[Cite as State v. Buford, 2012-Ohio-1948.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 97218 and 97529


                                      STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.



                                        ERIC BUFORD
                                                            DEFENDANT-APPELLANT



                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                              Case Nos. CR-541097 and CR-541098

        BEFORE:          Jones, J., Blackmon, A.J., and Stewart, J.

        RELEASED AND JOURNALIZED:                     May 3, 2012
ATTORNEY FOR APPELLANT

Rick L. Ferrara
2077 East 4th Street, 2nd Floor
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Steven N. Szelagiewicz
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

       {¶1} Defendant-appellant, Eric Buford, appeals his convictions in two cases,

which we have sua sponte consolidated for review and disposition.      We affirm.

       {¶2} In August 2010, Buford was charged in Case No. CR-541097 with having

weapons while under disability and carrying a concealed weapon.        He was also charged

in Case No. CR-541098 with two counts of felonious assault with one- and three-year

firearm specifications and one count of having weapons while under disability.

       {¶3} Case No. CR-541098 proceeded to a trial by jury on the felonious assault

charges.   The trial court granted Buford’s motion to bifurcate the disability charge and

that count was tried to the bench.

       {¶4} The following pertinent evidence was presented at trial.

       {¶5} On July 21, 2010, James Scott went to visit his former girlfriend, LaToya

Buford. Scott’s friend, Rodell Booze, drove him to LaToya’s house. Scott and LaToya

began to argue about their recent breakup; Scott was standing at the front door. Scott

testified that he saw Eric Buford, LaToya’s brother, standing in the kitchen, pointing a

gun at him. When Scott saw the gun, he slammed the door and took off running.

Booze testified that he heard gunshots as he drove away; a bullet hit his driver’s side

window, shattering it. He further testified that he saw Buford shooting at his car.

       {¶6} LaToya testified that she was arguing with Scott, who was standing at her
front door.   They were arguing about $40 that Scott said she owed him because she had

cut a hole in a pair of his jeans.   She testified that she saw Scott slam the door and run,

her brother point the gun at Scott, and then she heard gunshots. After the first gunshot,

LaToya testified, she “hit the floor” and heard a total of three to four gunshots.   LaToya

asked her brother why he shot at Scott and, according to LaToya, he replied, “I don’t

know.” He then told her not to tell anyone.

       {¶7} Buford left the house, taking the gun with him. LaToya did not initially call

the police but later gave a written statement implicating her brother.         During trial,

LaToya testified that her brother threatened to kill her if she told the police about the

shooting.

       {¶8} Cleveland Police Officer Mark Pesta testified that he responded to a call of

shots being fired at two males.      When he arrived on the scene, he observed a shattered

driver’s side window and a bullet hole in the inside of the passenger door of Booze’s car.

 Detective James Bellanca testified that Booze’s father later gave him the bullet that the

body shop recovered from the car door.

       {¶9} Buford was convicted of all charges in Case No. CR-541098. In Case No.

CR-541097, Buford pleaded guilty to attempted having weapons while under disability

and carrying a concealed weapon.        The trial court sentenced Buford to a total of nine

years in Case No. CR-541098 to run consecutive to a total of eight months in Case No.

CR-541097, for a total sentence of nine years and eight months in prison.

       {¶10} It is from this sentence that Buford now appeals, raising the following
assignments of error for our review:1

       I. The trial court erred when it failed to make mandatory findings before
       imposing consecutive sentences.

       II. The trial court erred in admitting unduly prejudicial hearsay evidence at
       trial over defense counsel[’s] objection.

       III. Insufficient evidence supported a conviction for felonious assault and
       gun specifications.

       IV. The manifest weight of the evidence did not support a conviction for
       felonious assault or accompanying gun specifications.

       [V.] The trial court acted contrary to law when it imposed consecutive
       sentences without authority to do so under the Ohio Revised Code.

       [VI.] The trial court erred when it failed to make mandatory
       findings before imposing consecutive sentences.

                                         Hearsay Evidence

       {¶11} In the second assignment of error, Buford argues that the trial court

improperly allowed LaToya to refresh her memory using her written statement without

laying a proper foundation.

       {¶12} A trial court has broad discretion in determining the admissibility of

evidence. State v. Maurer, 15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984), citing State

v. Hymore, 9 Ohio St.2d 122, 224 N.E.2d 126 (1967). Accordingly, an appellate court

should not interfere with a trial court’s evidentiary rulings absent an abuse of discretion.

Id.   “An abuse of discretion connotes more than an error of law or of judgment; it

implies that the court’s attitude is unreasonable, arbitrary or unconscionable.” State v.


           We have renumbered the assignments of error for ease of review.
       1
Jackson, 107 Ohio St.3d 53, 89, 2005-Ohio-5981, 836 N.E.2d 1173, citing State v.

Adams, 62 Ohio St.2d 151, 404 N.E.2d 144 (1980).

       {¶13} Evid.R. 612 permits a party to use a writing to refresh a witness’s

recollection.   But the witness is not permitted to read the writing aloud or have it

otherwise placed before the jury. State v. Ballew, 76 Ohio St.3d 244, 254, 667 N.E.2d

369 (1996).     Rather, the witness reads the writing silently in order to refresh her

recollection; if the writing refreshes the witness’s recollection, the witness then testifies

using present independent knowledge.         State v. Scott, 31 Ohio St.2d 1, 5-6, 285 N.E.2d

344 (1972). It is this testimony, not the writing, that is the evidence.         State v. Woods,

48 Ohio App.3d 1, 548 N.E.2d 954 (1st Dist. 1988).

       {¶14} Buford urges this court to reverse his conviction arguing that the state failed

to lay a proper foundation when it asked LaToya to read her written statement to police

and then answer questions about the statement.        We disagree.

       {¶15} First, we note that Buford did not object at trial to LaToya using her written

statement to refresh her memory.2 While Crim.R. 52(B) permits a court to notice plain

errors or defects that affect substantial rights although they have not been brought to the

attention of the court, a reviewing court must take notice of plain error only with the

utmost caution, and only then to prevent a manifest miscarriage of justice.        State v. Long,

53 Ohio St.2d 91, 372 N.E.2d 804 (1978), at the syllabus. Plain error does not exist


        Although Buford’s attorney objected as LaToya answered the prosecutor’s questions after she
       2


looked at her statement, he did not object to the foundation or procedure by which LaToya refreshed
her memory.
unless it can be said that, but for the error, the outcome of the trial would clearly have

been otherwise. State v. Moreland, 50 Ohio St.3d 58, 552 N.E.2d 894 (1990).

      {¶16} During direct examination, the prosecutor asked LaToya what Buford told

her immediately after the shooting.    LaToya replied that she was confused and that

looking at her statement to police may help her to refresh her memory because she

completed her written statement shortly after the shooting.        LaToya reviewed the

statement at sidebar and then returned the statement to the prosecutor before continuing

with her testimony. She then testified that Buford had told her that “if me, my mother,

or James told the police what happened he’d come back and kill someone.”

      {¶17} Based on these facts, we find no error, plain or otherwise, with the manner

in which the trial court allowed LaToya to refresh her memory.

      {¶18} The second assignment of error is overruled.

                    Sufficiency and Manifest Weight of the Evidence

      {¶19} In the third and fourth assignments of error, Buford claims that his

convictions were not supported by sufficient evidence and were against the manifest

weight of the evidence.

      {¶20} Although sufficiency and manifest weight are different legal concepts,

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding

that a conviction is supported by the manifest weight of the evidence necessarily includes

a finding of sufficiency. State v. McCrary, 10th Dist. No. 10AP-881, 2011-Ohio-3161,

¶ 11, citing State v. Braxton, 10th Dist. No. 04AP-725, 2005-Ohio-2198, ¶ 15. Thus, a
determination that a conviction is supported by the weight of the evidence will also be

dispositive of the issue of sufficiency. Id.   We find the manifest weight of the evidence

argument dispositive in this case.

       {¶21} The weight of the evidence concerns the inclination of the greater amount of

credible evidence offered to support one side of the issue rather than the other. State v.

Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. Although there may

be sufficient evidence to support a judgment, a court may nevertheless conclude that a

judgment is against the manifest weight of the evidence. Id.

       {¶22} When presented with a challenge to the manifest weight of the evidence, an

appellate court may not merely substitute its view for that of the trier of fact, but must

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

credibility of witnesses and determine whether in resolving conflicts in the evidence, the

trier of fact clearly lost its way and created such a manifest miscarriage of justice that the

conviction must be reversed and a new trial ordered. Id. An appellate court should

reserve reversal of a conviction as being against the manifest weight of the evidence for

only the most “exceptional case in which the evidence weighs heavily against the

conviction.” Id.

       {¶23} Buford argues that there was insufficient evidence to support his convictions

and they were against the manifest weight of the evidence because the state could not

show that he intended to harm Scott and Booze.        He claims he only intended to scare

Scott. We find this argument without merit. Buford was convicted of felonious assault
pursuant to R.C. 2903.11(A)(2), which provides, in part, that “[n]o person shall

knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a

deadly weapon.”

      {¶24} Felonious assault requires that a person acts “knowingly.”              R.C.

2903.11(A)(2). “A person acts knowingly, regardless of his purpose, when he is aware

that his conduct will probably cause a certain result or will probably be of a certain

nature.”   R.C. 2901.22(B).   Whether a defendant acted “knowingly” must be inferred

from the totality of the circumstances surrounding the alleged offense.   State v. Booth,

133 Ohio App.3d 555, 562, 729 N.E.2d 406 (10th Dist. 1999). In its instructions to the

jury, the trial court defined “cause” as “an act or failure to act which in a natural and

continuous sequence directly produces physical harm to a person, and without which it

would not have occurred.” See also 4 Ohio Jury Instructions (2006) 64-65, Section

409.55.

      {¶25} Scott testified that he was standing at LaToya’s front door when he saw

Buford standing “about seven yards away,” pointing a gun at him. Scott turned and ran,

and LaToya testified that Buford ran after Scott and started shooting. Booze, who was

waiting in his car, began to drive away, but not before he saw Buford standing on the

porch shooting in his direction. One of the bullets hit Booze’s driver’s side window and

passed through, hitting the passenger door. Pieces of glass from the door hit Booze’s

face and the bullet was recovered from the inside of the car door.     Both victims and

Buford’s sister all testified that Buford shot at Scott and Booze; Buford then threatened
his sister if she told anyone.

       {¶26} Under the totality of the circumstances, we find that there was ample

evidence for the jury to conclude that Buford was aware that his conduct of shooting a

gun at the two victims would probably cause physical harm to them. Thus, Booze’s

convictions were not against the manifest weight of the evidence; therefore, they also

were supported by sufficient evidence.

       {¶27} The third and fourth assignments of error are overruled.

                                         Sentencing

       {¶28} In the first, fifth, and sixth assignments of error, Buford challenges his

sentences in both cases. Buford contends that the trial court erred in sentencing him to

consecutive sentences without engaging in the fact-finding required by R.C.

2929.14(C)(4).

       {¶29} As an initial matter, the General Assembly recently amended former R.C.

2929.14(E)(4), renumbered R.C. 2929.14(C)(4), and enacted new language requiring

fact-finding for consecutive sentences. Am.Sub.H.B. No. 86. Buford claims that R.C.

1.58 operates so as to entitle him to any reduction in penalty that H.B. 86 brought about

because he was sentenced after it was signed into law.   We disagree.

       {¶30} R.C. 1.58(B) provides that “[i]f the penalty, forfeiture, or punishment for

any offense is reduced by a reenactment or amendment of a statute, the penalty, forfeiture,

or punishment, if not already imposed, shall be imposed according to the statute as

amended.”     Buford claims that R.C. 2929.14(C)(4) reduces the penalty because it
imposes limitations on consecutive sentences.

       {¶31} But the court must look to the date legislation became effective, not to the

date it was signed into law. H.B. 86 had an effective date of September 30, 2011, and

Buford was sentenced in August 2011. It is well-settled that new sentencing guidelines

for felony offenders do not apply to those persons already sentenced under prior law.

See State v. Banks, 116 Ohio App.3d 659, 688 N.E.2d 1118 (3d Dist.1996). Therefore,

the new sentencing guidelines are not applicable to the case at bar and we proceed to

review Buford’s sentence under the framework set forth in State v. Kalish, 120 Ohio St.3d

23, 2008-Ohio-4912, 896 N.E.2d 124. In Kalish, the Supreme Court of Ohio articulated

a two-step approach for appellate courts in reviewing felony sentences:           “First, they

must examine the sentencing court’s compliance with all applicable rules and statutes in

imposing the sentence to determine whether the sentence is clearly and convincingly

contrary to law. If this first prong is satisfied, the trial court’s decision shall be reviewed

under an abuse-of-discretion standard.” Id. at ¶ 4.      The trial court has wide discretion

to sentence an offender within the allowable statutory range permitted for a particular

degree of offense.   State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶

100.

       {¶32} In Foster, the Ohio Supreme Court declared the requirements imposed by

R.C. 2929.14(C)(4) unconstitutional and held that “judicial fact-finding is not required

before imposition of consecutive prison terms.”        Id. at ¶ 99.   Thereafter, in State v.

Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768, the Ohio Supreme Court
reiterated that R.C. 2929.14(C)(4) remained unconstitutional and imposed no fact-finding

obligation on Ohio’s trial courts. Id. at ¶ 39. This applies to both the consecutive

sentences imposed in CR-541097 and to the court’s running the sentence in CR-541097

consecutive to the sentence imposed in CR-541098.

      {¶33} In light of the above, Buford’s sentence was not contrary to law, the first

prong under Kalish. Buford does not contend, under the second prong of Kalish, that his

sentence was an abuse of discretion, and we do not find that it was.         The record

demonstrates that Buford has a lengthy criminal history.

      {¶34} In light of these facts, we find that Buford’s consecutive sentences were not

contrary to law or an abuse of discretion.       Accordingly, the first, fifth, and sixth

assignments of error are overruled.

      {¶35} 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. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

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

the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE

PATRICIA A. BLACKMON, A.J., and
MELODY J. STEWART, J., CONCUR
