[Cite as State v. Fant, 2016-Ohio-7429.]



                            STATE OF OHIO, MAHONING COUNTY
                                  IN THE COURT OF APPEALS
                                           SEVENTH DISTRICT

STATE OF OHIO                                       )
                                                    )
        PLAINTIFF-APPELLEE                          )
                                                    )           CASE NO. 14 MA 0067
VS.                                                 )
                                                    )                  OPINION
KEITH FANT                                          )
                                                    )
        DEFENDANT-APPELLANT                         )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from Court of Common
                                                    Pleas, Mahoning County, Ohio
                                                    Case No. 13 CR 1195

JUDGMENT:                                           Affirmed.

APPEARANCES:
For Plaintiff-Appellee                              Attorney Paul Gains
                                                    Mahoning County Prosecutor
                                                    Attorney Ralph Rivera
                                                    Assistant Prosecutor
                                                    21 W. Boardman Street, 6th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellant                             Attorney Aaron Baker
                                                    38109 Euclid Avenue
                                                    Willoughby, Ohio 44094

JUDGES:

Hon. Mary DeGenaro
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                    Dated: October 18, 2016
[Cite as State v. Fant, 2016-Ohio-7429.]
DeGENARO, J.

        {¶1}     Defendant-Appellant, Keith Fant, appeals the judgment convicting him
of felonious assault along with two firearm specifications and imposing consecutive
sentences. Fant asserts multiple errors that are meritless; accordingly the judgment
of the trial court is affirmed.
                                 Facts and Procedural History
        {¶2}     In late October, Joseph Little arrived at his mother's home claiming to
have been shot at by Fant while Joseph was driving a rental vehicle. Three days after
the shooting an arrest warrant was issued for Fant, and in late November Fant was
indicted for felonious assault, a second-degree felony, and two firearm specifications.
Trial was originally set for the following January, but when Fant filed a motion to
discharge based on a speedy trial violation, his case was reset until mid-May. On that
date the speedy trial motion was denied, and a jury trial commenced the same day,
just over six months after the shooting. During voir dire, Fant used all of his
peremptory challenges.
        {¶3}     After the jury was empaneled, opening statements made, and the
State's first witness called, the parties convened in chambers and on the record.
Fant's counsel waived his presence. One of the jurors revealed that he was related to
the alleged victim; he was excused for cause. Another juror revealed that he was a
social friend of a county assistant prosecuting attorney. Three days later, the trial
court declared a mistrial.
        {¶4}     Fant's second jury trial commenced less than a week later and his
counsel moved to dismiss, contending this second trial violated double jeopardy. The
trial court denied the motion, and the trial proceeded.
        {¶5}     During voir dire the State exercised a peremptory challenge against the
sole African-American juror in the jury venire of approximately 38 people. Fant's
counsel raised a Batson challenge, which was denied.
        {¶6}       The trial proceeded and the following facts were adduced. On October
28, 2013, Joseph Little, his mother, his cousin and a family friend gathered on the
front porch of his mother's house on Aberdeen Avenue. Both Joseph and his cousin
                                                                              -2-


observed Jonathan Hilson driving slowly down Aberdeen in a champagne-colored
Buick. Joseph testified that he had known Hilson for two years, and that a few days
prior to the shooting, Fant and Hilson came to Joseph's mother's house with a gun
because they "had a problem."
       {¶7}   Joseph left to run an errand and observed Hilson driving and Fant in the
passenger's seat in the same champagne-colored car sitting at a stop sign at a
nearby intersection. Eventually, Joseph wound up traveling behind Hilson and Fant.
As the cars turned onto Shirley Road Hilson and Fant were still in front of Joseph.
Joseph stated that Fant "waved a gun" which appeared to be a .38 revolver, and held
it behind his head so that Joseph could see it through the rear window.
       {¶8}   The cars turned onto Ivanhoe Avenue at which point Fant came out of
the passenger side window and "let shots off." Joseph further testified that the shots
were aimed at him, that he ducked down and threw the car turned into reverse.
Joseph called his mother and told her what happened and returned to her house.
Police were already there when he arrived, and he told the officers that Fant had shot
at him. Meta testified that she heard gunshots shortly before Joseph returned, and
when he did, he was "shaken and upset."
       {¶9}   Youngstown Police Detective-Sergeant David Sweeney investigated
the shooting, and testified that he took statements from Joseph and Asya Hosey, who
talked to Fant on the phone the day of the shooting. As a result, Fant and Hilson
became suspects. Sweeney put together a photo lineup and Joseph identified Fant
and Hilson from the photographic arrays. Sweeney also verified through several 911
calls that gun shots were heard in the area that afternoon. Sweeney testified that no
physical evidence was collected. Joseph stated that the gun used appeared to be a
revolver—which does not expel a shell casing. No tests were done for gunshot
residue due to the amount of time that had elapsed from the date of the incident to
the date of arrest.
       {¶10} Hosey testified that she was in an "on again, off again" relationship with
Fant, but that her relationship with him was "off" at the time of the shooting. She
                                                                                 -3-


stated that Fant called her two times on the day of the shooting. In the first call Fant
asked her who was driving the blue Ford Taurus, which was the rental vehicle
Joseph was using. In the second call Fant admitted to Hosey that he shot at Joseph.
Hosey recognized Fant's voice, knew his phone number and the call came from his
phone.
       {¶11} Youngstown Officer Greg Mullennex testified that he was assigned to
the United State Marshal's Task Force that is responsible for serving violent felony
arrest warrants. Three days after the shooting, Mullennex assisted in serving an
arrest warrant for Fant at a residence on Ridge Avenue. Upon arriving, officers
knocked on the door and made contact with Fant's mother. Fant was found in the
basement wedged between the wall and the furnace.
       {¶12} The jury convicted Fant of all three charges. The trial court sentenced
Fant to four years for felonious assault; three years for the firearm specification, using
a firearm to facilitate the offense; and five years for the firearm specification,
discharging a firearm from a motor vehicle, to be served consecutively by law, for a
total 12-year prison term.
                             Sufficiency and Manifest Weight
       {¶13} In his first and second of eight assignments of error Fant asserts:

              The trial court erred by failing to grant a judgment of acquittal
       pursuant to Crim.R. 29(A), and thereafter entering a judgment of
       conviction of that offense which was not supported by sufficient
       evidence, in derogation of Appellant's right to due process of law, as
       protected by the Fourteenth Amendment to the United States
       Constitution.

              The trial court erred by entering a judgment of conviction that
       was against the manifest weight of the evidence, in derogation of
       Appellant's right to due process of law, as protected by the Fourteenth
       Amendment to the United States Constitution.
                                                                                  -4-


       {¶14} Fant made a Crim.R. 29 motion for acquittal at the close of the State's
case asserting there was insufficient evidence to support a conviction for felonious
assault and the attendant firearm specifications. A Crim.R. 29(A) motion tests the
sufficiency of the evidence. State v. Campbell, 11th Dist. No.2013–A–0047, 2014–
Ohio–972, ¶ 22. "Pursuant to Crim.R. 29, a court shall not order an entry of judgment
of acquittal if the evidence is such that reasonable minds can reach different
conclusions as to whether each material element of a crime has been proved beyond
a reasonable doubt." State v. Ivey, 8th Dist. No. 80812, 2003–Ohio–1825, ¶ 13.
       {¶15} "A challenge to the sufficiency of the evidence tests whether the state
has properly discharged its burden to produce competent, probative, evidence on
each element of the offense charged." State v. Petefish, 7th Dist. No. 10 MA 78,
2011–Ohio–6367, ¶ 16. Thus, sufficiency is a test of adequacy. State v. Thompkins,
78 Ohio St.3d 380, 386, 1997–Ohio–52, 678 N.E.2d 541. "Whether the evidence is
legally sufficient to sustain a verdict is a question of law." Id. "In reviewing the record
for sufficiency, 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." State v. Smith,
80 Ohio St.3d 89, 113, 1997–Ohio–355, 684 N.E.2d 668 (internal citations omitted).
       {¶16} "Weight of the evidence concerns the inclination of the greater amount
of credible evidence, offered in a trial, to support one side of the issue rather than the
other." State v. Thompkins, 78 Ohio St.3d 380, 387, 1997–Ohio–52, 678 N.E.2d 541.
A conviction will only be reversed as against the manifest weight of the evidence in
exceptional circumstances. Id. This is so because the triers of fact are in a better
position to determine credibility issues, since they personally viewed the demeanor,
voice inflections and gestures of the witnesses. State v. Hill, 75 Ohio St.3d 195, 208,
661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 231, 227 N.E.2d 212
(1967).
       {¶17} Thus, an appellate court must review the entire record, weigh the
evidence and all reasonable inferences and determine whether, in resolving conflicts
                                                                               -5-


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. Thompkins at
387. However, "[w]hen there exist two fairly reasonable views of the evidence or two
conflicting versions of events, neither of which is unbelievable, it is not our province
to choose which one we believe." State v. Dyke, 7th Dist. No. 99 CA 149, 2002–
Ohio–1152, *2, citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th
Dist.1999).
       {¶18} Fant alternatively contends his convictions are supported by insufficient
evidence and against the manifest weight of the evidence. Felonious assault is
defined as knowingly attempting or causing physical harm with a deadly weapon.
R.C. 2903.11(A)(2). A person acts knowingly when, regardless of purpose, is "aware
that his conduct will probably cause a certain result or will probably be of a certain
nature." R.C. 2901.22(B). Fant was also convicted of two firearm specifications: using
a firearm while committing the offense under R.C. 2941.145 and discharging a
firearm from a motor vehicle pursuant to R.C. 2941.146.
       {¶19} Joseph testified that Fant shot at him while Fant was a passenger in a
car driven by Hilson. Hosey testified that Fant called her and confessed to shooting at
Joseph. Several 911 calls that date reported gunshots were heard near the location
of the shooting. Three days later while serving an arrest warrant for Fant, officers
found him hiding in a basement.
       {¶20} From this uncontroverted evidence Fant knowingly attempted to cause
physical harm to Joseph by shooting at him. Fant takes issue with the fact that no
gun was recovered, nor that any shell casings were found. We have rejected this
argument before, concluding that recovery of the firearm was not necessary since
other parties testified that they saw the defendant point a gun at them. State v. Hill,
7th Dist. No. 09–MA–202, 2011–Ohio–6217, ¶ 54. Here, Joseph testified that he saw
Fant shoot at him. This was bolstered by the testimony of Hosey and the 911 reports
of shots fired in the area.
       {¶21} The State also proved the elements necessary to convict Fant of
                                                                            -6-


discharging a firearm from a motor vehicle and using a firearm to commit the offense
of felonious assault. Firearm is defined in R.C. 2923.11(B) as any deadly weapon
capable of propelling or expelling a projectile.

       In interpreting R.C. 2923.11(B), the Supreme Court has expressly held
       that the state's burden as to operability can be met through
       circumstantial evidence: "Admission into evidence of the firearm
       allegedly employed in the crime is not necessary to establish the
       specification. Rather, the fact may be established by circumstantial
       evidence (testimony as to gunshots, smell of gunpowder, bullets or
       bullet holes, etc.). Nevertheless, there must be some evidence relative
       to the gun's operability."

State v. Bailey, 90 Ohio App.3d 58, 79, 627 N.E.2d 1078 (11th Dist.1992), quoting
State v. Gaines, 46 Ohio St.3d 65, 70, 545 N.E.2d 68 (1989).


       {¶22} The State presented sufficient evidence to establish each element of
the firearm specifications through the testimony of Joseph, Hosey and Officer
Sweeney. Accordingly, the trial court properly denied Fant's Crim.R. 29(A) motion for
acquittal, and his first assignment of error is meritless.
       {¶23} Turning to Fant's manifest weight argument, he contends that if we
deem the evidence to be legally sufficient, then this second standard of review
mandates reversal, without further explanation or argument. It is Fant's duty to
construct the legal arguments necessary to support his assigned errors. City of
Whitehall v. Ruckman, 10th Dist. No. 07AP–445, 2007–Ohio–6780, ¶ 20.
       {¶24} Regardless, Fant's conviction is not against the manifest weight of the
evidence. Joseph testified that Fant shot at him while Fant was a passenger in a car
driven by Hilson. Hosey testified that Fant called her and confessed to shooting at
Joseph. Several 911 calls that date reported gunshots were heard near the location
of the shooting. This evidence was uncontroverted by Fant. The jury did not lose its
                                                                                   -7-


way; there was substantial evidence supporting the guilty verdicts for felonious
assault and both firearm specifications. Accordingly, Fant's second assignment of
error is meritless.
                                    Batson challenge
       {¶25} In his third of eight assignments of error, Fant asserts:

              Appellant was denied equal protection of law pursuant to the
       fourteenth amendment to the United States Constitution due to
       purposeful racial discrimination by the State in jury selection and failure
       of the trial court to follow applicable law.

       {¶26} The Equal Protection Clause of the United States Constitution prohibits
purposeful discrimination in the exercise of a peremptory challenge to excuse a juror
on account of his race. Batson v. Kentucky, 476 U.S. 79, 89, 106 S.Ct. 1712, 90
L.Ed.2d 69 (1986). In Batson, the United States Supreme Court outlined a three-step
process for evaluating claims that a prosecutor has used peremptory challenges in a
manner violating the Equal Protection Clause. Id. at 96–98. First, the defendant must
make a prima facie showing that the prosecutor has exercised peremptory
challenges on the basis of race. Id. at 96–97. Second, if the requisite showing has
been made, the burden shifts to the prosecutor to articulate a race-neutral
explanation for striking the jurors in question. Id. at 97–98. Finally, the trial court must
determine whether the defendant has carried his burden of proving purposeful
discrimination. Id. at 98. An appellate court will not reverse the trial court's decision of
no discrimination unless it is clearly erroneous. See State v. Hernandez, 63 Ohio
St.3d 577, 583, 589 N.E.2d 1310 (1992).
       {¶27} Fant contends that the sole African-American prospective juror of an
approximate 38 person venire, was excused by the State using a peremptory
challenge in a racially discriminatory manner. The initial phase of voir dire involved
counsel posing general questions to all prospective jurors; some volunteered
answers as appropriate to these general questions. Thereafter, the prosecutor asked
                                                                              -8-


specific questions to prospective jurors relative to responses on their juror
questionnaires. Pertinent to this appeal is the following exchange during this portion
of voir dire:

       PROSECUTOR: What the Judge will tell all of you is that evidence is
       both testimonial and physical, meaning I could introduce a tire iron
       which would be a physical piece of evidence. Also what the witness is
       testifying on the stand is also evidence as well. Will anyone here have a
       problem if the state chooses not to present any physical evidence, any
       forensic evidence? Would anybody if they heard the testimony and they
       believe everyone who is testifying, would anyone say I believe the
       witnesses, but there's no DNA so I can't vote guilty? Does anyone feel
       that way?
                This case is going to deal with another legal theory, and it's
       called complicity. Ms. Bowman, you're staring over there. Is there
       something interesting over there?

       PROS. JUROR: No, I was just looking that way.

       PROSECUTOR: Do you know what complicity means?

       PROS. JUROR: Not really.

       PROSECUTOR: Honestly I didn't know about it until actually probably
       midway through my second year of law school. Complicity is a theory
       that says you can be guilty of a crime even if you're not the main
       perpetrator if you help them commit the crime. Do you understand that?

       PROS. JUROR: Yes.

       PROSECUTOR: So if you and I decided that we were going to rob a
       bank, and I was the getaway driver -- actually you're probably a better
                                                                     -9-


driver than I am, so you're the getaway driver, and I go in and I rob a
bank, you can be just as guilty of robbing the bank as I can under law.
Do you understand that?

PROS. JUROR: (Nodding head).

PROSECUTOR: Does everyone understand that? Ms. Bowman, are
you going to have a problem finding someone who is just the getaway
driver guilty even though the other person may have done, quote,
unquote, the crime? Is that going to be difficult for you?

PROS. JUROR: I really don't know.

PROSECUTOR: Huh?

PROS. JUROR: I really don't know.

PROSECUTOR: I'm going to have to ask you some more questions.
When you say you really don't know, are there facts that might come
into play, evidence that might come into play, that would enable you to
vote guilty or not guilty, or is that just a moral position?

PROS. JUROR: Just a moral. Just a moral. I don't know.

PROSECUTOR: So you will not be able to be -- you will not be able to
follow the instructions of law given to you by the Judge if the Judge
says that you can convict someone for being complicit of a crime? You
wouldn't be able to listen to the Judge if he told you that?

PROS. JUROR: Yes, I would.

PROSECUTOR: Okay, you would be able to listen?

PROS. JUROR: Yes, I would.
                                                                                - 10 -


       {¶28} Both sides declined to strike any jurors for cause; and the State used its
first peremptory challenge to strike the lone African-American venireman. The State
concedes that Fant satisfied the first step of demonstrating a prima facie case of
racial discrimination. Consequently, the burden shifts to the State to articulate a race-
neutral explanation for striking the juror in question. The State's response to the
Batson challenge was as follows:

       Thank you, Your Honor. Prior to my questioning Ms. Bowman, she was
       staring at the floor. She wasn't paying attention to what I had to say. On
       further inquiry when it came to the concept of complicity and the
       culpability of a codefendant, she seemed remiss in being able to grasp
       the theory that someone could be guilty of a crime even if they were not
       the prime actor. Based upon her lack of paying attention during the voir
       dire of other jury members, as well as her response to that specific
       question when it came to complicity, I felt that she was an inappropriate
       juror for this, and no way did I take into account her city of residence or
       her race.

       {¶29} The defense argued at trial, and now on appeal, that Ms. Bowman
ultimately indicated that she would be able to listen to the judge and follow his
instructions of law. However, the trial court ultimately overruled the challenge:

       Thank you. I am going to find that the explanation offered is facially
       race neutral and that the opponent of the peremptory challenge has not
       proven purposeful racial discrimination. The objection and motion is
       noted but overruled.

       {¶30} The State gave two racially-neutral reasons for using a peremptory
challenge to strike this juror: not paying attention and her "moral" difficulty in
convicting a person under the theory of complicity. The narrow standard of review
imposed upon intermediate appellate courts in Batson is premised upon the principle
                                                                                   - 11 -


that the assessment of the genuineness of a racially-neutral reason necessitates a
multi-dimensional analysis by the trial court which is severely limited when an
appellate court reviews the one-dimensional transcript of voir dire. Resolution of a
Batson challenge is dependent upon credibility determinations the trial court must
make of the prosecutor and the prosecutor's articulated assessment of the
prospective juror's behavior during voir dire, which the trial court also has the benefit
of observing. Thus, an appellate court's consideration of a Batson challenge by
necessity dictates review for clearly erroneous determinations that are not dependent
upon credibility determinations.
       {¶31} The United States Supreme Court recently reiterated the narrow
standard of review contemplated by 'clearly erroneous'—the third step in the Batson
analysis. "That step turns on factual determinations, and, 'in the absence of
exceptional circumstances,' we defer to state court factual findings unless we
conclude that they are clearly erroneous." Foster v. Chatman, – U.S. –, 136 S.Ct.
1737, 1748, 195 L.Ed.2d 1 (2016).
       {¶32} As the trial court's finding that no purposeful discrimination occurred by
striking the prospective juror was not clearly erroneous, Fant's third assignment of
error is meritless.
                                    Speedy Trial
       {¶33} In his fourth of eight assignments of error, Fant asserts:

              The trial court acted contrary to law by denying Appellant's
       Motion to Discharge for lack of a speedy trial, as the time permitted for
       Appellant to be brought to trial had expired.

       {¶34} The Sixth Amendment to the United States Constitution provides that
an "accused shall enjoy the right to a speedy and public trial." Section 10, Article I of
the Ohio Constitution also provides a criminal defendant the right to a speedy public
trial by an impartial jury. Ohio affords statutory protections as well. "Upon motion
made at or prior to the commencement of trial, a person charged with an offense
                                                                               - 12 -


shall be discharged if he is not brought to trial within the time required by sections
2945.71 and 2945.72 of the Revised Code." R.C. 2945.73(B). A defendant charged
with a felony must be brought to trial within 270 days of his or her arrest. R.C.
2945.71(C)(2). However, pursuant to the triple count provision, "each day during
which the accused is held in jail in lieu of bail on the pending charge shall be counted
as three days." R.C. 2945.71(E).
       {¶35} A review of a trial court's decision regarding a motion to dismiss based
on statutory speedy trial grounds involves a mixed question of law and fact. State v.
McCall, 152 Ohio App.3d 377, 2003–Ohio–1603, 787 N.E.2d 1241, ¶ 9 (7th Dist.).
Deference is given to findings of fact, but the appellate court independently reviews
whether the trial court properly applied the law to the facts of the case. Id. When
reviewing the legal issues regarding a statutory speedy trial case, the statutes are
strictly construed against the state. Brecksville v. Cook, 75 Ohio St.3d 53, 57, 1996–
Ohio–171, 661 N.E.2d 706.
       {¶36} Fant and the State agree that 34 days ran from the date of arrest until
December 4th, when Fant filed discovery requests. The arrest date does not count
against the state for purposes of speedy trial time calculations. State v. Miller, 7th
Dist. No. 07 MA 215, 2008–Ohio–3085, ¶ 23, citing State v. Stamps, 127 Ohio
App.3d 219, 223, 712 N.E.2d 762 (10th.Dist.1998)
       {¶37} Fant contends that one additional day ran from December 9th to the
10th; however, on that date Fant requested a transcript from the preliminary hearing.
Thus, the time was tolled until the preliminary hearing transcript was filed on January
6. Miller, supra, ¶ 24. Therefore, the speedy trial clock stood at 34 days.
       {¶38} By joint agreement the trial was continued from January 6th to the
22nd. However, the trial was continued again to January 27th due to courtroom
availability, which Fant argues restarts the speedy trial clock. However, "reasonable
trial delays due to scheduling conflicts, crowded dockets, or the lack of an available
courtroom, toll the speedy trial clock." State v. Nottingham, 7th Dist. No. 05 BE 39,
2007–Ohio–3040, ¶ 18 (internal citations omitted). As such, only 34 days still had
                                                                                     - 13 -


elapsed.
        {¶39} On January 27th the State offered a Rule 11 agreement which was
rejected by Fant; the trial court set the matter for pretrial on February 18th and trial
for March 3rd. There is no indication as to who made the request or if Fant was in
agreement with the date. The State argues the entire time is tolled and Fant
disagrees. However, the judgment entry from the February 18th pretrial states
"[u]pon agreement of the parties, this matter shall remain as set for Jury Trial on
March 3."
        {¶40} On March 3rd Fant filed a second discovery request, which the trial
court granted the next day, stating: "Defendant and counsel explicitly acknowledge
that this request is a tolling event for purposes of calculating speedy trial." Also on
March 3rd the trial court continued the trial until May 19th due to the courtroom being
unavailable because of another criminal trial. Fant argues that this time should count
towards his speedy trial time calculation because he did not consent. However, we
have previously held that the speedy time clock is tolled when a trial court continues
a matter due to involvement in another criminal trial. State v. McCall, 152 Ohio
App.3d 377, 2003–Ohio–1603 , 787 N.E.2d 1241, ¶ 23 (7th Dist.). Additionally, his
consent is not necessary when the trial court's continuance is due to the courtroom
availability. Nottingham, supra. Thus, the elapsed speedy trial time still stands at 34
days.
        {¶41} On May 19th the first jury trial commenced which resulted in a mistrial.
The second trial started on May 27th, which added eight days to the calculation.
Thus, 42 days had elapsed on Fant's speedy trial time, well under the 90 days set by
statute. Accordingly, Fant's fourth assignment of error is meritless.
                                  Right to Be Present
        {¶42} In his fifth of eight assignments of error, Fant asserts:

               The trial court violated Appellant's fundamental constitutional
        right to be present during a critical portion of his trial, without affirmative
        waiver on the record, at the time that a mistrial was granted.
                                                                               - 14 -


      {¶43} "An accused has a fundamental right to be present at all critical stages
of his criminal trial." State v. Hale, 119 Ohio St.3d 118, 2008–Ohio–3426, 892 N.E.2d
864, ¶ 100; Section 10, Article I, Ohio Constitution; Crim.R. 43(A). "[T]the presence of
a defendant is a condition of due process to the extent that a fair and just hearing
would be thwarted by his absence, and to that extent only." Id. (internal citations
omitted) However, counsel can waive the defendant's right to be present. State v.
Green, 90 Ohio St.3d 352, 372, 2000–Ohio–182, 738 N.E.2d 1208.
      {¶44} The record demonstrates that Fant's trial counsel waived his
presence. Accordingly, Fant's fifth assignment of error is meritless.
                                  Double Jeopardy
      {¶45} In his sixth of eight assignments of error, Fant asserts:

             As a result of Appellant's lack of presence at the hearing during
      which a mistrial was declared, his subsequent trial was a violation of his
      right against double jeopardy.

      {¶46} It is well-settled that "[t]he Double Jeopardy Clause of the United States
Constitution prohibits (1) a second prosecution for the same offense after acquittal,
(2) a second prosecution for the same offense after conviction, and (3) multiple
punishments for the same offense." State v. Brown, 119 Ohio St.3d 447, 2008–Ohio–
4569 , 895 N.E.2d 149, ¶ 10, citing United States v. Halper, 490 U.S. 435, 440, 109
S.Ct. 1892, 1897, 104 L.Ed.2d 487 (1989). "These double-jeopardy protections apply
to the states through the Fourteenth Amendment." Id., citing Benton v. Maryland, 395
U.S. 784, 786, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707 (1969). In addition, Section 10,
Article I of the Ohio Constitution provides that "[n]o person shall be twice put in
jeopardy for the same offense."
      {¶47} Generally, there are no double jeopardy considerations when a mistrial
is declared. State v. Gaines, 8th Dist. No. 82301, 2003–Ohio–6855, ¶ 45. "When a
trial court grants a criminal defendant's request for a mistrial, the Double Jeopardy
Clause does not bar retrial." State v. Loza, 71 Ohio St.3d 61, 70, 641 N.E.2d 1082,
                                                                               - 15 -


citing Oregon v. Kennedy, 456 U.S. 667, 673, 102 S.Ct. 2083, 72 L.Ed.2d 416
(1982). The Court noted a narrow exception in cases where the mistrial is
precipitated by prosecutorial misconduct intentionally calculated to cause or invite
mistrial. Loza, citing Kennedy at 678-688. This Court reviews the denial of a motion
to dismiss on double jeopardy grounds de novo. State v. Kelly, 2015–Ohio–1948, 34
N.E.3d 513, ¶ 14 (8th Dist.).
       {¶48} Fant does not deny that he requested the mistrial. But he fails to argue
that the State engaged in misconduct intentionally calculated to result in a mistrial;
instead focusing on the fact that the hearing was conducted outside of his presence.
As discussed, counsel waived his presence. Accordingly, Fant's sixth assignment
regarding double jeopardy is meritless.
                                  Jury Instructions
       {¶49} In his seventh of eight assignments of error, Fant asserts:

              The trial court erred in failing to instruct the jury as to the
       inferior degree offense of Aggravated Menacing.

       {¶50} It is within the sound discretion of a trial court to refuse to admit
proposed jury instructions which are either redundant or immaterial to the case.
Bostic v. Connor, 37 Ohio St.3d 144, 524 N.E.2d 881(1988), syllabus. A jury
instruction must be given on a lesser included or inferior-degree offense when
sufficient evidence is presented which would allow a jury to reasonably reject the
greater offense and find the defendant guilty on a lesser included offense. State v.
Shane, 63 Ohio St.3d 630, 632–633, 590 N.E.2d 272 (1992).
       {¶51} The parties agree that aggravated menacing is not a lesser-included
offense of felonious assault, but it is an inferior degree offense. Felonious assault is
defined as knowingly attempting or causing physical harm by means of a deadly
weapon. R.C. 2903.11(A)(2). Aggravated menacing is defined as knowingly causing
another to believe that the offender will cause serious physical harm to the other or
their property. R.C. 2903.21. "In felonious assault, the actor intends to injure the
                                                                             - 16 -


victim, whereas in aggravated menacing, the actor's intent is to scare or threaten the
victim. This distinction is merely an additional mitigating element." State v. Lodico,
5th Dist. No. 2005CA00318, 2006–Ohio–5714, ¶ 33.
      {¶52} A jury instruction on the inferior offense of aggravated menacing was
not required here because the evidence did not support giving that instruction.
Joseph testified that as Hilson drove the vehicle around the corner, Fant leaned out
of the vehicle so far that his head and arms were outside the window, aimed at him
and his car, and fired the weapon. It would be impossible to instruct a jury on the
inferior offense of aggravated menacing in light of the evidence. Accordingly, Fant's
seventh assignment of error is meritless.
                        Mandatory Consecutive Sentences
      {¶53} In his final assignment of error, Fant asserts:

             The trial court erred in imposing consecutive sentences for the
      convictions of R.C. §2941.145 and R.C. §2941.146 in violation of R.C.
      §2941.25.

      {¶54} Our review of Fant's challenge to his sentence is limited to determining
whether his sentence is clear and convincing contrary to law as measured against
the evidence in the record. R.C. 2953.08(G)(2); State v. Marcum, 2016–Ohio–1002, –
N.E.3d –, ¶ 7.
      {¶55} Fant challenges the trial court's imposition of consecutive sentences
for the two firearm specifications—using a firearm while committing the offense and
discharging a firearm from a motor vehicle—via R.C. 2941.25, Ohio's merger statute,
rather than the sentencing regime required by R.C. 2929.14 when a trial court seeks
to impose nonmandatory consecutive sentences.
      {¶56} "[T]here are certain circumstances that require the imposition of
consecutive sentences. See, e.g., R.C. 2929.14(C)(1)(a), which requires that any
mandatory prison term for having a firearm in the commission of a felony shall be
served consecutively to any mandatory sentence imposed for the underlying felony.
                                                                               - 17 -


Otherwise, trial judges have discretion to order that multiple sentences to be served
consecutively pursuant to R.C. 2929.14(C)(4)," State v, Sergent, 2016–Ohio–2696, –
N.E.3d – , ¶ 16. Thus, the R.C. 2929.14 findings need not be made under these
circumstances. State v. Freeman, 7th Dist. No. 14MA25, 2014–Ohio–5725, ¶ 31.
      {¶57} The relevant portions of these two statutes provide:

      [I]f a mandatory prison term is imposed upon an offender * * * for having
      a firearm on or about the offender's person or under the offender's
      control while committing a felony, if a mandatory prison term is imposed
      upon an offender * * * [for] discharging a firearm from a motor vehicle,
      or if both types of mandatory prison terms are imposed, the offender
      shall serve any mandatory prison term imposed under either division
      consecutively to any other mandatory prison term imposed under either
      division * * * consecutively to and prior to any prison term imposed for
      the underlying felony[.]

R.C. 2929.14(C)(1)(a).

      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 as to each, the indictment or information may contain counts for
      all such offenses, and the defendant may be convicted of all of them.

R.C. 2941.25(B)
      {¶58} Construing these two statutes together, Fant's two separate convictions
for using a firearm to facilitate the offense and for discharging a firearm from a motor
vehicle are not offenses of similar import and thus do not merge; moreover, the
sentences for each are statutorily mandated to be served consecutively to each other
and Fant's underlying felonious assault conviction. The trial court had no discretion
relative to the imposition of consecutive sentences. We reach this holding based
                                                                                   - 18 -


upon the Ohio Supreme Court's resolution of a merger challenge to consecutive
sentences imposed for the discharge of a firearm at or into a habitation and using a
firearm to facilitate the offense.

       * * * [T]he statutes do not state that a defendant shall not use a firearm
       during the commission of a crime: they state that when a firearm is
       used, an additional penalty will be imposed. Thus, the firearm
       specification is merely a sentencing provision that requires an
       enhanced penalty upon certain findings. We hold that R.C. 2941.145
       and 2929.14(D) define a sentence enhancement that attaches to a
       predicate offense.
       ***
               Moreover, the placement of R.C. 2941.145 and 2929.14 within
       the Revised Code confirms that the firearm specification is merely a
       sentence enhancement, not a separate criminal offense. Typically,
       criminal offenses are grouped within a discrete chapter of the Revised
       Code.
               ***
               In contrast, R.C. 2941.145 appears in R.C. Chapter 2941, which
       addresses the indictment, and R.C. 2929.14(B) appears in R.C.
       Chapter 2929, which addresses penalties and sentencing. Generally,
       provisions within R.C. Chapter 2941 address the content that is
       required in an indictment, and provisions within R.C. Chapter 2929
       address sentencing. Notably, no provisions within either chapter appear
       to define a criminal offense.
               * * * the criminal offense of discharging a firearm at or into a
       habitation under R.C. 2923.161 and a firearm specification as defined in
       R.C. 2941.145 are not allied offenses of similar import as defined in
       R.C.    2941.25,     because    a   firearm   specification   is   a   penalty
       enhancement, not a criminal offense. Penalties for a specification and
                                                                             - 19 -


       its predicate offense do not merge under R.C. 2941.25. Consequently,
       the sentences for discharging a firearm at or into a habitation and for
       the firearm specification are not merged.

State v. Ford, 128 Ohio St.3d 398, 2011–Ohio–765, 945 N.E.2d 498, ¶ 16-19.
       {¶59} The General Assembly has articulated the policy determination in R.C.
2929.14 that the firearm specifications in R.C. 2914.145 and R.C. 2929.146 shall
have mandatory sentences and shall be served consecutively to each other and the
underlying offense. Under R.C. 2929.14, trial court's do not have any discretion
regarding consecutive sentences for these firearm specifications; they are statutorily
mandated to impose consecutive sentences for the underlying offenses and these
specifications.
       {¶60} In sum, all of Fant's assignments of error are meritless, and the
judgment of the trial court is affirmed.

Waite, J., concurs.

Robb, J., concurs.
