[Cite as State v. Wood, 2020-Ohio-422.]



                                     IN THE COURT OF APPEALS

                           TWELFTH APPELLATE DISTRICT OF OHIO

                                          MADISON COUNTY




STATE OF OHIO,                                  :

       Appellee,                                :     CASE NO. CA2018-07-022

                                                :              OPINION
   - vs -                                                       2/10/2020
                                                :

DUSTYN T. WOOD,                                 :

       Appellant.                               :




      CRIMINAL APPEAL FROM MADISON COUNTY COURT OF COMMON PLEAS
                           Case No. CRI20180046



Stephen J. Pronai, Madison County Prosecuting Attorney, Rachel M. Price, 59 North Main
Street, London, Ohio 43140, for appellee

Engel & Martin, LLC, Jim L. Hardin, 4660 Duke Drive, Suite 101, Mason, Ohio 45040, for
appellant



        PIPER, J.

        {¶ 1} Appellant, Dustyn Wood, appeals his convictions in the Madison County Court

of Common Pleas for multiple counts of attempted murder, felonious assault, aggravated

robbery, having weapons under disability, as well as accompanying specifications.

        {¶ 2} Wood, along with three others, went to the apartment occupied by Aaron Kirk

and Joshua Sollars to purchase methamphetamine. The men began to argue over price and
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sampling of the drugs, and Wood shot Kirk and Sollars during the disagreement. Wood and

his companions fled the apartment. Wood was later apprehended by police, arrested, and

indicted on two counts of attempted murder, with repeat violent offender and firearm

specifications, two counts of felonious assault and their accompanying repeat violent

offender and firearm specifications, one count of aggravated robbery, and one count of

having weapons while under disability. Wood pled not guilty to the charges.

       {¶ 3} At Wood's request, the trial court bifurcated the proceedings so that the

weapons under disability charge and the repeat violent offender and firearm specifications

were tried by the bench while a jury trial occurred for the remaining counts. The jury and trial

court found Wood guilty on all charges and specifications, and after merger, the trial court

sentenced Wood to an aggregate sentence of 39 years and 9 months in prison. Wood now

appeals his convictions and sentence, raising the following assignments of error.

       {¶ 4} Assignment of Error No. 1:

       {¶ 5} THE TRIAL COURT ERRED IN IMPOSING MAXIMUM CONSECUTIVE

SENTENCES ON APPELLANT BY FAILING TO PROPERLY CONSIDER THE FACTORS

REQUIRED BY R.C. SECTIONS 2929.11 AND 2929.12 WHEN IMPOSING SENTENCE.

       {¶ 6} Wood argues in his first assignment of error that the trial court erred in

sentencing him to a maximum consecutive sentence.

       {¶ 7} An appellate court reviews the imposed sentence according to R.C.

2953.08(G)(2), which governs all felony sentences. State v. Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, ¶ 1. R.C. 2953.08(G)(2) provides that an appellate court can modify or

vacate a sentence only if the appellate court finds by clear and convincing evidence that the

record does not support the trial court's findings under relevant statutes or that the sentence

is otherwise contrary to law.

       {¶ 8} A sentence is not clearly and convincingly contrary to law where the trial court
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"considers the principles and purposes of R.C. 2929.11, as well as the factors listed in R.C.

2929.12, properly imposes postrelease control, and sentences the defendant within the

permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-100, 2016-

Ohio-2890, ¶ 8.

      {¶ 9} A consecutive sentence is contrary to law where the trial court fails to make the

consecutive sentencing findings required by R.C. 2929.14(C)(4). State v. Marshall, 12th Dist.

Warren No. CA2013-05-042, 2013-Ohio-5092, ¶ 8. Pursuant to R.C. 2929.14(C)(4), a trial

court must engage in a three-step analysis and make certain findings before imposing

consecutive sentences. State v. Smith, 12th Dist. Clermont No. CA2014-07-054, 2015-Ohio-

1093, ¶ 7. Specifically, the trial court must find that (1) the consecutive sentence is

necessary to protect the public from future crime or to punish the offender, (2) consecutive

sentences are not disproportionate to the seriousness of the offender's conduct and to the

danger the offender poses to the public, and (3) one of the following applies:

             (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.

R.C. 2929.14(C)(4).

      {¶ 10} "In order to impose consecutive terms of imprisonment, a trial court is required

to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and


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incorporate its findings into its sentencing entry." State v. Bonnell, 140 Ohio St. 3d 209,

2014-Ohio-3177, ¶ 37. While the trial court is not required to give reasons explaining these

findings, it must be clear from the record that the court engaged in the required sentencing

analysis and made the requisite findings. Smith at ¶ 8.

        {¶ 11} The record clearly indicates, and Wood does not challenge, that the trial court's

sentence was within the statutory range for the enumerated felony designations of his

convictions. Wood, however, does challenge the trial court's consideration of relevant

statutory factors specific to sentencing and claims that the trial court erred in balancing the

factors. However, the record demonstrates that the trial court properly considered the

required factors within R.C. 2929.11 and 2929.12, as the trial court referenced facts specific

to the factors both during the sentencing hearing, and as indicated in the trial court's

sentencing entry. For example, the trial court specifically referenced factors, such as the

seriousness of the crimes and Wood's high risk of recidivism as compared to Wood's

unsuccessful response to prior incarceration.1 Wood was also properly informed of the

required postrelease control notifications.

        {¶ 12} The trial court also made consecutive sentence findings at the sentencing

hearing when it imposed sentence, as well as in its judgment entry of sentence. The trial

court specifically found that consecutive sentences were necessary to protect the public from

future crime, as well as to punish Wood for his crimes. It also found that the consecutive

nature of the sentence was not disproportionate to the seriousness of Wood's conduct and to

the danger he posed to the public.



1. We note that the trial court cited to various sections of R.C. 2929.12 during the sentencing hearing when
discussing its consideration of the sentencing factors. However, it did not cite R.C. 2929.11 in the same manner.
 Yet, "the fact that the trial court did not expressly cite to R.C. 2929.11 * * * during the sentencing hearing is
immaterial, considering [the court] specifically cited to both statutes within its sentencing entry." State v. McCree,
12th Dist. Warren No. CA2016-06-049, 2017-Ohio-791, ¶ 23. This is especially true where the court's discussion
of the factors it did consider were inherent within R.C. 2929.11.
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        {¶ 13} While required to make only one additional finding, the trial court found that

each of the three additional factors of R.C. 2929.14(C)(4)(a) thru (c) applied to Wood. The

trial court found that (a) Wood's crimes were committed while Wood was subject to

postrelease control, that (b) Wood's crimes were part of a course of conduct and that the

harm of those crimes was so great that a single prison sentence would not reflect their

seriousness, and also that (c) Wood's criminal history demonstrated that consecutive

sentences were necessary to protect the public. Thus, Wood's sentence was not contrary to

law.

        {¶ 14} We also find that the trial court's findings were supported by the record. The

record indicates that Wood had been released only two months from an 11-year sentence

before he shot the victims, and that Wood committed the crimes while subject to postrelease

control.    The trial court also considered that Wood had been noncompliant while

incarcerated, such as engaging in "assaultive-style behavior" with guards and inmates, and

that Wood had not responded well to previous sanctions. The court detailed Wood's criminal

history, including multiple juvenile offenses and adult offenses including theft, armed robbery,

and violence against a police officer.

        {¶ 15} The court also determined that Wood's crimes were more serious than normal,

which is supported by the record because both victims spent extended time in the hospital to

recover from their injuries.2 The court noted that instead of merely showing the gun during

the argument, Wood chose to use it by shooting the two victims who then suffered serious

physical injury. After a thorough review, we find the trial court's findings are fully supported

by the record. Wood's first assignment of error is, therefore, overruled.


2. Wood points out that at the sentencing hearing, the trial court referred to one count as aggravated murder
instead of attempted murder. While Wood asserts that this misstatement of the charge influenced the trial court
to impose a harsher sentence, that assumption is speculation not supported by the record. Instead, the trial
court correctly indicated that the victims survived their injuries and then sentenced Wood within the correct
statutory range for attempted murder rather than aggravated murder.
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         {¶ 16} Assignment of Error No. 2:

         {¶ 17} THE TRIAL COURT ERRED IN FAILING TO EITHER CONTINUE THE TRIAL

IN PROGRESS OR TO SUA SPONTE DECLARE A MISTRIAL AS A RESULT OF

TESTIMONY BASED UPON BALLISTICS REPORTS THAT WERE CLAIMED TO EXIST

BUT WERE NOT PRODUCED TO THE DEFENSE AND WHICH FINDINGS WERE

TESTIFIED TO AT THE TRIAL IN THE PRESENCE OF THE JURY.

         {¶ 18} Wood argues in his second assignment of error that the trial court erred in not

ordering the trial continued or by not declaring a mistrial once a witness testified about

ballistic evidence.

         {¶ 19} We note that Wood did not request a continuance or move for a mistrial when

the ballistic evidence was discussed at trial. Thus, Wood has waived all but plain error. Plain

error exists where there is an obvious deviation from a legal rule that affected the defendant's

substantial rights, i.e., the error must have affected the outcome of the proceeding. Crim.R.

52(B).     Notice of plain error is taken with the utmost caution, under exceptional

circumstances, and only to prevent a manifest miscarriage of justice. State v. Hensley, 12th

Dist. Warren No. CA2009-11-156, 2010-Ohio-3822, ¶ 29.

         {¶ 20} During the cross-examination of a detective who had investigated the incident,

the detective testified that a gun owned by one of the victims had been sent for testing and

that the lab concluded that the gun had not been fired. The trial court then posed questions

to the witness about the victim's gun and the separate shell casings found at the scene of the

shooting, and Wood's counsel requested a sidebar conference. The sidebar was not

transcribed. However, the court excused the jury and noted that during the sidebar, defense

counsel stated that it had not been given a report of ballistic testing results.

         {¶ 21} The trial court stated its intention to cease its line of questioning regarding the

ballistic testing and gave the parties the opportunity to question the witness again. During
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the state's redirect, it asked the witness what shell casings had been located at the scene,

and the witness testified that two casings were found on the floor, and that they were

consistent with the type of gun used by Wood. Wood then engaged in recross regarding the

victim's gun and whether it was fully loaded at the time it was taken as evidence on the night

of the shooting.

       {¶ 22} While there is no dispute that the ballistics report was not in evidence, there is

no indication that its absence prejudiced Wood or constituted reversible error. Instead, the

state presented multiple witnesses who testified that Wood was the shooter, the jury heard

evidence that the shell casings found in the apartment were consistent with the gun Wood

used, and the victim testified that he did not possess his gun until after he was shot.

       {¶ 23} Even if the victim had fired his gun at some point, thus disproving the ballistic

report, there is no indication that Wood would have been acquitted. There was no evidence

produced that Wood was acting in self-defense on the night of the shootings. In fact, Wood's

defense at trial was that he was not the shooter. Thus, whether a victim used his gun in any

way during the incident is immaterial to Wood's defense and would not have changed the

outcome of the trial. Thus, Wood has failed to show plain error, and his second assignment

of error is overruled.

       {¶ 24} Assignment of Error No. 3:

       {¶ 25} APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

       {¶ 26} Wood argues in his final assignment of error that he was denied effective

assistance of counsel.

       {¶ 27} To prevail on an ineffective assistance of counsel claim, an appellant must

show his trial counsel's performance was deficient, and that he was prejudiced as a result.

Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052 (1984). Trial counsel's

performance will not be deemed deficient unless it fell below an objective standard of
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reasonableness. Id. at 688. To show prejudice, appellant must establish that, but for his trial

counsel's errors, there is a reasonable probability that the result of his trial would have been

different. Id. at 694.

       {¶ 28} A strong presumption exists that a licensed attorney is competent and that the

challenged action is the product of sound trial strategy and falls within the wide range of

professional assistance. Id. at 689. While the wisdom of a given strategy may be debatable,

trial tactics, even "debatable trial tactics," do not constitute a denial of effective assistance of

counsel. State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, ¶ 146.

       {¶ 29} Wood first argues that his counsel was ineffective for lacking a successful

defense strategy and failing to properly cross-examine the state's witnesses. Wood suggests

that his counsel should have argued provocation or self-defense because those defenses

would have been more persuasive if the victim's gun had been fired. However, that argument

is based on mere speculation that the victim had used his gun before he was shot. This

speculation is unreasonable because evidence, even absent the ballistic report, indicated

that the victim did not possess or fire his gun before being shot. Even so, and as addressed

above in Wood's second assignment of error, there is no indication that had the victim used

his gun, Wood would have been successful on a self-defense claim. The fact that a trial

strategy was not successful and that other strategies could have been employed simply does

not support a finding of ineffective assistance of counsel.

       {¶ 30} Wood also argues that his counsel was deficient for the manner in which he

cross-examined the state's witnesses.          However, Wood cannot establish ineffective

assistance of counsel because the record demonstrates that counsel did cross-examine the

witnesses in accordance with trial strategy, attempting to provide a basis for reasonable

doubt in the jury's mind that Wood was the shooter. Counsel challenged the witnesses'

credibility and tried to present a picture of the incident as a drug deal that went bad rather
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than a designed attempted murder.          Counsel asked questions about the witnesses'

involvement with drugs, both in selling and using methamphetamine, to directly challenge

their credibility, to cast doubt on the witnesses' ability to remember the incident, and to show

that the witnesses had motive to lie. Counsel also asked witnesses about their ownership of

firearms and possible usage of such during the night in question. Defense counsel also

asked questions of the investigating officers, challenging the weight of the state's evidence

and the appropriateness of the police investigation. There is no indication that any other or

additional questions posed to the state's witnesses would have turned the tide in Wood's

favor or convinced the jury to acquit.

        {¶ 31} Wood also argues that he received ineffective assistance of counsel when his

counsel did not permit him to testify. Whether a defendant testifies at trial is a clear example

of trial strategy. State v. Hubbard, 12th Dist. Butler Nos. CA2006-09-216 and CA2006-09-

231, 2007-Ohio-6029, ¶ 27. In this instance, the trial strategy was to raise reasonable doubt

that Wood was the shooter by attacking the physical evidence and discrediting the state's

witnesses. While Wood testifying would have allowed the jury to hear from him that he did

not shoot the victims, there is no indication in the record that such testimony would have

been believed, especially when compared to the evidence presented by the state against

Wood.

        {¶ 32} Moreover, we find the argument disingenuous where Wood, himself, told the

trial court that he refused to testify in his defense and name anyone else as the shooter.

Instead, Wood told the court that he refused to "snitch" and that he would not "go back to

prison with that on my name. I refuse to do that." There is no indication that Wood would

have testified in his own defense, or that even if he had, such testimony would have changed

the results of the trial.

        {¶ 33} Finally, Wood argues that his counsel was ineffective for not requesting a
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presentence investigation or asking for more time before sentencing. Wood does not

challenge the fact that no investigation was required because he was not subject to

community control. See R.C. 2951.03(A)(1) and Crim.R. 32.2. Instead, Wood argues that a

complete background would have been helpful to the trial court and that more information

could have mitigated his otherwise negative history of incarceration and violence. However,

there is no indication that any such information would have changed the sentence Wood

received.

      {¶ 34} Wood does not reference any specific mitigation evidence, other than

mentioning the possibility of calling family as mitigation witnesses to show support or

submitting letters to the court regarding "what he wanted the Court to know." Nor does Wood

demonstrate how any additional information would have resulted in a different sentence,

especially where the trial court's sentence was based on a careful consideration of the

information it had before it regarding Wood's extensive criminal history, tendency toward

violence, weapons use during the commission of crimes, and poor behavior while

incarcerated. After considering all of Wood's arguments, we find that he has failed to

demonstrate that he received ineffective assistance of counsel. We therefore overrule

Wood's final assignment of error.

      {¶ 35} Judgment affirmed.


      S. POWELL, P.J., and M. POWELL, J., concur.




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