[Cite as State v. Gordon, 2017-Ohio-7147.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                  )

STATE OF OHIO                                       C.A. No.      28331

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
ABDUL-KHALIQ J. GORDON                              COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR 2015 12 3996 (A)

                                 DECISION AND JOURNAL ENTRY

Dated: August 9, 2017



        TEODOSIO, Judge.

        {¶1}     Appellant, Abdul-Khaliq J. Gordon, appeals from his convictions in the Summit

County Court of Common Pleas. We affirm.

                                               I.

        {¶2}     A rash of break-ins and thefts troubled several local businesses beginning in

November of 2015. Property was vandalized and destroyed while scrap metal and a Mazda3

sedan were stolen. Some of the scrap metal was identified at a local scrap yard as being sold by

a man who had used the identification of Mr. Uzodinma Onuora and had driven the stolen

Mazda3. On Christmas Day of 2015, a police officer recognized the stolen Mazda3 in a parking

lot and arrested Mr. Gordon as the sole occupant of the vehicle. He was indicted on charges of

receiving stolen property and possession of marijuana.

        {¶3}     More break-ins at businesses occurred in March and April of 2016, where

property was damaged and scrap metal was stolen. Some of the more unique pieces of stolen
                                                2


scrap metal were identified at a local scrap yard and had been sold there by Mr. Ronald Roatsey.

Mr. Roatsey told police that he had been paid by a man named “L” to sell scrap metal there for

him on several occasions. The police tracked “L” to his girlfriend’s apartment complex and

knocked on the door, but no one answered. Mr. Gordon peeked out the back door, but slammed

it shut once he saw an officer outside. He attempted to hide in another resident’s apartment, but

the resident soon led police inside to find Mr. Gordon. As he attempted to escape through a

window, Mr. Gordon struggled with an officer and the window glass shattered.              He was

handcuffed and arrested. The police found Mr. Gordon’s identification in his wallet and a

detective recognized the name as that of the individual charged in the stolen Mazda3 case.

       {¶4}    A supplemental indictment was filed and, following a jury trial, Mr. Gordon was

found guilty of receiving stolen property, to wit: the Mazda3, obstructing official business,

identity fraud, and two counts of receiving stolen property, to wit: special purchase articles. The

jury found him not guilty of nine other charges. The possession of marijuana charge was tried to

the court and Mr. Gordon was found guilty of that offense. He was sentenced to a total of fifty-

nine months in prison. No fine was imposed for possession of marijuana.

       {¶5}    Mr. Gordon now appeals from his convictions and raises four assignments of

error for this Court’s review.

                                                II.

                                 ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
       FOUND MR. GORDON GUILTY BECAUSE THE EVIDENCE WAS
       INSUFFICIENT TO SUPPORT SUCH FINDINGS.
                                                3


       {¶6}    In his first assignment of error, Mr. Gordon argues that the trial court erred in

denying his Crim.R. 29 motion because his convictions were based on insufficient evidence. We

disagree.

       {¶7}    “We review a denial of a defendant’s Crim.R. 29 motion for acquittal by

assessing the sufficiency of the State’s evidence.” State v. Frashuer, 9th Dist. Summit No.

24769, 2010-Ohio-634, ¶ 33. “A sufficiency challenge of a criminal conviction presents a

question of law, which we review de novo.” State v. Spear, 9th Dist. Summit No. 28181, 2017-

Ohio-169, ¶ 6, citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997). “Sufficiency concerns

the burden of production and tests whether the prosecution presented adequate evidence for the

case to go to the jury.” State v. Bressi, 9th Dist. Summit No. 27575, 2016-Ohio-5211, ¶ 25,

citing Thompkins at 386. “‘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.’” Id., quoting State v. Jenks, 61 Ohio

St.3d 259 (1991), paragraph two of the syllabus. But, “we do not resolve evidentiary conflicts or

assess the credibility of witnesses, because these functions belong to the trier of fact.” State v.

Hall, 9th Dist. Summit No. 27827, 2017-Ohio-73, ¶ 10.

                                    Receiving Stolen Property

       {¶8}    Mr. Gordon was convicted of three counts of receiving stolen property under R.C.

2913.51(A), which states “[n]o person shall receive, retain, or dispose of property of another

knowing or having reasonable cause to believe that the property has been obtained through

commission of a theft offense.” If the stolen property is a motor vehicle, the offense is a felony

of the fourth degree. R.C. 2913.51(C). If the stolen property is a special purchase article, e.g.,

scrap metal, the offense is a felony of the fifth degree. R.C. 2913.51(D). “A person acts
                                               4


knowingly, regardless of purpose, when the person is aware that the person’s conduct will

probably cause a certain result or will probably be of a certain nature. A person has knowledge

of circumstances when the person is aware that such circumstances probably exist.” R.C.

2901.22(B).

       {¶9}   The State presented evidence, if believed, that Mr. Gordon received or retained

the Mazda3 either knowing or having reasonable cause to believe it was stolen. The owner of

American Glass & Construction testified that, over the long Thanksgiving weekend in 2015,

someone broke into his warehouse, vandalized it, and stole scrap metal and his Mazda3 along

with its keys. The vehicle’s license plate number was GMC-6455.

       {¶10} The owner of United Salvage testified that a man using the identification of Mr.

Uzodinma Onuora had been selling scrap metal to the business since May of 2015 and never

arrived in a vehicle until December 23, 2015. On that day, the man arrived in a Mazda3 to sell

scrap metal. An employee took down the vehicle’s license plate number of GMC-6455. The

employee picked Mr. Gordon out of a photo array in April of 2016 and was 100% sure that Mr.

Gordon was the man driving the Mazda3 on December 23rd. The employee also identified Mr.

Gordon in court.

       {¶11} Akron police officer David Zelenka reviews stolen vehicle lists daily and testified

that he was on patrol on Christmas Day of 2015 when he saw the stolen Mazda3 parked in a

CVS parking lot.    The officer positioned himself behind the vehicle and ordered the sole

occupant, Mr. Gordon, out of the vehicle at gunpoint. As Mr. Gordon slowly went to the ground,

the officer saw Mr. Gordon throw something, later determined to be the stolen vehicle’s keys,

under a car parked next to the Mazda3.
                                                5


       {¶12} Mr. Gordon told the officer that a few days ago at a nearby Rally’s he paid a

younger, black male nicknamed Boogie $250.00 to rent the car for a couple of weeks. He stated

that he did not know Boogie’s real name or address, but Boogie was in his 20’s, slim, with short

hair, no facial hair, and no tattoos. He said Boogie could be found on Hazel Street, which

Officer Zelenka testified is a long street that “runs pretty far.” Mr. Gordon said he did not have

any way to contact Boogie, but told the officer that there was an understanding that they would

“[run] into each other.” Officer Zelenka testified that while talking to Mr. Gordon, “I got the

general sense that he wasn’t going to give me specifics.” The actual owner of the vehicle

testified that he had never met Mr. Gordon before and that neither Mr. Gordon nor anyone else

had permission to use his vehicle.

       {¶13} Mr. Gordon argues that the State introduced no evidence indicating that he knew

or should have known the Mazda3 was stolen.          However, “[p]ossession of recently stolen

property, if not satisfactorily explained, is ordinarily a circumstance from which a jury may

reasonably infer and find, in the light of the surrounding circumstances shown by the case, that

the person in possession knew that the property had been stolen.” (Emphasis added.) State v.

Warren, 9th Dist. Summit No. 16034, 1993 WL 175518, *4 (May 26, 1993). We conclude that a

jury could have reasonably found that Mr. Gordon either knew or had reasonable cause to

believe that the car was stolen given his explanation of how he obtained possession of the car.

See State v. White, 12th Dist. Butler No. CA2002-07-161, 2003-Ohio-2011, ¶ 13-15 (affirming

appellant’s conviction for receiving stolen property where he claimed he did not know the car

was stolen and had rented it for $20.00 from a man in the neighborhood nicknamed “Slick”).

       {¶14} The State also presented evidence, if believed, that Mr. Gordon received, retained,

or disposed of scrap metal belonging to World Metal. The owner of World Metal testified that
                                                 6


over $100,000.00 in damage was done and scrap metal was stolen from his business during many

break-ins throughout March and April of 2016. One morning, the owner interrupted the thief,

but he ran and hid before the owner or police could find him. The owner found tools, equipment,

and scrap metal stashed by the thief, which someone secretly retrieved later.

       {¶15} The owner also had two other encounters with an individual or individuals on

World Metal’s property. He saw a person wearing a brown hoodie pulled tight around his head

walking inside of a fenced storage area and confronted him. The man said he was “just cutting

through[,]” jumped a fence, and ran away. An hour or so later, the owner saw either the same

individual or another individual walking on the sidewalk and studying the fence line. The man

stopped by an area of the chain link fence that had been cut beforehand and reached down to pick

up a bag of scrap metal that had been stashed there. When confronted by the owner, the man

fled. The owner tried but was unable to identify the man in the brown hoodie in three separate

photo arrays. However, he testified that when Mr. Gordon walked by him in the courthouse that

morning, he immediately recognized him as the second individual who tried to retrieve the bag

of stolen scrap metal that was stashed by the cut fence.

       {¶16} Mr. Gordon argues that at no time was he identified as possessing any stolen

scrap metal or selling it to PSC Metals. However, the State did not proceed at trial on a theory

that Mr. Gordon sold scrap metal directly to PSC Metals. The State proceeded on the theory that

Mr. Gordon paid Mr. Ronald Roatsey to sell stolen scrap metal to PSC Metals for him on

multiple occasions. “The identity of a perpetrator must be proved by the State beyond a

reasonable doubt.”    State v. Jackson, 9th Dist. Summit No. 28192, 2017-Ohio-635, ¶ 7.

“[I]dentity may be established through direct or circumstantial evidence.” Id.
                                                  7


       {¶17} Mr. Roatsey identified Mr. Gordon in court and testified that he met Mr. Gordon

on March 30, 2016. Mr. Gordon identified himself as “L” and asked Mr. Roatsey if he had an ID

and would like to make $10-$15. Mr. Gordon had a city trash can full of scrap metal and asked

Mr. Roatsey to turn it in for him at a scrap yard. Mr. Roatsey testified that he and Mr. Gordon

went to PSC Metals together and Mr. Roatsey sold Mr. Gordon’s scrap metal for him. He sold

more scrap metal for Mr. Gordon on multiple occasions thereafter for $10-$15 each time and Mr.

Gordon sometimes accompanied him to the scrap yard. Mr. Roatsey identified Mr. Gordon in

two surveillance pictures taken at PSC Metals as the man standing near him wearing a gray

hoodie with red and black stripes on both March 30, 2016, and April 1, 2016. The owner of

World Metal was able to identify unique copper bars that were stolen from transformers at World

Metal and sold to PSC Metals by Mr. Roatsey. We conclude that a jury could have reasonably

found that Mr. Gordon possessed stolen scrap metal and paid Mr. Roatsey to sell his stolen scrap

metal to PSC Metals.

                                   Obstructing Official Business

       {¶18} Mr. Gordon was convicted of obstructing official business under R.C.

2921.31(A), which states “[n]o person, without privilege to do so and with purpose to prevent,

obstruct, or delay the performance by a public official of any authorized act within the public

official’s official capacity, shall do any act that hampers or impedes a public official in the

performance of the public official’s lawful duties.” “If a violation of this section creates a risk of

physical harm to any person, obstructing official business is a felony of the fifth degree.” R.C.

2921.31(B). “A person acts purposely when it is the person’s specific intention to cause a certain

result, or, when the gist of the offense is a prohibition against conduct of a certain nature,
                                                8


regardless of what the offender intends to accomplish thereby, it is the offender’s specific

intention to engage in conduct of that nature.” R.C. 2901.22(A).

          {¶19} The State presented evidence, if believed, that Mr. Gordon purposely prevented,

obstructed, or delayed the police officers’ investigation by attempting to flee from them, which

hampered or impeded their duties and created a risk of physical harm to people in the area. After

talking to Mr. Roatsey, police officers tracked “L” to a nearby Burger King. Officer Douglas

Matson testified that officers reviewed surveillance video at the restaurant, obtained a picture of

“L,” and learned that the suspect’s girlfriend lived in an apartment complex on East Buchtel

Avenue.

          {¶20} Detective Bassett testified that he knocked on the apartment door and identified

himself. Detective Bassett, Detective Welser, and Officer Bodnar all testified that they heard

movement inside and could see shadows of movement in the large gap underneath the door.

While they knocked on the front door, Officer Matson went around to the back of the apartment

complex. He testified that Mr. Gordon peeked out the back door and looked around. The officer

recognized Mr. Gordon as “L” from the Burger King surveillance video. Mr. Gordon was

wearing the same coat that “L” wore in the Burger King surveillance video, which Officer

Mason described as “darker * * * [with] red -- I don’t want to say pin-striping, but it kind of

reminds me of Spider[-]man. It wasn’t real blatantly clear until you got up close to it and see

exactly the design.” Once Mr. Gordon saw the officer, he slammed the door shut and went back

inside.

          {¶21} The resident of another apartment in the building testified that Mr. Gordon

knocked on his door in a panic and said, “Help me. Hide me.” The moment the resident opened

his door, Mr. Gordon quickly brushed by him into the apartment without permission. Officer
                                                9


Matson testified that the resident came outside and told him that the guy they were looking for

just knocked on his door. He told police, “I opened the door. He just rushed right past me and

into my apartment. He’s in there. Can you go get him? I don’t want him in my apartment.”

Officer Matson testified that running into someone else’s private apartment puts people at risk of

bodily harm. He further testified that he had a little bit of hesitation going into the apartment

after Mr. Gordon because he didn’t know what was going on inside or if someone was possibly

armed and going to ambush him.

       {¶22} Officer Matson entered the resident’s apartment and intercepted Mr. Gordon as he

tried to flee through a bedroom window. The officer testified that he “yelled for him to come

back in, get back in” and Mr. Gordon did not comply. “The affirmative act of running from an

officer impedes or hinders the performance of an officer’s lawful duty.” State v. Sanders, 9th

Dist. Summit No. 23504, 2007-Ohio-2898, ¶ 21. The window glass shattered during a brief

struggle between the two men before the officer arrested Mr. Gordon and handcuffed him. An

attempt to flee that leads to a brief scuffle or wrestling with police is sufficient to hamper or

impede the officer’s performance of his lawful duties. See State v. Vactor, 9th Dist. Lorain No.

02CA008068, 2003-Ohio-7195, ¶ 38. Moreover, a risk of physical harm can exist when an

officer attempts to restrain a suspect. See id. at ¶ 39. The presence of broken glass can also

heighten the risk of physical harm. See State v. Donaldson, 11th Dist. Lake No. 2002-L-061,

2003-Ohio-6683, ¶ 30.

       {¶23} Several officers testified that during Mr. Gordon’s attempted escape through the

window, they heard the window glass shatter. Officer Matson testified that the window glass

shattered during his struggle with Mr. Gordon. Mr. Gordon argues that there is no evidence that

he intended to shatter the window glass or that anyone was harmed or put in harm’s way because
                                                 10


of the broken glass. However, whether the broken window was intended or accidental during his

attempted flight is inconsequential, as is whether anyone actually suffered physical harm. The

State was only required to present evidence that Mr. Gordon’s actions created a risk of physical

harm to any person. See State v. Washington, 9th Dist. Lorain No. 11CA010015, 2014-Ohio-

1876, ¶ 18. “[T]he potential risk of injury to an officer in pursuit of a suspect need not be a large

one in order to support a conviction for obstruction of official business.” State v. Woodson, 9th

Dist. Wayne No. 07CA0044, 2008-Ohio-1469, ¶ 27. Nonetheless, Detective Bassett testified

that Mr. Gordon actually did sustain a cut or abrasion on him, presumably from the broken

window, and a picture of the injury was introduced as evidence.

       {¶24} We conclude that a jury could have reasonably found that Mr. Gordon obstructed

official business in attempting to flee from the police and that his actions created a risk of

physical harm to himself, the police, and others.

                                           Identity Fraud

       {¶25} Mr. Gordon was convicted of identity fraud under R.C. 2913.49(B), which states:

       No person, without the express or implied consent of the other person, shall use,
       obtain, or possess any personal identifying information of another person with
       intent to [either] [h]old the person out to be the other person [or] [r]epresent the
       other person’s personal identifying information as the person’s own personal
       identifying information.

       {¶26} The State presented evidence, if believed, that Mr. Gordon used Mr. Uzodinma

Onuora’s identification to sell scrap metal at United Salvage. The owner of United Salvage

testified that the owner of Eckard Baldwin funeral home identified some scrap metal at United

Salvage in December of 2015 as property that had been stolen from the funeral home. United

Salvage’s records showed that an individual using the identification of Mr. Onuora had sold the

stolen scrap metal to United Salvage and had been selling scrap metal there using Mr. Onuora’s
                                                   11


identification since May of 2015. On December 23, 2015, the man using Mr. Onuora’s ID

showed up to sell scrap metal in a Mazda3 with the license plate number GMC-6455. The

employee identified Mr. Gordon in a photo array in April of 2016 and was 100% sure that Mr.

Gordon was the man driving the Mazda3 on December 23rd. He also identified Mr. Gordon in

court. Mr. Gordon was arrested by police two days later as the sole occupant of the Mazda3 and

told police he had rented it a few days ago. Detective Bassett testified that initial charges against

Mr. Onuora were soon dropped because police determined that Mr. Onuora was not in Ohio in

December of 2015. We conclude that a jury could have reasonably found that Mr. Gordon used

Mr. Onuora’s identification to sell scrap metal.

         {¶27} Altogether, after reviewing the evidence contained in the record in a light most

favorable to the prosecution, we conclude that the State satisfied its burden of production and

presented sufficient evidence for the case to go to the jury. Furthermore, any rational trier of fact

could have found all of the essential elements of the above offenses proven beyond a reasonable

doubt.

         {¶28} Mr. Gordon’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR TWO

         MR. GORDON’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT
         OF THE EVIDENCE.

         {¶29} In his second assignment of error, Mr. Gordon argues that his convictions are

against the manifest weight of the evidence. We disagree.

         {¶30} This Court has stated:

         In determining whether a criminal conviction is against the manifest weight of the
         evidence, an appellate court must review the entire record, weigh the evidence
         and all reasonable inferences, consider the credibility of witnesses and determine
         whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way
                                                12


       and created such a manifest miscarriage of justice that the conviction must be
       reversed and a new trial ordered.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). “[W]hen reversing a conviction on the

basis that it was against the manifest weight of the evidence, an appellate court sits as a

‘thirteenth juror,’ and disagrees with the factfinder’s resolution of the conflicting testimony.”

State v. Tucker, 9th Dist. Medina No. 06CA0035-M, 2006-Ohio-6914, ¶ 5. “This discretionary

power should be exercised only in exceptional cases where the evidence presented weighs

heavily in favor of the defendant and against conviction.” State v. Hamilton, 9th Dist. Lorain

No. 15CA010830, 2017-Ohio-230, ¶ 20.

       {¶31} Mr. Gordon argues that the jury clearly lost its way and the State did not meet its

burden of persuasion because there was no evidence that he created a risk of physical harm to

anyone when the window glass shattered and no one stated that he had used or attempted to use

another person’s identification as his own. However, these arguments are essentially sufficiency

of the evidence arguments. “A weight challenge tests the persuasiveness of the evidence the

State produced while a sufficiency challenge tests the very production of that evidence.” State v.

Hayes, 9th Dist. Summit No. 26388, 2013-Ohio-2429, ¶ 9. “An argument that the State failed to

prove one of the elements of a crime is one sounding in sufficiency, not weight.”               Id.

“[S]ufficiency and manifest weight are two separate, legally distinct arguments.”         State v.

Vincente-Colon, 9th Dist. Lorain No. 09CA009705, 2010-Ohio-6242, ¶ 20. Mr. Gordon has not

challenged the evidence set forth by the State as “unreliable or lacking credibility.” See State v.

Smith, 9th Dist. Summit No. 27877, 2016-Ohio-7278, ¶ 16. This Court will not develop a

manifest weight argument on his behalf. See State v. Sadeghi, 9th Dist. Wayne No. 14AP0051,

2016-Ohio-744, ¶ 32. We have already determined above that his convictions are based on

sufficient evidence.
                                               13


       {¶32} Mr. Gordon also argues that the jury clearly lost its way because he gave the name

and a description of the person who had given him the Mazda3 and the only one who identified

him as selling or possessing scrap metal was Mr. Roatsey, who testified as part of a plea deal.

However, “the weight to be given the evidence and the credibility of the witnesses are primarily

for the trier of the facts.” State v. DeHass, 10 Ohio St.2d 230 (1967), paragraph one of the

syllabus.

       {¶33} In reviewing the record, weighing the evidence and all reasonable inferences, and

considering the credibility of witnesses, this Court cannot say that the jury lost its way and

created a manifest miscarriage of justice in finding Mr. Gordon guilty of receiving stolen

property, obstructing official business, and identity fraud. “A conviction is not against the

manifest weight because the jury chose to credit the State’s version of events.” State v. Peasley,

9th Dist. Summit No. 25062, 2010-Ohio-4333, ¶ 18. This is also not an exceptional case where

the evidence presented weighs heavily in favor of the appellant and against conviction.

       {¶34} Mr. Gordon’s second assignment of error is overruled.

                            ASSIGNMENT OF ERROR THREE

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY
       SENTENCING MR. GORDON WITHOUT COMPLYING WITH R.C.
       2929.19(B)(2)(G).

       {¶35} In his third assignment of error, Mr. Gordon argues that the trial court erred by

failing to orally pronounce a specific amount of jail-time credit days during his sentencing

hearing. We disagree.

       {¶36} The Supreme Court of Ohio has stated:

       [A]n order determining whether an offender receives jail-time credit affects a
       substantial right * * * because receiving properly determined jail-time credit
       implicates an offender’s liberty interest in being free from unauthorized
                                                   14


         incarceration and the right to jail-time credit is protected by at least three statutory
         provisions.

State v. Thompson, 147 Ohio St.3d 29, 2016-Ohio-2769, ¶ 9, citing R.C. 2949.08(B), R.C.

2967.191, and R.C. 2929.19. If a trial court determines at a sentencing hearing that a prison term

is necessary or required, the trial court shall:

         Determine, notify the offender of, and include in the sentencing entry the number
         of days that the offender has been confined for any reason arising out of the
         offense for which the offender is being sentenced and by which the department of
         rehabilitation and correction must reduce the stated prison term under section
         2967.191 of the Revised Code.

R.C. 2929.19(B)(2)(g)(i).

         {¶37} At Mr. Gordon’s sentencing hearing, the trial court stated: “We’ll give you credit

for the time you have served. I don’t know that we have an accurate statement of that. The

probation department will make an accurate finding of that [sic] credit you have at this point in

time.” Mr. Gordon’s sentencing entry states: “Based upon an investigation conducted by the

Adult Probation Department, the defendant is given credit for 111 days served in the Summit

County Jail as of the date of sentencing * * *.” (Emphasis sic.).

         {¶38} Mr. Gordon did not object at the trial court level and has forfeited all but plain

error. See State v. Wallace, 9th Dist. Lorain Nos. 14CA010609, 14CA010610, 2015-Ohio-4222,

¶ 20. “Plain errors or defects affecting substantial rights may be noticed although they were not

brought to the attention of the court.” Crim.R. 52(B). “[The] error must be obvious and have a

substantial adverse impact on the integrity of and the public’s confidence in judicial

proceedings.” State v. Tichon, 102 Ohio App.3d 758, 767 (9th Dist.1995). “Plain error does not

exist unless it can be said that but for the error, the outcome of the trial would clearly have been

otherwise.” State v. Elkins, 9th Dist. Summit No. 19684, 2000 WL 1420285, *8 (Sept. 27,

2000).    Notice of plain error “is to be taken with the utmost caution, under exceptional
                                                 15


circumstances and only to prevent a manifest miscarriage of justice.” State v. Long, 53 Ohio

St.2d 91 (1978), paragraph three of the syllabus.

       {¶39} Mr. Gordon concedes that he was granted jail-time credit in his sentencing entry,

but argues that he was denied the ability to contest the amount of credit or seek a hearing under

R.C. 2929.19(B)(2)(g)(ii) because the trial court failed to determine the exact number of days

that he would be credited in open court during the sentencing hearing. We cannot agree that Mr.

Gordon was denied the ability to seek a hearing under R.C. 2929.19(B)(2)(g)(ii).                R.C.

2929.19(B)(2)(g)(ii) states: “In making a determination under division (B)(2)(g)(i) of this

section, the court shall consider the arguments of the parties and conduct a hearing if one is

requested.” Mr. Gordon does not allege that he requested a hearing and that his request was

denied. At the sentencing hearing, the parties made no arguments regarding jail-time credit, nor

did either side seek a hearing under R.C. 2929.19(B)(2)(g)(ii). There is nothing in the record to

support a claim that Mr. Gordon was denied the ability to request a hearing.

       {¶40} We also cannot agree with Mr. Gordon that he was denied the ability to contest

his jail-time credit amount. Mr. Gordon had two separate avenues readily available to him to

challenge his jail-time credit amount. “The Supreme Court of Ohio has indicated that the failure

of a trial court to calculate jail-time credit is ‘remediable in the ordinary course of law by appeal

or motion for jail-time credit.’” State v. Clark, 9th Dist. Summit No. 26673, 2013-Ohio-2984, ¶

16, quoting State ex rel. Williams v. McGinty, 129 Ohio St.3d 275, 2011-Ohio-2641, ¶ 2. Thus,

Mr. Gordon could have challenged the accuracy of his jail-time credit amount in his direct appeal

or availed himself of R.C. 2929.19(B)(2)(g)(iii), which states, in part:

       The sentencing court retains continuing jurisdiction to correct any error not
       previously raised at sentencing in making a determination under division
       (B)(2)(g)(i) of this section. The offender may, at any time after sentencing, file a
       motion in the sentencing court to correct any error made in making a
                                                 16


       determination under division (B)(2)(g)(i) of this section, and the court may in its
       discretion grant or deny that motion.

(Emphasis added.). Even if the trial court denied his motion, he could appeal the order, as a trial

court’s denial of a motion for jail-time credit filed pursuant to R.C. 2929.19(B)(2)(g)(iii) is a

final, appealable order. Thompson, 147 Ohio St.3d 29, 2016-Ohio-2769 at ¶ 13.

       {¶41} In support of his argument, Mr. Gordon asserts that the number of days of credit

“must be specifically stated on the record,” citing to our decision in State v. Clark, 9th Dist.

Summit No. 27511, 2016-Ohio-91, ¶ 25. However, that was not the holding in Clark. We

reversed and remanded in Clark partly because the sentencing entry granted a specific amount of

jail-time credit days “as agreed to by all parties” even though “[n]either party nor the trial court

mentioned any jail-time credit at the sentencing hearing.” (Emphasis deleted.) Id. at ¶ 24-25.

Here, there was no alleged agreement regarding jail-time credit stated in the entry, nor did the

trial court remain silent as to Mr. Gordon’s right to jail-time credit during the sentencing hearing.

       {¶42} Mr. Gordon also relies on this Court’s decision in State v. Santamaria, 9th Dist.

Summit No. 26963, 2014-Ohio-4787. However, that case is distinguishable from Mr. Gordon’s

case in that the trial court in Santamaria “failed to properly calculate Mr. Santamaria, Jr.’s jail-

time credit at the resentencing hearing and include this calculation in the sentencing entry * * *.”

(Emphasis added.) Id. at ¶ 10. Here, although the trial court did not orally state a specific

amount of days credit at the sentencing hearing, the court nonetheless calculated a specific

amount of jail-time credit and that calculation is reflected in the sentencing entry. See State v.

Boone, 9th Dist. Summit No. 26104, 2013-Ohio-2664, ¶ 26.

       {¶43} Mr. Gordon summarily states in a single sentence that he “also disputes he is only

entitled to 111 days of credit.” He fails to advance or support this argument any further and,

consequently, this Court will not construct an argument on his behalf. See App.R. 16(A)(7);
                                                17


Cardone v. Cardone, 9th Dist. Summit No. 18349, 1998 WL 224934, *8 (May 6, 1998) (“If an

argument exists that can support this assignment of error, it is not this [C]ourt’s duty to root it

out.”). Mr. Gordon has not established how any outcome or his jail-time credit amount would

have been different but for the trial court’s alleged error. See Elkins, 2000 WL 1420285 at *8.

As Mr. Gordon could have argued any inaccuracy in the amount in his direct appeal or in a

motion for jail-time credit, he has not shown how he has been prejudiced and we therefore

decline to notice any plain error here. This is not an exceptional circumstance where plain error

should be noticed to prevent a manifest miscarriage of justice. See Long, 53 Ohio St.2d 91 at

paragraph three of the syllabus.

       {¶44} Mr. Gordon’s third assignment of error is overruled.

                              ASSIGNMENT OF ERROR FOUR

       MR. GORDON WAS DENIED HIS CONSTITUTIONAL RIGHT TO
       EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL
       COUNSEL FAILED TO OBJECT TO THE TRIAL COURT’S FAILURE TO
       SENTENCE MR. GORDON IN ACCORDANCE WITH R.C. 2929.19(B)(2)(G).

       {¶45} In his fourth assignment of error, Mr. Gordon argues that his trial attorney was

ineffective for failing to object at his sentencing hearing and failing to request a hearing to

determine his jail-time credit. We disagree.

       {¶46} Because we have already concluded above that the trial court did not err in Mr.

Gordon’s third assignment of error, his fourth assignment of error must fail. See State v.

Daniels, 9th Dist. Summit No. 26406, 2013-Ohio-358, ¶ 24.

       {¶47} Mr. Gordon’s fourth assignment of error is overruled.

                                               III.

       {¶48} Mr. Gordon’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.
                                                18


                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     THOMAS A. TEODOSIO
                                                     FOR THE COURT



HENSAL, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
