[Cite as State v. Jennings, 2017-Ohio-5808.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 104625




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                  HERMAN JENNINGS
                                                     DEFENDANT-APPELLANT




                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-13-581056-B

        BEFORE: Laster Mays, J., Kilbane, P.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: July 13, 2017
                               -i-
ATTORNEYS FOR APPELLANT

Mark A. Stanton
Cuyahoga County Public Defender

By: Erika B. Cunliffe
Assistant County Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Jennifer Lynne O’Malley
Mary M. Dyczek
Blaise D. Thomas
Assistant County Prosecutors
Justice Department, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant, Herman Jennings (“Jennings”), appeals his conviction

for felonious assault and his prison sentence, and asks this court to reverse his conviction,

vacate his sentence, and remand to the trial court for further proceedings.      We affirm in

part, reverse in part, and remand.

       {¶2} Jennings was found guilty of one count of felonious assault, a second- degree

felony in violation of R.C. 2903.11(A)(1), with a repeat violent offender specification.

Jennings was sentenced to eight years in prison for the felonious assault count and five

years for the repeat violent offender specification, for a total of 13 years in prison.

I.     Facts

       {¶3} On September 7, 2013, Jennings was involved in a car accident where the

victim, Michael Polichuk (“Polichuk”), rear-ended Jennings. The air bags in Polichuk’s

car deployed and caused dust to fill the car.     The accident caused Polichuk’s glasses to

be knocked from his face, and the powder from the air bags burned his eyes.           Polichuk

was pulled from his vehicle by an unknown male.                A man with a goatee also

approached, and punched Polichuk in the face, knocking him to the ground. The two

men rifled through Polichuk’s pockets and repeatedly kicked him.              An eyewitness,

Shatara Madox (“Madox”), called 911 and gave the license plate number of the car

Polichuk hit to dispatch.    Neither the police nor emergency services responded to the
scene after the 911 call.    Another witness then called Polichuk’s father, who came to

scene and drove Polichuk home.

         {¶4} The next morning, Polichuk went to the dentist because his two front teeth

were knocked out from the punch.       Polichuk also went to an urgent care medical facility

where he was diagnosed with a concussion. Polichuk then went to the police station to

file a report.   Detective Elliot Landrau (“Det. Landrau”) took Polichuk’s statement and

obtained the license plate number from the 911 call.       Det. Landrau discovered that the

car Polichuk hit was registered to Harold Kyle (“Kyle”).      Det. Landrau and his sergeant

went to Kyle’s address and saw the damaged vehicle in the driveway. Det. Landrau

spoke with Kyle, who claimed that he did not know who drove his vehicle the previous

night.    Det. Landrau had Kyle’s vehicle towed.

         {¶5} On December 10, 2013, Det. Landrau’s sergeant received a phone call from

Kyle’s wife who told him that her son, Jennings, was driving the car at the time of the

accident.    Kyle confirmed this with Det. Landrau.        Det. Landrau prepared a photo

lineup, that included Jennings. The lineup was administered by a blind administrator.

Polichuk recognized Jennings as the person who punched him in the mouth.

         {¶6} Jennings was arrested and charged.       During the trial, the defense called

eyewitness Madox to testify. She testified that neither man that she saw attack Polichuk

was in the courtroom.       At the end of the bench trial, the judge found Jennings guilty of

felonious assault and sentenced him to a total of 13

years in prison.
      {¶7} After sentencing Jennings, the trial court stated,

      All right. And pursuant to Revised Code Section 2929.14(C)(4), the Court
      will make the following findings: Multiple prison terms are being imposed
      in both Case Nos. 580703 and 581056, and the finding is that these
      consecutive sentences are necessary to protect the public from future crime,
      as evidenced by the recitation of Mr. Jennings’ prior criminal history by the
      Assistant County Prosecutor, as well as to punish the offender. And these
      consecutive sentences are not disproportionate to the seriousness of
      Mr. Jennings’ conduct and the danger he poses to the public. Additionally,
      if Mr. Jennings did commit these multiple offenses while he was under
      postrelease control for a prior offense and two or more of the offenses were
      committed as part of a course 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
      costs of conduct would adequately reflect the seriousness of Mr. Jennings’
      conduct. The history of the prior criminal conduct does demonstrate that
      consecutive sentences are necessary to protect the public from future crime
      by the offender.

(Tr. 275-276.)

      {¶8} Jennings filed this appeal and asserts two assignments of error for our review.



      I.     Herman Jennings was deprived of his liberty without due process,
             because his conviction for felonious assault is contrary to the weight
             of the evidence presented because it is founded on an unreliable
             eyewitness identification; and

      II.    Herman Jennings’s mandatory 13-year sentence, that included a
             five-year consecutive term imposed based on his repeat violent
             offender status violates his right to due process because the record
             does not support its imposition, and the trial court failed to make the
             finding required before imposing it.

II.   Manifest Weight of the Evidence

      A.     Standard of Review

      {¶9} Jennings claims that his conviction is against the weight of the evidence.
       A manifest weight challenge attacks the credibility of the evidence
       presented and questions whether the state met its burden of persuasion at
       trial. State v. Whitsett, 8th Dist. Cuyahoga No. 101182, 2014-Ohio-4933, ¶
       26, citing Thompkins, 78 Ohio St.3d at 387, 1997-Ohio-52, 678 N.E.2d 541;
       State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-3598, ¶ 13.
       Because it is a broader review, a reviewing court may determine that a
       judgment of a trial court is sustained by sufficient evidence, but
       nevertheless conclude that the judgment is against the weight of the
       evidence.

State v. Wynn, 8th Dist. Cuyahoga No. 103824, 2017-Ohio-4062, ¶ 48.

       {¶10} Also,

       [w]hen considering an appellant’s claim that a conviction is against the
       manifest weight of the evidence, the court of appeals sits as a ‘thirteenth
       juror’ and may disagree with the factfinder’s resolution of conflicting
       testimony. Thompkins at 387, quoting Tibbs v. Florida, 457 U.S. 31, 42,
       102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). The reviewing court must
       examine the entire record, weigh the evidence and all reasonable inferences,
       consider the witnesses’ credibility, 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. Thompkins at 387, citing State v. Martin, 20 Ohio
       App.3d 172, 20 Ohio B. 215, 485 N.E.2d 717 (1st Dist.1983). In
       conducting such a review, this court remains mindful that the credibility of
       witnesses and the weight of the evidence are matters primarily for the trier
       of fact to assess. State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212
       (1967), paragraphs one and two of the syllabus. Reversal on manifest
       weight grounds is reserved for the “exceptional case in which the evidence
       weighs heavily against the conviction.” Thompkins at 387, quoting
       Martin, supra.

Id.   at ¶ 49.

       B.        Law and Analysis

       {¶11} In Jennings’s first assignment of error, he contends that his conviction was

against the weight of the evidence because it was founded on an unreliable eyewitness

identification. Specifically he argues that Polichuk’s identification of him because the
aggressor is unreliable because Polichuk suffered from a concussion from the attack and

memory loss. Jennings also points to the fact that Madox testified that the man who

punched Polichuk was not in the courtroom. However,

       [i]n evaluating a challenge to the verdict based on the manifest weight of
       the evidence in a bench trial, “the trial court assumes the fact-finding
       function of the jury. Accordingly, to warrant reversal from a bench trial
       under a manifest weight of the evidence claim, this court must review the
       entire record, weigh the evidence and all reasonable inferences, consider the
       credibility of witnesses and determine whether in resolving conflicts in
       evidence, the trial court clearly lost its way and created such a manifest
       miscarriage of justice that the judgment must be reversed and a new trial
       ordered.” Cleveland v. Welms, 169 Ohio App.3d 600, 2006-Ohio-6441, 863
       N.E.2d 1125, citing Thompkins.

State v. Johns, 8th Dist. Cuyahoga No. 90811, 2008-Ohio-5584, ¶ 11.

       {¶12} Other than pointing out that Polichuk’s identification of him may be

unreliable, Jennings does not assert how the court, as the factfinder lost its way or created

a manifest miscarriage of justice.        The judge did not just rely on Polichuk’s

identification to convict Jennings. Madox called 911 and gave the license plate number

of the front vehicle to dispatch.   After the police determined that Kyle was the vehicle

owner, they went out to the owner’s home.     The vehicle was at the address with damages

consistent with a rear-end accident.   Jennings’s mother later told the police that Jennings

was in possession of the car at the time of the accident, and Kyle corroborated her

testimony. The state asked Kyle the following question:

       STATE:        To the best of your knowledge do you know if Herman
                     Jennings was driving the car that night?

       KYLE:         I found out later that he was.
(Tr. 180.)

        {¶13} The record reveals that the trial court weighed the evidence and considered

the witnesses’ credibility when it concluded that Jennings was guilty of felonious assault.

 “We note that the trial court, as the trier of fact, is free to accept or reject all or any part

of the testimony of the witnesses and assess the credibility of those witnesses.” Id. at ¶

19.    Jennings’s first assignment of error is overruled.

III.    Sentencing

        A.     Standard of Review

        {¶14} Jennings alleges that his sentence is unlawful.

        We review felony sentences under the standard set forth in
        R.C. 2953.08(G)(2).      State v. Marcum, 146 Ohio St.3d 516,
        2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1, 21-22. Under R.C. 2953.08(G)(2),
        an appellate court may vacate the imposition of consecutive sentences
        where it “clearly and convincingly” finds that (1) the record does not
        support the trial court’s findings under R.C. 2929.14(C)(4) or (2) the
        sentence is “otherwise contrary to law.” R.C. 2953.08(G)(2). If a trial
        court fails to make the findings required under R.C. 2929.14(C)(4), the
        imposition of consecutive sentences is contrary to law. State v. Bonnell,
        140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37; State v. Primm,
        8th Dist. Cuyahoga No. 103548, 2016-Ohio-5237, ¶ 66, citing State v.
        Balbi, 8th Dist. Cuyahoga No. 102321, 2015-Ohio-4075, ¶ 4.

State v. Morris, 8th Dist. Cuyahoga No. 104013, 2016-Ohio-7614, ¶ 24.

        B.     Law and Analysis

        {¶15} In Jennings’s second assignment of error, he contends that his mandatory

sentence, that included a five-year term imposed based on his repeat violent offender

status, violates his rights because the record does not support it, and the trial court failed

to make the findings required before imposing it. Specifically, Jennings argues that the
trial court must make the necessary findings to explain the imposition of additional time

for the repeat violent offender specification.   Jennings, however, concedes that he was

properly found guilty of the specification, but that the trial court failed to follow

R.C. 2929.14(B)(2)(e), which states, “[w]hen imposing a sentence pursuant to division

(B)(2)(a) or (b) of this section, the court shall state its findings explaining the imposed

sentence.”

       {¶16} We find that the court did not state its findings on the record. “Because the

trial court failed to address the finding requirements of R.C. 2929.14(B)(2)(a)(iv) and (v),

we must reverse and remand for a resentencing hearing on the repeat violent offender

specification only.      See State v. Warren, 8th Dist. Cuyahoga No. 97837,

2012-Ohio-4721, ¶ 12.”         State v. Richmond, 8th Dist. Cuyahoga No. 98915,

2013-Ohio-2887, ¶ 22. Jennings’s second assignment of error is sustained.

       {¶17} Judgment is affirmed in part, reversed in part, and case remanded for further

proceedings consistent with this opinion.

       It is ordered that the appellee and appellant share 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.
__________________________________________
ANITA LASTER MAYS, JUDGE

MARY EILEEN KILBANE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
