[Cite as State v. Sinclair, 2018-Ohio-3363.]



                  Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 105726



                                               STATE OF OHIO

                                                          PLAINTIFF-APPELLEE

                                                    vs.

                                      LOGAN DANIEL SINCLAIR

                                                          DEFENDANT-APPELLANT




                                                JUDGMENT:
                                                 AFFIRMED



                                       Criminal Appeal from the
                                Cuyahoga County Court of Common Pleas
                                      Case No. CR-15-601632-A

        BEFORE: Laster Mays, J., E.A. Gallagher, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED:                      August 23, 2018
                                                    -i-
ATTORNEY FOR APPELLANT

Thomas A. Rein
820 West Superior Avenue, Suite 800
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By:    Daniel A. Cleary
       Kerry A. Sowul
Assistant County Prosecutors
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

          {¶1} Defendant-appellant, Logan Daniel Sinclair (“Sinclair”), appeals his jury convictions

on multiple criminal counts arising from two separate events occurring on November 28, 2015,

resulting in a life sentence with parole eligibility after 50 years.   After a review of the record, we

affirm.

I.        Charges and Sentence

          {¶2}      On December 7, 2015, Sinclair was indicted on the following counts:1

          Count Charge

          Count 1                Aggravated murder of Robert Sposit, R.C. 2903.01(A) with
                                 one- and three-year firearm specifications (R.C. 2941.141 and
                                 2941.145).

          Count 2                Aggravated murder of Robert Sposit, R.C. 2903.01(B) with
                                 one- and three-year firearm specifications (R.C. 2941.141 and
                                 2941.145).

          Count 3                Murder of Robert Sposit, R.C. 2903.02(B) with one- and
                                 three-year firearm specifications (R.C. 2941.141 and
                                 2941.145).

          Count 4                Aggravated robbery of Robert Sposit, R.C. 2911.01(A)(3) with
                                 one- and three-year firearm specifications (R.C. 2941.141 and
                                 2941.145).

          Count 5                Aggravated robbery of Robert Sposit, R.C. 2911.01(A)(1) with
                                 one- and three-year firearm specifications (R.C. 2941.141 and
                                 2941.145).

          Count 6                Felonious assault of Robert Sposit, R.C. 2903.11(A)(1) with
                                 one- and three-year firearm specifications (R.C. 2941.141 and
                                 2941.145).
          Count                  Charge


          1
              The victims are further identified below.
       Count 7             Felonious assault of Steve Oska, Sr., R.C. 2903.11(A)(1) with
                           one- and three-year firearm specifications (R.C. 2941.141,
                           R.C. 2941.145).

       Count 8             Felonious assault of Steve Oska, Jr., R.C. 2903.11(A)(1) with
                           one- and three-year firearm specifications (R.C. 2941.141,
                           R.C. 2941.145).

       Count 9             Kidnapping of Robert Sposit, R.C. 2905.01(A)(2) with one-
                           and three-year firearm specifications (R.C. 2941.141 and
                           2941.145).

       Count 10            Aggravated robbery of Carlo Russo, R.C. 2911.01(A)(1) with
                           one- and three-year firearm specifications (R.C. 2941.141 and
                           2941.145).

       Count 11            Kidnapping of Carlo Russo, R.C. 2905.01(A)(2) with one- and
                           three-year firearm specifications (R.C. 2941.141 and
                           2941.145).

       Count 12            Aggravated robbery of Hassib Merhi, R.C. 2911.01(A)(1) with
                           one- and three-year firearm specifications (R.C. 2941.141 and
                           2941.145).

       Count 13            Kidnapping of Hassib Merhi, R.C. 2905.01(A)(2) with one-
                           and three-year firearm specifications (R.C. 2941.141 and
                           2941.145).

II.    Proceedings

       A.      Pretrial Matters

       {¶3} The case was set for trial on October 24, 2016. The defense announced that

Sinclair desired to enter a plea, but the trial court chose to initially address the results of

Sinclair’s competency examination following his suicide attempt the previous week.          The

court’s psychiatric clinic determined that Sinclair was “competent within a reasonable

psychological certainty and also ineligible for mental health court participation.” (Tr. 29-30.)

Both the state and defense counsel stipulated to the report.

       {¶4} Sinclair then entered into the plea agreement that included a minimum sentence of
life with parole eligibility at 26 years, and a maximum sentence of life without parole. On

November 10, 2016, the trial court held a hearing on Sinclair’s motion to withdraw the guilty

plea based on: (1) his limited opportunity to consult with counsel in light of the magnitude of

the matter, (2) his relative youth at 21 years of age, and (3) lack of experience with the criminal

justice system. After an in camera review of the crime scene security video in the presence of

counsel, the trial court granted the motion. The on-the-record discussion after the video review

revealed that, due to the frequently shifting security camera angles, the parties disagreed on what

the videos actually depicted.

       B.      Trial

       {¶5} Hassib Merhi (“Merhi”) testified that on November 28, 2015, while he was doing

paperwork at the front counter by the register at Charlie’s Beverage on Ridge Road in Cleveland,

Sinclair entered the store.   Another worker, Carlo Russo (“Russo”), was in the rear of store.

       {¶6} Sinclair entered the store as though shopping, wearing a winter hat that was pulled

down covering most of his face. Sinclair turned and walked toward Merhi, pointed a black

gun and removed $40 from the register. Appellant warned Merhi that he would shoot him if he

followed. Appellant left the store. Russo observed the entire incident. Merhi called 911 and

the incident was recorded by the security video.

       {¶7}     Shortly afterward, a robbery occurred at a Sunoco station in Parma. Father and

son, Steve Oska, Sr. (“Oska, Sr.”) and Steve Oska, Jr. (“Oska, Jr.”), who are both hearing

impaired, pulled into the station about 9:00 p.m. and saw a male entering the building wearing

what appeared to be a hoodie partially covering his face. Oska, Jr. saw the male, later identified

as the appellant, pointing a gun at the owner, Robert Sposit (“Sposit”), whose hands were raised.
         {¶8} Oska, Jr. and Oska, Sr. blocked the door from the outside, stopping appellant from

leaving.     Sposit pulled out a gun and shot Sinclair as he was departing.     Sinclair fell to the

floor.     While Sposit was attempting to hold Sinclair down, Oska, Sr. and Oska, Jr. entered, and

Sposit told Oska, Jr. to call 911.

         {¶9}    While the appellant and Sposit struggled on the floor, appellant’s gun “was

concealed in his pocket.” (Tr. 395.) “The robber [appellant] took the gun out of his pocket.

But dad grabbed his wrist.” (Tr. 397.) Oska, Jr. could tell by the vibration when shots were

fired. By the time the police arrived at the scene, Sinclair had run out of the store, dropping his

gun. Sposit was dead.

         {¶10}     Detective Jonathan Fullerton (“Det. Fullerton”) of the Parma Police Department

(“PPD”) obtained vehicle registration information for the tan sedan driven by Sinclair, a young

blond male. He was familiar with the registered owner due to a prior complaint and believed a

younger male matching the appellant’s description also resided at the listed address. After

arriving at the listed address, Det. Fullerton observed fresh blood spots in a tan Toyota sedan

parked in the driveway and radioed for assistance. Sinclair, who had a left arm and hip injury,

reluctantly surrendered to a S.W.A.T. team and hostage negotiator approximately one and

one-half hours later.

         {¶11} Detective Elliot Landrau of the Cleveland Police Department (“CPD”) reviewed

the surveillance video for the Charlie’s case and collaborated with Detective Wells of the PPD

who was investigating the Sunoco shooting.          They later conducted a joint interview with

Sinclair who admitted that he committed both robberies using the same gun.

         {¶12} Sinclair told the detectives that he was unable to get out of the door due to his arm

injury and that Sposit stood over him, said “f**k you” and fired again. Sinclair shot back, hitting
Sposit. Sinclair dropped the gun before departing and was shot in the buttocks by Oska, Sr.

while he was running out of the door.

       {¶13} The trial judge granted the Crim.R. 29 motion as to the robbery of Russo in

Count 11. The jury returned the following verdict:




         Count      Charge                              Verdict Resolution
             1      Aggravated murder of Sposit, Guilty of lesser included
                    R.C. 2903.01(A) with one- and offense of murder with
                    three-year firearm specifications specifications
             2      Aggravated murder of Sposit,        Guilty with specifications
                    R.C. 2903.01(B) with one- and
                    three-year firearm specifications
             3      Murder           of        Sposit, Guilty with specifications
                    R.C. 2903.02(B) with one- and
                    three-year firearm specifications
             4      Aggravated robbery of Sposit, Guilty with specifications
                    R.C. 2911.01(A)(3) with one-
                    and       three-year  firearm
                    specifications
             5      Aggravated robbery of Sposit, Guilty with specifications
                    R.C. 2911.01(A)(1) with one-
                    and       three-year  firearm
                    specifications
             6      Felonious assault of Sposit,     Guilty with specifications
                    R.C. 2903.11(A)(1) with one-
                    and       three-year     firearm
                    specifications
             7      Felonious assault of Oska, Sr., Guilty with specifications
                    R.C. 2903.11(A)(1) with one-
                    and       three-year   firearm
                    specifications
             8      Felonious assault of Sposit, Guilty with specifications
                    R.C. 2903.11(A)(1) with one-
                    and       three-year   firearm
                    specifications
          Count        Charge                               Verdict Resolution
               9       Kidnapping        of    Sposit, Guilty with specifications
                       R.C. 2905.01(A)(2) with one-
                       and       three-year   firearm
                       specifications
             10        Aggravated robbery of Russo, Not guilty
                       R.C. 2911.01(A)(1) with one-
                       and       three-year  firearm
                       specifications
             11        Kidnapping        of    Russo, Crim.R. 29 motion              for
                       R.C. 2905.01(A)(2) with one- acquittal granted
                       and       three-year   firearm
                       specifications
             12        Aggravated robbery of Merhi, Guilty with specifications
                       R.C. 2911.01(A)(1) with one-
                       and       three-year  firearm
                       specifications
             13        Kidnapping        of    Merhi, Guilty with specifications
                       R.C. 2905.01(A)(2) with one-
                       and       three-year   firearm
                       specifications

       {¶14} Counts 1, 2, 3, and 6 merged for sentencing. The state elected to proceed on

Count 2. Counts 4, 5, and 9 merged for sentencing. The state elected to proceed on Count 5;

Counts 7 and 8 stood alone. Counts 12 and 13 merged for sentencing, and the state elected to

proceed on Count 12. The one-year firearm specifications in Counts 2, 5, 7, 8, and 12 merged

into the three-year firearm specifications for the respective counts.

       {¶15} Sinclair was sentenced to a life sentence with parole eligibility after 50 years with

mandatory postrelease control on a number of counts. Sinclair timely appealed.

III.   Assignments of Error

       {¶16}       Sinclair offers seven assigned errors:
       I.      The trial court erred by failing to grant a judgment of acquittal pursuant to
               Crim.R. 29(A) on the charges as the evidence was insufficient to support
               the convictions in violation of Appellant’s right to Due Process of Law, as
               guaranteed by the Fourteenth Amendment to the United States
               Constitution.

       II.     Sinclair’s convictions are against the manifest weight of the evidence.

       III.    The trial court erred by failing to order a separate trial for two separate
               incidents.

       IV.     The trial court erred by admitting other acts testimony in violation of R.C.
               2945.59, Evid.R. 404(B) and Sinclair’s rights under Article I, Section 10,
               of the United States Constitution.
       V.      The trial court erred by failing to instruct the jury on the lesser included
               offenses requested by Sinclair.

       VI.     Sinclair was denied effective assistance of counsel as guaranteed by
               Article I, Section 10, of the United States Constitution and the Sixth and
               Fourteenth Amendments.

       VII.    The trial court erred by ordering Sinclair to serve a consecutive sentence
               without making the appropriate findings under R.C. 2929.14 and HB 86.

IV.    Discussion

       A.      Sufficiency and Manifest Weight of the Evidence

       {¶17}     We combine Sinclair’s first and second assigned errors for analysis.

       {¶18}     A Crim.R. 29(A) motion for acquittal tests the sufficiency of the evidence.

State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 13. The Ohio Supreme Court

has explained that, “[t]he legal concepts of sufficiency of the evidence and weight of the

evidence are both quantitatively and qualitatively different.” State v. Thompkins, 78 Ohio St.3d

380, 386, 678 N.E.2d 541 (1997).

       {¶19} “Sufficiency of the evidence is a test of adequacy as to whether the evidence is

legally sufficient to support a verdict as a matter of law, but weight of the evidence addresses the

evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202,
865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. While an appellate court “may determine

that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless

conclude that the judgment is against the weight of the evidence.” Thompkins at 387.

       {¶20} The sufficiency question is whether, if believed and viewed in a light most

favorable to the prosecution, the evidence admitted at trial supported the conviction.     State v.

Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at 387.           Would

“any rational trier of fact” find that “‘the essential elements of the crime [have been] proven

beyond a reasonable doubt.’”     State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818

N.E.2d 229, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of

the syllabus.

       {¶21} On the other hand, a manifest weight inquiry requires that “[w]e consider

whether the state has met its burden of production at trial.” State v. Hunter, 8th Dist. Cuyahoga

No. 86048, 2006-Ohio-20, ¶ 41, citing Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541. The

appellate court sits “‘as a thirteenth juror.’” Thompkins at 387, quoting Tibbs v. Florida, 457

U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982).

       “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).

       {¶22} We consider whether a greater amount of credible trial evidence supports “one
side of the issue rather than the other.” Thompkins at 387. “‘Weight is not a question of
mathematics, but depends on its effect in inducing belief.’” Id., quoting Black’s Law
Dictionary 1594 (6th Ed.1990).

        {¶23} The record reflects that the Crim.R. 29 motion was proffered on all counts,

though Sinclair’s appellate brief focuses on Count 2, aggravated murder of Sposit under R.C.

2903.01(B), specifically, that    Sinclair is guilty of “purposely causing the death” of Sposit

“while committing, attempting to commit, or fleeing immediately after committing” “aggravated

robbery” in violation of R.C. 2911.01(A). As the state points out, the elements of aggravated

robbery are satisfied and uncontested in this appeal.

        {¶24} Sinclair argues that the evidence does not support the allegation that he

“purposely” caused the death of Sposit and that he was, in fact, defending himself when Sposit

stood over him to shoot him again.      In addition, he argues, Oska, Sr. grabbed his wrist at this

time.

        {¶25} The culpability statute provides in pertinent part, that “a person acts purposely”

“when the gist of the offense is a prohibition against conduct of a certain nature, regardless of

what the offender intends to accomplish thereby.” R.C. 2901.22(A).          The commission of the

aggravated robbery is the “gist of the offense” in this case, so the mens rea has been satisfied.

        {¶26} The state argues that a robber knows that he is inviting dangerous resistance, and

that forcible defense to defend self, family friends, and property “is a primal human instinct.”

State v. Dixon, 2d Dist. Montgomery No. 18582, 2002-Ohio-541, ¶ 19, citing State v. Chambers,

53 Ohio App.2d 266, 373 N.E.2d 393 (9th Dist.1977).             Further offered by the state is the

premise that “risk of harm to others during the aggravated robbery was reasonably foreseeable.”

See

also State v. Meek, 53 Ohio St. 2d 35, 372 N.E.2d 341 (1978). We agree.
        {¶27}       Sinclair was fleeing the scene after commission of an aggravated robbery when

Sposit was murdered. We find that Sinclair purposely shot Sposit. The evidence in this case

supports the elements of the conviction of aggravated murder.

        {¶28} We also find that the aggravated murder conviction was not against the manifest

weight of the evidence. Sinclair entered into the Sunoco gas station owned and operated by

Sposit. Sinclair committed the act of aggravated robbery and attempted to exit the gas station.

Sposit was attempting to defend his property when Sinclair pulled his gun out of his pocket and

shot him.      We find that this is not the exceptional case where reversal is warranted.

        {¶29} We also reject Sinclair’s self-defense argument.

        In Ohio, the affirmative defense of self-defense 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 his only means of escape was the use of force, and (3) that the defendant did
        not violate any duty to retreat or avoid the danger.

State v. Thomas, 77 Ohio St.3d 323, 673 N.E.2d 1339 (1997), citing State v. Williford, 49 Ohio

St.3d 247, 249, 551 N.E.2d 1279 (1990), citing State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d

755 (1979), paragraph two of the syllabus. Sinclair is unable to meet the first element. He

created the situation by engaging in the aggravated robbery. Therefore, we find that Sinclair’s

self-defense argument fails.

        {¶30}       Appellant’s first and second assignments of error are overruled.

        B.        Separate Trials

        {¶31} Sinclair asserts the trial court erred in failing to require separate trials for the

robberies. Sinclair did not file a motion to sever the charges, therefore, we may only consider

plain error.    Crim.R. 52(B) provides that “plain errors or defects affecting substantial rights may

be noticed although they were not brought to the attention of the court.”     We consider whether it
is apparent that “[b]ut for the error,” “the outcome of the trial clearly would have been different.”

 Solon v. Woods, 8th Dist. Cuyahoga No. 100916, 2014-Ohio-5425, ¶ 11. “Notice of plain

error should be taken with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.” Id.

       {¶32} To support a finding of plain error, there must be (1) a deviation from a legal rule

constituting error; (2) an “obvious” defect in the trial court proceedings; and (3) the error must

have impacted the defendant’s “substantial rights,” in that the error must have compromised the

outcome of the trial. State v. Pridgett, 8th Dist. Cuyahoga No. 101823, 2016-Ohio-687, ¶

26-28, citing Crim.R. 52(B), State v. Hill, 92 Ohio St.3d 191, 200, 205, 749 N.E.2d 274 (2001),

State v. Sanders, 92 Ohio St.3d 245, 257, 750 N.E.2d 90 (2001).

       {¶33} Where the requirements of Crim.R. 8(A) are satisfied, the law favors joining

multiple offenses in a single trial.       State v. Ferrell, 8th Dist. Cuyahoga No. 100659,

2014-Ohio-4377, ¶ 38. Crim.R. 8(A) allows multiple offenses to be joined in a single trial where

the offenses are of “similar character,” are based on similar transactions or acts, or “are part of a

course of criminal conduct.”    Id. A trial court may grant severance if it appears the defendant

would be prejudiced by the joinder. Crim.R. 14; State v. Diar, 120 Ohio St.3d 460,

2008-Ohio-6266, 900 N.E.2d 565, ¶ 95. Further:

       “A trier of fact is believed capable of segregating the proof on multiple charges
       when the evidence as to each of the charges is uncomplicated.” State v. Lunder,
       8th Dist. Cuyahoga No. 101223, 2014-Ohio-5341, ¶ 33, citing State v. Torres, 66
       Ohio St.2d 340, 343-344, 421 N.E.2d 1288 (1981). Joinder is therefore not
       prejudicial when the evidence is direct and uncomplicated and can reasonably be
       separated as to each offense. Id.

State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302, 2015-Ohio-4074, ¶ 22.

       {¶34} We find that, in this case, the evidence was direct, uncomplicated, and could
reasonably be separated as to each offense. The acts are similar and constitute a course of

conduct. There were two robberies with a gun at different locations that occurred within a one

hour time period. The victims were easily identified, and the record reflects due consideration

by the jury of each count. The jury reduced the Count One aggravated murder charge to murder

and found Sinclair not guilty of the kidnapping of Russo.

       {¶35} The testimony as to each victim and the separate events relating to them was

distinctive and distinguishable. In addition, the robbery at Charlie’s Beverage was a minor part

of the proceedings as compared to the bulk of testimony and evidence addressing the events

surrounding the Sunoco incident. Sinclair was positively identified by the witnesses at both

scenes and video evidence exists for both locations.

        {¶36} Sinclair is unable to demonstrate prejudice. We find the third assignment of
error to be without merit.

       C.         Other Acts Testimony

       {¶37} Sinclair’s fourth assigned error challenges the admission of other acts evidence in

violation of R.C. 2945.59, Evid.R. 404(B), and Article I, Section 10 of the United States

Constitution. Sinclair asserts that the evidence introduced regarding the two robberies tainted

the jury’s ability to determine the separate counts and incidents. In light of our finding that the

trial court did not err in entertaining the joined cases, Sinclair’s argument hereunder is moot.

App.R. 12(A).

       D.         Lesser Included Offense Jury Instruction

       {¶38} Sinclair requested instructions on the following lesser included offenses: (1)

voluntary manslaughter and reckless homicide2 on Count 1 aggravated murder; (2) involuntary


       2
            Sinclair does not attack the trial court’s denial of this instruction.
manslaughter on Count 3 in commission with an aggravated assault; and (3) aggravated assault

on Count 6 felonious assault. The court agreed to provide a lesser included offense instruction

of murder on Count 1, and to let the jury decide on the indicted counts, citing State v. Rhodes, 63

Ohio St.3d 613, 590 N.E.2d 261 (1992).3

        {¶39}       Three types of lesser included offenses may be considered under R.C. 2945.74

and Crim.R. 31(C). State v. Deem, 40 Ohio St.3d 205, 207, 533 N.E.2d 294 (1988): “1)

attempts to commit the crime charged, if such an attempt is an offense at law; (2) inferior degrees

of the indicted offense; or (3) lesser included offenses.” Id.

        {¶40} Sinclair’s entitlement to a lesser included offense instruction turns on satisfying a

two-part test: (1) whether the requested charge is a lesser included offense of the current charge;

and, if so, (2) whether the evidence in the record supports entitlement to the instruction. State v.

Hill, 8th Dist. Cuyahoga No. 87645, 2006-Ohio-6425, ¶ 27, citing State v. Kidder, 32 Ohio St.3d

279, 280-281, 513 N.E.2d 311 (1987), citing Deem, 40 Ohio St.3d 205, 533 N.E.2d 294.

        {¶41}       To determine whether the requested charge is a lesser included offense, we

consider whether:

        “one offense carries a greater penalty than the other, whether some element of the
        greater offense is not required to prove commission of the lesser offense, and
        whether the greater offense as statutorily defined cannot be committed without the
        lesser offense as statutorily defined also being committed.”

Middleburg Hts. v. Lasker, 2016-Ohio-5522, 76 N.E.3d 372, ¶ 24 (8th Dist.), quoting State v.

Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889. Where the elements of the


        3
           A defendant must prove the existence of mitigating factors such as sudden passion, rage, or serious
provocation by a preponderance of the evidence. Rhodes at 617, affirming trial court’s refusal to give voluntary
manslaughter instruction for aggravated murder charge. See also State v. Henry, 8th Dist. Cuyahoga No. 102634,
2016-Ohio-692, affirming trial court’s refusal to give aggravated assault instruction for felonious assault charge,
citing Rhodes.
requested charge are identical to the actual charge, except for “one or more additional mitigating

elements,” the requested charge is an inferior degree of the indicted offense. Deem at 207.

       {¶42} If a “jury could reasonably find the defendant not guilty of the charged offense,”

but guilty of the lesser included offense, the instruction for the lesser included offense should be

given. Evans at ¶ 13, citing Shaker Hts. v. Mosely, 113 Ohio St.3d 329, 2007-Ohio-2072, 865

N.E.2d 859, ¶ 11, citing State v. Shane, 63 Ohio St.3d 630, 632-633, 590 N.E.2d 272 (1992).

               1.        Count One Voluntary Manslaughter

       {¶43} Voluntary manslaughter is an inferior degree of aggravated murder. State v.

Nitsche, 8th Dist. Cuyahoga No. 103174, 2017-Ohio-529, ¶ 26, citing Shane. Voluntary

manslaughter is defined as

       knowingly causing the death of another 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 is reasonably sufficient to incite the
       person into using deadly force.

R.C. 2903.03(A).

       {¶44}        Sinclair was shot as he attempted to leave the scene during his   commission of

an aggravated robbery. He explains that he shot at Sposit only because of the threat that Sposit

was going to shoot him again. Sinclair created the situation.

       {¶45}        We have already rejected Sinclair’s self-defense argument. As the state points

out, Sinclair’s explanation expresses fear versus rage or serious provocation.

       “Fear alone is insufficient to demonstrate the kind of emotional state necessary to
       constitute sudden passion or fit of rage.” State v. Mack, 82 Ohio St.3d 198, 201,
       1998 Ohio 375, 694 N.E.2d 1328 (1998); see also State v. Harris, 129 Ohio
       App.3d 527, 535, 718 N.E.2d 488 (10th Dist.1998) (“evidence * * * that the
       defendant feared for his own and other’s personal safety, does not constitute
       sudden passion or a fit of rage as contemplated by the voluntary manslaughter
       statute”).
State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 157.

       {¶46} We do not find that the evidence presents a mitigating element such as serious

provocation pursuant to R.C. 2903.03(A).            Nitsche, 8th Dist. Cuyahoga No. 103174,

2017-Ohio-529, at ¶ 27.        A “jury could not reasonably find” Sinclair “not guilty” of the

aggravated murder “but guilty of the lesser included offense” of voluntary manslaughter due to

the lack of evidence supporting the elements of the lesser charge.     See Evans, 122 Ohio St.3d

381, 2009-Ohio-2974, 911 N.E.2d 889, at ¶ 13. Therefore, no instruction was required.

               2.        Count Three Involuntary Manslaughter

       {¶47}        The mens rea for murder requires proof that Sinclair acted “purposely” or with

the “specific intention to cause” the death of Sposit R.C. 2901.22(A) and 2903.02(A). State v.

Brown, 8th Dist. Cuyahoga No. 68761, 1996 Ohio App. LEXIS 801, at 24 (Feb. 29, 1996).

        {¶48} Involuntary manslaughter is described in R.C. 2903.04(A). “[N]o person shall
cause the death of another” “as a proximate result of the offender’s committing or attempting to
commit a felony.” Id. Involuntary manslaughter is a lesser included offense of murder. Id.
at 25, citing State v. Thomas, 40 Ohio St. 3d 213, 533 N.E.2d 286 (1988), paragraph one of the
syllabus, citing State v. Kidder, 32 Ohio St.3d 279, 282, 513 N.E.2d 311 (1987).

       {¶49} “The culpable mental state for the offense of involuntary manslaughter” under R.C.

2903.04(A) “is supplied by the underlying [felony] offense.”         State v. Campbell, 74 Ohio

App.3d 352, 358-359, 598 N.E.2d 1244 (1st Dist.1991). Sinclair requested that aggravated

assault serve as the underlying felony. R.C. 2903.12(A)(1) governing aggravated assault

provides,

       No person, 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 is reasonably sufficient to incite the person into using deadly force, shall
       knowingly:

       (1)     Cause serious physical harm to another or to another’s unborn.
Id. “A person acts knowingly, regardless of purpose, when the person is aware that the person’s

conduct will probably cause a certain result or will probably be of a certain nature.” R.C.

2901.22(B).

       {¶50}        Fear alone is not enough to satisfy the mitigation factor.          Thomas,

2014-Ohio-4751, 23 N.E.3d 1096, at ¶ 157. The requested instruction was not required based

on the evidence in this case. Sinclair was aware that firing the gun at Sposit would “probably

cause a certain result.” Id. R.C. 2901.22(B).

               3.      Count Six Aggravated Assault

       {¶51} Count 6 charged felonious assault of Oska, Sr. pursuant to R.C. 2903.11(A):

       (A) No person shall knowingly do either of the following:

       (1) Cause serious physical harm to another or to another’s unborn;

       (2) Cause or attempt to cause physical harm to another or to another’s unborn by
       means of a deadly weapon or dangerous ordnance.

       {¶52} The requested lesser included offense of aggravated assault is governed by R.C.

2903.12:

       (A) No person, 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 is reasonably sufficient to incite the person into using deadly force,
       shall knowingly:

       (1) Cause serious physical harm to another or to another’s unborn;

       (2) Cause or attempt to cause physical harm to another or to another’s unborn by
       means of a deadly weapon or dangerous ordnance, as defined in section 2923.11
       of the Revised Code.

       {¶53} “‘Aggravated assault is an inferior degree of felonious assault since its elements

are identical’” “‘except for the additional mitigating element of serious provocation.’” State v.
Parr, 8th Dist. Cuyahoga No. 103894, 2016-Ohio-5629, ¶ 14, quoting State v. Ruppart, 187 Ohio

App.3d 192, 2010-Ohio-1574, 931 N.E.2d 627, ¶ 25 (8th Dist.).

        {¶54} “A finding of not guilty of felonious assault precluded a finding of guilty of

aggravated assault, given the identical essential elements of each offense.”      Ruppart at ¶ 1.

We reiterate that fear does not constitute serious provocation. Thomas, 2014-Ohio-4751, 23

N.E.3d 1096, at ¶ 157. The trial court properly denied the request.

        {¶55} Sinclair’s fifth assignment of error is overruled.

        E.      Ineffective Assistance of Counsel

        {¶56}     Sinclair argues in the sixth assigned error that he was denied the effective

assistance of counsel in violation of Article I, Section 10, of the United States Constitution and

the Sixth and Fourteenth Amendments, due to counsel’s failure to request separate trials. In

light of our finding that no error exists for

failure to sever the counts for trial in the third assignment of error, this assigned error is also

moot. App.R. 12(A).

        F.      Consecutive Sentences

        {¶57} The Ohio Supreme Court recently held that a trial court is required to “make

three statutory findings” “in order to impose consecutive prison terms for convictions of multiple

offenses. State v. Beasley, Slip Opinion No. 2018-Ohio-493, ¶ 252, citing R.C. 2929.14(C) and

 State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.

        {¶58} First, a trial court must find that consecutive sentences are “necessary to protect

the public or to punish the offender. R.C. 2929.14(C)(4).” Id. at ¶ 252. Second, a trial court

must find that “consecutive sentences are not disproportionate to the seriousness of the

offender’s conduct and to the danger that the offender poses to the public. Id.” Id. The third
requirement is that the trial court make one of the findings set forth in R.C. 2929.14(C)(4)(a).

Id. The findings must be set forth on the record at the sentencing hearing as well as in the

sentencing entry. Id. at ¶ 253, citing Bonnell at ¶ 37.

       {¶59} The findings required by R.C. 2929.14(C)(4)(a-c) are as follows:

       (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.

       {¶60}     The trial court stated,

       Now the Court is imposing the sentences consecutively because they’re necessary
       to protect the public. I find that they’re not disproportionate to the seriousness of
       what happened that day, and that the harm meted out was so great that a single
       prison term does not adequately reflect the seriousness of the defendant’s conduct.


(Tr. 937.)

       {¶61}     The sentencing entry provides,

       The state considered all required factors of the law. * * * The court finds
       that prison is consistent with the purpose of R.C. 2929.11. * * * The court
       imposes prison terms consecutively finding that consecutive service is necessary
       to protect the public from future crime or to punish defendant; that the
       consecutive sentences are not disproportionate to the seriousness of defendant’s
       conduct and to the danger defendant poses to the public; and that, at least two of
       the multiple offenses were committed in this case as part of one or more courses
       of conduct, and the harm caused by said multiple offenses was so great or unusual
       that no single prison term for any of the offenses committed as part of any of the
       courses of conduct adequately reflects the seriousness of defendant’s conduct.
Journal entry No. 98671105 (Apr. 27, 2017).

       {¶62} The trial court addressed each of the requisite elements at the sentencing hearing

and accurately journalized the findings. The seventh assigned error is without merit.

V.     Conclusion

       {¶63}     The trial court’s judgment is affirmed.

       It is ordered that the appellee recover from appellant 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.



_____________________________________
ANITA LASTER MAYS, JUDGE

EILEEN A. GALLAGHER, A.J., and
MELODY J. STEWART, J., CONCUR
