         [Cite as State v. Cephas, 2019-Ohio-52.]
                      IN THE COURT OF APPEALS
                  FIRST APPELLATE DISTRICT OF OHIO
                       HAMILTON COUNTY, OHIO




STATE OF OHIO,                                      APPEAL NO. C-180105
                                                    TRIAL NO. B-1603911
        Plaintiff-Appellee,
                                                       O P I N I O N.
  vs.

ERNEST CEPHAS,

    Defendant-Appellant.




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: January 11, 2019




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS




M OCK , Presiding Judge.

       {¶1}   Defendant-appellant Ernest Cephas appeals from convictions for two

counts of felonious assault under former R.C. 2903.11(A)(2), with accompanying

firearm specifications, and one count of having weapons while under a disability

under R.C. 2923.13(A). We find no merit in his six assignments of error, and we

affirm his convictions.

                                 I. Factual Background

       {¶2}   The record shows that on July 13, 2016, at approximately 5:45 p.m.,

Timothy Reed parked his car near his mother’s house on Whetsel Avenue in

Madisonville. As he bent over to get his two-year-0ld grandson J.N. out of his car

seat, a car drove by and Reed collapsed. He was shot twice in the abdomen, and his

grandson was shot in the head.

       {¶3}   Robveisha Gaines, Reed’s daughter and J.N.’s mother, was also in the

car. She was on the passenger side, and when she bent down to get her other child

out of the car, she heard gun shots. She also heard J.N. screaming but did not realize

that he had been shot. Gaines went to the driver’s side of the car, believing that Reed

had just fallen. But when Reed moved, she saw blood on his white shirt. Then,

Gaines discovered that J.N. had been shot, and she started screaming and crying.

When police arrived, she told them that she thought the shots were fired from a red

truck with tinted windows.

       {¶4}   Darryl Starr had lived in Madisonville his entire life, and he knew Reed

from living in the neighborhood. Starr had taken a day off from his job as a mail

carrier and was driving through the neighborhood.         He was travelling west on

Chandler Street. When he stopped at the stop sign at the intersection of Chandler



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Street and Whetsel Avenue, he saw Reed standing 20 to 30 feet away. Starr then saw

a red car make a U-turn at the intersection in front of him.

       {¶5}   Starr heard a series of “pop-pop” sounds, and he saw smoke coming

from where Reed was located. He turned on to Whetsel Avenue and pulled up beside

Reed. Starr said, “Man, what, you got some bad fireworks or something?” Reed just

looked at him and then fell to the ground. Starr called 911 and went to assist Reed.

       {¶6}   Keyasha Spikes was a mail carrier working in Madisonville on the day

of the shooting. She was walking southbound on Ravenna Street crossing Chandler

Street when she saw a dark green four-door car make a “really big” U-turn. As Spikes

got to the sidewalk, she heard a gunshot. She stopped walking, and then she heard

two more gunshots and a woman screaming.

       {¶7}   Because Spikes was a nursing student, she got into her vehicle and

drove toward Whetsel Avenue to see if she could help. She drove southbound on

Ravenna Street. Spikes said that when she turned left onto Desmond Street, “[T]he

car almost hit me dead-on.” She parked her vehicle and went to the scene of the

shooting where she saw Reed with blood surrounding a hole in his shirt. Because

Reed was breathing, she did not believe she could do anything for Reed, and she was

going to leave the scene.

       {¶8}   But Spikes heard Gaines screaming about her baby, and saw J.N. in

the back seat of the car. She saw that the child was slumped over and surrounded by

blood, but that he was breathing. She saw Starr, whom she knew, and told him to

call for help because her phone was dead.

       {¶9}   Mark Osika was a probation officer with the Hamilton County Adult

Probation Department. He was working at a satellite office in Madisonville when he




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heard a broadcast about the shooting on a police radio. The satellite office was just

three blocks away, and Osika could see the commotion from his office door.

       {¶10} Osika immediately drove to scene.        A number of bystanders were

present, but he was the first public official to arrive. He saw a man lying on the

ground with blood on his shirt. He also saw a baby, injured but still breathing, in the

back seat of the car. At 5:49 p.m., Osika sent a radio broadcast advising that he was

at the scene. Three minutes later, he sent another broadcast stating that the shooter

was seen in a green vehicle going north on Whetsel Avenue.

       {¶11} Cincinnati Police Officer Germaine Love responded to the scene. The

officer saw Reed lying on the ground and retrieved J.N. from his car seat to provide

trauma care. He saw an injury to the child’s right side at the hairline. Subsequently,

the fire department arrived and Officer Love placed the infant in their care.

       {¶12} Officer Love also identified an “Incident Recall Report,” which

documented all communications associated with the shooting. The report showed

that at 5:46 p.m., the call came in that a male subject had been shot in the street. A

description of a red vehicle last seen on “Whetsel towards Kenwood” and of a black

male with a light complexion was provided at 5:48 p.m. At 5:49 p.m., a hysterical

female called and reported that a baby had been shot. At 5:50 p.m., there was

another report of the shooter being in a red vehicle. Osika’s broadcast at 5:52 p.m.

reported that the shooter was in a green vehicle going northbound on Whetsel

Avenue. At 6:04 p.m., a broadcast went out stating that the suspect vehicle was an

older green four-door with its back window completely shot out. It was seen on Luhn

Avenue, which runs into Whetsel Avenue, and then headed northbound on Stewart

Road. At 6:26 p.m., a call came to a nonemergency number stating that “suspect

vehicle seen on Steward getting on South 71, no plate, green Buick, late 90s early



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2000s.” Finally, at 6:35 p.m., a report came in to District Two that “vehicle is hunter

green with tan interior, male black driver, tall, fade haircut, white tee.”

         {¶13} Jennifer Long lived with her family on Luhn Avenue. On the evening

of July 13, 2016, she was outside getting ready to go to the store when she heard

three gunshots. She was going out her front gate when a green four-door car “flew”

past her. The back window of the car had been shot out and had shattered glass at

the bottom of the window. Long watched the car go through a stop sign at Luhn

Avenue and Stewart Road. It then made a right turn onto Stewart Road and almost

hit another car. Long said the car had only one occupant. The driver was an African-

American man, who wore a red shirt, and had “compacted” hair that was “flat to the

head.”

         {¶14} Kimberly Gray was at her home when she saw a news alert about a

shooting in Madisonville. She called the nonemergency number at District Two to

report what she had seen while driving home from work. Sometime between 5:45

and 5:55 p.m., she was driving in the right-hand lane on southbound I-71. As she

approached the Stewart Road entrance ramp, she saw a hunter green vehicle with a

tan interior. The car’s back window had been shattered, and the glass that was still

attached was waving in the wind. Gray described the driver as an African-American

male with a buzzed haircut, wearing a white shirt.          After Gray exited from the

interstate, the car continued going south on I-71.

         {¶15} Ebony Boyd is the mother of Cephas’s two-year old-son. She described

her relationship with Cephas as “on-and-off.” Boyd owned a green Oldsmobile that

she let Cephas drive, although she did not know if he had driven it on July 13, 2016.

Boyd testified that early that day, she had received a call from Cephas about a flat

tire, and that he had sounded distraught. She told him that she could not come



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                     OHIO FIRST DISTRICT COURT OF APPEALS



immediately to help because she had to go to work. After she got to work, she tried

to call Cephas, but got no answer.

       {¶16} Cindy Cephas, Cephas’s mother, received a “confusing” call from him

as she was making dinner between 5:00 and 6:00 p.m. on July 13, 2016. She said

that he seemed “disturbed by something.” The phone call was brief because they

were disconnected. Dionne Lewis, Cephas’s sister, was present at their mother’s

house when Cephas called. She became upset because when she attempted to call

her brother, she could not reach him.

       {¶17} Subsequently, Lewis saw a news report on television about a shooting

in Madisonville, which had advised viewers to be on the lookout for a green car.

Lewis knew that her brother sometimes drove a green car. She left her mother’s

house and drove to the scene of the shooting on Whetsel Avenue.

       {¶18} Cincinnati Homicide Police Detective Kim Kelly was present at the

scene when Lewis arrived. Kelly described Lewis as very anxious and concerned.

Lewis told her about the call that Cephas’s mother had received. Lewis said that

Cephas was upset and crying.         He had told his mother that “something bad

happened” and that he was not “gonna see you guys for a long time.” Lewis also told

Kelly that Cephas drove a green four-door Oldsmobile, and that Cephas had a long-

standing feud with someone in Madisonville.

       {¶19} Detective Kelly also talked by phone with Cephas’s mother and with

Boyd. They told Kelly where Cephas might be located. Detective Kelly then obtained

a warrant to search the residence where Cephas was staying. When police went to the

apartment, they found Cephas inside. His clothing was photographed before it was

seized. Police then took Cephas to the police station to be interviewed.




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                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶20} In the parking lot of the apartment building where Cephas was staying,

the police found the green Oldsmobile with a shattered back window. Inside the

apartment, they found a license plate, two boxes of .9 mm ammunition, a receipt

bearing Cephas’s name, multiple cell phones, an I-pad, and scales. They also found a

damaged HTC cell phone within a pile of clothing.

       {¶21} The police sent the HTC phone to Binary Intelligence, an outside

company with expertise at retrieving data off of electronic devices. Digital Forensic

Specialist Jim Swauger generated a “UFED Cellebrite Report” from the data

recovered from the phone. The report showed that Cephas made many calls to

Boyd’s phone from the morning of July 13, 2016, to the morning of July 14, 2016.

Swauger was also able to recover some texts that had originally been deleted. Shortly

after the shooting, Cephas sent texts to several individuals telling them that he loved

them and to “[w]atch the news.” He added, “My life wasn’t supposed to be like this.”

At 12:51 a.m. on July 14, Cephas sent a text to Boyd that stated, “Police ask you, you

busted my window out.”

       {¶22} The police also obtained a warrant to search the green Oldsmobile. A

cup holding a .9 mm casing, a cell phone, a black baseball cap, and a sample of glass

from the back window were recovered from the car. A forensic scientist determined

that it was possible that glass found near the scene of the shooting could have come

from the green Oldsmobile. The scientist also indicated that gunshot residue was

found on the steering wheel of the Oldsmobile, on the baseball cap removed from the

car, and on the t-shirt that Cephas had been wearing when he was arrested. A

serologist determined that Cephas was a major contributor of the DNA located on

the steering wheel of the car.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


                                    II. Invited Error

       {¶23} In his first assignment of error, Cephas contends that the trial court

erred in admitting into evidence statements by a victim who did not testify.

Specifically, he argues that the trial court violated his right to confront the witnesses

against him by allowing Detective Kelly to testify about statements made by Reed,

who did not cooperate with police or testify at the trial. This assignment of error is

not well taken.

       {¶24} The record shows that if any error occurred, it was invited error.

Under the invited-error doctrine, a party cannot take advantage of an error that the

party invited or induced the trial court to make. State v. Bey, 85 Ohio St.3d 487,

493, 709 N.E.2d 484 (1999); State v. Pennington, 1st Dist. Hamilton Nos. C-170199

and C-170200, 2018-Ohio-3640, ¶ 54. The statements were not elicited by the state

in its direct examination. Instead, Cephas’s counsel asked Detective Kelly about

those statements during his cross-examination. Then, on redirect examination, the

state questioned Kelly further about Reed’s statement. Cephas objected at that time,

but he had already opened the door for that testimony.           Consequently, Cephas

invited the error. See In re Bailey, 1st Dist. Hamilton No. C-990528, 2001 WL

477069 *1 (May 3, 2001) (the term “opening the door” is based on the doctrine of

invited error).

       {¶25} Even if it was not invited error, any error was harmless because Reed

told Kelly that he could not identify the shooter because he did not get a good look at

him. See State v. Bayless, 48 Ohio St.2d 73, 357 N.E.2d 1035 (1976), paragraph

seven of the syllabus; State v. Robinson, 1st Dist. Hamilton No. C-060434, 2007-

Ohio-2388, ¶ 16. Consequently, we overrule Cephas’s first assignment of error.




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                     OHIO FIRST DISTRICT COURT OF APPEALS


                             III. Photograph/Evid.R. 403

       {¶26} In his second assignment of error, Cephas contends that the trial court

erred in allowing unfairly prejudicial photographs into evidence. He argues that the

court should not have admitted a photograph of the injured child that showed the

child’s full body with medical tubing, because it was cumulative to a photograph

already admitted and served only to inflame the jury. This assignment of error is not

well taken.

       {¶27} Under Evid.R. 403, the decision whether to admit photographs into

evidence lies within the trial court’s discretion.       Gruesome photographs are

admissible at trial as long as their probative value is not substantially outweighed by

the danger that the accused will be unfairly prejudiced. State v. Maurer, 15 Ohio

St.3d 239, 264-265, 473 N.E.2d 768 (1984); State v. Miller, 1st Dist. Hamilton No. C-

010543, 2002-Ohio-3296, ¶ 13.

       {¶28} The trial court held a hearing on the two photographs the state

presented to prove the child’s injuries. The first, to which Cephas did not object,

showed the child’s head. Cephas did not object to its admission, stating that it “does

an excellent job of covering up some of the medical instruments that are being run to

help the child.”    But Cephas contended the second photograph was unduly

prejudicial because it showed “the full body and medical tubing and all the necessary

medical supplies plugged into the child.”

       {¶29} The state indicated that it had 24 pictures of the infant, and that it had

selected two as a representation of the child’s injuries. Because Cephas was charged

under both former R.C. 2903.11(A)(1) and (A)(2), the state had to prove both serious

physical harm and physical harm by means of a deadly weapon.                The state

represented that the two selected photographs “support[ed] those elements.”



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                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶30} The trial court stated that because the state had the burden to prove

serious physical harm, the two photographs would be admitted. Our review of the

record shows that the second photograph was not needlessly cumulative, and the

probative value of the photograph was not substantially outweighed by the danger of

unfair prejudice to Cephas. We cannot hold that the trial court’s decision to admit

the second photograph was so arbitrary, unreasonable or unconscionable as to

connote an abuse of discretion. See State v. Smith 80 Ohio St.3d 89, 108-109, 684

N.E.2d 668 (1997); State v. Morales, 32 Ohio St.3d 252, 257-258, 513 N.E.2d 267

(1987); Miller, 1st Dist. Hamilton No. C-010543, 2002-Ohio-3296, at ¶ 13-15.

Therefore, we overrule Cephas’s second assignment of error.

                       IV. Ineffective Assistance of Counsel

       {¶31} In his third assignment of error, Cephas contends that he was denied

the effective assistance of counsel.   He argues that his counsel made harmful

concessions and was not prepared to finish the trial. This assignment of error is not

well taken.

       {¶32} A court will presume that a properly licensed attorney is competent,

and the defendant bears the burden to show ineffective assistance of counsel. State

v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476 (1988); State v. Hackney,

1st Dist. Hamilton No. C-150375, 2016-Ohio-4609, ¶ 36. To sustain a claim of

ineffective assistance of counsel, the defendant must show that counsel’s

performance was deficient, and that the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984); Hackney at ¶ 36.

       {¶33} First, Cephas takes issue with his counsel’s statements in opening

arguments. Counsel stated that Cephas had “struggled throughout his entire life


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with substance abuse, both narcotics and alcohol” and that he had “dealt drugs in the

past only to facilitate his need, his addiction and to make sure that he had a constant

supply to use.” Counsel also stated that Cephas had “tried to recover numerous

times throughout his life.” He added that the day of the offense “started off horribly

for Mr. Cephas” for a number of reasons including that he had “begun using

narcotics again.” The record shows that counsel’s admissions were tactical decisions,

and Cephas has failed overcome the presumption that those admissions were sound

trial strategy. See Strickland at 689; State v. Thomas, 1st Dist. Hamilton No. C-

120561, 2013-Ohio-5386, ¶ 51.

       {¶34} At the sentencing hearing, Cephas complained that his counsel

“misrepresented” him because counsel “wasn’t in his right mind because his wife had

a miscarriage in the middle of trial.” Cephas also complained that counsel had

spoken with Cephas’s family about Cephas being suicidal, that counsel had never

discussed discovery with him, and that discovery was withheld from him. The record

contains no support for any of these assertions. They involve matters outside the

record, which we cannot consider on direct appeal. See State v. Ishmail, 54 Ohio

St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus; State v. Fields, 1st

Dist. Hamilton No. C-090648, 2010-Ohio-4114, ¶ 15; State v. Merkle, 1st Dist.

Hamilton Nos. C-020454 and C-030557, 2004-Ohio-1913, ¶ 44-47.

       {¶35} The record shows that Cephas’s counsel provided him with a diligent

and thorough defense. He has not demonstrated that counsel’s performance fell

below an objective standard of reasonableness or that, but for counsel’s

unprofessional errors, the results of the proceeding would have been otherwise.

Therefore, he has failed to meet his burden to show ineffective assistance of counsel.

See Strickland, 466 U.S. at 687-689, 104 S.Ct. 2052, 80 L.Ed.2d 674; Hackney 1st



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                     OHIO FIRST DISTRICT COURT OF APPEALS



Dist. Hamilton No. C-150375, 2016-Ohio-4609, at ¶ 37-38.             Consequently, we

overrule Cephas’s third assignment of error.

                             V. Weight and Sufficiency

       {¶36} In his fourth assignment of error, Cephas contends that his convictions

were not supported by sufficient evidence. He argues that no witness ever identified

him as the shooter and that no physical evidence placed him at the scene of the

shooting. He also points to various inconsistencies in the testimony of the state’s

witnesses, most notably that some witnesses had stated that they had seen a red car

at the scene, rather than a green car. This assignment of error is not well taken.

       {¶37} The state’s evidence was circumstantial, but circumstantial evidence

and direct evidence have the same probative value. State v. Jenks, 61 Ohio St.3d

259, 574 N.E.2d 492 (1991), paragraph one of the syllabus; State v. Durgan, 1st Dist.

Hamilton No. C-170148, 2018-Ohio-2310, ¶ 39. Further, no rule of law exists that a

witness’s testimony must be corroborated by physical evidence. Durgan at ¶ 39.

Any inconsistencies in the witnesses’ testimony goes to credibility, and in deciding if

the evidence was sufficient we neither resolve evidentiary conflicts nor assess the

credibility of witnesses. Thomas, 1st Dist. Hamilton No. C-120561, 2013-Ohio-5386,

at ¶ 45.

       {¶38} Our review of the record shows that a rational trier of fact, after

viewing the evidence in a light most favorable to the prosecution, could have found

the elements of two counts of felonious assault under R.C. 2903.11(A)(2), the

accompanying firearm specifications, and one count of having weapons while under

disability under R.C. 2923.13(A)(3).      Therefore, the evidence was sufficient to

support his convictions. See Jenks at paragraph two of the syllabus; Hackney, 1st




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Dist. Hamilton No. C-150375, 2016-Ohio-4609, at ¶ 29. Consequently, we overrule

Cephas’s fourth assignment of error.

       {¶39} In his fifth assignment of error, Cephas contends that his convictions

were against the manifest weight of the evidence, raising the same arguments as in

his fourth assignment of error. After reviewing the record, we cannot say that the

trier of fact lost its way and created such a manifest miscarriage of justice that we

must reverse the convictions and order a new trial. Therefore, the convictions are

not against the manifest weight of the evidence. See State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 451 (1997); State v. Cedeno, 192 Ohio App.3d 738, 2011-

Ohio-674, 950 N.E.2d 582, ¶ 25 (1st Dist.). Any inconsistencies in the witnesses’

testimony went to credibility, and matters as to the credibility of evidence are for the

trier of fact to decide. State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804

N.E.2d 433, ¶ 116; State v. Wright, 2017-Ohio-1568, 90 N.E.3d 162, ¶ 59 (1st Dist.).

We overrule Cephas’s fifth assignment of error.

                                   VI. Sentencing

       {¶40} Finally, in his sixth assignment of error, Cephas contends that the

record does not support the sentence imposed by the trial court. He argues that the

trial court erred in imposing lengthy consecutive sentences. This assignment of error

is not well taken.

       {¶41} Before a reviewing court can modify or vacate a felony sentence, it

must clearly and convincingly find that the sentence is contrary to law or that the

record does not support the sentencing court’s findings. R.C. 2953.08(G)(2); State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1; State v. White,

2013-Ohio-4225, 997 N.E.2d 629, ¶ 11 (1st Dist.).




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       {¶42} The sentences imposed were within the statutory ranges for second-

degree and third-degree felonies. See R.C. 2929.14(A)(2) and (3). Further, while the

trial court is required to consider the purposes and principals of sentencing and the

various factors under R.C. 2929.11 and 2929.12, it need not make specific findings.

We can presume from a silent record that the trial court considered the appropriate

factors unless the defendant affirmatively shows that the court has failed to do so.

State v. Patterson, 1st Dist. Hamilton No. C-170329, 2018-Ohio-3348, ¶ 60; State v.

Bohannon, 1st Dist. Hamilton No. C-130014, 2013-Ohio-5101, ¶ 7. Cephas has not

demonstrated that the court did not consider the appropriate factors.

       {¶43} As to the consecutive sentences, Cephas argues that the trial court did

not make the findings required by R.C. 2929.14(C). When imposing consecutive

sentences, a trial court must make the required findings as part of the sentencing

hearing and incorporate those findings into the sentencing entry. State v. Bonnell,

140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, syllabus. The court need not

use “talismanic words,” but the record must show that the court engaged in the

requisite analysis and that evidence exists to support the findings.        State v.

Schwarm, 1st Dist. Hamilton No. C-160677, 2017-Ohio-7626, ¶ 15; Thomas, 1st Dist.

Hamilton No. C-120561, 2013-Ohio-5386, at ¶ 56.

       {¶44} The trial court incorporated its findings into the judgment entry.

Cephas’s complaint is that they were not made at the sentencing hearing. After

listening to all parties, the court indicated that Cephas had “been to prison on two

prior occasions” before setting forth the sentences on the individual counts. Then,

before imposing consecutive sentences, it stated:

       The Court notes that the sentence is necessary to protect the public

       from future crime and/or to punish the offender.            It is not



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

       danger the offender poses to the public, and the offender’s history of

       criminal conduct demonstrates it’s necessary to protect the public

       from future crime by the offender.

       {¶45} Thus, the record shows that the court engaged in the requisite analysis

and made the findings at the sentencing hearing to justify the imposition of

consecutive sentences. The record supports the court’s sentencing findings, and we

cannot hold that the sentences imposed were contrary to law. Consequently, we

overrule Cephas’s sixth assignment of error.

                                    VII. Summary

       {¶46} In sum, we find no merit in Cephas’s arguments.            Therefore, we

overrule his six assignments of error and affirm the trial court’s judgment.

                                                                  Judgment affirmed.

Z AYAS and M YERS , JJ., concur.


Please note:
       The court has recorded its own entry this date.




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