[Cite as State v. Wright, 2013-Ohio-4445.]
                            STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )
V.                                               )          CASE NO. 11-MA-14
                                                 )
RICHARD WRIGHT,                                  )               OPINION
                                                 )                AND
        DEFENDANT-APPELLANT.                     )           JUDGMENT ENTRY

CHARACTER OF PROCEEDINGS:                        Motion to Certify Conflict

JUDGMENT:                                        Denied

APPEARANCES:
For Plaintiff-Appellee                           Paul Gains
                                                 Prosecutor
                                                 Ralph M. Rivera
                                                 Assistant Prosecutor
                                                 21 W. Boardman St., 6th Floor
                                                 Youngstown, Ohio 44503

For Defendant-Appellant                          Paul Gains
                                                 Prosecutor
                                                 Ralph M. Rivera
                                                 Assistant Prosecutor
                                                 21 W. Boardman St., 6th Floor
                                                 Youngstown, Ohio 44503




JUDGES:

Hon. Gene Donofrio
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro


                                                 Dated: September 30, 2013
[Cite as State v. Wright, 2013-Ohio-4445.]
PER CURIAM.

        {¶1}     Plaintiff-appellee, the State of Ohio, has filed a motion asking that we
certify a conflict to the Ohio Supreme Court between this Court’s judgment in State v.
Wright, 7th Dist. No. 11-MA-14, 2013-Ohio-1424, and the Second District’s judgment
in State v. Wilson, 2d Dist. No. 2803, 1992 WL 15976 (Jan. 21, 1992), and the Tenth
District’s judgment in State v. Harris, 10th Dist. No. 93AP-206, 1993 WL 498019
(Dec. 2, 1993).
        {¶2}     The state proposes that we certify the following issue for review:

                 Whether the jury’s inconsistency between a conviction for
        Felonious Assault and the jury’s acquittal of the accompanying Firearm
        Specification warrants a reversal pursuant to State v. Koss, 49 Ohio
        St.3d 213, 551 N.E.2d 970 (1990).

        {¶3}     A court of appeals shall certify a conflict when its judgment is in conflict
with the judgment pronounced upon the same question by any other court of appeals
in the state of Ohio. Section 3(B)(4), Article V, Ohio Constitution. In order to certify a
conflict to the Ohio Supreme Court, we must find that three conditions are met:

        First, the certifying court must find that its judgment is in conflict with the
        judgment of a court of appeals of another district and the asserted
        conflict must be “upon the same question.” Second, the alleged conflict
        must be on a rule of law-not facts. Third, the journal entry or opinion of
        the certifying court must clearly set forth that rule of law which the
        certifying court contends is in conflict with the judgment on the same
        question by other district courts of appeals.

Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596, 613 N.E.2d 1032 (1993).
(Emphasis sic.)
        {¶4}     The state has not met this test. In Wright, we found the jury’s verdicts
of guilty of felonious assault, where the jury found appellant knowingly caused or
attempted to cause physical harm by means of a deadly weapon or dangerous
ordnance, and not guilty of the accompanying firearm specification were inconsistent.
                                                                               -2-


2013-Ohio-1424, at ¶38. In so finding, we noted that both Wilson, supra, and Harris,
supra, had reached an opposite result, finding that a guilty verdict on a felonious
assault count and a not guilty verdict on an accompanying firearm specification did
not warrant reversal. Wright, at ¶35. But we found that Wilson and Harris both relied
on the Ohio Supreme Court case of State v. Perryman, 49 Ohio St.2d 14, 358 N.E.2d
1040 (1976), in reaching their judgments. Id. We noted that the Ohio Supreme
Court’s decision in Koss, supra, was more current and, therefore, controlling. Id. at
¶36.
       {¶5}   In Whipp v. Industrial Commission of Ohio, 136 Ohio St. 531, 533, 27
N.E.2d 141 (1940), the Ohio Supreme Court pointed out that the Ohio Constitution
confers the power and duty upon the Courts of Appeals to certify conflicts

       for the single purpose of promptly bringing such conflict to the attention
       of this court when it has not previously had an opportunity to make a
       pronouncement as to the particular principle of law involved; but after
       this court has established the rule, any such conflict with a decision of
       another Court of Appeals is of no consequence.

(Emphasis added.) See also, State v. Morris, 9th Dist. No. 09CA0022, 2010-Ohio-
5682; White v. Industrial Commission, 149 N.E.2d 40, 78 Ohio Law Abs. 210 (10th
Dist.1957).
       {¶6}   In Koss, 49 Ohio St.3d at 219, the Court found:
       In view of the evidence which demonstrates that the victim died of a
       gunshot wound, we must find that the jury's verdict that appellant was
       guilty of voluntary manslaughter but not guilty of having “a firearm on or
       about her person or under her control while committing the offense” is
       inconsistent.   The jury not having found appellant guilty of the gun
       specification, the prosecution will not be permitted to retry her on the
       specification upon remand.

       {¶7}   We relied on Koss in reaching our decision. Koss is the more current
                                                                                -3-


Ohio Supreme Court case than Perryman. Therefore, we found it controlling. Wright,
¶36. Because the Ohio Supreme Court has already established the rule at issue in
this case, any such conflict between our judgment and that of another court of
appeals “is of no consequence.”
       {¶8}   For these reasons, the state’s motion to certify a conflict is hereby
denied.   Vukovich, J. concurs with concurring opinion attached. DeGenaro, P.J.
dissents with dissenting opinion attached.


Donofrio, J. concurs.
Vukovich, J. concurs with concurring opinion attached.
DeGenaro, P.J. dissents with dissenting opinion attached.


VUKOVICH, J., concurring:

       {¶9}   I concur with the decision denying the motion to certify a conflict with
the Wilson and Harris decisions for the reasons espoused above. However, I write
separately to address the dissent’s discussion of Smith, Lovejoy and Cook and to
explain why those cases do not provide a basis for certifying a conflict.
       {¶10} The dissent asserts that our merit decision in Wright is in direct conflict
with the Fifth Appellate District’s decision in State v. Cook, 5th Dist. No. 98-CA-
00133, 1999 WL 4162 (Dec. 21, 1998). I disagree for two reasons.
       {¶11} First, the Fifth District did not expressly hold that Perryman rather than
Koss was the controlling law in Ohio relative to inconsistent verdicts as the dissent
states it did. Rather, the Fifth District stated “We find the facts in the case before us
are more similar to those in Perryman than in Koss, where the verdicts were
completely inconsistent on their face.” Id. This statement clearly indicates that the
Fifth Appellate District was finding distinctions between the Perryman and Koss
decisions and used those distinctions to determine which case to apply. Our decision
in Wright was not based on distinctions between the two cases, but rather that Koss
was now controlling.
       {¶12} Second, and most important, is the fact that the Fifth Appellate District
                                                                                -4-


indicated that the verdicts were consistent with some of the evidence:
               In his second assignment of error, appellant urges the jury's
        verdict is inconsistent because it found him guilty of aiding and abetting
        the discharge of a firearm into a habitation but not guilty of the motor
        vehicle specification.    Appellant asserts there was no evidence
        presented in the record appellant ever fired a gun on the date in
        question, and the State alleged appellant's entire involvement was
        driving the car from which the guns were fired. There was testimony,
        however, one of the shooters exited the vehicle to fire his gun, and then
        got back in to flee.
               ***
               The jury could have believed appellant aided and abetted the
        shooter who stepped from the vehicle to fire the gun, then got back into
        the vehicle. The verdicts are consistent which some of the evidence
        presented.
Cook.
        {¶13} Therefore, the Fifth Appellate District was finding that the verdicts were
not inconsistent if certain presented facts were believed. We did not reach such
conclusion in our case. Rather, we found the verdicts were wholly inconsistent. That
sole distinction between Cook and Wright demonstrates that the cases are not similar
enough for certification to be required. Thus, there is not a conflict with the Fifth
Appellate District.
        {¶14} Next, the dissent discusses our prior decision in State v. Smith, 7th
Dist. No. 06BE22, 2008-Ohio-1670. In that case we were asked to decide whether a
motion for new trial should have been granted because the jury considered
acquitting Smith of the firearm specification.      In addressing this argument, we
discussed inconsistent verdicts and did cite to Perryman. Because there was no
inconsistent verdict, we did not apply the law in Perryman to the facts of that case;
we were not called upon to determine whether Perryman or Koss was applicable.
Thus, our decision was not an implicit rejection of Koss and an acceptance of
                                                                                 -5-


Perryman merely because we failed to cite or refer to Koss, but rather cited to
Perryman. At most it can be concluded that our citation to Perryman is dicta.
       {¶15} Additionally, it must be noted that the dissent’s statements regarding
Smith implies that our decision in Wright is in conflict with Smith. This insinuation is
incorrect since the cases were not decided upon the same question; without an
acquittal on the firearm specification there is no conflict upon the same question.
However, even if it could somehow be concluded that they are in conflict, the
appropriate avenue for this district to resolve that conflict would be through an en
banc proceeding. No one requested an en banc review because, as stated above,
there is no conflict.
       {¶16} The dissent then discusses the Ohio Supreme Court’s decision in State
v. Lovejoy, 79 Ohio St.3d 440, 446, 1997-Ohio-371, 683 N.E.2d 1112 (1997) and
indicates that it has implicitly affirmed Perryman. This analysis provides no basis for
certifying a conflict. This portion of the dissent’s discussion is merely an extension of
its position that we reached the wrong result in Wright. Moreover, Lovejoy was not
discussed or cited in the majority or dissenting opinions in Wright, or in any case that
the dissent claims is in conflict with Wright. As stated above, there has to be an
actual conflict upon the same question. Lovejoy was not considered and thus, is not
part of the same question. Admittedly, if Wright is reviewed by the Ohio Supreme
Court, the Court may discuss Lovejoy.        However, that does not mean a conflict
should be certified.
       {¶17} Lastly, it is noted that the dissent’s is incorrect in its claim that neither
the majority or this concurrence explain why the holding in Wright is not in conflict
with the holdings in Wilson or Harris. The entire majority opinion addresses why
Wilson and Harris are not in conflict; there is no conflict because the Ohio Supreme
Court has already established a rule in this case. In the beginning paragraph of this
opinion, I stated that I agree with that conclusion.
       {¶18} Consequently, for the above stated reasons, I concur in the majority’s
opinion.
DeGenaro, P.J., dissents.
                                                                               -6-


       {¶19} In order to resolve the conflict between this District and the First,
Second, Fifth, Sixth, Tenth and Eleventh Districts, I would certify the issue to the
Ohio Supreme Court for review as proposed by the State.            Not only does this
District's decision in Wright, which applied Koss, conflict with Wilson and Harris,
which applied Perryman, regarding the issue of inconsistent verdicts, the majority's
decision in Wright also conflicts with decisions in the First, Fifth, Sixth and Eleventh
Districts. Six of our sister districts have relied upon Perryman, five of which do not
discuss Koss; leading to the logical conclusion that they have rejected Koss'
rationale.   Second, another panel of this District previously cited Perryman
approvingly when setting forth the analysis to apply to the issue of inconsistent
verdicts. Third, the Ohio Supreme Court arguably has implicitly affirmed Perryman
and rejected Koss, in an opinion restating a line of precedent with which Perryman is
consistent and from which Koss is a departure.
       {¶20} First, in addition to the Second District in Wilson and the Tenth in Harris
as noted by the State, three other appellate districts cited to Perryman rather than
Koss. State v. Hampton, 1st Dist. Hamilton No. C-0010159, 2002-Ohio-1907; State
v. Beach, 6th Dist. Lucas No. L-02-1087, 2004-Ohio-5232; State v. Henderson, 11th
Dist. Trumbull No. 2010-T-0095, 2012-Ohio-740. The logical presumption is that our
sister districts have sub silentio determined that despite Koss being the more recent
authority, Perryman is the controlling authority. This is a valid presumption, and an
example of a device occasionally used by appellate courts as an analytical tool. In
fact, this analytical device was employed by the majority in Wright to support its
decision, reasoning that even though Perryman had been decided earlier, the
Supreme Court in Koss "necessarily considered if Perryman dictated the opposite
result and rejected this notion." Wright, ¶ 36.
       {¶21} Further, in State v. Cook, 5th Dist. Stark No. 98-CA-00133, 1999 WL
4162 (Dec. 21, 1998), the Fifth District rejected the defendant's simplistic argument
that Koss should be controlling as the more recent case; and moreover, provided
context for Koss, noting what the central issue in the case actually was:
                                                                             -7-


       Appellant urges Koss, supra, is a more recent case, wherein the
       Supreme Court could have adopted the rational of Perryman, but did
       not.
       ***
       Koss is the case in with [sic] the Supreme Court established the
       battered woman syndrome as admissible to explain the state of mind of
       the defendant. Koss focuses on this issue, and the question of the
       contradictory verdicts on the principal offense and the specifications
       was a secondary issue. The Supreme Court remanded the matter for
       retrial based upon the battered woman syndrome, and noted the
       defendant could not be retried on the gun specification, Koss, at 219,
       551 N.E.2d 970.

Cook, *3-4.
       {¶22} Conversely, the majority's decision in Wright on the merits, and
regarding the State's motion to certify conflict considered herein, completely ignored
the context of Koss. The majority further fails to acknowledge that Koss provided no
analysis explaining why the verdicts were inconsistent. Nor did the majority point out
that Koss failed to mention Perryman; although contradictorily pointing out that
Wilson and Harris both failed to mention Koss or reconcile their decision with Koss.
Id. ¶37. Instead, the majority reasoned: "the more persuasive view is to follow the
more recent Ohio Supreme Court case law in Koss." Id.
       {¶23} Secondly, another panel of this District cited Perryman and not Koss in
State v. Smith, 7th Dist. Belmont No. 06 BE 22, 2008-Ohio-1670, when it articulated
the analysis to apply to the issue of inconsistent verdicts:

              When the jury requested a clarification from the trial court
       regarding whether it could enter a guilty verdict on the murder but also
       enter an acquittal on the gun specification, the prosecutor argued that
       such a seemingly inconsistent result (Proviano unquestionably died
       from a gunshot wound) may simply have been the result of jury
                                                                             -8-


leniency. The Ohio Supreme Court has long held that there is no
inconsistency or reversible error when a jury convicts a defendant on
one count but acquits on a separate but related count, "in which there is
no material difference." Browning v. State (1929), 120 Ohio St. 62, 71,
165 N.E. 566. That Court has also held that a failure of the jury to
convict on a specification consistent with, but not a required element of,
the underlying crime is not a basis for overturning the verdict: "Where a
jury convicts a defendant of an aggravated murder committed in the
course of an aggravated robbery, and where that defendant is
concurrently acquitted of a specification indicting him for identical
behavior, the general verdict is not invalid." State v. Perryman (1976),
49 Ohio St.2d 14, 358 N.E.2d 1040, paragraph three of the syllabus. * *
* A reviewing court is not permitted to speculate whether jury leniency
or some other reason may have resulted in seemingly inconsistent
verdicts for separate counts and specifications in the indictment. State
v. Trewartha, 165 Ohio App.3d 91, 2005-Ohio-5697, 844 N.E.2d 1218,
¶ 38.

        It is obvious in this case that Appellant's argument is purely
speculative, because there was no inconsistent verdict.              The jury
convicted Appellant on both the murder charge and the gun
specification. Appellant's argument is based on her conclusion that the
jury at some point was planning to find her guilty of the murder charge
but not guilty of the gun specification. If there is no reversible error
when the jury actually convicts a defendant of murder involving a fatal
shooting, but acquits him or her of a gun specification, as noted above,
it is difficult to find any possible reversible error if the jury merely thinks
about the possibility of acquitting on the gun specification but ultimately
does enter a guilty verdict on both the underlying crime and the
specification. We find no merit in Appellant's argument.
                                                                             -9-



Smith, ¶66-67 (emphasis added).
      {¶24} Obviously, the panel in Smith did not need to apply its holding with
respect to the proper analysis to apply to a claim of inconsistent verdicts because
there weren't inconsistent verdicts. Rather only the mere possibility in light of the
jury's question, which apparently was resolved because Smith was found guilty of
both counts. Nonetheless, the panel found Smith's argument meritless, and held that
the proper analysis when considering the issue of inconsistent verdicts is the line of
cases including Perryman, thereby necessarily considering Koss and declining to
apply that rationale. See e.g. Wright, ¶36.
      {¶25} Third, in State v. Lovejoy, 79 Ohio St. 3d 440, 446, 1997-Ohio-371, 683
N.E.2d 1112 (1997) arguably the Ohio Supreme Court affirmed Perryman and
overruled Koss, although it cited neither case:

      The issue of inconsistent verdicts in response to different counts was
      addressed in State v. Adams (1978), 53 Ohio St.2d 223, 7 O.O.3d 393,
      374 N.E.2d 137, vacated on other grounds (1978), 439 U.S. 811, 99
      S.Ct. 69, 58 L.Ed.2d 103. The court, in approving and following
      Browning v. State (1929), 120 Ohio St. 62, 165 N.E. 566, stated, at
      paragraph two of the syllabus:


      "The several counts of an indictment containing more than one count
      are not interdependent and an inconsistency in a verdict does not arise
      out of inconsistent responses to different counts, but only arises out of
      inconsistent responses to the same count. (Browning v. State, 120 Ohio
      St. 62 [165 N.E. 566], approved and followed.)"


      That proposition was reaffirmed in State v. Brown (1984), 12 Ohio St.3d
      147, 12 OBR 186, 465 N.E.2d 889, and most recently approved and
      followed in State v. Hicks (1989), 43 Ohio St.3d 72, 78, 538 N.E.2d
      1030, 1037.
                                                                               - 10 -



Lovejoy, 79 Ohio St. 3d at 446.
       {¶26} In Lovejoy, the Supreme Court restated and affirmed the Court's
precedent regarding inconsistent verdicts. Perryman is consistent with this line of
case law, whereas Koss diverges without explanation. At a minimum, Lovejoy has
left open the question of the precedential value of Koss, which is now ripe for
resolution as a result of the conflict raised by the State.
       {¶27} The concurring opinion argues for an overly narrow interpretation of
what is meant by "the same question," which would make it virtually impossible to
have a conflict certified applying that rationale. That Lovejoy was not cited in Wright,
Wilson or Harris is irrelevant to determining whether a conflict exists; rather,
Lovejoy's analysis is very relevant. It is appropriate to use Lovejoy to support an
argument in favor of certification of a conflict.
       {¶28} Significantly, both the majority and the concurring opinions herein fail to
explain why the holding in Wright does not conflict with Wilson and Harris. The
contention that Koss applies merely because it is the more recent case avoids the
issue. Were that the case, Lovejoy is more recent than Koss; and following the
Wright majority's rationale, Lovejoy should control resolution of this issue.      The
rationale that a case without any analysis as well as being an anomaly from a
consistent line of Ohio Supreme Court jurisprudence, somehow trumps a prior
opinion providing substantive analysis of an issue, merely because it is the more
recent case, is troubling.
