[Cite as State v. Trotter, 2020-Ohio-1002.]


                                         COURT OF APPEALS
                                      RICHLAND COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                 :       JUDGES:
                                              :       Hon. John W. Wise, P.J.
        Plaintiff - Appellee                  :       Hon. Craig R. Baldwin, J.
                                              :       Hon. Earle E. Wise, J.
-vs-                                          :
                                              :
JUSTIN TROTTER                                :       Case No. 2019 CA 0024
                                              :
        Defendant - Appellant                 :       OPINION



CHARACTER OF PROCEEDING:                              Appeal from the Richland County
                                                      Court of Common Pleas, Case No.
                                                      2018CR1017



JUDGMENT:                                             Affirmed in Part,
                                                      Reversed and Remanded in Part



DATE OF JUDGMENT:                                     March 12, 2020


APPEARANCES:

For Plaintiff-Appellee                                For Defendant-Appellant

GARY BISHOP                                           WILLIAM T. CRAMER
Prosecuting Attorney                                  470 Olde Worthington Road, Suite 200
Richland County                                       Westerville, Ohio 43082


By: Joseph C. Snyder
Assistant Prosecuting Attorney
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2019 CA 0024                                                  2


Baldwin, J.

       {¶1}   Defendant-appellant Justin Trotter appeals his conviction and sentence

from the Richland County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.

                       STATEMENT OF THE FACTS AND CASE

       {¶2}   On December 11, 2018, the Richland County Grand Jury indicted appellant

on one count of felonious assault against a peace officer in violation of R.C.

2903.11(A)(2), a felony of the first degree, one count of attempted felonious assault in

violation of R.C. 2903.11(A)(1), a felony of the second degree, one count of assault of a

peace officer in violation of R.C. 2903.13(A) & (C)(5), a felony of the fourth degree, one

count of obstructing official business in violation of R.C. 2921.31(A), a felony of the fifth

degree, and two counts of vandalism, one in violation of R.C. 2909.05(B)(1)(b) and the

other in violation of R.C. 2909.05(B)(2), both felonies of the fifth degree.             At his

arraignment on December 18, 2018, appellant entered a plea of not guilty to the charges.

       {¶3}   The matter proceeded to a jury trial. Prior to the start of trial, State dismissed

the count of felonious assault against a peace officer. The following testimony was then

adduced at trial.

       {¶4}   Deputy Jacob Frazier of the Richland County Sheriff’s Department was

working on November 18, 2018 from 10:00 p.m. to 6:00 a.m. and was in uniform minus a

tie. He was driving a marked patrol car. Deputy Frazier testified that it was his first day

“on shadow” duty where he no longer had a training officer in the vehicle with him. Trial

Transcript at 196. Deputy Frazier testified that 9-1-1 had received a call on November

18, 2018 from a woman who said that a male had frantically knocked on her door, that

she had let him and that she believed he was high on something because he was erratic.
Richland County, Case No. 2019 CA 0024                                               3


A short time after, a man called saying that a man was following him with a gun and that

the man was outside of his residence. A woman then picked up the phone and said that

there was no man outside with a gun and the call ended. Deputy Frazier was dispatched

to the location of the second call, along with Sergeant Henderson and Deputy Dawson.

       {¶5}   When Deputy Frazier arrived at the residence, he spoke with appellant’s

grandmother who told him that appellant had come home, was acting odd and that she

was afraid of him. Appellant’s brother told the Deputy that appellant had locked himself in

a bathroom and was throwing things around. Deputy Frazier then knocked on the

bathroom door and advised appellant who he was, but appellant refused to come out and

continued throwing items and appeared to be barricading the door. Deputy Frazier

decided that it would not be safe for him to try to get appellant out of the bathroom by

himself and decided to wait until another law enforcement officer arrived on the scene.

       {¶6}   Sergeant Henderson and Deputy Dawson subsequently arrived. Sergeant

Henderson knew appellant and attempted to get appellant to come out of the bathroom

and they had appellant’s brother speak to him through the door in an attempt to coax him

out. The officers also tried to pick the lock, but were unsuccessful. After 40 to 45 minutes,

Sergeant Henderson decided that they were going get a ram from his patrol car and if

they could not talk appellant out of the bathroom, they were going to have to go through

the door.

       {¶7}   As the deputies tried to enter the bathroom through a hole in the door,

appellant was” [v]ery sporadic, uncontrolled almost” and was screaming. Trial Transcript

at 204. Appellant would tell the officers that he would come out of the bathroom, but then

would not do so and would make requests that he was told were not possible. Appellant,
Richland County, Case No. 2019 CA 0024                                               4


according to Deputy Frazier, was “rambling on, almost incoherently, combative when we

were trying to enter the door, resisting any kind of attempts that we would make to either

enter the door or make any type of attempt to have him come out.” Trial Transcript at 205.

As they tried to enter the bathroom, appellant pushed back at them and tried to keep the

door closed.

      {¶8}     Sergeant Henderson and Deputy Frazier eventually were able to gain entry

into the bathroom and used their tasers to order appellant to the ground. After appellant

complied, he was handcuffed and removed from the bathroom. Appellant was then placed

in the driver rear side of Deputy Frazier’s cruiser. Deputy Dawson and Sergeant

Henderson went back inside to take pictures of the room while Deputy Frazier remained

in his patrol vehicle. While appellant was in the police cruiser, Deputy Frazier was able

to obtain information from appellant, including his social security number. The Deputy

testified that appellant was compliant, but kept mixing up numbers and had trouble

providing the information.

      {¶9}     When Sergeant Henderson returned to the cruiser, he told Deputy Frazier

that appellant needed to be moved from the driver side to the passenger side of the rear

seat for safety reasons. When the Sergeant asked appellant to either step out of the

vehicle or slide over to the passenger side, appellant refused and the officers

unsuccessfully tried to get appellant out of the vehicle. Appellant resisted their attempts

to move him to the passenger side.

      {¶10} Deputy Frazier testified that he was told to take appellant directly to jail with

Sergeant Henderson following close behind and to advise corrections officers at the jail

that appellant was disorderly so that there were officers read to handle him.
Richland County, Case No. 2019 CA 0024                                              5


       {¶11} As Deputy Frazier began driving away, appellant started banging his head

on the windows and the divider between the front and back seat. Deputy Frazier advised

Sergeant Henderson and Deputy Dawson and pulled over immediately.                 Sergeant

Henderson opened the rear door to try to talk to appellant and appellant tried to get out.

Sergeant Henderson, however, was blocking appellant’s way and appellant “wrapped his

legs around Sergeant Henderson and wouldn’t let go.” Trial Transcript at 217. Sergeant

Henderson then began striking appellant’s legs to get appellant to release him, but that

did not work.

       {¶12} Deputy Frazier testified that he tried to pull appellant off of Sergeant

Henderson and that he put his gloves on for safety reasons due to the blood on appellant

and the vehicle and again tried to pull appellant back, but was unsuccessful. The Deputy

then pulled his taser out and delivered a “drive-stun” to appellant, but appellant did not

appear to be affected and advised the Deputy that he was just burning appellant’s skin.

Appellant asked the Deputy if he could smell appellant’s skin burning. Trial Transcript at

218.

       {¶13} When appellant eventually let go of Sergeant Henderson, the Sergeant and

Deputy Dawson attempted to close the door, but appellant used his body to prevent the

door from closing. After several tries, they got the door closed. Deputy Dawson then

advised Deputy Frazier to get to the jail fast as he could in a safe manner and to not stop.

During the drive, appellant was kicking at the doors and windows and spitting, trying to

spit blood over the divider. Appellant told Deputy Frazier that he had Hep C and that he

was going to spit Hep C blood on him and had a needle that he was going to use against

the Deputy. Appellant continued spitting blood in the police vehicle.
Richland County, Case No. 2019 CA 0024                                             6


       {¶14} Appellant eventually managed to kick out one of the windows in the police

vehicle and put half of his body out of the window as if he was going to jump out of the

vehicle. Deputy Frazier then pulled over in a church parking lot followed by Sergeant

Henderson and Deputy Dawson and they once again tried to get appellant out of the

vehicle. They all had gloves on because appellant was very bloody. The officers had

decided that they were going to place appellant in Deputy Dawson’s vehicle because it

had hard plastic seats and bars on the windows. They struggled to get appellant out of

Frazier’s vehicle and then he became dead weight, and fell to the ground along with

Deputy Dawson and Sergeant Henderson. Appellant wrapped his legs around the rear

tire of Deputy Dawson’s vehicle.    They pulled him off of the tire and he became dead

weight again and wrapped his legs around Sergeant Henderson and said that he had Hep

C and was going to spit blood on the Sergeant. Deputy Frazier testified that appellant

also claimed to have HIV.

       {¶15} Appellant then spit in Sergeant Henderson’s face and Deputy Dawson

kicked appellant in his head. Sergeant Henderson tasered appellant. Appellant then

relaxed and the Sergeant went to his cruiser to rinse out his mouth and wipe off his face.

Appellant was on the ground and was compliant for a while. Deputy Frazier called for an

ambulance for appellant and the Sergeant, but the Sergeant did not want to wait and

drove himself to the hospital.

       {¶16} When the ambulance arrived, appellant became difficult again and refused

to put on a mask to prevent him from spitting and was flailing and kicking while on the

gurney. Appellant continued spitting and trying to spit on people. Appellant tried to break
Richland County, Case No. 2019 CA 0024                                            7


the handcuffs and appeared to have broken both of his wrists from trying to break them.

At the hospital, appellant continued fighting everyone until he was sedated.

       {¶17} Appellant tested negative for HIV and only had Hep C antibodies. There

was no medical testimony that his Hep C was infectious.

       {¶18} During trial, as later memorialized in a Judgment Entry filed on March 13,

2019, the trial court, on appellee’s oral motion, had amended Count Two to attempted

felonious assault in violation of R.C. 2923.02(A).

       {¶19} At the conclusion of the evidence and the end of deliberations, the jury, on

March 8, 2019, found appellant guilty of attempted felonious assault of a peace officer,

assault of a peace officer, obstructing official business, and both counts of vandalism.

Pursuant to a Sentencing Entry filed on March 13, 2019, appellant was sentenced as

follows:

       {¶20} On Count Two the Court sentenced appellant to seven years. On Count

Three, the Court sentenced appellant to eighteen months but merged the offense with

Count Two. On Count Four the Court sentenced appellant to twelve months, consecutive

to Count Two.      On Count Five the Court sentenced appellant to twelve months

consecutive to Counts Two and Four. On Count Six the Court sentenced appellant to

twelve months but merged it with Count Five. The Court imposed four hundred and

ninety-three (493) days of post release control.

       {¶21} On November 25, 2019, a Judgment Entry was filed correcting the transcript

to indicate that appellant was sentenced to 493 days of post release control.

       {¶22} Appellant now raises the following assignments of error on appeal:
Richland County, Case No. 2019 CA 0024                             8


      {¶23} “I. APPELLANT’S RIGHTS TO DUE PROCESS UNDER THE STATE AND

FEDERAL CONSTITUTIONS WERE VIOLATED BY A CONVICTION FOR ATTEMPTED

FELONIOUS ASSAULT THAT WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE.”

      {¶24} “II.   APPELLANT’S   CONVICTION   OF   ATTEMPTED   FELONIOUS

ASSAULT IS NOT SUPPORTED BY THE WEIGHT OF THE EVIDENCE.”

      {¶25} “III. APPELLANT’S RIGHTS TO DUE PROCESS UNDER THE STATE

AND FEDERAL CONSTITUTIONS WERE VIOLATED BY A CONVICTION FOR

VANDALISM OF PROPERTY NECESSARY TO ENGAGE IN A BUSINESS UNDER R.C.

2909.05(B)(1)(b) THAT WAS NOT SUPPORTED SUFFICIENT EVIDENCE.”

      {¶26} “IV. APPELLANT’S RIGHTS TO DUE PROCESS UNDER THE STATE

AND FEDERAL CONSTITUTIONS WERE VIOLATED BY A CONVICTION FOR

VANDALISM OF GOVERNMENT PROPERTY UNDER R.C. 2909.05(B)(2) THAT WAS

NOT SUPPORTED BY SUFFICIENT EVIDENCE.”

      {¶27} “V. THE TRIAL COURT ERRED BY IMPOSING MULTIPLE SENTENCES

ON ALLIED ASSAULT OFFENSES AND ALLIED VANDALISM OFFENSES IN

VIOLATION OF R.C. 2941.25 AND THE STATE AND FEDERAL CONSTITUTIONAL

PROTECTIONS AGAINST DOUBLE JEOPARDY.”

      {¶28} “VI. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE

SENTENCES WITHOUT MAKING THE REQUISITE FINDINGS UNDER R.C.

2929.14(C)(4).”

      {¶29} “VII. APPELLANT’S RIGHTS TO DUE PROCESS UNDER THE STATE

AND FEDERAL CONSTITUTIONS WERE VIOLATED BY THE IMPOSITION OF 484
Richland County, Case No. 2019 CA 0024                                              9


DAYS OF POSTRELEASE CONTROL TIME THAT IS NOT SUPPORTED BY THE

RECORD.”

                                            I, II

       {¶30} Appellant, in his first assignment of error, argues that his conviction for

attempted felonious assault was not supported by sufficient evidence. In his second

assignment of error, he contends that his conviction for attempted felonious assault was

against the manifest weight of the evidence.

       {¶31} The 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,

1997-Ohio-52, 678 N.E.2d 541, paragraph two of the syllabus. The standard of review for

a challenge to the sufficiency of the evidence is set forth in State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991) at paragraph two of the syllabus, in which the Ohio Supreme

Court held, “An appellate court's function when reviewing the sufficiency of the evidence

to support a criminal conviction is to examine the evidence admitted at trial to determine

whether such evidence, if believed, would convince the average mind of the defendant's

guilt beyond a reasonable doubt. 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.”

       {¶32} In determining whether a conviction is against the manifest weight of the

evidence, the court of appeals functions as the “thirteenth juror,” and after “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
Richland County, Case No. 2019 CA 0024                                               10


be overturned and a new trial ordered.” State v. Thompkins, supra, 78 Ohio St.3d at 387.

Reversing a conviction as being against the manifest weight of the evidence and ordering

a new trial should be reserved for only the “exceptional case in which the evidence weighs

heavily against the conviction.” Id.

       {¶33} “[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.

       {¶34} Appellant, in the case sub judice, was convicted of attempted felonious

assault in violation of 2903.11(A)(1). R.C. 2903.11 states, in relevant part, as follows:

“(A) No person shall knowingly do either of the following:(1) Cause serious physical harm

to another or to another's unborn;…” Physical harm is any injury or illness, regardless of

gravity or duration. R.C. 2901.01(A)(3).

       {¶35} Appellant specifically contends that the medical evidence does not indicate

that appellant was infected with a communicable disease and that his claims to the

contrary were not adequate on their own to prove that his act of spitting on a police officer

amounted to attempted felonious assault.

       {¶36} In State v. Price, 162 Ohio App.3d 677, 2005–Ohio–4150, 834 N.E.2d 847,

police officers were dispatched to the home of the defendant where he spat at one of the

officers. The defendant was infected with HIV and hepatitis and he knew of his conditions.

While the officer was not infected with these diseases, the court noted he had to deal with

the concern of possibly being infected with them. The court affirmed the defendant's

convictions for both felonious assault and attempted felonious assault.
Richland County, Case No. 2019 CA 0024                                                11


       {¶37} In the case sub judice, there was testimony that appellant did not have HIV.

However, Dr. Fain, a pathologist, testified at trial that appellant had a positive antibody

test for Hep C and that additional testing was required to determine if appellant was

currently infected with Hep C. There was testimony at trial that appellant repeatedly

indicated to the officers that he had Hep C and that he threatened to infect those around

him.

       {¶38} At trial, Sergeant Henderson testified that he feared that he had contracted

Hep C and HIV due to appellant’s actions in spitting at him and having appellant’s blood

come into contact with his face, eyes and mouth. He testified that he was referred to an

infectious disease doctor and put on anti-HIV medication and had received treatment the

night in question. There is no protective medication against Hep C. The Sergeant testified

that, due to the side effects of the medication, he missed about ten days of work. The

Sergeant testified that he felt like he had the flu during that period of time. He further

testified that every 90 days, he had to get his blood tested for a year and that at the time

of trial, he was testing negative for Hep C and HIV. We find that he suffered serious

physical harm as a result of appellant’s actions.

       {¶39} Based on the foregoing, we find that construing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential

elements of the crime of attempted felonious assault proven beyond a reasonable doubt

and that the jury did not lose its way in convicting appellant of attempted felonious assault.

       {¶40} Appellant’s first and second assignment of error are, therefore, overruled.
Richland County, Case No. 2019 CA 0024                                                  12


                                             III, IV

       {¶41} Appellant, in his third assignment of error, maintains that his conviction for

vandalism of property necessary to engage a business is not supported by sufficient

evidence. In his fourth assignment of error, he argues that his conviction for vandalism

of government property is not supported by sufficient evidence.

       {¶42} Appellant was convicted of vandalism is violation of R.C. 2909.05(B)(1)(b)

and (B)(2).

       {¶43} R.C. 2909.05 states, in relevant part, as follows:

       {¶44} (B)(1) No person shall knowingly cause physical harm to property that is

owned or possessed by another, when either of the following applies:…

       {¶45} (b) Regardless of the value of the property or the amount of damage done,

the property or its equivalent is necessary in order for its owner or possessor to engage

in the owner's or possessor's profession, business, trade, or occupation.

       {¶46} (2) No person shall knowingly cause serious physical harm to property that

is owned, leased, or controlled by a governmental entity. A governmental entity includes,

but is not limited to, the state or a political subdivision of the state, a school district, the

board of trustees of a public library or public university, or any other body corporate and

politic responsible for governmental activities only in geographical areas’

       {¶47} As noted by appellant, his conviction on two counts of vandalism was based

on the damage to the police cruiser, which was clearly government property. There was

testimony at trial that appellant kicked at and broke the window in Deputy Frazier’s cruiser

and that the cruiser was heavily covered in appellant’s blood. There also was testimony
Richland County, Case No. 2019 CA 0024                                               13


that Deputy Frazier’s cruiser had to be taken out of service and the window had to be

replaced and the inside decontaminated.

      {¶48} Appellant argues that he only damaged a single cruiser and that, therefore,

the requirements of R.C. 2909.05(B)(1)(b) were not satisfied. In State v. Dunfee, 177 Ohio

App.3d 239, 2008–Ohio–3615, 894 N.E.2d 359 (2d Dist.), the court held that a defendant

was guilty of Vandalism, pursuant to R.C. 2909.05(B)(1)(b), when he damaged the

window of a Sheriff's Department cruiser, because the “cruiser could not be used for

transporting prisoners or other persons in custody while the window was broken and * * *

was unusable during the two hours that the window was being repaired.” Id. at ¶ 36.

Despite the fact that the police department had twelve cruisers, the court found that “a

reasonable fact-finder could conclude that each cruiser was necessary for the functioning

of the Sheriff's Department.” Id. The court determined nothing in R.C. 2909.05 precluded

a prosecution under R.C. 2909.05(B)(1)(b) when the property at issue was governmental

property.

      {¶49} Appellant’s third and fourth assignments of error are, therefore, overruled.

                                             V

      {¶50} Appellant, in his fifth assignment of error, maintains that the trial court erred

by imposing multiple sentences on allied assault offenses and allied vandalism offenses

in violation of R.C. 2941.25 and the state and federal constitutional protections against

double jeopardy.

      {¶51} In the case sub judice, appellant argued that the felonious assault and

assault merged as did the two vandalism counts. Appellee agreed with appellant that the

two vandalism counts merged and asked the trial court to sentence appellant on the
Richland County, Case No. 2019 CA 0024                                               14


vandalism charge contained in Count 5 rather than the other vandalism count. The trial

court, however, found that the assault counts merged, noting that it was imposing

sentence on both counts to be “run concurrent as those charges merge.” Trial Transcript

at 611. When sentencing appellant on the vandalism counts, the trial court, as noted by

appellee, did not specifically mention merger, but similarly imposed concurrent prison

terms.

         {¶52} R.C. 2941.25, Ohio's allied offense statute, provides:

         {¶53} (A) Where the same conduct by defendant can be construed to constitute

two or more allied offenses of similar import, the indictment or information may contain

counts for all such offenses, but the defendant may be convicted of only one.

         {¶54} (B) Where the defendant's conduct constitutes two or more offenses of

dissimilar import, or where his conduct results in two or more offenses of the same or

similar kind committed separately or with a separate animus to each, the indictment or

information may contain counts for all such offenses, and the defendant may be convicted

of all of them.

         {¶55} In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892,

syllabus, the Supreme Court of Ohio held the following:

         {¶56} 1. In determining whether offenses are allied offenses of similar import

within the meaning of R.C. 2941.25, courts must evaluate three separate factors—the

conduct, the animus, and the import.

         {¶57} 2. Two or more offenses of dissimilar import exist within the meaning of R.C.

2941.25(B) when the defendant's conduct constitutes offenses involving separate victims

or if the harm that results from each offense is separate and identifiable.
Richland County, Case No. 2019 CA 0024                                              15


      {¶58} 3. Under R.C. 2941.25(B), a defendant whose conduct supports multiple

offenses may be convicted of all the offenses if any one of the following is true: (1) the

conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses

were committed separately, or (3) the conduct shows that the offenses were committed

with separate animus.

      {¶59} The Ruff court explained at paragraph 26:

      {¶60} At its heart, the allied-offense analysis is dependent upon the facts of a case

because R.C. 2941.25 focuses on the defendant's conduct. The evidence at trial or during

a plea or sentencing hearing will reveal whether the offenses have similar import. When

a defendant's conduct victimizes more than one person, the harm for each person is

separate and distinct, and therefore, the defendant can be convicted of multiple counts.

Also, a defendant's conduct that constitutes two or more offenses against a single victim

can support multiple convictions if the harm that results from each offense is separate

and identifiable from the harm of the other offense. We therefore hold that two or more

offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the

defendant's conduct constitutes offenses involving separate victims or if the harm that

results from each offense is separate and identifiable.

      {¶61} In the case sub judice, the parties agree that the trial court erred by imposing

multiple sentences on allied assault offenses and allied vandalism offenses in violation of

R.C. 2941.25 and the state and federal constitutional protections against double jeopardy.

The State of Ohio concedes that these offenses are allied offenses and should have been

merged.

      {¶62} Appellant’s fifth assignment of error is, therefore, sustained.
Richland County, Case No. 2019 CA 0024                                                16


                                             VI

       {¶63} Appellant, in his sixth assignment of error, argues that the trial court erred

by imposing consecutive sentences without making the requite findings under R.C.

2929.14(C)(4).

       {¶64} R.C. 2953.08(G)(2) sets forth the standard of review for all felony

sentences. State v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231 ¶ 1.

Pursuant to R.C. 2953.08(G)(2), an appellate court may only “increase, reduce, or

otherwise modify a sentence * * * or may vacate the sentence and remand the matter to

the sentencing court for resentencing” if the court finds by clear and convincing evidence

“(a) [t]hat the record does not support the sentencing court's findings[,]” or “(b) [t]hat the

sentence is otherwise contrary to law.” R.C. 2953.08(G)(2)(a)–(b).

       {¶65} R.C. 2929.14(C)(4) concerns the imposition of consecutive sentences. In

Ohio, there is a statutory presumption in favor of concurrent sentences for most felony

offenses. R.C. 2929.41(A). The trial court may overcome this presumption by making the

statutory, enumerated findings set forth in R.C. 2929.14(C) (4). State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶23. This statute requires the trial court to

undertake a three-part analysis in order to impose consecutive sentences. . State v.

Alexander, 1st Dist. Hamilton Nos. C–110828 and C–110829, 2012-Ohio-3349, 2012 WL

3055158, ¶ 15.

       {¶66} R.C. 2929.14(C)(4) provides,

       {¶67} 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
Richland County, Case No. 2019 CA 0024                                                 17


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:

       {¶68} (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.

       {¶69} (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.

       {¶70} (c) The offender’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the offender.

       {¶71} Thus, in order for a trial court to impose consecutive sentences the court

must find that consecutive sentences are necessary to protect the public from future crime

or to punish the offender. The court must also find that consecutive sentences are not

disproportionate to the offender’s conduct and to the danger the offender poses to the

public. Finally, the court must make at least one of three additional findings, which include

that (a) the offender committed one or more of the offenses while awaiting trial or

sentencing, while under a sanction imposed under R.C. 2929.16, 2929.17, or 2929.18, or

while 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
Richland County, Case No. 2019 CA 0024                                                 18


or more of the 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 would adequately reflect the

seriousness of the offender’s conduct; or (c) the offender’s criminal history demonstrates

that consecutive sentences are necessary to protect the public from future crime by the

offender. See, State v. White, 5th Dist. Perry No. 12-CA-00018, 2013-Ohio-2058, ¶36.

       {¶72} In the case sub judice, the trial court stated on the record that appellant had

been “assaultive in your life” and had several domestic violence offenses that were

elevated to felonies “because of the sheer number of them.” Trial Transcript at 609. The

trial court also noted by appellant had gotten out ”not too long ago on a felonious assault

or an attempted felonious assault” and was on PRC time. Trial Transcript at 609.

       {¶73} The trial court further found that the officers “bent over backwards trying to

be polite” with appellant, but that appellant “didn’t want any part of it.” Trial Transcript at

609. The trial court further stated, in relevant part, as follows:

       {¶74} Officer Henderson now, although he went through the initial treatment, still

has to go back periodically and still has to wait another 6 months of worrying as to whether

he is infected or not. He has to live with that. It’s on his mind. He is scared. He has a

right to be scared. You see, because alls he was trying to do was his job. Okay? And

he might actually suffer some type of an injury because of your choices, not his.

       {¶75} As Attorney Schumacher stated, it started by them trying to help your

grandmother out. She wanted you out of that house that evening. And when officers

arrived, you were barricaded in your bathroom, - - or in her bathroom, and your brother

implored you to come out because your grandmother had to go to the bathroom, and you
Richland County, Case No. 2019 CA 0024                                              19


wouldn’t do that, to the point where a seventy-some-year-old-lady had to defecate in a

bucket because of your choices.

       {¶76} If this was the first time, Mr. Trotter, I might believe your apology. But the

fact of the matter is that you’ve been beating up on people, assaulting them for a long

time. This isn’t something new.

       {¶77} The court has had an opportunity to look at some of your history. The court,

looking at the principles and purposes of sentencing within Ohio Revised Code 2929.11

and the seriousness and recidivism factors in 2929.12 believes that a prison sentence

and a lengthy one is just in this matter.

       {¶78} Trial Transcript at 609-610.

       {¶79} In this case, the record does establish that the trial court made all of the

findings required by R.C. 2929.14(C)(4) at the time it imposed consecutive sentences.

We also note that in the sentencing entry, the trial court found that consecutive sentences

were necessary to protect the public from future crime or to punish the offender; were not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public; that the offender committed one or more of the offenses

while under a community control sanction or PRC for a prior offense; that at least two of

the multiple offenses were committed as part of one or more courses of conduct, and that

the harm caused by two or more of the 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 would adequately reflect the seriousness of appellant's conduct. The trial court

also found that the offender’s history of criminal conduct demonstrated that consecutive

sentences were necessary to protect the public from future crime by the offender.
Richland County, Case No. 2019 CA 0024                                             20


      {¶80} Appellant’s six assignment of error is, therefore, overruled.

                                            VII

      {¶81} Appellant, in his final assignment of error, asserts that his rights to due

process under the state and federal constitutions were violated by the imposition of 484

days of post release control time that is not supported by the record.

      {¶82} We note that in this matter, appellant was on post-release control from a

prior felony at the time of the offenses in this case. The trial court, as the sentencing

hearing, stated that it was imposing “the remaining 193 days that you have remaining on

Post Release Control.” Trial Transcript at 611. Subsequently, pursuant to a Judgment

Entry filed on November 25, 2019, the trial court, at the request of the parties, corrected

the transcript to read “493 days” rather than “193 days.” However, the trial court’s March

13, 2019 Sentencing Entry states that appellant received 484 days of post release control.

      {¶83} Appellant argues, and we agree, that the imposition of 484 days of post

release control mentioned in the trial court’s Sentencing Entry is not supported by the

record.   As noted by this Court in State v. Wells, 5th Dist. Licking No. 14–CA–36, 2015-

Ohio-39 at paragraph 8, the time remaining on appellant’s post-release control sanction

should be calculated from the date of sentencing rather than from the date of the offenses.

      {¶84} Appellant’s seventh assignment of error is, therefore, sustained.
Richland County, Case No. 2019 CA 0024                                          21


      {¶85} Accordingly, the judgment of the Richland County Common Pleas Court is

affirmed in part and reversed and remanded in part. This cause is remanded to the court

for resentencing in accordance with this Opinion.

By: Baldwin, J.

Wise, John, P.J. and

Wise, Earle, J. concur.
