[Cite as State v. Smith, 2018-Ohio-3983.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                      Court of Appeals No. L-16-1306
                                                                        L-16-1307
          Appellee                                                      L-16-1308

v.                                                 Trial Court Nos. CR0201601974
                                                                    CR0201602143
William E. Smith                                                    CR0201603061

          Appellant                                DECISION AND JUDGMENT

                                                   Decided: September 28, 2018

                                            *****

          Julia R. Bates, Lucas County Prosecuting Attorney, and
          Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

          James J. Popil, for appellant.

                                            *****

          MAYLE, P.J.

          {¶ 1} Defendant-appellant, William E. Smith, appeals the December 6, 2016

judgments of the Lucas County Court of Common Pleas. For the reasons that follow, we

affirm.
       {¶ 2} William Smith was convicted of a number of offenses arising from two

separate incidents. The first occurred on April 7, 2016, and the second occurred on

May 6, 2016.

                                     A. April 7, 2016

       {¶ 3} On April 7, 2016, Smith was a passenger in a vehicle that was stopped by

Toledo police officers, David Ford and Justin Sciplin. The officers observed the smell of

marijuana and called for the K-9 unit to conduct a search of the outside of the vehicle.

The K-9 alerted to the presence of intoxicants, and Smith and the driver of the vehicle

were ordered out of the car. Smith was patted down by Officer Sciplin who found a

loaded firearm in Smith’s front pocket. The vehicle was searched and a second firearm

was found between the passenger seat and the center console. Ammunition, a jar of

marijuana, and a scale were also discovered, and Smith was found to be in possession of

a large amount of cash.

                                     B. May 6, 2016

       {¶ 4} Smith used to work with a man named B.S. On May 6, 2016, B.S. was

doing drugs at the home of H.L. on Quigley Street in Holland, Ohio. H.L.’s friends,

Ma.Li. and Mi.La., were also there. B.S. was in the bathroom using heroin for

approximately 30 minutes. He had additional heroin in a bag that he did not take with

him into the bathroom, but when he returned, it was not there. When he discovered that

his heroin was gone, B.S. hit H.L. An argument ensued, and the other two men broke it

up.




2.
       {¶ 5} B.S. then called Smith, from whom B.S. occasionally bought marijuana, and

told Smith that the men had stolen $300 from him. He told Smith that if he could help

him get it back, there were drugs and money at H.L.’s home that Smith could keep. B.S.

intentionally omitted the fact that his heroin had been stolen for fear that Smith would

decline to help him.

       {¶ 6} Smith and another man named Charles (whose last name B.S. did not know)

went to a park near B.S.’s home, and B.S. met them there. They started to walk to H.L.’s

home, then decided to drive B.S.’s truck. Smith and Charles put on gloves that they

found in B.S.’s truck; Charles wore two gloves and Smith wore one—a Nike glove.

When they arrived at H.L.’s home, B.S. knocked on the door. H.L. answered, B.S.

stepped inside, then Smith and Charles “barged in.” Smith pulled out a gun and told

everyone to get down. One of the men did not immediately comply, so B.S. hit him

because he was afraid that Smith would shoot him. The man fell to the floor.

       {¶ 7} Smith directed Charles and B.S. to search the house. They did not find any

drugs or money, but they took a television, an Xbox 360, and the men’s IDs, phones, and

car keys. They loaded the stolen items into B.S.’s truck and went back to his house.

They then transferred the items into the car that Smith and Charles had driven there.

They returned the gloves to B.S. B.S. threw them into the creek at the nearby park.

       {¶ 8} At some point, B.S. became paranoid and began hallucinating, presumably

as a result of the drugs he had taken over the course of the day: heroin, “molly,” bath

salts, cocaine, and unspecified pills. Believing police dogs were chasing him, he ran into




3.
the woods. The next day, someone saw him and contacted the sheriff’s department. The

sheriff’s department called an ambulance and B.S. was transported to a nearby hospital.

       {¶ 9} At the hospital, B.S. told sheriff’s deputies about the burglary. Detective

Dave Kowalski, who had already been to the Quigley Street home to investigate the

burglary, went to the hospital and spoke with B.S. B.S. told him about the incident and

identified his accomplices as Smith and Charles. He told Detective Kowalski that Smith

had discarded one of the cell phones at the park near B.S.’s home. Detective Kowalski

searched the park and found a single Nike glove in the creek. He collected it. B.S. later

identified it as the one Smith wore during the burglary.

                                      C. The Trial

       {¶ 10} Smith was charged with a number of offenses arising from these two

incidents and was prosecuted under three different case numbers. The cases were joined

and tried to the bench on November 14, 15, 16, and 21, 2016. Eleven witnesses testified

and numerous exhibits were admitted. In its brief, the state includes a chart summarizing

the cases, charges, findings, and sentences. We replicate portions of that chart below:




4.
        Lucas     Count           Charge              Finding           Sentence
    County Case
         No.
    CR16-1974     One     Carrying concealed          Guilty     12 months to be served
    (the April 7,         weapons (R.C.                          concurrently with the
    2016                  2923.12(A)(2) and (F),                 sentence in count 4 and
    incident)             a fourth-degree felony)                concurrently with
                                                                 sentences in case Nos.
                                                                 CR16-3061, CR16-
                                                                 2143, and CR16-14361
                 Two      Having weapons under        Nolle
                          disability (R.C.            Prosequi
                          2923.13(A)(2), a third-
                          degree felony)
                 Three    Tampering with              Nolle
                          evidence (R.C.              Prosequi
                          2921.12(A)(1) and (B),
                          a third-degree felony)
                 Four     Trafficking in              Guilty     12 months to be served
                          marijuana (R.C.                        concurrently with the
                          2925.03(A)(2) and                      sentence in count 1 and
                          (C)(3)(a), a fifth-degree              concurrently with
                          felony)                                sentences in case Nos.
                                                                 CR16-3061, CR16-
                                                                 2143, and CR16-1436
                 Five     Participating in a          Not
                          criminal gang (R.C.         Guilty
                          2923.42(A) and (B), a
                          second-degree felony)




1
  Case No. CR0201601436 arose from a November 2015 incident for which Smith was
indicted on March 7, 2016.


5.
 CR16-2143         One     Aggravated burglary      Guilty    3 years with an
 (the May 6,               (R.C. 2911.11(A)(2), a             additional 3 years for
 2016                      first-degree felony)               the firearm
 incident)                 with a firearm                     specification, to be
                           specification (R.C.                served concurrently
                           2941.145)                          with the sentence for
                                                              count 2 and
                                                              consecutively to the
                                                              specifications for an
                                                              aggregate term of 9
                                                              years
                   Two     Aggravated robbery       Guilty    3 years with an
                           (R.C. 2911.01(A)(1), a             additional 3 years for
                           first-degree felony)               the firearm
                           with a firearm                     specification, to be
                           specification (R.C.                served concurrently
                           2941.145)                          with the sentence for
                                                              count 2 and
                                                              consecutively to the
                                                              specifications for an
                                                              aggregate term of 9
                                                              years
 CR16-3061         One     Having weapons under     Guilty    12 months, to be served
 (the April 7,             disability (R.C.                   concurrently with the
 2016                      2923.13(A)(3) and (B),             sentences in case Nos.
 incident)                 a third-degree felony)             CR16-1436, CR16-
                                                              2143, and CR16-1974

       {¶ 11} Smith appealed, the appeals were consolidated, and Smith assigns the

following errors for our review:

                 I. THE CONVICTIONS AGAINST APPELLANT WERE NOT

       SUPPORTED BY THE MANIFEST WEIGHT OF THE EVIDENCE.

                 II. THE CONVICTIONS AGAINST APPELLANT WERE NOT

       SUPPORTED BY THE SUFFICIENCY OF THE EVIDENCE.

                 III. APPELLANT WAS DENIED THE EFFECTIVE

       ASSISTANCE OF COUNSEL.



6.
              IV. THE TRIAL COURT ERRED IN SENTENCING

       APPELLANT TO TWO MANDATORY CONSECUTIVE TERMS ON

       THE FIREARM SPECIFICATIONS PURSUANT TO R.C.

       2929.14(B)(1)(g).

                                  II. Law and Analysis

       {¶ 12} Although Smith appealed his convictions in case Nos. CR0201601974,

CR0201602143, and CR0201603061, his assignments of error all pertain to his

convictions in case No. CR0201602143. We address each of his assignments in turn.

                                   A. Manifest Weight

       {¶ 13} In his first assignment of error, Smith claims that his convictions for

aggravated burglary and aggravated robbery, as well as the accompanying firearm

specifications, were against the manifest weight of the evidence. Primarily, Smith

contends that the trial court erred in finding B.S.’s testimony credible. He argues that

B.S.’s testimony was necessary to convict Smith because the three victims identified only

B.S. and were unable to identify Smith. He insists that B.S.’s testimony should not have

been believed because he suffered from mental health issues and was engaged in heavy

drug use the day the crimes were committed.

       {¶ 14} When reviewing a claim that a verdict is against the manifest weight of the

evidence, the appellate court must weigh the evidence and all reasonable inferences,

consider the credibility of witnesses, and determine whether the fact-finder clearly lost its

way in resolving evidentiary conflicts so as to create such a manifest miscarriage of




7.
justice that the conviction must be reversed and a new trial ordered. State v. Thompkins,

78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). We do not view the evidence in a light

most favorable to the state. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the

factfinder’s resolution of the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas

No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing Thompkins at 388. Reversal on manifest

weight grounds is reserved for “the exceptional case in which the evidence weighs

heavily against the conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).

       {¶ 15} Although under a manifest-weight standard we consider the credibility of

witnesses, we must nonetheless extend special deference to the credibility determinations

of the fact-finder given that it is the fact-finder who has the benefit of seeing the

witnesses testify, observing their facial expressions and body language, hearing their

voice inflections, and discerning qualities such as hesitancy, equivocation, and candor.

State v. Fell, 6th Dist. Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14.

       {¶ 16} It is well-recognized by Ohio courts that a witness’s testimony may be

relied upon to support a conviction even where that witness has admitted that he or she

used drugs or alcohol and was high at the time of witnessing the events at issue. See

State v. Nitsche, 2016-Ohio-3170, 66 N.E.3d 135, ¶ 44 (8th Dist.); State v. Wells, 8th

Dist. Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 130 (jury in murder case was able to

judge credibility of witnesses who admitted being high on crack cocaine on day of

murder). Where a witness has been examined about his or her drug use, the trier of fact




8.
can properly weigh the credibility of the witness’ testimony. State v. Medezma-Palomo,

8th Dist. Cuyahoga No. 88711, 2007-Ohio-5723, ¶ 36-37 (trier of fact determines weight

to be given to testimony of witnesses who were “consuming crack cocaine and heroin on

a daily basis” before victim’s murder); State v. Petty, 10th Dist. Franklin Nos. 11AP-716,

11AP-766, 2012-Ohio-2989, ¶ 41. The fact-finder is free to believe all, part, or none of

the witness’ testimony. See Wells at ¶ 130, citing State v. Colvin, 10th Dist. Franklin No.

04AP-421, 2005-Ohio-1448, ¶ 34.

       {¶ 17} Here, both Smith and the state elicited testimony from B.S. about his heavy

drug use on the day of the May 6, 2016 incident. As the fact-finder in this case, it was

the responsibility of the trial judge to assess B.S.’s credibility. We cannot say that the

trial judge clearly lost his way in finding B.S.’s testimony credible, especially given that

(1) the trial judge had the opportunity to see and hear B.S.’s testimony in assessing his

credibility, and (2) much of B.S.’s testimony was actually corroborated by other

witnesses.

       {¶ 18} Consistent with B.S.’s testimony, both H.L. and Ma.Li. testified that there

were three perpetrators—one was white (B.S.), and two were African-American men who

were unknown to them. H.L. confirmed that he had allowed B.S. to use his phone earlier

in the evening and that B.S. hit him. Ma.Li. testified that one of the perpetrators

threatened to shoot them, and H.L. confirmed that one of the two African-American men

had the gun. H.L. said that this man ordered everyone to the floor and when Ma.Li. did

not immediately comply, B.S. punched Ma.Li. and knocked him to the floor. Ma.Li.




9.
testified similarly. H.L. described that some of the men wore gloves, they ransacked his

house, and they stole his Xbox, television, and the men’s wallets and phones. And

Detective Kowalski testified to finding a glove in the creek at the park.

       {¶ 19} In addition to this, Smith himself corroborated portions of B.S.’s testimony.

After Smith was arrested and booked into the county jail, Detective Kowalski listened to

phone calls Smith made from the jail. Excerpts of the recordings of some of those calls

were admitted into evidence at trial. In those excerpts, Smith talked about being asked to

help get his friend’s money back, he talked about the fact that he and another person had

been called, and he talked about donning gloves that were in the truck.

       {¶ 20} The trial judge was free to believe some, all, or none of B.S.’s testimony.

We cannot say that the trial judge clearly lost his way in finding B.S.’s testimony

credible, especially given that much of his testimony was corroborated. This simply is

not one of the exceptional cases in which the evidence weighs heavily against conviction.

       {¶ 21} Accordingly we find Smith’s first assignment of error not well-taken.

                             B. Sufficiency of the Evidence

       {¶ 22} In his second assignment of error, Smith claims that his convictions for

aggravated burglary and aggravated robbery—and the accompanying firearm

specifications—were not supported by sufficient evidence and that the trial court erred in

denying his Crim.R. 29 motion for acquittal. He maintains that there was no evidence

that he entered H.L.’s residence with the purpose to commit a criminal offense or that he

was in possession of a deadly weapon at that location.




10.
       {¶ 23} A claim for insufficiency of the evidence and denial of a motion for

acquittal are reviewed under the same standard. Whether there is sufficient evidence to

support a conviction is a question of law. Thompkins, 78 Ohio St.3d at 386, 678 N.E.2d

541. In reviewing a challenge to the sufficiency of evidence, “[t]he 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.” (Internal citations omitted.) State v. Smith, 80 Ohio St.3d 89, 113,

684 N.E.2d 668 (1997). In making that determination, the appellate court will not weigh

the evidence or assess the credibility of the witnesses. State v. Walker, 55 Ohio St.2d

208, 212, 378 N.E.2d 1049 (1978).

       {¶ 24} Under R.C. 2911.11(A)(2), “No person, by force, stealth, or deception,

shall trespass in an occupied structure * * * when another person other than an

accomplice of the offender is present, with purpose to commit in the structure * * * any

criminal offense, if * * * “[t]he offender has a deadly weapon or dangerous ordnance on

or about the offender’s person or under the offender’s control.”

       {¶ 25} Here, the state presented evidence that Smith went to H.L.’s home at B.S.’s

request for the purpose of taking drugs and money from the occupants of the home. He

barged into the home and brandished a weapon to subdue the occupants. We find that the

evidence was sufficient to support his conviction for aggravated burglary.

       {¶ 26} Under R.C. 2911.01(A)(1), “No person, in attempting or committing a theft

offense, * * * shall * * * [h]ave a deadly weapon on or about the offender’s person or




11.
under the offender’s control and either display the weapon, brandish it, indicate that the

offender possesses it, or use it.”

       {¶ 27} The state presented evidence that Smith brandished a weapon and stole

from the victims a television, an Xbox 360, IDs, cell phones, and keys. We find that this

evidence was sufficient to support a conviction for aggravated robbery.

       {¶ 28} Accordingly, we find Smith’s second assignment of error not well-taken.

                                 C. Ineffective Assistance

       {¶ 29} In his third assignment of error, Smith claims that he was provided

ineffective assistance of counsel. He argues that his trial counsel failed to fully

investigate the facts surrounding the aggravated burglary and aggravated robbery

charges. Specifically, Smith contends that his trial counsel failed to subpoena phone

records, which may have supported Smith’s position that he was not with B.S. on the date

the crimes were committed. He also complains that counsel deferred opening statement

until Smith’s case-in-chief, but then never gave an opening statement, and she failed to

move for acquittal under Crim.R. 29(A) at the close of Smith’s case-in-chief.

       {¶ 30} In order to prevail on a claim of ineffective assistance of counsel, an

appellant must show that counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial court cannot be relied on as having produced a just

result. State v. Shuttlesworth, 104 Ohio App.3d 281, 287, 661 N.E.2d 817 (7th

Dist.1995). To establish ineffective assistance of counsel, an appellant must show

“(1) deficient performance of counsel, i.e., performance falling below an objective




12.
standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability

that, but for counsel’s errors, the proceeding’s result would have been different.” State v.

Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland v.

Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” State v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002).

       {¶ 31} Properly licensed Ohio lawyers are presumed competent. State v. Banks,

9th Dist. Lorain No. 01CA007958, 2002-Ohio-4858, ¶ 16. To establish ineffective

assistance of counsel, the defendant must show that counsel’s performance fell below an

objective standard of reasonableness and that the deficient performance prejudiced the

defendant so as to deprive him of a fair trial. Strickland at 688-692. As recognized in

Strickland, there are “countless ways to provide effective assistance in any given case.”

Id. at 689. “Judicial scrutiny of counsel’s performance must be highly deferential.” State

v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), quoting Strickland at 689.

                        1. Failure to make an opening statement.

       {¶ 32} Smith’s trial counsel elected to defer making an opening statement until the

beginning of Smith’s case-in-chief. Despite having done so, she failed to give an opening

statement at that time. Smith argues that this was ineffective assistance of counsel.

       {¶ 33} The Ohio Supreme Court has held that “‘trial counsel’s failure to make an

opening statement * * * does not automatically establish the ineffective assistance of

counsel.’” State v. Myers, Slip Opinion No. 2018-Ohio-1903, ¶ 189, quoting Moss v.




13.
Hofbauer, 286 F.3d 851, 863 (6th Cir.2002). This is especially true where the case is

being tried to the bench because in a bench trial, the judge is aware of “the nature of the

case” and “the legal requirements of offenses that have been charged.” State v. Sewell,

2d Dist. Montgomery No. 27562, 2018-Ohio-2027, ¶ 43, citing State v. Cass, 10th Dist.

Franklin No. 99AP-1422, 2000 Ohio App. LEXIS 5192 (Nov. 9, 2000). Moreover, an

appellant must articulate how the absence of an opening statement prejudiced him.

Myers at ¶ 191, citing Moss at 864. “‘[C]onclusory allegations are insufficient to justify a

finding that an opening statement would have created the reasonable probability of a

different outcome in his trial.’” Id.

       {¶ 34} Here, Smith’s case was tried to the bench. Moreover, Smith fails to explain

how a different outcome would have been effected had trial counsel made an opening

statement. We, therefore, conclude that trial counsel’s failure to make an opening

statement did not constitute ineffective assistance of counsel.

                          2. Failure to investigate phone records.

       {¶ 35} Smith also claims that trial counsel was ineffective for failing to subpoena

phone records that may have shown that B.S. did not telephone him on May 6, 2016.

       {¶ 36} “A claim of ineffective assistance of trial counsel may exist where the

record shows that the defendant’s attorney failed to conduct a reasonable investigation

into a defendant’s case.” State v. Kennard, 10th Dist. Franklin No. 15AP-766, 2016-

Ohio-2811, ¶ 23. Nevertheless, it must still be shown that further investigation would

have changed the outcome of the case. See, e.g., State v. Royster, 2d Dist. Montgomery




14.
No. 26378, 2015-Ohio-625, ¶ 37 (rejecting appellant’s ineffective assistance claim where

he “failed to establish that any further investigation would have changed the outcome of

his case”).

       {¶ 37} Here, Smith has failed to show that the outcome of the case would have

been different if trial counsel had subpoenaed and introduced phone records into

evidence. We also observe that in the audio recordings of his telephone calls from the

jail, Smith made reference to having received a phone call. Under these circumstances,

we cannot say that there is a reasonable probability that, but for counsel’s failure to

present telephone records, the proceeding’s result would have been different. See e.g.,

State v. Simmons, 4th Dist. Highland No. 13CA4, 2013-Ohio-2890, ¶ 25 (where the

record contained no evidence that potential witnesses would have corroborated

defendant’s story, it was speculative whether reasonable probability existed that verdict

might have been different if counsel requested continuance to subpoena witnesses).

                              3. Failure to move for acquittal.

       {¶ 38} Finally, Smith argues that trial counsel was ineffective because she failed

to move for acquittal at the end of his case-in-chief. A motion for acquittal under

Crim.R. 29(A) challenges the sufficiency of the evidence. State v. Brinkley, 105 Ohio

St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 39. Given our resolution of Smith’s

second assignment of error rejecting his challenge to the sufficiency of the evidence,

Smith is unable to show that there is a reasonable probability that the result of the trial

would have been different had trial counsel moved for acquittal after his case-in-chief. In




15.
any event, in a bench trial, “the defendant’s plea of not guilty serves as a motion for

judgment of acquittal, and obviates the necessity of renewing a Crim.R. 29 motion at the

close of all the evidence.” State v. Chatman, 2d Dist. Montgomery No. 20595, 2005-

Ohio-1930, ¶ 4, citing Dayton v. Rogers, 60 Ohio St.2d 162, 163, 398 N.E.2d 781 (1979).

       {¶ 39} Accordingly, we find Smith’s third assignment of error not well-taken.

                                      D. Sentencing

       {¶ 40} In his fourth assignment of error, Smith claims that the trial court erred in

imposing two consecutive prison terms for the firearm specifications attached to his

aggravated burglary and aggravated robbery convictions. Although he acknowledges that

R.C. 2929.14(B)(1)(g) would seem to contemplate consecutive sentences where a

conviction for aggravated robbery is involved, he claims that the statute is poorly-worded

and should be interpreted to require convictions of two offenses listed in the statute before

a trial court may impose consecutive sentences for the accompanying specifications.

       {¶ 41} R.C. 2929.14(B)(1)(a) sets forth the prison terms that a court shall impose

for certain specifications, such as the firearm specifications of which Smith was

convicted in case No. CR0201602143. R.C. 2929.14(B)(1)(b) provides that “[e]xcept as

provided in division (B)(1)(g) of this section, a court shall not impose more than one

prison term on an offender under division (B)(1)(a) of this section for felonies committed

as part of the same act or transaction.” In other words, except as provided in R.C.

2929.14(B)(1)(g), where an offender is convicted of multiple felonies and multiple




16.
firearm specifications, but those convictions arise from a single act, only one term of

imprisonment may be imposed for the specification.

       {¶ 42} But R.C. 2929.14(B)(1)(g) provides that:

              If an offender is convicted of or pleads guilty to two or more

       felonies, if one or more of those felonies are aggravated murder, murder,

       attempted aggravated murder, attempted murder, aggravated robbery,

       felonious assault, or rape, and if the offender is convicted of or pleads

       guilty to a specification of the type described under division (B)(1)(a) of

       this section in connection with two or more of the felonies, the sentencing

       court shall impose on the offender the prison term specified under division

       (B)(1)(a) of this section for each of the two most serious specifications of

       which the offender is convicted or to which the offender pleads guilty and,

       in its discretion, also may impose on the offender the prison term specified

       under that division for any or all of the remaining specifications.

       (Emphasis added.)

       {¶ 43} Here, Smith was convicted of aggravated burglary and aggravated robbery

arising from the May 6, 2016 incident. Because aggravated robbery is one of the

offenses enumerated in subsection (B)(1)(g), the trial court imposed mandatory

consecutive terms of imprisonment for the accompanying firearm specifications attached

to those offenses. Smith argues that because he was convicted of only one of the




17.
enumerated offenses, multiple terms for the firearm specifications should not have been

imposed.

       {¶ 44} Smith acknowledges that in State v. Welninski, 6th Dist. Wood Nos.

WD-16-039, WD-16-040, 2018-Ohio-778, ¶ 102, we recognized that the trial court was

required to impose multiple consecutive terms for two three-year firearm specifications

where one conviction was for an offense enumerated in subsection (B)(1)(g). But Smith

urges that this court should hold otherwise under State v. Zielinski, 6th Dist. Lucas No.

L-14-1108, 2016-Ohio-2668, ¶ 29.

       {¶ 45} In Zielinski, appellant was convicted of two offenses listed in R.C.

2929.14(B)(1)(g)—murder and felonious assault. We held that the trial court was

required to impose separate sentences for the two firearm specifications connected with

those offenses. Despite Smith’s suggestion to the contrary, Zielinski does not stand for

the proposition that mandatory multiple terms would not have been required had only one

of the appellant’s convictions been for an offense enumerated in the statute. And in fact,

other Ohio courts have rejected this argument.

       {¶ 46} In State v. Gervin, 2016-Ohio-8399, 79 N.E.3d 59, ¶ 199 (3d Dist.), for

instance, the appellant was convicted of felonious assault with a firearm specification,

aggravated arson, and improperly discharging a firearm at or into a habitation with a

firearm specification. Because “[a]ll of his convictions were felonies and one of them

was of the type enumerated in R.C. 2929.14(B)(1)(g),” the appellate court held that “the

trial court was required to impose two separate three-year prison terms for the firearm




18.
specifications and those terms must be consecutive to the prison terms imposed for the

underlying offenses.” Id.

       {¶ 47} Similarly, in State v. Murphy, 8th Dist. Cuyahoga No. 98124, 2013-Ohio-

2196, ¶ 8, the appellate court held that “the trial court was precluded from merging the

firearm specification underlying the aggravated burglary with the firearm specification

underlying the felonious assault” because felonious assault is one of the offenses

enumerated in R.C. 2929.14(B)(1)(g). See also State v. Price, 10th Dist. Franklin Nos.

13AP-1085, 13AP-1086, 2014-Ohio-4065, ¶ 10-11 (concluding that the trial court was

required by statute to impose two, three-year prison terms for the firearm specifications

attendant to appellant’s crimes of aggravated robbery and attempted aggravated

burglary); State v. Bushner, 9th Dist. Summit No. 26532, 2012-Ohio-5996, ¶ 31

(recognizing that trial court was required to impose at least two prison terms for firearm

specifications where appellant was convicted of four felonies, one of which was felonious

assault).

       {¶ 48} Because Smith was convicted of two felonies with two accompanying

firearm specifications, and one of those felonies was aggravated robbery—an offense

enumerated in R.C. 2929.14(B)(1)(g)—the trial court properly imposed two consecutive

sentences for those specifications.

       {¶ 49} Accordingly, we find Smith’s fourth assignment of error not well-taken.




19.
                                       III. Conclusion

       {¶ 50} Smith’s aggravated robbery and aggravated burglary convictions were not

against the manifest weight of the evidence despite the fact that one of the key witnesses

was under the influence of drugs at the time of the events giving rise to the charges.

Smith’s first assignment of error is, therefore, not well-taken.

       {¶ 51} Smith’s aggravated robbery and aggravated burglary convictions were

supported by sufficient evidence where the state presented evidence that Smith went to

the victim’s home to take money and drugs, barged into the victim’s home, and

brandished a gun during the commission of the offense. Smith’s second assignment of

error is, therefore, not well-taken.

       {¶ 52} Trial counsel was not ineffective for failing to make an opening statement,

failing to investigate phone records, and failing to renew a Crim.R. 29 motion for

acquittal. Smith’s third assignment of error is, therefore, not well-taken.

       {¶ 53} The trial court properly ordered two consecutive sentences for firearm

specifications under R.C. 2929.14(B)(1)(g) where one of the felonies of which Smith was

convicted was aggravated robbery. Smith’s fourth assignment of error is, therefore, not

well-taken.

       {¶ 54} Accordingly, we affirm the December 6, 2016 judgments of the Lucas

County Court of Common Pleas. Smith is ordered to pay the costs of this appeal under

App.R. 24.


                                                                       Judgments affirmed.



20.
                                                               State v. Smith
                                                               C.A. Nos. L-16-1306
                                                                          L-16-1307
                                                                          L-16-1308




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
James D. Jensen, J.
                                               _______________________________
Christine E. Mayle, P.J.                                   JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




21.
