[Cite as State v. Hayes, 2017-Ohio-7716.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104818




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                      JOVAN D. HAYES
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-599021-A

        BEFORE: E.T. Gallagher, P.J., Blackmon, J., and Celebrezze, J.

        RELEASED AND JOURNALIZED: September 21, 2017
ATTORNEYS FOR APPELLANT

Allison S. Breneman
Jeffrey P. Saffold
1220 West 6th St., Suite 303
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

BY: Jillian Eckart
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, P.J.:

      {¶1} Defendant-appellant, Jovan Hayes (“Hayes”), appeals from his convictions

and sentence following a jury trial. He raises the following assignments of error for our

review:

      1. The jury found, against the manifest weight of the evidence, that the
      appellant committed the acts charged in the indictment.

      2. The evidence was not legally sufficient to sustain a guilty verdict.

      3. The trial court abused its discretion by imposing a prison sentence
      contrary to R.C. 2929.14 and the purposes and principles of felony
      sentencing guidelines and erred by imposing consecutive sentences.

      {¶2} After careful review of the record and relevant case law, we affirm Hayes’s

convictions and sentence.

                            I. Procedural and Factual History

      {¶3} Hayes was named in a five-count indictment, charging him with attempted

murder in violation of R.C. 2923.02 and 2903.02(A), with firearm specifications; two

counts of felonious assault in violation of R.C. 2903.11(A), with firearm specifications;

having weapons while under disability in violation of R.C. 2923.13(A)(3); and

intimidation of a crime victim or witness in violation of R.C. 2921.04(B)(2). In June

2016, the matter proceeded to a jury trial, where the following evidence was adduced.

      {¶4} In September 2015, 13-year old, L.C., was shot in the parking lot of King

Kennedy Estates, a housing development in Cleveland, Ohio.           On the night of the

shooting, L.C.’s mother was sick with pneumonia. L.C. testified that at approximately
8:00 p.m., he walked outside to retrieve his mother’s medicine from her vehicle. On his

way to the parking lot, L.C. noticed a group of men standing near the front gate of the

property. L.C. recognized one of the men as “Big Daddy.” L.C. explained that he did

not know Big Daddy personally but saw him almost every day around King Kennedy

Estates. L.C. testified that when Big Daddy noticed him, he told L.C. to “take his hood

off” of his head. L.C. testified that he did not respond to the request because he believed

Big Daddy may have been addressing someone else across the street.

       {¶5} As L.C. pulled his mother’s car keys from his pocket, Big Daddy suddenly

pointed a small, silver .22-caliber handgun at him and “started shooting.”   L.C. stated that

he turned around and observed “the fire come out of [Big Daddy’s] gun.”        He estimated

that there were five gunshots. Ultimately, L.C. was shot in his upper arm.

       {¶6} Throughout his testimony, L.C. consistently stated that Big Daddy was not in

the courtroom and that Hayes was not the person responsible for his shooting.            He

admitted, however, that he only knew of one person in his neighborhood that “goes by the

nickname Big Daddy.”

       {¶7} L.C. further testified that he did not cooperate with the investigation into his

shooting because it would have been considered “snitching.”     He stated that “where [he]

is from, you snitch, you get killed.” During L.C.’s testimony, two adult men entered the

courtroom and sat in the back of the room. Upon noticing “subtle changes in [L.C.’s]

testimony,” the trial court asked L.C. if he recognized the men and whether their presence

in the courtroom “scared him.”      L.C. stated that he recognized the men from King
Kennedy Estates and that their presence did scare him “a little,” but that he wished to

continue his testimony. L.C. stated that he did not trust the men and believed they would

go back to his neighborhood and “tell everyone what happened.”

        {¶8} L.C.’s mother, T.H., testified that on the night of the shooting she had returned

home from the hospital and asked L.C. if “he could go outside and get [her] medicine out

of the van.”   She stated that “a few minutes” after L.C. went outside, she heard gunshots

coming from the parking lot. When T.H. and her husband went outside to make sure

L.C. was safe, they were approached by a woman who told T.H. that her son had been

shot.   T.H. testified that she ran to L.C. who was on a porch “slumped over in a chair.”

As L.C. was being treated by emergency responders, she asked him who was responsible

for the shooting.    T.H. testified that L.C. did not answer her question at that time.

However, she stated that L.C. did subsequently provide her with “some” information about

the shooting and that she relayed that information to a social worker. According to T.H.,

L.C. refused to answer and was unwilling to cooperate with the police investigation

because he feared retribution.

        {¶9} Samantha Law testified that she was returning home from dinner with her

family when the shooting occurred. She stated that as she was getting her children out of

her vehicle, she heard gunfire.     Law stated that she observed the shooter fire his gun

approximately eight times while tracking the movements of “a little boy.”       Law testified

that she immediately recognized the shooter as being Hayes, and confirmed that his street

name is “Big Daddy.”      Law explained that she knew Hayes for well over ten years and
that no one else in the neighborhood went by the nickname Big Daddy. She further

identified Hayes in court as the shooter.

       {¶10} Following the shooting, Law observed Hayes place the gun in a nearby grill.

She testified that once her children were safely inside her home, she went back outside to

check on the injured boy.    When the police arrived at the scene, Law discreetly provided

an officer with a brief description of Hayes.      She explained that she did not want to be

seen or overheard because she did not want to be considered a “snitch.”

       {¶11} Later that evening, Law was confronted by Hayes, who asked her if she had

made a statement to the police about the shooting.      Law testified that “she played dumb”

and stated that she did not talk to anyone.         According to Law, Hayes then made a

reference to the television show, The First 48, which she interpreted as a threat to “keep

[her] damn mouth closed” because the show often “outs snitches.”            Later that same

evening, Law observed Hayes walk past her front porch several times.       Law testified that

each time Hayes walked by, he lifted up his shirt to display his gun. Law stated that she

perceived Hayes’s actions as a clear threat.       She was scared, intimidated, and believed

Hayes would kill her if she spoke to the police.

       {¶12} Despite Hayes’s threats, however, Law testified that she flagged down

Officer Christopher Collins several days later to provide a written statement.    She stated

that she believed something needed to be done to stop the violence in her neighborhood

and that it “was the right thing to do.” The following day, Officer Collins introduced
Law to Detective Robert Weis.       During her interview with the detective, Law identified

Hayes as the shooter in a photo array.

        {¶13} During her cross-examination, Law admitted that she initially told bystanders

that she did not see who shot L.C.       Defense counsel further illuminated discrepancies

between Law’s testimony during her direct examination and the statements provided in her

written police report, including the nature of the description she gave to the police,

whether she spoke to L.C.’s mother on the day of the shooting, and whether she called

911. Finally, Law admitted that she believed Hayes was responsible for the shooting

death of a family member in 2013.        Despite this alleged bias, however, Law stated that

she has no “animosity towards [Hayes],” but “wanted him to be held accountable” for his

actions in this matter.

        {¶14} Officer Collins, of the Cuyahoga Metropolitan Housing Authority

(“CMHA”) Police Department, testified that he was among first responders to the

shooting. When he arrived to the scene, he discovered Law tending to L.C.’s injuries,

and assisted her in applying pressure to the wound until the paramedics arrived.    Officer

Collins stated that he had no knowledge of whether Law ever provided a description of

Hayes to an officer on the scene.    Several days later, Officer Collins was approached by

Law while he was heading home from his shift.            Officer Collins testified that Law

wanted to discuss L.C.’s shooting and appeared agitated and nervous. Following their

conversation, Officer Collins drove Law to the police station to speak with Detective

Weis.
       {¶15} Sergeant John Smiddy, of the CMHA Police Department, testified that he

responded to the scene of the shooting and was tasked with recovering evidence from the

scene. Sergeant Smiddy testified that he recovered seven shell casings from what he

believed were fired by a semiautomatic pistol.         The firearm, however, was never

recovered.

       {¶16} Detective Weis, of the CMHA Police Department, testified that Officer

Collins facilitated a meeting with Law several days after the shooting.         During this

meeting, Law provided a description of the shooter and identified Hayes from a photo

array. With respect to the physical evidence recovered from the scene, Detective Weis

testified that the shell casings were not sent for fingerprint or DNA testing. He explained

that he decided not to send the evidence for testing because the size of the casings, and the

environment in which they were found would have precluded any reliable results.

       {¶17} At the conclusion of trial, Hayes was found guilty of all counts as charged in

the indictment.   At the sentencing hearing, the trial court agreed that the attempted

murder and felonious assault offenses merged for the purposes of sentencing. The court

sentenced Hayes to 11 years for attempted murder, three years for the attached firearm

specification, 36 months for having a weapon while under disability, and 36 months for

intimidation of crime victim or witness.    The trial court ordered each prison term to run

consecutively, for an aggregate 20-year sentence.

       {¶18} Hayes now appeals from his convictions and sentence.

                                  II. Law and Analysis
                            A. Sufficiency of the Evidence

      {¶19} In his first assignment of error, Hayes argues his convictions are not

supported by sufficient evidence.

      {¶20} When assessing a challenge of sufficiency of the evidence, a reviewing court

examines the evidence admitted at trial and determines whether such evidence, if believed,

would convince the average mind of the defendant’s guilt beyond a reasonable doubt.

State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

“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.   A reviewing court is not to assess

“whether the state’s evidence is to be believed, but whether, if believed, the evidence

against a defendant would support a conviction.” State v. Thompkins, 78 Ohio St.3d 380,

390, 678 N.E.2d 541 (1997).

      {¶21} The state may use direct evidence, circumstantial evidence, or both, in order

to establish the elements of a crime. See State v. Durr, 58 Ohio St.3d 86, 568 N.E.2d 674

(1991). Circumstantial evidence is “proof of facts or circumstances by direct evidence

from which the trier of fact may reasonably infer other related or connected facts that

naturally or logically follow.”     State v. Seals, 8th Dist. Cuyahoga No. 101081,

2015-Ohio-517, ¶ 32, citing State v. Beynum, 8th Dist. Cuyahoga No. 69206, 1996 Ohio

App. LEXIS 2143 (May 23, 1996); see also State v. Hartman, 8th Dist. Cuyahoga No.

90284, 2008-Ohio-3683, ¶ 37.
       {¶22} Circumstantial evidence and direct evidence inherently possess the same

probative value. Jenks at paragraph one of the syllabus.       “[A]ll that is required of the

jury is that it weigh all of the evidence, direct and circumstantial, against the standard of

proof beyond a reasonable doubt.” Id. at 272. “‘Circumstantial evidence is not only

sufficient, but may also be more certain, satisfying, and persuasive than direct evidence.’”

State v. Hawthorne, 8th Dist. Cuyahoga No. 96496, 2011-Ohio-6078, ¶ 9, quoting

Michalic v. Cleveland Tankers, Inc., 364 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960).

And circumstantial evidence alone is sufficient to support a conviction.             State v.

Coleman, 8th Dist. Cuyahoga No. 102966, 2016-Ohio-297, ¶ 22.

       {¶23} In this case, Hayes was convicted of attempted murder in violation of R.C.

2923.02 and 2903.02; felonious assault in violation of R.C. 2903.11(A)(1); felonious

assault in violation of R.C. 2903.11(A)(2); having weapons while under disability in

violation of R.C. 2923.13(A)(3); and intimidation of crime victim or witness in violation

of R.C. 2921.04(B)(2).

       {¶24} Pursuant to the statute governing murder, no person shall “purposely cause

the death of another * * *.” R.C. 2903.02(A). “Attempt” is set forth as follows: “No

person, purposely * * * shall engage in conduct that, if successful, would constitute or

result in the offense.” R.C. 2923.02(A).

       {¶25} A person acts purposely when it is his “specific intention to cause a certain

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

regardless of what the offender intends to accomplish thereby, it is his specific intention to
engage in conduct of that nature.”    R.C. 2901.22(A). “Purpose,” therefore, depends on an

intended result.   State v. Orr, 8th Dist. Cuyahoga No. 100841, 2014-Ohio-4680, ¶ 72.

        {¶26} Circumstantial evidence can be used to demonstrate purpose or intent. State

v. Martin, 8th Dist. Cuyahoga No. 91276, 2009-Ohio-3282, ¶ 23. Whether an offender had

the specific intent to kill is a determination made upon the facts and circumstances

surrounding the crime.    State v. Barrow, 8th Dist. Cuyahoga No. 101356, 2015-Ohio-525,

¶ 16.    Such factors to be considered include the nature of the instrument used, the

lethality of the instrument, and the manner in which the wound was inflicted. Id., citing

State v. Majid, 8th Dist. Cuyahoga No. 96855, 2012-Ohio-1192, ¶ 23. “A jury may infer

a defendant’s purpose to cause death when the defendant inflicts a wound with a deadly

weapon in a manner that appears to be calculated to destroy life or inflict great bodily

harm.” State v. Shorter, 7th Dist. Mahoning No. 11 MA 42, 2012-Ohio-2701, ¶ 16,

citing State v. Stallings, 89 Ohio St.3d 280, 291, 731 N.E.2d 159 (2000).

        {¶27} R.C. 2903.11(A), felonious assault, provides:

        No person shall knowingly do either of the following:

        (1) Cause serious physical harm to another or to another’s unborn;

        (2) Cause or attempt to cause physical harm to another or to another’s
        unborn by means of a deadly weapon or dangerous ordnance.

        {¶28} R.C. 2923.13(A)(3), having weapons while under disability, states:

        Unless relieved from disability under operation of law or legal process, no
        person shall knowingly acquire, have, carry, or use any firearm or dangerous
        ordnance, if * * * the person is under indictment for or has been convicted of
        any felony offense involving the illegal possession, use, sale, administration,
        distribution, or trafficking in any drug of abuse or has been adjudicated a
      delinquent child for the commission of an offense that, if committed by an
      adult, would have been a felony offense involving the illegal possession, use,
      sale, administration, distribution, or trafficking in any drug of abuse.1

      {¶29} Finally, R.C. 2921.04(B)(2), intimidation of a crime victim or witness,

provides:

      No person, knowingly and by force or by unlawful threat of harm to any
      person or property or by unlawful threat to commit any offense or calumny
      against any person, shall attempt to influence, intimidate, or hinder any of
      the following persons:

      ***

      (2) A witness to a criminal or delinquent act by reason of the person being
      a witness to that act.

      {¶30} On appeal, Hayes does not challenge any specific element of the foregoing

offenses.   Instead, he broadly argues that, with the exception of Law’s “unreliable

testimony,” the state failed to present evidence that he was the shooter or that he made

subsequent intimidating comments to Law about speaking to the police. We note that

Hayes’s insinuations about the credibility of the eyewitnesses does not provide a basis for

a challenge to the sufficiency of the evidence. See Tate v. Bryson, 8th Dist. Cuyahoga

No. 98298, 2013-Ohio-934, ¶ 62. The question is not whether the reviewing court should

believe the evidence; but rather, whether the evidence, if believed, is adequate to

“convince the average mind of the defendant’s guilt beyond a reasonable doubt.” Jenks,

61 Ohio St.3d 259, at 273, 574 N.E.2d 492.


      1  At trial, the parties stipulated to the authenticity and admissibility of
Hayes’s prior conviction for drug trafficking on September 17, 2012, in Cuyahoga
C.P. No. CR-09-524490. (Tr. 1270, 1311.)
         {¶31} In this case, no weapon or forensic evidence tied Hayes to the shooting.

However, Law provided eyewitness testimony that identified Hayes as the shooter. Law

testified that she was at the King Kennedy Estates at the time of the shooting and observed

Hayes fire his gun at L.C. approximately eight times.     The evidence further established

that Law was well-acquainted with Hayes from the neighborhood and that Hayes went by

the street name, Big Daddy.

         {¶32} In Bryson, this court held that eyewitness identification testimony alone is

sufficient to support a conviction — even where discrepancies exist — so long as a

reasonable juror could find the eyewitness testimony to be credible. Bryson, 8th Dist.

Cuyahoga No. 98298, 2013-Ohio-934, at ¶ 64, citing State v. Jordan, 10th Dist. Franklin

No. 04AP-827, 2005-Ohio-3790, ¶ 14. Thus, we find Law’s testimony, if believed, was

adequate to convince the average mind that Hayes was the shooter beyond a reasonable

doubt.    Having determined that there was sufficient evidence that Hayes was responsible

for the shooting, we further find the state presented sufficient evidence that Hayes

knowingly used a weapon while under disability, and caused L.C. serious physical harm by

means of a deadly weapon.

         {¶33} With respect to Hayes’s intent or purpose, we find the evidence presented at

trial demonstrates that the shooting was not accidental, but was the purposeful attempt to

cause L.C.’s death. Seven shell casings were found at the site of the shooting, and L.C.

testified that the shots were fired successively. In addition to Law’s testimony that Hayes

tracked L.C. with his firearm, L.C. also stated that he looked up and observed the shooter
pointing the gun at him. Under these circumstances, we find the specific intent to kill can

be reasonably inferred from Hayes’s use of a firearm — “an inherently dangerous

instrumentality, the use of which is likely to produce death.” See State v. Searles, 8th

Dist. Cuyahoga No. 96549, 2011-Ohio-6275, ¶ 11.

       {¶34} Hayes next argues that he cannot be convicted of intimidating a witness in a

criminal case because there is insufficient evidence that he made an unlawful threat of

harm. We note that R.C. 2921.04(B) requires only an attempt to influence, intimidate, or

hinder.   “[T]he defendant need only try to create fear about or try to influence or hinder

the filing or prosecution of criminal charges.” State v. Thompson, 7th Dist. Columbiana

No. 13 CO 20, 2014-Ohio-1225, ¶ 16, citing R.C. 2921.04(B).           However, the Ohio

Supreme Court has held that an “unlawful threat” must be “more than just a threat, i.e.,

more than just a communication to a person that particular negative consequences will

follow should the person not act as the communicator demands.”         State v. Cress, 112

Ohio St.3d 72, 2006-Ohio-6501, 858 N.E.2d 341, ¶ 41.            Therefore, “the statutory

language in R.C. 2921.04(B), proscribing intimidation by an ‘unlawful threat of harm,’ is

satisfied only when the very making of the threat is itself unlawful because it violates

established criminal or civil law.” Id. at ¶ 42.

       {¶35} In this case, Law testified that Hayes approached her on two separate

occasions and made statements or actions that she interpreted as direct threats.   During

the first encounter, Hayes asked Law if she told anyone about what she had witnessed and

made a reference to a television show that was known to “out snitches.”         Later that
evening, Hayes walked past Law’s home several times and lifted his shirt to show her his

gun. Although these statements and actions constituted implied, indefinite threats, the

Ohio Supreme Court has noted that “[t]he most intimidating threat of all may be an

indefinite one.”   Cress at ¶ 37.   In this case, the trier of fact could have reasonably

concluded that Hayes’s conduct constituted viable threats of physical harm against Law.

See State v. Jackson, 12th Dist. Fayette No. CA2011-01-001, 2011-Ohio-5593.

Moreover, we find that a rational trier of fact could easily conclude that Hayes’s act of

displaying a firearm while under weapons disability was unlawful and served no purpose

other than to intimidate Law in an effort to keep her from speaking to the authorities. See

State v. Hills, 8th Dist. Cuyahoga No. 98848, 2013-Ohio-2902.

      {¶36} Viewing the foregoing evidence in a light most favorable to the state, we find

that a rational trier of fact could have determined beyond a reasonable doubt that Hayes

was guilty of attempted murder, felonious assault, having weapons while under disability,

and intimidation of a witness.         Accordingly, Hayes’s first assignment of error is

overruled.

                         B. Manifest Weight of the Evidence

      {¶37} In his second assignment of error, Hayes argues his convictions are against

the manifest weight of the evidence.

      {¶38} In contrast to a sufficiency argument, a manifest weight challenge questions

whether the state met its burden of persuasion. State v. Bowden, 8th Dist. Cuyahoga No.

92266, 2009-Ohio-3598, ¶ 12.           A reviewing court “weighs the evidence and all
reasonable inferences, considers the credibility of witnesses and determines whether in

resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest

miscarriage of justice that the conviction must be reversed and a new trial ordered.”

Thompkins, 78 Ohio St.3d at 388, 678 N.E.2d 541. A conviction should be reversed as

against the manifest weight of the evidence only in the most “exceptional case in which

the evidence weighs heavily against the conviction.” Id.

       {¶39} Although we review credibility when considering the manifest weight of the

evidence, we are cognizant that determinations regarding the credibility of witnesses and

the weight of the testimony are primarily for the trier of fact. State v. Bradley, 8th Dist.

Cuyahoga No. 97333, 2012-Ohio-2765, ¶ 14, citing State v. DeHass, 10 Ohio St.2d 230,

227 N.E.2d 212 (1967). The trier of fact is best able “to view the witnesses and observe

their demeanor, gestures, and voice inflections, and use these observations in weighing the

credibility of the proffered testimony.”        State v. Wilson, 113 Ohio St.3d 382,

2007-Ohio-2202, 865 N.E.2d 1264, ¶ 24.           The trier of fact may take note of any

inconsistencies and resolve them accordingly, “believ[ing] all, part, or none of a witness’s

testimony.” State v. Raver, 10th Dist. Franklin No. 02AP-604, 2003-Ohio-958, ¶ 21,

citing State v. Antill, 176 Ohio St. 61, 67, 197 N.E.2d 548 (1964).

       {¶40} In support of his manifest weight challenge, Hayes argues that the state’s

evidence relied exclusively on the “inconsistent and biased” testimony of Law.            He

contends that, besides Law’s testimony, “there was no other evidence that [he] was the
shooter who shot [L.C.].” Hayes notes that “[i]n fact, [L.C.] testified that it was not

Hayes who shot him.”

       {¶41} After reviewing the record, we cannot say this is the exceptional case in

which the evidence weighs heavily against the convictions and that the trial court clearly

lost its way and created a manifest miscarriage of justice.         In this case, Law was

thoroughly cross-examined by defense counsel regarding her alleged bias and the

inconsistencies between her testimony at trial and her written police statement.        Law

explained that she bore no animosity towards Hayes and that any perceived inconsistencies

were the result of the passage of time.   Under these circumstances, we find the jury had

sufficient information to judge the credibility of Law and “was free to believe all, part, or

none” of her testimony.         State v. Colvin, 10th Dist. Franklin No. 04AP-421,

2005-Ohio-1448, ¶ 34; State v. Smith, 8th Dist. Cuyahoga No. 93593, 2010-Ohio-4006, ¶

16.

       {¶42} Furthermore, given L.C.’s extensive statements concerning his fear of

retribution for “snitching,” the jury was free to give substantial weight to Law’s

eyewitness identification testimony despite L.C.’s testimony that Hayes was not his

shooter. Deferring to the jury’s assessment of the witnesses’ credibility, as we must, we

find Hayes’s convictions are not against the manifest weight of the evidence.

       {¶43} Hayes’s second assignment of error is overruled.

                                C. Sentencing Challenge
       {¶44} In his third assignment of error, Hayes argues the trial court did not properly

consider the purposes of felony sentencing as required by R.C. 2929.11 and the

seriousness and recidivism factors contained in R.C. 2929.12. He further contends that

the imposition of consecutive sentences was contrary to law.

       {¶45} Appellate review of felony sentences is governed by R.C. 2953.08, which

provides that when reviewing felony sentences, this court may increase, reduce, modify a

sentence, or vacate and remand for resentencing if we clearly and convincingly find that

the record does not support the sentencing court’s statutory findings, if applicable, or the

sentence is contrary to law.   R.C. 2953.08(G)(2).   A sentence is contrary to law if (1) the

sentence falls outside the statutory range for the particular degree of offense, or (2) the

trial court failed to consider the purposes and principles of felony sentencing set forth in

R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v. Hinton, 8th Dist.

Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist. Cuyahoga

No. 100206, 2014-Ohio-1520, ¶ 13.      When a sentence is imposed after consideration of

the factors in R.C. 2929.11 and 2929.12, appellate courts “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.”

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.

       {¶46} Clear and convincing evidence “is that measure or degree of proof which is

more than a mere ‘preponderance of the evidence,’ but not to the extent of such certainty

as is required ‘beyond a reasonable doubt’ in criminal cases, and which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d

118 (1954), paragraph three of the syllabus.

       {¶47} R.C. 2929.11(A), governing the purposes and principles of felony sentencing,

provides that a sentence imposed for a felony shall be reasonably calculated to achieve two

overriding purposes of felony sentencing (1) to protect the public from future crime by the

offender and others, and (2) to punish the offender using the minimum sanctions that the

court determines will accomplish those purposes.       Furthermore, the sentence imposed

shall be “commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact on the victim, and consistent with sentences imposed for similar

crimes by similar offenders.” R.C. 2929.11(B).

       {¶48} R.C. 2929.12 delineates the seriousness and recidivism factors for the

sentencing court to consider in determining the most effective way to comply with the

purposes and principles of sentencing set forth in R.C. 2929.11. The statute provides a

nonexhaustive list of factors a trial court must consider when determining the seriousness

of the offense and the likelihood that the offender will commit future offenses.

       {¶49} This court has held that a trial court “fulfills its duty under the statutes by

indicating that it has considered the relevant sentencing factors.” Smith, 8th Dist.

Cuyahoga No. 100206, 2014-Ohio-1520, at ¶ 14, citing State v. Saunders, 8th Dist.

Cuyahoga No. 98379, 2013-Ohio-490, ¶ 4. The trial court “need not go through each

factor on the record — it is sufficient that the court acknowledges that it has complied with
its statutory duty to consider the factors without further elaboration.”    Id., citing State v.

Pickens, 8th Dist. Cuyahoga No. 89658, 2008-Ohio-1407, ¶ 6.

       {¶50} In this case, Hayes does not dispute that the 11-year sentence imposed on his

first-degree felony offense, and the 36-month sentences imposed on his third-degree

felony offenses were within the statutory ranges under R.C. 2929.14(A)(1) and (3). He

further concedes that the three-year firearm specification attached to the attempted murder

offense was required to be served “consecutively to and prior to any prison term imposed

for the underlying felony * * *.” R.C. 2929.14(C)(1)(a).

       {¶51} Nevertheless, Hayes argues “the trial court abused its discretion by failing to

properly weigh the seriousness and recidivism factors set forth in R.C. 2929.12, as well as

failing to properly consider the purposes and principles of the felony sentencing guideline

before imposing a 20-year sentence.”       However, “[t]he weight to be given to any one

sentencing factor is purely discretionary and rests with the trial court.” State v. Ongert, 8th

Dist. Cuyahoga No. 103208, 2016-Ohio-1543, ¶ 10, citing State v. Torres, 8th Dist.

Cuyahoga No. 101769, 2015-Ohio-2038, ¶ 11.           A lawful sentence “cannot be deemed

contrary to law because a defendant disagrees with the trial court’s discretion to

individually weigh the sentencing factors.       As long as the trial court considered all

sentencing factors, the sentence is not contrary to law and the appellate inquiry ends.”

Ongert at ¶ 12.       See also State v. Ledbetter, 8th Dist. Cuyahoga No. 104077,

2017-Ohio-89, ¶ 11.
       {¶52} Here, the trial court expressly stated on the record that it carefully considered

R.C. 2929.11 and 2929.12, and reiterated in the sentencing journal entry that it

“considered all required factors of law,” and found “that prison is consistent with the

purpose of R.C. 2929.11.” Although not required to do so, the trial court made specific

findings regarding the relevant seriousness and recidivism factors.     Specifically, the trial

court found that the physical and psychological injuries suffered by L.C. were significant,

and “absolutely unacceptable” based on the lack of provocation.       The court further noted

the risk Hayes’s conduct posed to other members of the community, who could have been

hit with one of the seven gunshots. As for the recidivism factors, the court discussed

Hayes’s extensive criminal history and the apparent fact that “incarceration has failed to

rehabilitate [him].”

       {¶53} Under these circumstances, we find the sentences imposed are not contrary to

law.   The prison terms fall within the applicable statutory ranges, and the record

affirmatively supports that the trial court considered the relevant statutory factors under

R.C. 2929.11 and 2929.12. Moreover, Hayes has failed to show by clear and convincing

evidence that the record does not support his sentence.

       {¶54} With respect to the consecutive nature of the prison terms, R.C.

2929.14(C)(4) provides that in order to impose consecutive sentences, the trial court must

find that consecutive sentences are (1) necessary to protect the public from future crime or

to punish the offender, (2) that such sentences would not be disproportionate to the
seriousness of the conduct and to the danger the offender poses to the public, and (3) that

one of the following applies:

       (a) The offender committed one or more of the multiple offenses while the
       offender was awaiting trial or sentencing, was under a sanction imposed
       pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or
       was under postrelease control for a prior offense.

       (b) At least two of the multiple offenses were committed as part of one or
       more courses of conduct, and the harm caused by two or more of the
       multiple offenses so committed was so great or unusual that no single prison
       term for any of the offenses committed as part of any of the courses of
       conduct adequately reflects the seriousness of the offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates that consecutive
       sentences are necessary to protect the public from future crime by the
       offender.

       {¶55} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the

statutory findings at the sentencing hearing, which means that “‘the [trial] court must note

that it engaged in the analysis’ and that it ‘has considered the statutory criteria and

specifie[d] which of the given bases warrants its decision.’” State v. Bonnell, 140 Ohio

St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v. Edmonson, 86 Ohio

St.3d 324, 326, 715 N.E.2d 131 (1999). Further, the reviewing court must be able to

discern that the record contains evidence to support the findings. State v. Davis, 8th Dist.

Cuyahoga No. 102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29. A trial court is not,

however, required to state its reasons to support its findings, nor is it required to give a

rote recitation of the statutory language, “provided that the necessary findings can be

found in the record and are incorporated in the sentencing entry.” Bonnell at ¶ 37.

       {¶56} At the sentencing hearing, the trial court stated, in relevant part:
      The Court finds that you do have an extensive criminal history, that you
      have, in fact, been incarcerated by New York authorities, and that
      incarceration failed to rehabilitate you.

      The victims in this matter did suffer both serious physical harm and serious
      emotional harm, and I don’t care if a bullet hits someone in the arm, I don’t
      care is a bullet hits somebody in a toe, or a bullet hits somebody in the head,
      it’s still a bullet. It’s still a gunshot wound.

      ***

      And in this case, in reviewing the evidence, reviewing the factors, and taking
      a look at everything here, I believe that given the nature of this offense, just
      the wanton violence that occurred here, firing seven shots in a parking lot at
      an individual, who was doing nothing except walking to a garbage can and
      walking to his mother’s car for no reason other than he had an hood on, to
      fire seven shots and not only risk killing him, but risk killing other members
      of the community, that is utterly unacceptable to this Court, and I believe in
      this case that consecutive sentences are necessary to protect and punish and
      would not be disproportionate.

      I do find that the crimes were committed while the Defendant was on Post
      Release Control, or whatever supervision New York State has, parole, or
      Post Release Control, whatever they call it.

      I find that the harm was so great or unusual that a single term will not
      adequately reflect the seriousness of the conduct, and also the Defendant’s
      criminal history shows the consecutive sentences are needed to protect the
      public.

      {¶57} The trial court’s remarks during sentencing clearly demonstrate that the court

found that consecutive sentences are necessary to protect the public from future crime or

to punish the offender and are not disproportionate to the seriousness of the offender’s

conduct.   The court also found, and the record demonstrates, that Hayes has an extensive

criminal history and was under supervision in the state of New York. Finally, the court

found that the harm caused by the offenses was so great or unusual that a single term will
not adequately reflect the seriousness of the conduct.       The trial court’s findings were

incorporated into the sentencing journal entry.

       {¶58} For these reasons, we conclude that the trial court made all of the required

R.C. 2929.14(C)(4) findings before imposing consecutive sentences in this matter.

Moreover, we find no merit to Hayes’s assertion that the record clearly and convincingly

does not support the court’s “seriousness” findings. As noted by the trial court, Hayes

shot an unarmed teenage boy without provocation and without concern for those in the

surrounding area.

       {¶59} Hayes’s third assignment of error is overruled.

       {¶60} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution.




       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.
EILEEN T. GALLAGHER, PRESIDING JUDGE

PATRICIA ANN BLACKMON, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
