual question you must determine is whether the
               Defendant is guilty of Specification No. 1 as set forth in Count
               One of the indictment. You must decide whether the State has
               proved beyond a reasonable doubt that the Defendant had a
               firearm on or about his person or under his control while
               committing the offense of possession of heroin.

               ***
No. 17AP-522                                                                                 5


               If you find the State has proved beyond a reasonable doubt that
               all the elements of the offense of aggravated possession of
               drugs as defined here, your verdict must be guilty as to this
               charge. If you find the State has failed to prove beyond a
               reasonable doubt any element of the offense, your verdict must
               be not guilty as to this charge.

               If you find the Defendant guilty of Count Two, aggravated
               possession of drugs, you must make one additional factual
               finding. The additional factual question you must determine is
               whether the Defendant is guilty of Specification No. 1 as set
               forth in Count Two of the indictment. You must decide whether
               the State has proved beyond a reasonable doubt that the
               Defendant had a firearm on or about his person or under his
               control while committing the offense of aggravated possession
               of drugs.

(Tr. Vol. II at 339-41.) We find the trial court clearly explained the verdicts as to each charge
and specification were separate questions for the jury to consider.
       {¶ 13} Williams' second assignment of error is overruled.
IV. CONCLUSION
       {¶ 14} The trial court did not plainly err in instructing the members of the jury that
their "verdict must be unanimous as to all charges and specifications." (Tr. Vol. II at 352.)
However, as both prosecution and defense agree, the trial court did err when it sentenced
Williams to consecutive terms of imprisonment for each of the two gun specifications when
both specifications arose from a single act or transaction. The judgment of the trial court
is therefore modified to reflect that only a single one-year prison term has been imposed
for the gun specifications, for a total term of imprisonment of seven years and not eight
years as a result of this appeal.
                                                                   Judgment affirmed in part
                                                                       and modified in part.
                             KLATT and HORTON, JJ., concur.
