[Cite as State v. Dean, 2018-Ohio-1317.]




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

 STATE OF OHIO                                   :
                                                 :
         Plaintiff-Appellee                      :   Appellate Case No. 2017-CA-19
                                                 :
 v.                                              :   Trial Court Case No. 2017-CR-19
                                                 :
 MICHAEL A. DEAN                                 :   (Criminal Appeal from
                                                 :   Common Pleas Court)
         Defendant-Appellant                     :
                                                 :

                                            ...........

                                           OPINION

                              Rendered on the 6th day of April, 2018.

                                            ...........

JANE A. NAPIER, Atty. Reg. No. 0061426, Assistant Prosecuting Attorney, Champaign
County Prosecutor’s Office, 200 North Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

KRISTA GIESKE, Atty. Reg. No. 0080141, 810 Sycamore Street, Third Floor, Cincinnati,
Ohio 45202
      Attorney for Defendant-Appellant

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




WELBAUM, P.J.
                                                                                          -2-




       {¶ 1} Defendant-appellant, Michael A. Dean, appeals from his conviction and

sentence in the Champaign County Court of Common Pleas after a jury found him guilty

of assault, resisting arrest, and felonious assault.      In support of his appeal, Dean

contends that his trial counsel provided ineffective assistance by failing to raise the issue

of his competency to stand trial. Additionally, Dean contends that the trial court erred in

permitting the State to present inadmissible evidence at trial of other crimes, wrongs or

acts in violation of Evid.R. 404(B). Dean also contends that the offenses for which he

was convicted are allied offenses of similar import that should have merged for purposes

of sentencing.   Finally, Dean also challenges the trial court’s imposition of financial

sanctions. For the reasons outlined below, the judgment of the trial court will be affirmed.



                           Facts and Course of Proceedings

       {¶ 2} On January 5, 2017, the Champaign County Grand Jury returned a four-

count indictment charging Dean with aggravated menacing in violation of R.C.

2903.21(A), a first-degree misdemeanor; assault of a peace officer in violation of R.C.

2903.13(A)(C)(5), a fourth-degree felony; resisting arrest in violation of R.C.

2921.33(C)(2), also a fourth-degree felony; and felonious assault of a peace officer in

violation of R.C. 2903.11(A)(2), (D)(1)(a), a first-degree felony. The felonious assault

charge included a repeat violent offender specification under R.C. 2941.149(A).

       {¶ 3} The charges originated from an incident at a Dollar General store in Urbana,

Ohio, where Dean allegedly threatened to blow up the store, shoot one of the employees,

and blow up the employee’s car. Following this incident, the police went to Dean’s
                                                                                            -3-


residence where they attempted to arrest Dean for violating the conditions of his post-

release control due to his conduct at Dollar General.         During that encounter, Dean

allegedly struck a police officer in the face with his fist and failed to comply with various

police commands. It was also alleged that Dean brandished a hammer, which he threw

at a police officer, striking the officer in the chest.

       {¶ 4} After being indicted, Dean pled not guilty to the charges and the matter was

scheduled for a jury trial. Prior to trial, Dean filed a motion in limine to preclude the State

from introducing evidence at trial of other crimes, wrongs or acts pursuant to Evid.R.

404(B). Specifically, Dean sought to exclude evidence that he: (1) previously acted in a

hostile manner at the same Dollar General a month prior to the incident in question; (2)

made rude comments to his grandmother during the prior incident at Dollar General; (3)

was on post-release control at the time the indicted offenses took place; and (4) had

previous encounters with the police.

       {¶ 5} On May 8, 2017, after holding a hearing on the matter, the trial court issued

a decision denying Dean’s request to exclude evidence of the prior incident at Dollar

General.    In reaching that decision, the trial court determined that such “other act”

evidence was relevant to establish Dean’s identity, which is permissible under Evid.R.

404(B). At trial, the court further explained that evidence of the prior incident was also

relevant to establish the belief-of-serious-physical-harm element of the aggravated

menacing charge.

       {¶ 6} Dean’s request to exclude evidence of rude comments he allegedly made to

his grandmother during the prior incident at Dollar General was initially denied by the trial

court. However, in order to prevent undue prejudice, the trial court later changed its
                                                                                          -4-


ruling at trial and ultimately prohibited the State from eliciting any evidence regarding the

rude comments.

       {¶ 7} The trial court, on the other hand, denied Dean’s request to exclude evidence

indicating that he was on post-release control. The trial court found that Dean’s post-

release control status was a necessary fact in establishing the lawful-arrest element of

the resisting arrest charge since the arrest was based on Dean violating the conditions of

his post-release control.

       {¶ 8} Dean’s request to exclude evidence regarding his prior encounters with

police was granted in part and denied in part by the trial court. In granting Dean’s

request, the trial court ordered that an audio recording of Dean’s encounter with police be

redacted to omit certain statements by the officers that indicated Dean had 100 prior

police encounters. The trial court ordered the redaction because the court found that the

statements were inaccurate and merely colloquial in nature.

       {¶ 9} Following the trial court’s decision on Dean’s motion in limine, the matter

proceeded to a two-day jury trial. At trial, the State presented the testimony of Dollar

General employee Anne Dingey. Dingey testified that she was working on December

21, 2016, when Dean and his grandmother entered the Dollar General. Dingey claimed

that she was standing behind Dean and his grandmother putting away baskets and carts

when she heard Dean mumble “b****” under his breath. After Dingey heard this, she

decided to stay at the front of the store with the other cashier, Kandyce Kemp. Dingey

testified that she decided to stay up front with Kemp because Dean was in the store a

month prior and was very hostile and used foul language such as “these stupid b******”

and “dumb m***** f******.” Trial Trans. (May 24, 2017), p. 150. Dingey testified that
                                                                                       -5-


Dean’s behavior on that prior occasion made her nervous.

       {¶ 10} Continuing, Dingey testified that while she was at the front of the store,

Dean and his grandmother came to her register to check out. During that time, Dingey

testified that Dean slid a jar on the counter very forcefully, smashing her middle finger.

When Dingey yanked her hand back, she observed Dean give her an “ugh” look. Id. at

160. According to Dingey, Dean then started mumbling “stupid b****” and “dumba**”

under his breath.    Id.

       {¶ 11} After Dingey finished scanning their items, Dingey testified that Dean’s

grandmother began to retrieve money to pay, but because she moved very slowly, Dean

grabbed the money from his grandmother and handed it to Dingey. When Dingey went

to give Dean’s grandmother her change back, Dingey claimed that Dean grabbed her

hand and took the change. Dingey said she tried to ask Dean’s grandmother if she

wanted a receipt, but was interrupted by Dean calling her a “dumb b****,” “stupid,” and

“an absolute dumb m***** f*****.”     Id. at 161.

       {¶ 12} Following Dean’s remarks, Dingey testified that she asked Dean to be

respectful, but he continued to use profanity toward her. At that point, Dingey told Dean

to leave the store and Dean responded by whispering “Are you okay?” Trial Trans. (May

24, 2017), p. 162. Dingey testified that she responded “I’m fine. But * * * you seem very

angry.” Id. After making that comment, Dingey claimed that Dean “exploded” and told

her that he was going to come back and blow up the store, shoot her, and blow up her

vehicle. Id. Thereafter, Dingey testified that she once again told Dean to leave the

store, and as he left, he threatened to kill her.

       {¶ 13} Dingey testified that Dean’s threats scared her and that she believed the
                                                                                          -6-


threats were real.   As a result, when Dean left the store, Dingey went outside and

obtained Dean’s license plate information. While getting the information, she observed

Dean ram a shopping cart into the sidewalk causing the cart to crash and flip over.

Dingey also observed Dean yelling profanities and complaining about the sidewalk not

being shoveled. Dingey then testified that Dean once again threatened to shoot and kill

her, and made a gesture with his hand as if it were a gun while yelling “bang, bang, bang.”

Id. at 184.

       {¶ 14} After Dean and his grandmother were gone, Dingey testified that she called

the Dollar General district manager. Thereafter, the police arrived at the scene and

Dingey reported the incident to Officer Steve Molton of the Urbana Police Department.

Dingey testified that the district manager also arrived at the scene and provided Officer

Molton with the store’s surveillance video, which Officer Molton used to identify Dean.

       {¶ 15} Dingey’s co-worker, Kandyce Kemp, also testified at trial. Kemp confirmed

that Dingey stayed at the front of the store after Dean called Dingey a “b****” while she

was putting away baskets and carts. Kemp also confirmed that Dingey seemed nervous

after Dean’s comment, and later observed Dean use profanities while Dingey was

scanning his items. Kemp further observed Dean go “off the handle” when Dingey told

him he seemed angry. Trial Trans. (May 24, 2017), p. 202. According to Kemp, Dean

called Dingey a “f****** b****” and told Dingey “I’m going to shoot you.” Id. Kemp also

observed Dean flip a shopping cart over outside the store and heard him threaten to blow

up the store.

       {¶ 16} In addition to Dingey and Kemp’s testimony, Officer Molton testified that he

was dispatched to the Dollar General in Urbana, Ohio, regarding a disturbance involving
                                                                                          -7-


a male customer who allegedly made threats to blow up the store and shoot one of its

employees. Molton testified that one of the store’s employees provided him with the

customer’s license plate number. From that information, Molton determined that the

customer’s vehicle belonged to Blanche Outram of 439 East Church Street, Urbana, Ohio.

Molton testified that he was familiar with Outram and was aware that she resided with her

grandson, Dean, who matched the description of the male customer in question. Molton

also testified that he was able to positively identify Dean as the male customer using the

surveillance video provided by Dollar General’s district manager.

       {¶ 17} In addition to recognizing Dean, Molton testified that he was aware Dean

was on post-release control. As a result, Molton contacted Chris Caughman of the Adult

Parole Authority, and advised him of the allegations against Dean. Caughman also

testified at trial and confirmed that he worked for the Adult Parole Authority and served

as Dean’s post-release control supervisor. Caughman testified that Molton apprised him

of the December 21, 2016 incident at Dollar General, which led him to authorize Dean’s

arrest for violating the conditions of his post-release control.

       {¶ 18} After receiving instructions to arrest Dean, Molton testified that he requested

his supervising officer, Sergeant Chris Snyder, to meet him at Dean’s residence and

assist him with the arrest.     Upon arriving at the residence, Molton testified that he

knocked on the door and made contact with Dean, who permitted him inside the residence

to discuss the incident at Dollar General. Molton testified that he activated a digital audio

recorder on his person in order to record the encounter. The State admitted the audio

recording into evidence as State’s Exhibit No. 1 and played it for the jury.

       {¶ 19} The audio recording establishes that Molton asked Dean about the incident
                                                                                        -8-


at Dollar General and that Dean made various complaints about the store’s employees.

Dean and his grandmother also denied the accusation that Dean threatened to blow up

the store and shoot one of the employees. The recording indicates that Molton advised

Dean that “Chris” (Dean’s post-release control supervisor) wants him “picked up” and that

Dean was going to have to come with Molton. At that point, Dean says “let me use the

bathroom.” In response, Molton says “I’m going to have to go with you” followed by a lot

of rustling and a voice yelling “hammer.” A few moments later, Molton and another officer

can be heard giving various commands to Dean including “drop the hammer,” “get on

the ground,” “put your hands out in front of you,” and “down.”

       {¶ 20} In response to the officers’ commands, Dean can be heard saying “shoot

me.” Thereafter, another voice can be heard saying “he threw the hammer at Steve.”

Dean then once again yells for the officers to shoot him. However, instead of shooting

Dean, the officers continue to give multiple commands such as “Michael come out here,”

“put your hands up,” “turn around and put your hands up,” and “put your hands behind

your back.” Meanwhile, Dean continues to yell for the officers to shoot him and at one

point says: “I’m going to die right? I want to, I want to make sure I die. Pull the f******

trigger right f****** here.”

       {¶ 21} Shortly after Dean’s comments, one of the officers can be heard saying

“he’s running,” followed by a lot of heavy breathing and coughing. Dean then says: “They

sprayed mace may-maw. They sprayed mace, ok? I love you, alright?” A few moments

later, Molton can be heard saying “my glasses went flying” and then speaks to Dean’s

grandmother about finding his glasses.      Molton also tells Dean’s grandmother that

“[Dean] came at us with a hammer and refused to comply.” Molton later explains to
                                                                                         -9-


another officer how Dean came at him with a hammer and hit him in the face a couple

times with his fist.

       {¶ 22} After the recording was played for the jury, Officer Molton testified that his

conversation with Dean was initially laid back and casual, but turned combative after he

told Dean he was going to accompany him to the bathroom. Specifically, Molton testified

that as he stepped toward Dean, Dean spun around and hit Molton in the face with a

closed fist, causing his glasses to fly off his face. Thereafter, Molton testified that he

grabbed Dean’s upper body, but Dean broke away from his hold and ran into the

bathroom.

       {¶ 23} Once Dean was in the bathroom, Molton testified that Dean turned around

and wielded a hammer over his head. In response, Molton drew his weapon and yelled

“hammer” in an effort to notify Sergeant Snyder of the threat. Molton testified that he

gave several commands for Dean to drop the hammer, but Dean did not comply.

Instead, Molton testified that Dean threw the hammer at him, which struck Molton in the

chest. Molton testified that he was not injured by the hammer because he was wearing

a Kevlar vest. The county coroner, Dr. Josh Richards, testified to a reasonable degree

of medical certainty that the hammer thrown at Molton is a weapon capable of causing

death, i.e., a deadly weapon.

       {¶ 24} After being struck by the hammer, Molton testified that Dean stood facing

him with his fists clenched and started to yell for the officers to shoot him. In response,

Molton testified that Sergeant Snyder made several commands for Dean to put his hands

behind him. After Dean failed to comply, Molton testified that Snyder sprayed Dean with

pepper spray and chased Dean into the kitchen where Snyder eventually placed Dean in
                                                                                        -10-


custody.

      {¶ 25} In addition to Molton’s testimony, Sergeant Snyder testified that he initially

stood in the doorway of Dean’s residence and observed Molton talking to Dean and

Dean’s grandmother about the incident at Dollar General.         Snyder testified that he

observed Dean hit Molton after Molton attempted to accompany Dean to the bathroom.

Snyder also testified that he then went inside the residence to intervene and help subdue

Dean. Snyder claimed he heard Molton yell “hammer” and then observed Dean holding

a hammer over his head. Snyder testified that Molton gave multiple commands for Dean

to drop the hammer, but Dean instead threw the hammer at Molton.             According to

Snyder, Dean yelled for the officers to shoot him and would not comply with the officers’

commands to get down on the ground and put his hands behind his head. As a result,

Snyder testified that he sprayed Dean with pepper spray, which ultimately caused Dean

to surrender.

      {¶ 26} Next, Officer Michael Hughes testified that he was sitting in his vehicle

outside Dean’s residence when Snyder radioed him to come into the residence. When

Hughes entered the residence, he observed Molton and Snyder with their firearms drawn.

Hughes testified that Snyder advised him that Dean had just thrown a hammer at Molton.

Hughes then heard Dean yell “shoot me.” After Dean failed to comply with the officers’

orders to put his hands behind his back, Hughes testified that Snyder pulled out his

pepper spray and sprayed Dean. Hughes claimed Dean then ran into the kitchen where

Snyder was able to place him in custody.

      {¶ 27} After presenting the foregoing testimony and evidence, the State rested its

case. In his defense, Dean declined to call any witnesses, but admitted evidence of the
                                                                                        -11-


surveillance video and photographs of Molton’s face and glasses following the encounter

with Dean. Dean then rested his case and the trial court provided jury instructions to the

jurors. Following the jury instructions, the jury deliberated and found Dean not guilty of

aggravated menacing, but guilty of assaulting a peace officer, resisting arrest, and

felonious assault of a peace officer. The trial court also found that Dean was a repeat

violent offender and convicted Dean of the repeat violent offender specification under

R.C. 2941.149.

      {¶ 28} At sentencing, the trial court sentenced Dean to 18 months in prison for the

assault charge, 18 months in prison for the resisting arrest charge, 11 years in prison for

the felonious assault charge, and 10 years in prison for the repeat violent offender

specification. The trial court also imposed an additional 699 days in prison for Dean’s

post-release control violation.    All the prison terms were ordered to be served

consecutively to one another; accordingly, Dean received an aggregate prison term of 25

years and 11 months.

      {¶ 29} In addition to the prison time, the trial court imposed a $1,000 fine for the

assault charge, a $1,000 fine for the resisting arrest charge, and a $5,000 fine for the

felonious assault charge, for a total fine of $7,000. The trial court also ordered Dean to

pay court costs and the costs of his legal fees and expenses.

      {¶ 30} Dean now appeals from his conviction and sentence, raising four

assignments of error for review.



                               First Assignment of Error

      {¶ 31} Dean’s First Assignment of Error is as follows:
                                                                                          -12-


       APPELLANT       WAS     DENIED     HIS    CONSTITUTIONAL          RIGHT    TO

       EFFECTIVE      ASSISTANCE        OF    COUNSEL       DUE     TO    DEFENSE

       COUNSEL’S FAILURE TO RAISE THE ISSUE OF APPELLANT’S

       COMPETENCY TO STAND TRIAL.

       {¶ 32} Under his First Assignment of Error, Dean contends that his trial counsel

was ineffective in failing to raise the issue of his competency to stand trial. We disagree.

       {¶ 33} In order to succeed on an ineffective assistance claim, Dean must show that

his trial counsel rendered deficient performance and that counsel’s deficient performance

prejudiced him.    Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). To establish deficient performance, Dean must prove that his trial

counsel’s performance fell below an objective standard of reasonable representation. Id.

at 688; State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). In evaluating

counsel’s performance, “a court must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance; that is, the

defendant must overcome the presumption that, under the circumstances the challenged

action ‘might be considered sound trial strategy.’ ” Strickland at 689, quoting Michel v.

Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).

       {¶ 34} To show prejudice, defendant must establish that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d

864, ¶ 204, citing Strickland at 687-688, 694; Bradley at paragraph two of the syllabus.

The failure to make a showing of either deficient performance or prejudice defeats a claim

of ineffective assistance of counsel. Strickland at 697.
                                                                                         -13-


       {¶ 35} As previously noted, Dean contends that his trial counsel provided

ineffective assistance in failing to raise the issue of his competency to stand trial. “R.C.

2945.37 states that a criminal defendant is presumed competent to stand trial unless it is

established that he is unable to understand the nature of the proceedings and cannot

assist in his defense.” (Citation omitted.) State v. Bryant, 2d Dist. Miami No. 2016-CA-

23, 2017-Ohio-5490, ¶ 18. “If a defendant ‘lacks the capacity to understand the nature

and object of the proceedings against him, to consult with counsel, and to assist in

preparing his defense[,]’ he may not stand trial.” State v. Matharu, 2d Dist. Montgomery

No. 26985, 2017-Ohio-8251, ¶ 11, quoting State v. Skatzes, 104 Ohio St.3d 195, 2004-

Ohio-6391, 819 N.E.2d 215, ¶ 155. “ ‘The right to a competency hearing rises to the

level of a constitutional guarantee where the record contains sufficient “indicia of

incompetence” to necessitate inquiry to ensure the defendant’s right to a fair trial.’ ”

Bryant at ¶ 18, quoting State v. Ford, 8th Dist. Cuyahoga No. 84138, 2004-Ohio-5610,

¶ 24, quoting State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995).

       {¶ 36} In this case, Dean claims that his trial counsel should have questioned his

competence to stand trial due to the behavior he exhibited on December 21, 2016, and

while at court. Specifically, Dean points to the explosive behavior he exhibited toward

Anne Dingey and toward the police officers during his arrest, noting that he quickly went

from being casual and laid back to combative. Dean also claims he displayed “aberrant”

behavior during the trial court proceedings when he failed to stand for the jury on two

separate occasions, for which he was admonished by the trial court. Dean also points

to his refusal to speak on his own behalf at sentencing and to various inarticulate

comments he made in response to the trial court’s questions at sentencing.
                                                                                          -14-


       {¶ 37} At no point, however, has Dean maintained, nor does the record indicate,

that Dean did not understand the nature of the court proceedings or that he could not

assist in his defense. We note that the audio recording of Dean’s interaction with police

establishes that Dean was able to respond to Officer Molton’s questions without difficulty

and that Dean showed no signs of cognitive impairment that would lead one to believe he

would be unable to understand the nature of court proceedings and/or to assist in his

defense. In this court’s view, the record does not show an indicia of incompetence to

stand trial, but rather indicia of a person who may suffer from anger-related problems or

some other form of mental illness.

       {¶ 38} As the Supreme Court of Ohio has stated, “the term ‘mental illness’ does

not necessarily equate with the definition of legal incompetency. Legal incompetence

has a specific meaning [as set forth in R.C. 2945.37(G)].” Berry, 72 Ohio St.3d at 362,

650 N.E.2d 433. Therefore, “a person may suffer from a mental disability or illness and

still be capable of understanding the proceedings against him and assisting in his own

defense.” State v. McColgan, 10th Dist. Franklin No. 04AP-120, 2005-Ohio-580, ¶ 22,

citing State v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986); State v. Rainwater,

2d Dist. Montgomery No. 12056, 1991 WL 15967, *2 (Feb. 8, 1991).

       {¶ 39} Based on our review of the record properly before this court, we cannot

conclude that Dean’s trial counsel erred by not requesting a competency evaluation or

that if one had been requested, there is a reasonable probability that the result of the trial

would have been different. Accordingly, Dean’s First Assignment of Error is overruled.



                              Second Assignment of Error
                                                                                          -15-


       {¶ 40} Dean’s Second Assignment of Error is as follows:

       THE TRIAL COURT ERRED IN PERMITTING THE ADMISSION OF

       HIGHLY PREJUDICAL OTHER ACTS EVIDENCE, THUS DEPRIVING

       APPELLANT OF HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL.

       {¶ 41} Under his Second Assignment of Error, Dean contends that the trial court

erred in permitting the State to elicit testimony at trial regarding Dean’s presence and

rude behavior at the Dollar General Store a month prior to the incident in question, as well

as his status as a post-release control supervisee. Dean maintains that this amounts to

evidence of other crimes, wrongs or acts that is inadmissible at trial under Evid.R. 404(B).

       {¶ 42} Evid.R. 404(B) provides that:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the

       character of a person in order to show action in conformity therewith. It may,

       however, be admissible for other purposes, such as proof of motive,

       opportunity, intent, preparation, plan, knowledge, identity, or absence of

       mistake or accident.     In criminal cases, the proponent of evidence to be

       offered under this rule shall provide reasonable notice in advance of trial, or

       during trial if the court excuses pretrial notice on good cause shown, of the

       general nature of any such evidence it intends to introduce at trial.

       {¶ 43} “Generally, evidence of other acts is admissible if (1) it is offered for a

purpose other than to prove the character of a person in order to show action in conformity

with that character, Evid.R. 404(B), (2) it is relevant when offered for that purpose, Evid.R.

401, and (3) the danger of unfair prejudice does not substantially outweigh its probative

value, Evid.R. 403.” State v. Goldblum, 2d Dist. Montgomery No. 25851, 2014-Ohio-
                                                                                      -16-

5068, ¶ 32, citing State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818,

¶ 68, citing State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶

20.

      {¶ 44} “A trial judge has considerable discretion to determine whether the specific

evidence is of such a nature that it falls within one of the other purposes under Evid.R.

404(B) for which the evidence may be admitted.” Goldblum at ¶ 32, citing State v. Morris,

132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 19. The Supreme Court of Ohio

has stressed that “[u]nless the trial court has ‘clearly abused its discretion and the

defendant has been materially prejudiced thereby, this court should be slow to interfere’

with the exercise of such discretion.” Kirkland, at ¶ 67, quoting State v. Hymore, 9 Ohio

St.2d 122, 128, 224 N.E.2d 126 (1967).



                 Testimony Regarding Prior Incident at Dollar General

      {¶ 45} Dean claims that the portion of Anne Dingey’s testimony indicating that

Dean was behaving rudely at the Dollar General a month prior to the incident in question

amounts to other-act evidence that was not offered for any of the permissible purposes

outlined in Evid.R. 404(B), thus rendering it unfairly prejudicial.   We disagree with

Dean’s claim.

      {¶ 46} Dingey’s testimony regarding her prior encounter with Dean at Dollar

General was not presented for purposes of proving that Dean was acting in conformity

with his character.   Rather, the State’s purpose in presenting this evidence was to

demonstrate why Dingey initially felt threatened by Dean on the day in question and to

further explain how she was able to identify him from her prior encounter with him. As
                                                                                           -17-


previously noted, Dingey testified that when Dean and his grandmother first arrived at the

Dollar General on the day in question she was standing behind them putting away carts

and baskets when she heard Dean mumble “b****” under his breath. Trial Trans. (May

24, 2017), p. 147. After that, Dingey testified that she went up to the front of the store to

stay with the other cashier “[b]ecause prior to him coming to the store roughly a month

before this he was very hostile.      Very verbal with his profanity, his language.        So

automatically I went on defense.” Id. at 158-159. Dingey also testified that Dean’s

language during the prior encounter made her nervous.

       {¶ 47} Dingey’s testimony regarding the prior encounter is relevant to the issue of

whether Dingey believed that Dean would cause her serious physical harm for purposes

of establishing the aggravated menacing charge. Her testimony is also relevant to how

Dingey positively identified Dean, as she had not only one, but two rude encounters with

him at the Dollar General. We agree with the State that even though there is other

evidence in the record establishing Dean’s identity, whether or not there was a need for

Dingey’s identification testimony is irrelevant in determining its admissibility under Evid.R.

404(B). State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶ 24,

citing State v. McNeill, 83 Ohio St.3d 438, 442, 700 N.E.2d 596 (1998).

       {¶ 48} In addition, the danger of any unfair prejudice caused by Dingey’s testimony

did not substantially outweigh its probative value. “For the evidence to be excluded on

this basis, ‘the probative value must be minimal and the prejudice great.’ ” State v.

Hardy, 2017-Ohio-7635, ___ N.E.3d ___, ¶ 69 (2d Dist.), quoting State v. Morales, 32

Ohio St.3d 252, 257, 513 N.E.2d 267 (1987). In an effort to reduce any prejudice, the

trial court prohibited Dingey from testifying about rude comments Dean made to his
                                                                                        -18-


grandmother during the prior encounter. The trial court limited Dingey’s testimony to the

fact that Dean was using profane language while he was in the Dollar General store a

month prior to the incident in question.      The evidentiary value of this testimony is

significant given the fact that it is probative of an element of the aggravated menacing

offense and of Dingey’s positive identification of Dean.       Finally, we note that any

prejudice in admitting this testimony cannot be deemed great since the jury found Dean

not guilty of the aggravated menacing charge for which the testimony was intended to

prove.

         {¶ 49} For the foregoing reasons, the trial court did not abuse its discretion in

admitting evidence regarding the prior incident at Dollar General.



                   Dean’s Status as a Post-Release Control Supervisee

         {¶ 50} Dean next argues that the evidence presented at trial indicating he was on

post-release control at the time of the offense in question was inadmissible other acts

evidence under Evid.R. 404(B), thus rendering it unfairly prejudicial. We again disagree

with Dean’s claim.

         {¶ 51} As with Dingey’s testimony, the evidence indicating that Dean was on post-

release control was not presented as proof of Dean’s character. Rather, the State’s

purpose in presenting this evidence was to demonstrate why the police had authority to

arrest Dean.      As previously noted, Dean’s post-release control supervisor, Chris

Caughman, testified that after he was informed of the alleged threats Dean made at the

Dollar General, he authorized Officer Molton to arrest Dean for violating the conditions of

his post-release control.     Caughman’s testimony was relevant to prove that Dean
                                                                                         -19-


resisted a “lawful arrest” for purposes of establishing the resisting arrest charge. Without

this information, the jury would not know why the police had authority to arrest Dean.

        {¶ 52} The Supreme Court of Ohio reached a similar conclusion in State v.

Cowans, 87 Ohio St.3d 68, 717 N.E.2d 298 (1999). In Cowans, the defendant’s parole

officer, Sandra Higgins, testified at trial regarding a search she conducted at the

defendant’s home that yielded various items of stolen property belonging to a murder

victim. While testifying, Higgins informed the jury that she was the defendant’s parole

officer. The defendant argued that evidence of his status as a parolee should have been

excluded under Evid.R. 404(B). In overruling this argument the Supreme Court stated

that:

               We cannot agree. At no time during the guilt phase did the trial

        court, the parties, or any witness refer to the basis for Cowans’s parolee

        status. The jury was informed only that Cowans was a parolee. The jury

        never learned that he had a prior murder conviction or even a felony

        conviction until the sentencing phase. In addition, the trial court instructed

        the jury not to consider Cowans’s parolee status as character evidence.

               Moreover, Cowans’s status as a parolee was relevant in the guilt

        phase, even though the nature of his previous crime was not. Higgins

        searched Cowans’s house and found property that had been stolen from

        Mrs. Swart. Higgins was able to search Cowans’s house because she was

        his parole officer. Without knowing her relationship to Cowans, the jury

        could not have understood why Higgins was searching Cowans’s house.

        Cf. State v. Allen (1995), 73 Ohio St.3d 626, 632, 653 N.E.2d 675, 683.
                                                                                        -20-


      Thus, Higgins’s position as Cowans’s parole officer was, as the trial court

      put it, “inextricably intertwined” with her testimony about the search.

      Accordingly, Cowans’s fourth proposition is overruled.

Cowans at 78.

      {¶ 53} Like in Cowans, the underlying conviction for which Dean was serving post-

release control was never disclosed to the jury.    None of the testimony nor the audio

recording of Dean’s encounter with police referenced Dean’s prior conviction or the fact

that Dean had been previously arrested. While the trial court did not specifically instruct

the jury not to consider Dean’s status as a post-release control supervisee as character

evidence, the court did generally instruct the jury not to use evidence of other acts

properly admissible under Evid.R. 404(B) as character evidence.

      {¶ 54} Furthermore, after a thorough review of the record, we find that Dean’s

status as a post-release control supervisee was “inextricably intertwined” with the

resisting arrest charge since that charge requires the State to prove that Dean resisted

or interfered with a “lawful arrest.” See R.C. 2921.33. Here, the State sought to prove

that Dean resisted his arrest for violating the conditions of his post-release control.

Therefore, the resisting arrest charge could not have been established without the jury

knowing that Dean was on post-release control at the time of his arrest. Accordingly,

any unfair prejudice caused by the jury knowing Dean was on post-release control did not

substantially outweigh its probative value since Dean’s status as a post-release control

supervisee was necessary to establish the “lawful arrest” element of the resisting arrest

charge. Furthermore, the likelihood of any resulting prejudice was minimal since the jury

knew nothing about the previous conviction for which Dean was serving post-release
                                                                                           -21-


control.

       {¶ 55} For the foregoing reasons, the trial court did not abuse its discretion in

admitting evidence regarding Dean’s post-release control.

       {¶ 56} Having found no merit to the arguments Dean raised under Evid.R. 404(B),

his Second Assignment of Error is overruled.



                                Third Assignment of Error

       {¶ 57} Dean’s Third Assignment of Error is as follows:

       THE TRIAL COURT ERRED IN FAILING TO MERGE APPELLANT’S

       CONVICTIONS FOR PURPOSES OF SENTENCING BECAUSE THEY

       WERE ALLIED OFFENSES OF SIMILAR IMPORT.

       {¶ 58} Under his Third Assignment of Error, Dean contends that his convictions for

assault, resisting arrest, and felonious assault are allied offenses of similar import that the

trial court should have merged for purposes of sentencing.

       {¶ 59} Ohio’s allied offense statute, R.C. 2941.25, provides that:

       (A) Where the same conduct by defendant can be construed to constitute

       two or more allied offenses of similar import, the indictment or information

       may contain counts for all such offenses, but the defendant may be

       convicted of only one.

       (B) Where the defendant's conduct constitutes two or more offenses of

       dissimilar import, or where his conduct results in two or more offenses of

       the same or similar kind committed separately or with a separate animus as

       to each, the indictment or information may contain counts for all such
                                                                                       -22-


       offenses, and the defendant may be convicted of all of them.

       {¶ 60} “ ‘[W]hen determining whether offenses are allied offenses of similar import

within the meaning of R.C. 2941.25, courts must ask three questions when defendant’s

conduct supports multiple offenses: (1) Were the offenses dissimilar in import or

significance? (2) Were they committed separately? and (3) Were they committed with

separate animus or motivation? An affirmative answer to any of the above will permit

separate convictions. The conduct, the animus, and the import must all be considered.’ ”

State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, quoting State

v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31.

       {¶ 61} As to the question of import and significance, “two or more offenses of

dissimilar import exist within the meaning of R.C. 2941.25(B) when the defendant’s

conduct constitutes offenses involving separate victims or if the harm that results from

each offense is separate and identifiable.” Ruff at ¶ 23.

       {¶ 62} In regards to animus, “ ‘[w]here an individual’s immediate motive involves

the commission of one offense, but in the course of committing that crime he must, A

priori, commit another, then he may well possess but a single animus, and in that event

may be convicted of only one crime.’ ” State v. Ramey, 2015-Ohio-5389, 55 N.E.3d 542,

¶ 70 (2d Dist.), quoting State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979).

       {¶ 63} As previously noted, Dean was convicted of assault, resisting arrest, and

felonious assault.   Dean claims that these offenses should have been merged at

sentencing because all of the actions underlying the offenses were perpetrated in

furtherance of resisting arrest and thus committed with a single animus.        However,

contrary to Dean’s claim otherwise, we find it clear that Dean’s offenses were not
                                                                                         -23-


committed by a single act, but rather separate actions that resulted in separate,

identifiable harm.

       {¶ 64} In this case, Dean completed an assault against Officer Molton at the

beginning of the encounter at Dean’s residence when Dean spun around and punched

Molton in the face as Molton was attempting to accompany him to the bathroom. Dean

then committed the offense of resisting arrest when he fled to the bathroom, grabbed a

hammer, and wielded the hammer above his head to prevent the officers from arresting

him. Dean also failed to comply with Officer Molton and Sergeant Snyder’s orders to

drop the hammer and get on the ground. Thereafter, Dean committed felonious assault

when he threw the hammer, a deadly weapon, at Molton, which struck him in the chest.

Dean then continued to resist arrest by failing to follow Snyder’s commands to put his

hands up and by fleeing into the kitchen after being pepper sprayed.

       {¶ 65} Although Officer Molton did not suffer any serious injuries from the incident,

Dean nevertheless caused separate harm to Officer Molton by punching him in the face

and striking him in the chest with a hammer. In addition, the arresting officer, Snyder,

and the assaulted officer, Molton, are different individuals, and thus different victims.

See State v. Copeland, 8th Dist. Cuyahoga No. 102952, 2016-Ohio-1537, ¶ 36 (holding

that defendant’s offenses of resisting arrest and assault were not allied offenses because

the defendant committed the separate offense of assault when she kicked an officer in

the face and also because the arresting officer and assaulted officer were two different

individuals). For the foregoing reasons, Dean’s offenses are not allied offenses subject

to merger for sentencing.

       {¶ 66} Dean’s Third Assignment of Error is overruled.
                                                                                        -24-




                              Fourth Assignment of Error

       {¶ 67} Dean’s Fourth Assignment of Error is as follows:

       THE TRIAL COURT ERRED IN IMPOSING FINANCIAL SANCTIONS AS

       PART OF APPELLANT’S SENTENCE.

       {¶ 68} Under his Fourth Assignment of Error, Dean contends that the trial court

impermissibly intertwined Dean’s obligation to repay legal fees and expenses with his

assessment of fines and court costs. Dean also contends that the record does not

support the trial court’s finding that Dean had the present and future ability to pay the

financial sanctions imposed by the trial court.

       {¶ 69} As to the repayment of legal fees and expenses, we have held that

“although a defendant can indirectly be required to repay his court-appointed counsel fees

as a special condition of probation, he cannot be directly required to repay court-

appointed counsel fees as a criminally enforceable sanction and court-appointed counsel

fees may not be taxed as costs.” State v. Springs, 2015-Ohio-5016, 53 N.E.3d 804, ¶ 9

(2d Dist.).   Accordingly, the obligation to reimburse appointed-counsel fees cannot

properly be blended into a post-confinement repayment schedule. Id. at 12. Rather, if

the county desires to enforce reimbursement of legal fees and expenses, it is required to

pursue civil execution collection proceedings. (Citation omitted.) Id.; R.C. 2941.51(D).

       {¶ 70} In his reply brief, Dean concedes that the trial court did not impose a post-

confinement payment plan for reimbursement of his legal fees and costs. Furthermore,

at the sentencing hearing and in the sentencing entry, the trial court specifically advised

Dean that his legal fees and expenses would be separately collected by the Clerk of Court
                                                                                          -25-


via a civil action and would not to be taxed as part of court costs. Accordingly, we find

no error in the trial court’s order for Dean to repay his legal fees and expenses.

       {¶ 71} Dean’s second argument challenges the financial sanctions imposed by the

trial court on grounds that the court improperly found that Dean had the present and future

ability to pay the sanctions. “R.C. 2929.19(B)(5) imposes a duty on the trial court to

‘consider the offender’s present and future ability to pay’ before imposing any financial

sanctions under R.C. 2929.18.”        (Citation omitted.)      State v. Philbeck, 2d Dist.

Montgomery Nos. 26466, 26467, 2015-Ohio-3375, ¶ 27. “[T]he statute establishes no

particular factors for the court to take into consideration, nor is a hearing necessary before

making this determination.”     (Citation omitted.)    Id.   “The record should, however,

contain ‘evidence that the trial court considered the offender’s present and future ability

to pay before imposing the sanction of restitution.’ ” State v. Culver, 160 Ohio App.3d

172, 2005-Ohio-1359, 826 N.E.2d 367, ¶ 57 (2d Dist.), quoting State v. Robinson, 3d Dist.

Hancock No. 5-04-12, 2004-Ohio-5346, ¶ 17.

       {¶ 72} In reviewing a trial court’s imposition of costs and financial sanctions as part

of a felony sentence, we apply the standard set forth in R.C. 2953.08(G)(2)(b), inquiring

whether the imposition of costs and financial sanctions is clearly and convincingly

contrary to law. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,

¶ 1; State v. Kelly, 6th Dist. Wood No. WD-16-015, 2017-Ohio-674, ¶ 10; State v. Becraft,

2017-Ohio-1464, 89 N.E.3d 218, ¶ 17-18 (2d Dist.). “[A]n appellate court may vacate or

modify any sentence that is not clearly and convincingly contrary to law only if the

appellate court finds by clear and convincing evidence that the record does not support

the sentence.” Marcum at ¶ 23.
                                                                                         -26-


       {¶ 73} In this case, the trial court sentenced Dean to pay an aggregate $7,000 fine

and court costs for his felony offenses. Prior to imposing these financial sanctions, the

trial court stated the following at Dean’s sentencing hearing:

       The Court has reviewed and considered the information contained in the

       presentence report related to your age, health, education, and employment

       history. As well [as] statements made here today of the Prosecutor, your

       attorney, and yourself in considering your present and future ability to pay

       your financial obligations before imposing such a financial sanction on you.

       The Court finds that based on what is presented up today that you are

       employable and in good health.

Sentencing Trans. (May 26, 2017), p. 42.

       {¶ 74} When Dean objected to the financial sanctions and requested the court to

waive the $7,000 fine, the trial court stated:

       The Court considered your request. The Court denies the request. The

       Court, number one, finds that the Defendant is capable of employment.

       Number two, that the Defendant has held a number of jobs in the past.

       Number three, that the Defendant acknowledges being able to provide for

       his family. But was unwilling to tell the Court how he provided for his family.

       So that leads the Court to believe that he was lawfully employed because I

       don’t think that the Defendant is meaning to suggest to the Court that he got

       his funding from illegal sources. Number four, the Defendant will have

       opportunity to perform work in the institution.

Id. at 48-49.
                                                                                          -27-


       {¶ 75} The foregoing portions of the record clearly indicate that the trial court

considered Dean’s present and future ability to pay the financial sanctions imposed as

required by R.C. 2929.19(B)(5). In addition, each of the individual fines imposed by the

trial court are within the authorized statutory range set forth in R.C. 2929.18(A)(3)(a) and

(d). Accordingly, there is no indication that the financial sanctions imposed by the trial

court are contrary to law.

       {¶ 76} We also do not find by clear and convincing evidence that the record does

not support the financial sanctions imposed by the trial court. In sentencing Dean, the

trial court reviewed two PSI reports prepared for Dean in Champaign County Case Nos.

2006-CR-176 and 2012-CR-349. The PSI report from case No. 2012-CR-349 indicates

that prior to his 2006 imprisonment, Dean had been employed at ORBIS, American Pan,

and Tru Tech. The same PSI report also indicates that Dean was employed for two

weeks in July 2012 after he was released from prison, but was subsequently laid off.

Both PSI reports reviewed by the trial court indicate that Dean is in good health with no

financial obligations other than a $60 per month child support payment. The record of

Dean’s birthdate indicates he is currently 34 years old and will be approximately 60 years

old at the expiration of his prison term.

       {¶ 77} Based on Dean’s age, health, and employment history, we find that there

was sufficient information in the record for the trial court to find that Dean has the present

and future ability to pay the $7,000 fine and court costs.

       {¶ 78} Dean’s Fourth Assignment of Error is overruled.



                                        Conclusion
                                                                                         -28-


       {¶ 79} Having overruled all assignments of error raised by Dean, the judgment of

the trial court is affirmed.

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

TUCKER, J., concurs.


DONOVAN, J., concurring in part and dissenting in part:

       {¶ 80} I disagree with the majority’s resolution of the assessment of fines and costs

against an indigent individual with no identifiable assets or income, no stable or recent

work history, and who will serve more than a quarter century in prison. I am firmly

convinced and would find by clear and convincing evidence that the record does not

support a finding that Dean has the present and/or future ability to pay. Although the trial

court considered ability to pay, the record does not support its findings.

       {¶ 81} First, in sentencing Dean, the trial court considered two PSI reports

prepared for Dean in Champaign County Case Nos. 2006-CR-176 and 2012-CR-349. In

other words, the most recent information that the trial court relied upon was five years old

and some of the information was eleven years old. While it is not necessarily

unreasonable for a trial court to rely upon a PSI from a prior case, the PSI information

before the trial court was stale and could not reasonably be relied upon to provide

accurate information about Dean’s health and financial circumstances, including any

recent employment history and the amount, if any, of his child support arrearage.

       {¶ 82} Nevertheless, even if the court has properly considered the stale

information, the information in the PSIs does not support the trial court’s findings.

       {¶ 83} Prior PSIs from 2006 and 2012 reflect that Dean has an 8th or 9th grade

education. As a 34-year-old with a sentence of 25 years and 11 months, he will not be
                                                                                        -29-


released from prison until he is almost 60 years old. The majority notes that he is in good

health, but with only stale PSI information, this determination cannot be definitively made

by the trial judge. In fact, decades of documented alcohol and drug abuse may reasonably

support a contrary conclusion. The stale PSIs establish he does not even own a car and

has been living with relatives, rather than buying or renting his own place. He has three

children and a support obligation of $60.00 per month (his arrearage, if any, is unknown

as there is no current PSI), which would clearly exceed any amount he could conceivably

earn in prison on a monthly basis. That is, even if he qualifies for such employment while

incarcerated.1

       {¶ 84} The Ohio Supreme Court has been clear and unequivocal by recognizing

the importance of a thorough and current evaluation of a criminal defendant’s ability to

pay fines and court costs in preserving due process and equal protection of the law.

Absent an updated PSI, no accurate current evaluation can be made on this record. In

fact, the Ohio Supreme Court issued powerful guidance reaffirming this principle the day

before this case was scheduled to be argued. It stated:

       Here in Ohio, I have spoken out unequivocally that courts are centers of

       justice not automatic teller machines whose purpose is to generate revenue

       for governments including themselves. * * * Court cases are not business

       transactions. We do not buy and sell a commodity: we perform a public

       service. * * * [T]he courts’ fundamental and unquestionable responsibility is



1 Individuals in prison do not earn wages comparable to free persons in the work force.
Prison Policy Initiative, “How Much Do Incarcerated People Earn In Each State?” (April
10, 2017), available at http.//bit.ly/@Ejssiy. Individuals who are able to work in Ohio
prisons earn an average of $0.21 to $1.23 hourly. Id. Clearly this is poverty level.
                                                                                          -30-


       to ensure that justice is done. We should not be expected to engage in

       practices designed to maximize revenue by taking advantage of our citizens

       or ignoring basic constitutional standards.

Letter of Chief Justice O’Connor to all state judges, January 29, 2018.

       {¶ 85} Likewise, the U.S. Supreme Court “has long been sensitive to the treatment

of indigents in our criminal justice system.” Bearden v. Georgia, 461 U.S. 660, 664, 103

S.Ct. 2064, 76 L.Ed.2d 221 (1983). We should do no less. We should not ignore the

practical reality that even if working while in custody, Dean cannot earn base pay of more

than $24.00 monthly. Ohio Adm.Code 5120-3-08. Given basic hygiene and medical

supplies, coupled with child support which should be a priority, the reality is we are taxing

someone who is impoverished. Further, if there is some unrealistic expectation the

$7000.00 fine plus costs will be collected when he is 60 and released from prison,

collection poses a barrier to reentry for someone who lacks a steady work record and

would not even qualify for Social Security. Notably, the following exchange which

occurred between Dean and the court at sentencing cannot be ignored:

       THE COURT:           * * * Mr. Dean, what is the last job you’ve had?

       THE WITNESS:         I ain’t had a job.

       THE COURT:           I’m sorry?

       THE WITNESS:         I ain’t had no job.

       THE COURT:           Why is that?

       THE WITNESS:         Because I was filing for Social Security.

       THE COURT:           Why?

       THE WITNESS:         That is what I said. I was filing for Social Security.
                                                                                       -31-


      THE COURT:           You had been previously employed at Orbis, American

                           Pan, and Trutec prior to your 2006 imprisonment.2 You

                           were also employed for two weeks in July of 2012 after

                           you were released from prison and you were laid off.

                           Do you remember that?

      THE WITNESS:         Yes. It’s been a long time ago.

      THE COURT:           Okay. When you were released from prison in

                           November of 2015, why didn’t you obtain employment?

      THE WITNESS:         Everybody ain’t got that option.3   4


      THE COURT:           Did you make any efforts to work with your PRC officer

                           to obtain employment?

      THE WITNESS:         I did everything I had to do.

      THE COURT:           Did you attend any job readiness programs through



2  This history of some employment was notably 11 years prior to this disposition. No
length of time for each employer nor hourly wage is noted. Furthermore, the PSIs do not
reflect any vocational training. Thus, two weeks of employment due to layoff in the past
five years (2012-2017) can hardly establish any present or future ability to pay thousands
in fines. Significantly, the most current 2012 PSI notes “offender was not employed at the
time of the instant offense. His only source of income was family and friends.” The 2006
PSI under occupation indicates “NA” and monthly income, none.
3With over 70 million Americans possessing an arrest record or criminal conviction, many
ex-offenders have found it difficult to obtain employment. Pinedo, Let’s Keep it Civil: An
Evaluation of Civil Disabilities, A Call for Reform, and Recommendations to Reduce
Recividism, 102 Cornell L.Rev. 513 (2017).
4 Harvard sociologist Devah Pager and others have documented the particularly harmful
effect of criminal records on employment outcomes noting that criminal records mark their
owners in a negative job credential. See Devah Pager, Marked: Race, Crime and Finding
Work in an Era of Mass Incarceration (2007); Devah Pager, The Mark of a Criminal
Record, 108 Am.J.Soc. 937, 942 (2003).
                                                                                         -32-


                            Department of Job and Family Services?

       THE WITNESS:         Yeah, I took care of responsibilities.

       THE COURT:           Did you contribute financially to your mother’s home?

       THE WITNESS:         I took care of responsibilities.

       {¶ 86} The trial court concluded from this exchange that Dean is “capable of

employment.” This is not the standard – present and future ability to pay is. The record

established that between 2006 and 2017, Dean was in prison for approximately 9 years.

Not surprisingly Dean’s words reflect the reality that ex-felons may be capable of

employment but as far as “obtaining employment,” as he attested, “Everybody ain’t got

that option.” Dean no doubt created this impediment by his criminal conduct, but it

evinces his lack of employability.

       {¶ 87} Furthermore, the trial court’s conclusion that Dean provides for his family

and refuses to reveal how he is employed is simply not borne out by the record. When

asked about contributing financially to his mother’s home, Dean responded “I took care

of responsibilities.” There is no evidence a wife (girlfriend), if any, or his children were

provided for by him, and in fact the 2012 PSI reflects his children are with their mother(s)

at addresses other than Dean’s. The trial court should not conjecture what “I took care of

responsibilities” at his mother’s house means. Conjecture may lead to the conclusion

Dean mows the grass, does the laundry, or takes his mother on errands (as sadly this

case illustrates by the trip to the Dollar Store with his grandmother that led to his arrest

and indictment.)

       {¶ 88} The court surmises that Dean was lawfully employed “because I don’t think

that the defendant is meaning to suggest to the Court that he got his funds from illegal
                                                                                           -33-


sources.” The finding that Dean was lawfully employed at the time of the present

incarceration is not supported by review of the entire record, which includes an affidavit

of indigency for appointment of counsel which shows ZERO assets and no job. This

affidavit had been accepted by the trial court. Dean was appointed counsel due to

indigency and bond was not posted. I recognize that a finding of indigence for the purpose

of appointing counsel does not shield the defendant from paying a fine but it is relevant!

State v. Lewis, 2d Dist. Greene No. 2011-CA-75, 2012-Ohio-4858, ¶ 16. All the more so

here where there is no current PSI to assess health, education, employment history, and

financial condition. At the very least, the finding of an ability to pay must consider a

minimum core level of economic viability for persons against whom such fines are

assessed. (See McLean, Livelihood, Ability to Pay, and the Original Meaning of the

Excessive Fines Clause, 40 Hastings Const. L.Q. 833, 901 (2013)). Here, the fact that

Dean acknowledged he takes care of “responsibilities” without the trial court’s meaningful

consideration of basic sustenance and economic survival should not be presumed as

intended to achieve a legitimate penological objective.

       {¶ 89} Lastly, the trial court noted, as a basis for imposing a financial sanction, that

“there have been indications through the media that other defendants have struck it rich.”

There is nothing in this record to suggest that Dean will be one of those defendants.

Suffice it to say, an evaluation of a defendant’s future ability to pay based on unsupported

speculation and conjecture is contrary to the statutory mandate to consider whether a

defendant is likely in the future to be able to pay a financial sanction and amounts to

nothing more than an arbitrary and fanciful determination.

       {¶ 90} Unquestionably fines play a role in sentencing, but we must be mindful of
                                                                                         -34-


both their purpose and impact on an indigent person whose serious crimes and recidivism

warrant a lengthy prison term.

      A fine also cannot serve to rehabilitate or reform, if rehabilitation is defined

      as an extensive modification of an individual’s anti-social attitudes or

      correction of his aggressive or compulsive criminal behavior. Thus, if the

      offender appears to be in need of substantial therapy and reformative

      treatment, (or a long term of imprisonment) a fine would be an inappropriate

      disposition. * * * The threat of monetary deprivation has only a limited

      capacity to dissuade an offense, although the exact limits of its deterrence

      are impossible to establish.     * * * Nevertheless, fines can be useful in

      dealing with serious offenses, if they are imposed in combination with other

      sanctions in circumstances which indicate that a monetary deprivation will

      furnish some independent deterrent or correctional force. In addition, a fine

      used alone can provide especially effective deterrence whenever the prime

      motivation for a crime is pecuniary; in such cases, the fine serves to deprive

      the offender of his gain, as well as to exact monetary punishment. If the fine

      is large enough to outweigh the possible monetary gain, the threat of it may

      discourage even serious crimes. As a rule, however, a fine is most

      efficacious where the offense is minor, the offender is rational, and

      monetary gain is at best a secondary motive.

Fining the Indigent, 71 Colum.L.Rev. 1281, 1285-88 (1971).

      {¶ 91} Here the offenses are not minor, the offender is not rational, and he has a

long history of alcohol, cocaine, and OxyContin abuse as borne out by the record.
                                                                                            -35-


Furthermore, none of his offenses suggest monetary gain as a primary or secondary

motive.

       {¶ 92} When punishment is harsher than deserved, justice has not been attained

and an injustice has occurred. I am reminded of Portia’s words in The Merchant of Venice:

       The quality of mercy is not strained.

       It droppeth as the gentle rain from heaven

       Upon the place beneath. It is twice blest:

       It blesseth him that gives and him that takes.

       ‘Tis mightiest in the mightiest; it becomes

       The throned monarch better than his crown.

       His scepter shows the force of temporal power,

       The attribute to awe and majesty

       Wherein doth sit the dread and fear of kings;

       But mercy is above this sceptered sway.

       It is enthroned in the heart of kings;

       It is an attribute to God himself;

       And earthly power doth then show likest God’s

       When mercy seasons justice.

William Shakespeare, The Merchant of Venice, Act 4, Scene 1.

       {¶ 93} As noted by Judge Stone in In re Weinstein, 518 So.2d 1370, 1376

(Fla.App.1988), “[A] soupçon of mercy does not dilute the elixir we call justice; it infuses

it, if not with godliness, then at least with humanity. If we must err, let it be on the side of

humaneness.”
                                                                                         -36-


       {¶ 94} In my view, the record is bereft of any evidence that Dean has the present

or future ability to pay fines and costs. I would find by clear and convincing evidence that

the imposition of $7000 in fines plus costs is unsupported by the record and contrary to

law.



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