[Cite as State v. Mott, 2020-Ohio-598.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       CLARK COUNTY

 STATE OF OHIO                                  :
                                                :
          Plaintiff-Appellee                    :   Appellate Case No. 2019-CA-41
                                                :
 v.                                             :   Trial Court Case No. 2018-CR-630
                                                :
 JACOB MOTT                                     :   (Criminal Appeal from
                                                :   Common Pleas Court)
          Defendant-Appellant                   :
                                                :

                                           ...........

                                          OPINION

                           Rendered on the 21st day of February, 2020.

                                           ...........

JOHN M. LINTZ, Atty. Reg. No. 0097715, Assistant Prosecuting Attorney, Clark County
Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. No. 0067020 and CATHERINE H. BREAULT, Atty. Reg. No.
0098433, 130 West Second Street, Suite 2150, Dayton, Ohio 45402
     Attorney for Defendant-Appellant

                                          .............




DONOVAN, J.
                                                                                            -2-


       {¶ 1} Defendant-appellant Jacob Mott appeals his conviction for one count of

felonious assault, in violation of R.C. 2903.11(A)(2), a felony of the second degree. Mott

filed a timely notice of appeal with this Court on May 24, 2019.

       {¶ 2} The incident which formed the basis for Mott’s conviction occurred in the

early morning hours of September 16, 2018, when the victim, Cody Riley, was out with

friends visiting local bars in Springfield, Ohio.     The group of men, including Riley,

eventually went to a bar named Che’s Rustic Lounge on Bechtel Avenue in Springfield.

At Che’s, Riley came into contact with Mott. Although the two men had not seen each

other in years, Riley and Mott were engaged in an ongoing dispute dating back to their

time in high school. The dispute involved money, stolen drugs, and a pair of expensive

sneakers.

       {¶ 3} Riley testified that, prior to last call at the bar, Mott approached him and asked

him, “How’s it going, buddy?” Tr. 102. Riley testified that he informed Mott that they were

not friends and to leave him alone. Mott left at that point, but approximately 15 minutes

later, he returned and asked Riley to buy him a beer. Riley refused, and the two men

then engaged in a verbal altercation with Mott demanding that they fight. Although

disputed by Mott, Riley testified that they were subsequently thrown out of the bar.

       {¶ 4} After being ejected from the bar, Mott invited Riley to meet him at his house

so they could fight. Mott then sent Riley a text message containing the address of his

residence in Springfield. Traveling in two vehicles, Riley and his friends drove to the

address provided by Mott and parked down the street a short distance from Mott’s

residence. Mott testified that the two vehicles containing Riley and his friends were

parked at the end of his driveway. Shortly after Riley arrived, Mott arrived in a vehicle
                                                                                              -3-


driven by his ex-girlfriend, Megan Hawk, who parked the car in Mott’s driveway. Mott

alleges that another individual, Dillon Peterson, was present in the vehicle with him and

Hawk. As soon as Mott exited the vehicle, Hawk backed the vehicle out of the driveway

and drove away from the scene. At trial, Mott testified that Hawk did not drive away as

he earlier told police, but that she and Peterson remained in the parked vehicle in his

driveway during the subsequent events.

       {¶ 5} In his interview with police, Mott stated that after he exited the vehicle, he

went inside his house, retrieved a .38 caliber revolver, and walked back outside to

confront Riley. At trial, however, Mott testified that he never went back into his house to

retrieve the revolver. Rather, he testified that before exiting the vehicle driven by Hawk,

he retrieved the revolver from the glovebox inside the vehicle and then got out and walked

towards Riley, who was standing at the end of the driveway unarmed. Riley testified that

Mott had pulled the hammer back on the revolver as he approached. Mott then pointed

the revolver at Riley’s head stating, “You don’t think I’ll do it.” Tr. 109. At that point, Mott

began tapping the barrel of the revolver against Riley’s forehead, backing him up toward

the street. Fearing for his life, Riley attempted to take the gun away from Mott, but was

unable to do so. Mott then backed up a step and shot Riley in the abdomen. The round

fired by Mott was later found to have pierced Riley’s abdomen, passed through his gall

bladder and large intestine, and lodged itself in Riley’s right buttock. At trial, Mott testified

that he did not intentionally shoot Riley in the abdomen. Rather, Mott claimed that as he

and Riley were struggling for control of the revolver, the two men fell to the ground, and

the gun went off accidentally.

       {¶ 6} One of Riley’s friends, Derrick Delawder, exited his vehicle, picked Riley up
                                                                                         -4-


where he was lying in the grass next to Mott’s driveway, and transported him to Springfield

Regional Medical Center. Delawder testified that he observed Riley try unsuccessfully

to take the gun from Mott. Delawder testified that he then observed Mott step back, aim

the revolver at Riley’s torso, and shoot him in the abdomen, contrary to Mott’s testimony

that the gun accidentally discharged during a struggle.

         {¶ 7} Riley was eventually flown by Care Flight helicopter to Miami Valley Hospital

where he received emergency surgery. Riley survived the surgery, but doctors were

forced to remove his gall bladder and a section of his large intestine. At the time of the

trial, the bullet still remained lodged in Riley’s right buttock. After shooting Riley, Mott

walked back to his house and went inside; he was located there when the police arrived.

Mott was arrested and taken into custody. The revolver used in the shooting was later

recovered by the police in a ravine in the woods near Mott’s residence.

         {¶ 8} On September 24, 2018, Mott was indicted for one count felonious assault

(deadly weapon), accompanied by a three-year gun specification. Mott pled not guilty to

the charged offense.

         {¶ 9} A jury trial was held on May 14, 2019, and the jury found Mott guilty of

felonious assault, and the attached gun specification. On May 17, 2019, the trial court

sentenced Mott to six years in prison for the felonious assault and a mandatory

consecutive three years for the gun specification, for an aggregate sentence of nine

years.

         {¶ 10} It is from this judgment that Mott now appeals.

         {¶ 11} Mott’s first assignment of error is as follows:

         TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO SUBPOENA
                                                                                       -5-


      THE DEFENSE WITNESSES.

      {¶ 12} In his first assignment, Mott contends that his trial counsel was ineffective

for failing to subpoena two of the witnesses named on his witness list, Megan Hawk and

Dillon Peterson. Mott argues that Hawk and Peterson were present during the shooting

and could have provided exculpatory testimony in support of Mott’s accident defense.

      {¶ 13} As this Court has noted:

             We evaluate ineffective assistance of counsel arguments in light of

      the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668,

      104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also State v. Bradley, 42 Ohio

      St.3d 136, 538 N.E.2d 373 (1989). To prevail on his claims of ineffective

      assistance of counsel, [a defendant] must show that counsel's

      representation fell below an objective standard of reasonableness, and that

      he was prejudiced by counsel's deficient performance. Bradley, at 142.

             To establish the first prong of ineffective assistance, there must be

      “a substantial violation of any of counsel's essential duties to his client.

      Bradley at 141. Trial counsel is entitled to a strong presumption that his or

      her conduct falls within the wide range of reasonable assistance. Id. at 142.

      Hindsight is not permitted to distort the assessment of what was reasonable

      in light of counsel's perspective at the time, and a debatable decision

      concerning trial strategy cannot form the basis of a finding of ineffective

      assistance of counsel. Bradley at 689.

             To establish the second prong, prejudice, [a defendant] “must show

      that there is a reasonable probability that, but for counsel's unprofessional
                                                                                           -6-


       errors, the result of the proceeding would have been different.               A

       reasonable probability is a probability sufficient to undermine the confidence

       in the outcome.” Strickland at 694.

State v. Jordan, 2d Dist. Montgomery No. 27208, 2017-Ohio-7342, ¶ 20-22.

       {¶ 14} “A debatable decision involving trial tactics generally does not constitute a

deprivation of effective counsel.” State v. Russell, 2d Dist. Montgomery No. 21458, 2007-

Ohio-137, ¶ 50, citing State v. Phillips, 74 Ohio St.3d 72, 656 N.E.2d 643 (1995). “Trial

counsel is entitled to a strong presumption that his or her conduct falls within the wide

range of reasonable assistance. * * *.” State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-

3395, 813 N.E.2d 964, ¶ 37 (2d Dist.).

       {¶ 15} Upon review, we conclude that Mott’s contention that counsel should have

subpoenaed Hawk and Peterson, who were allegedly in the vehicle parked in his driveway

at the time of the shooting, falls short of satisfying his burden on ineffective assistance of

counsel. Mott offers no insight into what evidence these witnesses would have provided

had they been called to testify, and instead, simply speculates that they “could have

provided exculpatory testimony in support of [Mott]’s accident defense[.]” (Emphasis

added.) Simply put, Mott's argument that Hawk and Peterson should have been

subpoenaed to testify rests upon “mere speculation.” See State v. Short, 129 Ohio St.3d

360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 119.           “Such speculation is insufficient to

establish ineffective assistance.” Id., citing State v. Perez, 124 Ohio St.3d 122, 2009-

Ohio-6179, 920 N.E.2d 104, ¶ 217. We cannot assume that Hawk and Peterson would

have provided exculpatory testimony supporting Mott’s accident defense, as neither

witness was subpoenaed, and it is unknown whether defense counsel interviewed them.
                                                                                            -7-


Such evidence is outside the record on appeal, and we will not consider it in regard to a

claim alleging ineffective assistance. See State v. Lehman, 2d Dist. Champaign No. 2014-

CA-17, 2015-Ohio-1979, ¶ 10 (it is “well-established that when a claim of ineffective

assistance requires the presentation of evidence outside the record, the proper avenue

for raising such a claim is through a petition for post-conviction relief rather than on direct

appeal”).

       {¶ 16} Furthermore, the record contains conflicting statements and testimony from

Mott regarding whether Peterson and/or Hawk were even present during the shooting.

As previously stated, Mott told the police when he was initially interviewed that Hawk

drove away and left immediately after dropping him off, before the shooting occurred. At

trial, however, he testified that Hawk and Peterson were still in the vehicle parked in his

driveway when the shooting occurred. Therefore, the record suggests that Hawk and

Peterson may not have been in Mott’s driveway to witness the shooting, or the record is,

at best, unclear whether they were in a position to observe the shooting as it occurred.

Accordingly, we cannot conclude that trial counsel's actions in this regard constituted

ineffective assistance, and certainly no prejudice has been established.

       {¶ 17} Mott’s first assignment of error is overruled.

       {¶ 18} Mott’s second assignment of error is as follows:

       THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE

       EVIDENCE TO SUSTAIN APPELLANT’S CONVICTION UNDER AN

       ACCIDENT DEFENSE.

       {¶ 19} In his second assignment, Mott argues that his conviction for felonious

assault was against the manifest weight of the evidence and should therefore be
                                                                                          -8-


reversed.

        {¶ 20} This court has stated that “a weight of the evidence argument challenges

the believability of the evidence and asks which of the competing inferences suggested

by the evidence is more believable or persuasive.” (Citations omitted). State v. Jones, 2d

Dist. Montgomery No. 25724, 2014-Ohio-2309, ¶ 8.             “When evaluating whether a

[judgment] is against the manifest weight of the evidence, the appellate court must review

the entire record, weigh the evidence and all reasonable inferences, consider witness

credibility, and determine whether, in resolving conflicts in the evidence, the trier of fact

‘clearly lost its way and created such a manifest miscarriage of justice that the conviction

must be reversed and a new trial ordered.’ ” Id., quoting State v. Thompkins, 78 Ohio

St.3d 380, 387, 678 N.E.2d 541 (1997).

        {¶ 21} Because the trier of fact sees and hears the witnesses at trial, we must

extend deference to the factfinder's decisions whether, and to what extent, to credit the

testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997

WL 476684, *4 (Aug. 22, 1997).         However, we extend less deference in weighing

competing inferences suggested by the evidence. Id. The fact that the evidence is

subject to differing interpretations does not render the judgment against the manifest

weight of the evidence. State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525,

¶ 14.    A judgment should be reversed as being against the manifest weight of the

evidence only in exceptional circumstances. State v. Martin, 20 Ohio App.3d 172, 175,

485 N.E.2d 717 (1st Dist.1983).

        {¶ 22} As previously stated, Mott initially told the police that, after he exited the

vehicle at his residence, he went inside his house, retrieved a .38 caliber revolver, and
                                                                                            -9-


walked back outside to confront Riley. At trial, however, Mott testified that he never went

back into his house to retrieve the revolver. Rather, he testified that before exiting the

vehicle driven by Hawk, he retrieved the revolver from the glovebox inside the vehicle

and then got out and walked toward Riley, who was standing at the end of the driveway.

Riley testified that Mott had pulled the hammer back on the revolver as he approached.

Mott tapped the barrel of the revolver against Riley’s forehead several times, backing him

up toward the street. Riley testified that he attempted to take the gun away from Mott,

but was unsuccessful. Riley testified that Mott then backed up a step and shot him in

the abdomen.     At trial, Mott testified that he did not intentionally shoot Riley in the

abdomen. Rather, Mott claimed that as he and Riley were struggling for control of the

revolver, the two men fell to the ground, and the gun went off accidentally.

       {¶ 23} Corroborating Riley’s testimony, Delawder, who was sitting in a vehicle

parked nearby, testified that he observed Riley try unsuccessfully to take the gun from

Mott after he pressed the gun against Riley’s forehead. Delawder then observed Mott

step back, aim the revolver at Riley’s torso, and shoot him in the abdomen. Delawder

testified that he then exited his vehicle, picked Riley up where he was lying in the grass

next to Mott’s driveway, and transported him to Springfield Regional Medical Center.

       {¶ 24} Thus, having reviewed the record, we find no merit in Mott's manifest weight

challenge. It is well settled that evaluating witness credibility is primarily for the trier of

fact. State v. Brown, 2d Dist. Montgomery No. 27571, 2018-Ohio-3294; see also State v.

Benton, 2d Dist. Miami No. 2010-CA-27, 2012-Ohio-4080, ¶ 7. A trier of fact does not

lose its way and create a manifest miscarriage of justice if its resolution of conflicting

testimony is reasonable. Id. Here, the jury reasonably credited the State's evidence,
                                                                                          -10-


which established that Mott was guilty of the offense for which he was convicted. Given

the numerous inconsistencies in Mott’s trial testimony and his initial statements to police,

the jury was free to discredit his claim that the shooting was an accident. Accordingly,

the jury did not lose its way and create a manifest miscarriage of justice in reaching a

guilty verdict for felonious assault.

       {¶ 25} Mott’s second assignment of error is overruled.

       {¶ 26} Mott’s third and final assignment of error is as follows:

       THE JUDGMENT OF THE TRIAL COURT SHOULD BE REVERSED

       BECAUSE THE RECORD DOES NOT CLEARLY AND CONVINCINGLY

       SUPPORT APPELLANT’S SENTENCE.

       {¶ 27} In his final assignment, Mott argues that the trial court erred when it

sentenced him to nine years in prison because the record does not clearly and

convincingly support his sentence. Initially, we note that if convicted of felonious assault,

a felony of the second degree, an offender may be punished by a prison term of two,

three, four, five, six, seven, or eight years. R.C. 2929.14(A)(2).

       {¶ 28} As this Court has previously noted:

              “The trial court has full discretion to impose any sentence within the

       authorized statutory range, and the court is not required to make any

       findings or give its reasons for imposing maximum or more than minimum

       sentences.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).

       However, in exercising its discretion, a trial court must consider the statutory

       policies that apply to every felony offense, including those set out in R.C.

       2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d 500, 2011-
                                                                                          -11-


       Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio

       St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.

State v. Armstrong, 2d Dist. Champaign No. 2015-CA-31, 2016-Ohio-5263, ¶ 12.

       {¶ 29} R.C. 2929.11 requires trial courts to be guided by the overriding principles

of felony sentencing. Those purposes are “to protect the public from future crime by the

offender and others and to punish the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). The court must “consider the need for

incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony

shall be reasonably calculated to achieve the two overriding purposes of felony

sentencing * * *, commensurate with and not demeaning to the seriousness of the

offender's conduct and its impact upon the victim, and consistent with sentences imposed

for similar crimes committed by similar offenders.”

       {¶ 30} R.C. 2929.12(B) sets forth nine factors indicating that an offender's conduct

is more serious than conduct normally constituting the offense. These factors include

whether the physical or mental injury to the victim was exacerbated because of the

physical or mental condition of the victim; serious physical, psychological, or economic

harm suffered by the victim as a result of the offense; whether the offender's relationship

with the victim facilitated the offense; and whether the offender committed the offense for

hire or as a part of an organized criminal activity.

       {¶ 31} R.C. 2929.12(C) sets forth four factors indicating that an offender's conduct
                                                                                           -12-


is less serious than conduct normally constituting the offense, including whether the victim

induced or facilitated the offense, whether the offender acted under strong provocation,

whether, in committing the offense, the offender did not cause or expect to cause physical

harm to any person or property, and the existence of substantial grounds to mitigate the

offender's conduct, although the grounds are not enough to constitute a defense. R.C.

2929.12(D) and (E) each lists five factors that trial courts are to consider regarding the

offender's likelihood of committing future crimes. Finally, R.C. 2929.12(F) requires the

sentencing court to consider the offender's military service record.

       {¶ 32} In reviewing felony sentences, appellate courts must apply the standard of

review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate court may increase,

reduce, or modify a sentence, or it may vacate the sentence and remand for resentencing,

only if it “clearly and convincingly” finds either (1) that the record does not support certain

specified findings or (2) that the sentence imposed is contrary to law.

       {¶ 33} In the instant case, the six-year sentence for the underlying felonious

assault imposed by the trial court was well within the permissible statutory range for a

conviction for felonious assault, a felony of the second degree. At disposition, the trial

court failed to mention the principles and purposes of sentencing pursuant to R.C.

2929.11 and/or the seriousness and recidivism factors enunciated in R.C. 2929.12. In

Mott’s judgment entry of conviction, however, the trial court stated the following:

       The Court considered the record, oral statements of counsel, the

       defendant’s statement, and the principles and purposes of sentencing

       under Ohio Revised Code Section 2929.11, and then balanced the
                                                                                             -13-


       seriousness and recidivism factors under Ohio Revised Code Section

       2929.12. The Court also considered the defendant’s criminal history.

(Emphasis added.) Id. at 1.

       {¶ 34} This Court has held that a defendant's sentence is not contrary to law when

the trial court expressly states in its sentencing entry that it had considered R.C. 2929.11

and R.C. 2929.12, even if the court neglected to mention these statutes at the sentencing

hearing. State v. Battle, 2d Dist. Clark No.2014 CA 5, 2014-Ohio-4502, ¶ 15, citing State

v. Miller, 2d Dist. Clark No. 09-CA-28, 2010-Ohio-2138, ¶ 43. Additionally, the trial court

stated that, although it did not request a presentence investigation report, it did ask the

probation department to perform a criminal record check on Mott, which apparently

established that Mott had an adult record containing two unidentified misdemeanors.

The trial court also stated that “had the victim died, which was a very real possibility, the

defendant would be facing a murder charge and/or conviction, which carries a mandatory

life sentence.” Sentencing Tr. 5.

       {¶ 35} As previously stated, after being shot by Mott, Riley was flown by Care

Flight helicopter to Miami Valley Hospital where he underwent emergency surgery. Riley

survived the surgery, but doctors were forced to remove his gall bladder and a section of

his large intestine. Significantly, at the time of the trial, the bullet still remained lodged in

Riley’s right buttock.

       {¶ 36} Here, the trial court imposed a sentence within the permissible statutory

range. The record establishes that the trial court properly reviewed Mott's statements and

the statements of counsel. The record further establishes that the trial court considered

the principles and purposes of sentencing under R.C. 2929.11, and that it balanced the
                                                                                      -14-


seriousness and recidivism factors set forth in R.C. 2929.12. Therefore, we are unable

to find “by clear and convincing evidence that the record does not support the sentence.”

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23. The sentence is

not contrary to law.

       {¶ 37} Mott’s final assignment of error is overruled.

       {¶ 38} All of Mott’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

                                     .............



HALL, J. and WELBAUM, J., concur.



Copies sent to:

John M. Lintz
Jon Paul Rion
Catherine H. Breault
Hon. Douglas M. Rastatter
