[Cite as State v. Dukles, 2013-Ohio-5263.]


STATE OF OHIO                     )                 IN THE COURT OF APPEALS
                                  )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                       C.A. No.       12CA0100-M

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
MARC A. DUKLES                                      COURT OF COMMON PLEAS
                                                    COUNTY OF MEDINA, OHIO
        Appellant                                   CASE No.   11-CR-0686

                                 DECISION AND JOURNAL ENTRY

Dated: December 2, 2013



        WHITMORE, Judge.

        {¶1}     Defendant-Appellant, Marc Dukles, appeals from his convictions in the Medina

County Court of Common Pleas. This Court affirms.

                                                I

        {¶2}     Dukles was arrested after he and another man, Anthony Diluzio, were involved in

a fight at The Grille, a restaurant/bar in Brunswick. Although accounts of the exchange that took

place between the two men varied, their meeting resulted in Dukles pulling a knife from his

pocket, punching Diluzio in the face, and repeatedly stomping on Diluzio after he fell to the

ground. Dukles attempted to flee the scene after stomping on Diluzio, but the establishment’s

security personnel restrained him. At the time the incident occurred, Dukles was on post-release

control.

        {¶3}     A grand jury indicted Dukles on each of the following counts: (1) felonious

assault, in violation of R.C. 2903.11(A)(1); (2) felonious assault by means of a deadly weapon or
                                                 2


dangerous ordnance, in violation of R.C. 2903.11(A)(2); and (3) carrying a concealed weapon, in

violation of R.C. 2923.12(A)(1). Dukles waived his right to a jury, and a bench trial ensued. At

the conclusion of the evidence, the court ordered Dukles to file a written Crim.R. 29 motion and

adjourned without announcing a verdict. Dukles filed his written motion on August 14, 2012.

       {¶4}    On September 13, 2012, the trial court issued a ruling on Dukles’ written motion.

The court’s journal entry reads:

       The Court, having considered the [Crim.R. 29] motion, finds that it is not well
       taken with respect to Counts I and III but that it is well taken with respect to
       Count II.

       Therefore, on Count II, which is a charge of Felonious Assault in violation of
       R.C. § 2903.11(A)(2), the Court orders a judgment of acquittal. With respect to
       Counts I and III, the motion is denied.

The court reiterated its ruling in open court when the trial resumed for purposes of closing

arguments. Specifically, the judge stated that he had “directed a verdict of acquittal on Count

No. II” and had “not direct[ed] a verdict of acquittal on Count No. I or Count No. III.” The

attorneys then presented their closing arguments. At the close of the trial, the court adjourned

without announcing a verdict on the two outstanding counts.

       {¶5}    On October 15, 2012, the court issued a written verdict in which it transposed its

ruling on the two felonious assault counts. Specifically, the written verdict indicated:

       The Court granted the motion [for acquittal] as to Count I, but denied it as to
       Counts II and III. Mr. Dukles then presented his evidence. * * *

       After considering all of the evidence and the arguments of counsel, this Court
       finds that Mr. Dukles is guilty of Count II, Felonious Assault in violation of R.C.
       2903.11(A)(2), a felony of the second degree; and this Court also finds that he is
       guilty of Count III, Carrying a Concealed Weapon * * *.

(Emphasis added.) The court issued a nunc pro tunc entry on November 14, 2012, to correct its

error. In its nunc pro tunc entry, the court wrote that it had granted Dukles’ motion for acquittal

“as to Count II, but denied it as to Counts I and III.” The nunc pro tunc entry went on to find
                                                 3


Dukles guilty of felonious assault, in violation of R.C. 2903.11(A)(1), and carrying a concealed

weapon.

         {¶6}   On November 15, 2012, the court issued its sentencing entry. The sentencing

entry found Dukles “guilty of Count I, ‘Felonious Assault,’ a violation of R.C. 2903.11(A)(1),”

as well as guilty of carrying a concealed weapon. The court sentenced Dukles to a total of six

years in prison. The sentencing entry also credited Dukles with 340 days for time served.

         {¶7}   Dukles now appeals from his convictions and raises seven assignments of error

for our review. For ease of analysis, we consolidate and rearrange several of the assignments of

error.

                                                 II

                                Assignment of Error Number One

         THE TRIAL COURT ERRED IN NOT DISPOSING OF MR. DUKLES PLEA
         OF ONCE IN JEOPARDY.

                                Assignment of Error Number Two

         THE TRIAL COURT ERRED IN NOT FINDING THAT MR. DUKLE[S] HAD
         ONCE BEEN IN JEOPARDY FOR THIS OFFENSE WHEN HE WAS FOUND
         NOT GUILTY BY THE OHIO PAROLE AUTHORITY FOR A VIOLATION
         THAT AROSE FROM THE INCIDENT THAT MR. DUCKLES WAS
         INDICTED AND FOUND GUILTY OF IN THIS CASE.

         {¶8}   In his first and second assignments of error, Dukles argues that the trial court

erred by not (1) employing the proper procedure to dispose of his plea of once in jeopardy, and

(2) disposing of this matter on double jeopardy grounds. According to Dukles, jeopardy attached

when the Adult Parole Authority examined evidence pertaining to his fight with Diluzio and

concluded that he did not violate the conditions of his post-release control.
                                                 4


        {¶9}    In 1953, the General Assembly enacted R.C. 2943.06. That statute provides as

follows:

        If a defendant pleads a judgment of conviction, acquittal, or former jeopardy, the
        prosecuting attorney may reply that there is no such conviction, acquittal, or
        jeopardy. The issue thus made shall be tried to a jury, and on such trial the
        defendant must produce the record of such conviction, acquittal, or jeopardy, and
        prove that he is the person charged in such record, and he may also introduce
        other evidence to establish the identity of such offense. If the prosecuting
        attorney demurs to said plea and said demurrer is overruled, the prosecuting
        attorney may then reply to said plea.

R.C. 2943.06. In 1973, the Rules of Criminal Procedure took effect and limited the pleas that

could be entered in criminal cases to pleas of not guilty, not guilty by reason of insanity, guilty,

or no contest. Crim.R. 11(A); Crim.R. 59(A). Although R.C. 2943.06 has never been repealed,

this Court has held that the statute “[has] been superseded by portions of Crim.R. 12.”

Tallmadge v. Haught, 9th Dist. Summit No. 18379, 1997 WL 423049, *1 (July 7, 1997), quoting

State v. Hollins, 9th Dist. Summit Nos. 8636 & 8637, 1978 WL 215276, *2 (June 30, 1978). In

Haught, we held that it was proper for a trial court to treat a defendant’s “plea” under R.C.

2943.06 as a motion to dismiss. Haught at *1.

        {¶10} At his arraignment, Dukles attempted to enter a plea of “once in jeopardy.” The

trial court made note of Dukles’ request to plead that way and also entered a plea of not guilty on

his behalf. The matter then proceeded to trial. The court did not address Dukles’ double

jeopardy argument until after the first full day of trial and did not reject it until after the State

rested. Dukles argues that the court committed reversible error by not following the procedure

set forth in R.C. 2943.06 or, in the alternative, by not treating his plea as a Crim.R. 12(C) motion

and disposing of it prior to trial.

        {¶11} Because Crim.R. 12 supersedes R.C. 2943.06, the trial court was not required to

follow the procedures outlined in the statute. See Haught at *1, quoting Hollins at *2. Crim.R.
                                                 5


12 alone would govern any motion seeking a dismissal on double jeopardy grounds. Yet, Dukles

never filed a pretrial motion regarding his claim of double jeopardy. Compare State v. Lamp, 9th

Dist. Summit No. 26602, 2013-Ohio-1219. The only indication in the record that Dukles even

raised the issue of double jeopardy before his trial is a single notation in the journal entry the

court issued after Dukles’ arraignment. The notation reads: “Also plea of ‘once in jeopardy.’”

Dukles never raised the issue again before trial. He also never provided the court with any

evidence before trial to substantiate his claim of double jeopardy. See State v. Busby, 9th Dist.

Summit No. 21229, 2003-Ohio-3361, ¶ 7 (“Appellant bears the burden of proof on a motion to

dismiss regarding multiple offenses.”). The trial court, therefore, did not commit reversible error

when it failed to dispose of Dukles’ claim of double jeopardy before trial. Further, the trial court

did not err by ultimately rejecting Dukles’ double jeopardy argument.

        {¶12} “The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution and Section 10, Article I of the Ohio Constitution protect criminal defendants

against multiple prosecutions for the same offense.” State v. Hartman, 9th Dist. Medina No.

12CA0057-M, 2013-Ohio-4407, ¶ 9, quoting State v. Brewer, 121 Ohio St.3d 202, 2009-Ohio-

593, ¶ 14. “Each clause ‘prohibits (1) a second prosecution for the same offense after acquittal,

(2) a second prosecution for the same offense after conviction, and (3) multiple punishments for

the same offense.’” Hartman at ¶ 9, quoting State v. Gustafson, 76 Ohio St.3d 425, 432 (1996).

Dukles argues that he was subjected to a second prosecution for the same offense after an

acquittal.

        {¶13} There was testimony at trial that, after the fight with Diluzio occurred, Dukles

was charged with violating the conditions of his post-release control and the Adult Parole

Authority conducted a hearing on the violations. There also was testimony that the hearing
                                                  6


officer for the Adult Parole Authority found there was insufficient evidence that Dukles had

assaulted Diluzio.     Dukles argues that the proceeding before the Adult Parole Authority

amounted to a prosecution and resulted in an acquittal. Therefore, he argues that his subsequent

criminal trial was an unconstitutional, second prosecution for the same offense. We do not

agree.

         {¶14} The Ohio Supreme Court has held that:

         R.C. 2967.28(F)(4), which specifies that a person released on post[-]release
         control who violates conditions of that post[-]release control faces a term of
         incarceration for the violation as well as criminal prosecution for the conduct that
         was the subject of the violation as a felony in its own right, does not violate the
         Double Jeopardy Clauses of the United States and Ohio Constitutions.

(Emphasis added.) State v. Martello, 97 Ohio St.3d 398, 2002-Ohio-6661, syllabus. Accord

State v. Fairley, 9th Dist. Lorain No. 00CA007675, 2001 WL 324376, *1 (Apr. 4, 2001)

(“[B]ecause a post-release control sanction is not a criminal punishment, the Double Jeopardy

Clause does not prohibit a subsequent prosecution * * * based on the same conduct.”). Although

the defendant in Martello was found to have violated the conditions of his post-release control, it

stands to reason that Martello’s holding applies regardless of the final outcome of a defendant’s

post-release control proceeding (i.e., whether the Adult Parole Authority finds that the defendant

has violated the conditions of his post-release control or finds that he has not). A post-release

control violation proceeding is not a criminal prosecution. See generally Martello at ¶ 18-27

(post-release control violation categorized as civil penalty). Accordingly, the State was not

barred from prosecuting Dukles simply because the Adult Parole Authority found that he did not

violate the conditions of his post-release control. Dukles’ first and second assignments of error

are overruled.

                                Assignment of Error Number Three
                                                 7


       THE TRIAL COURT ERRED IN FINDING AGAINST THE MANIFEST
       WEIGHT OF THE EVIDENCE THAT MARC DUKLES VIOLATED OHIO
       REVISED CODE SECTION 2903.11(A)(1), FELONIOUS ASSAULT AND
       OHIO REVISED CODE 2923.12(A)(1) CARRYING A CONCEALED
       WEAPON.

       {¶15} In his third assignment of error, Dukles argues that his convictions are against the

manifest weight of the evidence. We disagree.

       {¶16} In determining whether a conviction is against the manifest weight of the

evidence an appellate 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 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.

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A weight of the evidence challenge

indicates that a greater amount of credible evidence supports one side of the issue than supports

the other. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997). Further, when reversing a

conviction on the basis that the conviction was against the manifest weight of the evidence, the

appellate court sits as the “thirteenth juror” and disagrees with the factfinder’s resolution of the

conflicting testimony. Id. Therefore, this Court’s “discretionary power to grant a new trial

should be exercised only in the exceptional case in which the evidence weighs heavily against

the conviction.” State v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). See also Otten at

340.

       {¶17} R.C. 2903.11(A)(1) provides that “[n]o person shall knowingly * * * [c]ause

serious physical harm to another * * *.” “Serious physical harm” includes any physical harm

“that carries a substantial risk of death” and “that involves some temporary, substantial
                                                8


incapacity.” R.C. 2901.01(A)(5)(b), (c). Whoever commits the foregoing offense is guilty of

felonious assault. R.C. 2903.11(D)(1)(a).

       {¶18} R.C. 2923.12(A)(1) provides that “[n]o person shall knowingly carry or have,

concealed on the person’s person or concealed ready at hand, * * * [a] deadly weapon other than

a handgun.” A “deadly weapon” is “any instrument, device, or thing capable of inflicting death,

and designed or specially adapted for use as a weapon, or possessed, carried, or used as a

weapon.” R.C. 2923.11(A). Whoever commits the foregoing offense is guilty of carrying a

concealed weapon. R.C. 2923.12(F)(1).

       {¶19} Diluzio testified that he was seated at a table with his girlfriend, her sister, and

another female friend when Dukles sat down at their table. At some point, the women at the

table became uncomfortable because Dukles was “hitting on them.” Dukles then left the table

and Diluzio followed. Diluzio testified that he confronted Dukles to tell him to stay away from

Diluzio’s girlfriend’s sister (Teresa Campbell).    As Diluzio was talking to Dukles, Dukles

removed a knife from his pocket and held it down by his side. Diluzio stated that he was “kind

of shocked” at that point and “said something along the lines of, ‘Oh, you’re going to pull a knife

on me[?]’” According to Diluzio, the next thing he remembered was being pushed into an

ambulance on a stretcher. He testified that, as a result of the injuries he received from Dukles,

his entire face was swollen and he had a headache for over a week. Diluzio also testified that he

never threatened Dukles.

       {¶20} Teresa Campbell testified that she was sitting at a table with her sister, her friend,

and Diluzio (her sister’s boyfriend) when a man sat down at their table. The man began speaking

with Campbell’s friend, showed the women a prison ID, and told them that he “was not in prison

for being a sexual predator.” Campbell testified that when her sister and her friend left the table
                                               9


to go to the bathroom, Diluzio walked over to the man and told him that she was not interested in

speaking with him. The two men began to argue and Campbell turned her back on them to try to

spot her sister. She then heard Diluzio holler, “You pulled a knife out on me?” and turned back

around to face the men. Campbell observed Dukles holding a knife at his side and started

screaming that he had a knife. Campbell then turned away again to look for her sister and, when

she turned back, saw Diluzio lying on the ground.           Campbell stated that Diluzio was

“unresponsive” while on the ground, but Dukles kicked him repeatedly. As Dukles kicked

Diluzio, Campbell said she “could see [Diluzio’s] head bouncing off the ground.”

       {¶21} Several eyewitnesses to the fight between Diluzio and Dukles testified at trial.

Travis Styers testified that he saw two males in a “potential fight” while he was playing

volleyball. One of the males had a hat on, and Styers later identified that man as Dukles. Styers

stated that he saw the man without the hat gesture towards Dukles in what appeared to be a

pushing, shoving, or slapping motion. He then saw Dukles punch the man. Styers testified that

the man Dukles punched “appeared to be knocked out” and never moved once he hit the ground.

Nevertheless, Dukles stepped around the man and kicked him twice. Styers stated that there was

a “minor pause” in between the time that the man fell to the ground and the time that Dukles

began to kick him.

       {¶22} Brittany Cartellone was also playing volleyball when she saw two men “starting

to shove each other.” Cartellone testified that both men shoved one another, but she could not

remember who started the shoving. After the men shoved one another, the man wearing a hat

punched the other man in the face, knocking him to the ground. Cartellone stated that the man

who fell to the ground was lying “on his back, face up, just not moving.” The man who had

thrown the punch then circled around the fallen man’s body and “stomped on the man’s face
                                                10


with his right heel.” He then stomped the man again on the man’s chest. Cartellone testified that

the man who fell to the ground never moved after he fell. She further testified that, after several

people stepped forward to stop the attack, the man wearing the hat fled.

       {¶23} Kimberly Ferari testified that she and her husband were having a drink on the

patio at The Grill when she saw a man in a hat hit another man in the face. Ferari testified that

the man who was punched fell to the ground and never moved. The man in the hat then walked

over to where the man on the ground was laying, kicked him in the face, and took a few steps

back. He then walked forward and kicked the man again.

       {¶24}    Aaron Fischer testified that he was approximately 20 to 30 feet away when he

saw one man “smacking [another man] in the face” and “egging him on to fight him.”

According to Fischer, the man who was smacking the other used an open hand to hit the other

man in the face three or four times. The man who was getting smacked then threw a punch and

knocked the other man to the ground. Fischer testified that the man who threw the punch

stomped on the other man twice after he fell to the ground. Fischer also testified that he never

saw the man who fell to the ground move after he went down.

       {¶25} Howard Lee testified that he was working as a bouncer at The Grille when a

crowd of people started yelling for his help. Lee ran over and observed Dukles standing over a

man on the ground. Dukles ran as Lee tried to make his way toward him, but Lee was able to

grab him and force him to the ground. Lee testified that Dukles repeatedly asked to be let go and

tried to pull away when Lee indicated that the police were on their way. After the police arrived,

Lee handed over Dukles and walked back to the man on the ground. Lee stated that the man was

“motionless” and “looked like he was barely breathing.”
                                                11


       {¶26} Dr. Karen Rickert, a physician in the emergency room at Southwest General,

treated Diluzio after he arrived at the hospital. Dr. Rickert ultimately diagnosed Diluzio with a

closed head injury, concussion. Although Dr. Rickert included in her diagnosis that Diluzio had

not lost consciousness, she testified that her only reason for doing so must have been that

“[s]omewhere along the line [Diluzio] must have told me he remembered everything.” Dr.

Rickert agreed that head injuries can affect the reliability of a person’s memory and that a person

might not know if they were unconscious for a brief period of time. She further testified that

closed head injuries are potentially fatal and involve a temporary, substantial incapacity.

       {¶27} Ted Davis, a supervising officer for the Adult Parole Authority, testified that he

had Dukles arrested and incarcerated when he learned of his fight with Diluzio because it

occurred while Dukles was on post-release control. Davis interviewed Dukles after he was

arrested. During the interview, Dukles admitted that he had punched and kicked Diluzio, but

denied that he had a knife. Dukles also stated that he had kicked Diluzio’s torso, but might

“have inadvertently hit him on the head when he was stomping on him.” Despite the fact that he

denied having a knife, Dukles also stated at the end of the interview that “[i]f [he] had known

[he] was going to end up [in prison] for doing what [he] did, [he] would have carved [Diluzio]

up.”

       {¶28}    Dukles testified that Diluzio approached him after he went to leave the picnic

table where Diluzio and his female friends were sitting. Dukles claimed that Diluzio accused

him of disrespecting the women at the table and threatened to kill him. According to Dukles,

Diluzio stated that he would “kill [Dukles’] entire family” and “burn [his] house to the ground.”

Dukles then tried to walk away and Diluzio followed him. At that point, Dukles testified, he felt

that Diluzio might attack him, so he pulled out a knife from his pocket. Nevertheless, Diluzio
                                               12


began to hit him in the face. After the third hit to the face, Dukles punched Diluzio. Dukles

testified that he punched Diluzio instead of walking away because he felt that it was not safe for

him to turn his back on Diluzio. He further testified that he kicked Diluzio when Diluzio was on

the ground because he believed he saw Diluzio pushing himself back up and heard Diluzio

threatening to kill him again. According to Dukles, he tried to leave the scene after he kicked

Diluzio because the hand with which he had punched Diluzio required medical attention.

       {¶29} Dukles argues that his felonious assault conviction is against the manifest weight

of the evidence because the evidence was such that Diluzio was the initial aggressor and Dukles

appropriately acted in self-defense. “A defendant has the burden of establishing the affirmative

defense of self-defense by a preponderance of the evidence.” State v. Gates, 9th Dist. Summit

No. 24941, 2010-Ohio-2994, ¶ 7.

       To establish self-defense for the use of less than deadly force in defense of one’s
       person, the defendant must prove: (1) he was not at fault in creating the situation
       which gave rise to the event in which the use of non-deadly force occurred; (2) he
       had honest and reasonable grounds to believe that such conduct was necessary to
       defend himself against the imminent use of unlawful force; and (3) the force used
       was not likely to cause death or great bodily harm.

State v. Tanner, 9th Dist. Medina No. 3258-M, 2002-Ohio-2662, ¶ 21. “[I]n general, ‘one may

use such force as the circumstances require to protect oneself against such danger as one has

good reason to apprehend.’” Gates at ¶ 7, quoting Akron v. Dokes, 31 Ohio App.3d 24, 25 (9th

Dist.1986). If a person’s response to non-deadly force is excessive, he or she may exceed the

scope of the self-defense privilege and be subject to criminal charges. See State v. Morrison, 9th

Dist. Summit No. 15917, 1993 WL 140442, *2 (May 5, 1993).

       {¶30} Even assuming that Dukles was not at fault in creating the situation with Diluzio,

multiple eyewitnesses testified that Dukles repeatedly stomped on Diluzio after he fell to the

ground. Those same witnesses testified that Diluzio never moved after he fell. Campbell, in
                                                  13


particular, testified that Diluzio’s head was “bouncing off the ground” as Diluzio kicked him.

Dukles was the only person who testified that Diluzio tried to get back up after Dukles punched

him. Everyone else testified that Diluzio was completely motionless once he was on the ground.

Moreover, several witnesses saw Dukles pause to reposition himself before he kicked Diluzio.

Accordingly, there was evidence from which the trier of fact could have concluded that Dukles

had the opportunity to observe Diluzio’s lack of movement before he began to kick him.

Although Diluzio did not suffer any long-term injuries as a result of Dukles’ conduct, Dr. Rickert

testified that closed head injuries are potentially fatal and involve a temporary, substantial

incapacity. Given the testimony of all of the eyewitnesses, the trier of fact reasonably could have

concluded that Dukles exceeded the scope of any self-defense privilege he had by repeatedly

kicking Diluzio after he fell to the ground. See Gates at ¶ 7; Morrison at *2. Having reviewed

the record, we cannot conclude that this is the exceptional case where the trier of fact lost its way

by convicting Dukles of felonious assault.

       {¶31} Dukles also argues that his conviction for carrying a concealed weapon is against

the manifest weight of the evidence because “a finding [of] self-defense [on the felonious assault

charge] would also require a finding of not guilty on the charge of carrying a concealed

weapon.” We have already concluded, however, that the trier of fact did not lose its way by

rejecting Dukles’ self-defense argument. Accordingly, we also reject Dukles’ limited argument

that his carrying a concealed weapon conviction must be reversed under a self-defense theory.

Dukles’ third assignment of error is overruled.

                                 Assignment of Error Number Six

       THE TRIAL COURT ERRED BY PERMITTING AN IMPROPER
       ARGUMENT OF THE PROSECUTOR DURING CLOSING ARGUMENT
       REGARDING PREVIOUS OFFENSES OVER OBJECTION OF THE
       DEFENDANT’S COUNSEL.
                                                14


       {¶32} In his sixth assignment of error, Dukles argues that the trial court erred by not

granting a mistrial when the prosecutor improperly mischaracterized the evidence during closing

argument. We disagree.

       {¶33} In deciding whether a prosecutor’s conduct rises to the level of prosecutorial

misconduct, a court determines if the prosecutor’s actions were improper, and, if so, whether the

defendant’s substantial rights were actually prejudiced. State v. Smith, 14 Ohio St.3d 13, 14

(1984). “[A] judgment may only be reversed for prosecutorial misconduct when the improper

conduct deprives the defendant of a fair trial.”        State v. Knight, 9th Dist. Lorain No.

03CA008239, 2004-Ohio-1227, ¶ 6, citing State v. Carter, 72 Ohio St.3d 545, 557 (1995). The

defendant must show that, but for the prosecutor’s misconduct, the trier of fact would not have

convicted him. State v. Lollis, 9th Dist. Summit No. 24826, 2010-Ohio-4457, ¶ 24. “The

touchstone of the analysis ‘is the fairness of the trial, not the culpability of the prosecutor.’”

State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, ¶ 140, quoting Smith v. Phillips, 455 U.S.

209, 219 (1982).

       {¶34} Dukles argues that the prosecutor committed misconduct when he stated during

closing argument that the hand Dukles injured when he punched Dukles was “the same hand that

he broke while assaulting others previously.” Dukles objected to the prosecutor’s statement, and

the prosecutor indicated that he believed he had asked Dukles about his prior hand injury. The

court then overruled the objection. Dukles argues on appeal that he never actually answered the

prosecutor’s question about his injured hand on cross-examination because his counsel’s

objection interrupted his response. He further argues that there was no evidence that the injury

to his hand was the result of his assaulting someone.
                                              15


       {¶35} The record reflects that the following exchange took place during the prosecutor’s

cross-examination of Dukles:

       [PROSECUTOR:] Your hand injury, it’s true that your hand had been injured
       before; isn’t that right?

       [DUKLES:] Yeah.

       [PROSECUTOR:] You struck a fellow inmate and injured your hand prior to this
       incident; isn’t that correct?

       [DEFENSE COUNSEL:] Objection.

       [PROSECUTOR:] That was the source of your injury?

       [DEFENSE COUNSEL:] Objection.

       THE COURT: Overruled – well, I’m not sure what the relevance is in the first
       place.

       [PROSECUTOR:] Had you injured that hand before?

       [PROSECUTOR:] I’m sorry, Judge. I’ll stop.

       THE COURT: That’s okay. I’m looking something up. Yes, you may answer the
       question. Has that hand been injured before?

       [DUKLES:] Yes, I have.

       [PROSECUTOR:] And how long before had you injured that hand?

       [DUKLES:] The most recent was – I believe it was either June or July of 2011.

       ***

       [PROSECUTOR]: How did you hurt it in June or July? Were you in prison?

       [DUKLES:] Yes.

       [PROSECUTOR:] So the last time you got violated for [] disorderly conduct * *
       *, you went in prison, hit someone and hurt your hand?

       [DUKLES:] Yes.
                                                16


Accordingly, there was testimony from Dukles that he injured his hand before by punching

someone while he was in prison. Dukles is incorrect that the prosecutor never received answers

to his questions about how Dukles had injured his hand in the past.

       {¶36} To the extent that the prosecutor characterized Dukles’ prior hand injury as an

assault, “a prosecutor has wide latitude during closing argument to present his or her most

convincing position based on the evidence presented at trial.” State v. Scheck, 9th Dist. Medina

No. 05CA0033-M, 2006-Ohio-647, ¶ 19, quoting State v. Smith, 9th Dist. Wayne Nos.

01CA0039 & 01CA0055, 2002-Ohio-4402, ¶ 103. Moreover, Dukles’ case was tried to the

bench. “There is a presumption in a bench trial that the trial judge knows and follows the law,

and only considers matter properly before it.”          State v. Pleban, 9th Dist. Lorain No.

10CA009789, 2011-Ohio-3254, ¶ 45. Even assuming that the prosecutor’s characterization was

improper, Dukles has not shown that the mischaracterization deprived him of a fair trial. See

Knight, 2004-Ohio-1227, at ¶ 6. Dukles’ sixth assignment of error is overruled.

                                Assignment of Error Number Four

       THE COURT ERRED BY CHANGING THE VERDICT ENTERED VIA A
       NUNC PRO TUNC ENTRY.

       {¶37} In his fourth assignment of error, Dukles argues that the court erred when it

attempted to modify its verdict by way of a nunc pro tunc entry. According to Dukles, once a

court has filed a verdict of acquittal, double jeopardy bars the court from any attempt to undo the

acquittal. As explained below, the trial court’s misstatement in its verdict entry did not result in

a judgment entry of acquittal on Dukles’ first count of felonious assault.

       {¶38} In the procedural history portion of this opinion, this Court set forth the series of

entries that the trial court filed. The trial court issued a written verdict on October 15, 2012.

Before the written verdict, however, the court issued a written ruling on Dukles’ motion for
                                                  17


acquittal and addressed the parties on the record in open court before closing argument. Both the

written ruling on the motion for acquittal and the court’s recitation of that ruling in open court

indicate that the court acquitted Dukles on his second count of felonious assault, which was a

violation of R.C. 2903.11(A)(2). The court’s October 15th verdict entry then erroneously (1)

noted that the court had granted the motion for acquittal on the first count of felonious assault,

and (2) found Dukles guilty on the second count of felonious assault. Subsequently, the court

issued a nunc pro tunc entry to correct the October 15th verdict entry. The corrected entry

properly noted that the court previously had acquitted Dukles on the second count of felonious

assault. It also set forth a finding of guilt on Dukles’ first count of felonious assault.

       {¶39} Dukles seeks to take advantage of the trial court’s mistake in its October 15th

entry by claiming that double jeopardy principles prohibit the correction of even a clear error in

an entry of acquittal. Yet, this is not a case where the court purposely, albeit erroneously,

entered an acquittal. Compare Evans v. Michigan, ___ U.S. ___, 133 S.Ct. 1069 (2013) (retrial

barred after court mistakenly concluded that statute required proof of an additional element,

found that the State failed to prove that element, and erroneously entered an acquittal); Fong Foo

v. United States, 369 U.S. 141 (1962) (retrial barred after acquittal based on prosecutorial

misconduct and witness credibility issues). This is a case where the court first entered a written

acquittal ruling, reiterated that same ruling in open court, and then misstated its acquittal ruling

in its subsequent verdict entry. On its face, the October 15th verdict entry clearly contains an

error because it begins by noting that the court had “granted the motion [for acquittal] as to

Count I, but [had] denied it as to Counts II and III.” In fact, the court had granted the motion for

acquittal as to Count II, but had denied it as to Counts I and III. The record reflects that the

court, in its October 15th verdict entry, inaccurately relayed what it had ordered in its acquittal
                                                  18


ruling.    The court’s October 15th verdict entry does not order an acquittal on Count I; it

inaccurately summarizes the court’s prior acquittal ruling. The record does not contain any entry

that grants Dukles’ motion for acquittal on Count I. Contrary to Dukles’ argument, the court did

not acquit him on Count I.

          {¶40} Crim.R. 36 permits a court to correct a clerical mistake in a judgment “at any

time.” The “appropriate remedy” for a clerical mistake is “generally a nunc pro tunc entry.”

(Internal quotations and citations omitted.) State v. Battle, 9th Dist. Summit No. 23404, 2007-

Ohio-2475, ¶ 5. “[N]unc pro tunc entries are limited in proper use to reflecting what the court

actually decided, not what the court might or should have decided or what the court intended to

decide.” State ex rel. Fogle v. Steiner, 74 Ohio St.3d 158, 164 (1995).

          {¶41} It is clear from the record that the trial court acquitted Dukles on his second count

of felonious assault, in violation of R.C. 2903.11(A)(2), before the conclusion of trial. The court

issued a written ruling to that effect on September 13, 2012, and announced that ruling in open

court. When the court later misstated that ruling in its October 15th verdict entry, it properly

used a nunc pro tunc entry to correct its misstatement and issued a verdict entry that reflected

what the court had actually decided. See State v. Perkins, 190 Ohio App.3d 328, 2010-Ohio-

5058, ¶ 17-18 (3d Dist.). The court did not offend the principles of double jeopardy by doing so.

Compare State v. Raber, 134 Ohio St.3d 350, 2012-Ohio-5636, ¶ 22-26.                 Dukles’ fourth

assignment of error is overruled.

                                  Assignment of Error Number Five

          THE TRIAL COURT ERRED BY SENTENCING DEFENDANT TO SIX
          YEARS ON THE CHARGE OF FELONIOUS ASSAULT.

          {¶42} In his fifth assignment of error, Dukles argues that the trial court erred by

sentencing him to six years on his felonious assault charge. We disagree.
                                                19


       {¶43} Trial courts have “full discretion * * * to sentence defendants within the bounds

prescribed by statute.” State v. Evans, 9th Dist. Medina No. 09CA0049-M, 2010-Ohio-3545, ¶

32, citing State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraphs one through seven of the

syllabus. Appellate courts apply a two-step approach in reviewing the sentence that a trial court

has imposed upon a defendant. Evans at ¶ 32, quoting State v. Kalish, 120 Ohio St.3d 23, 2008-

Ohio-4912, ¶ 4. “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.” Kalish at ¶ 4. An abuse of discretion implies

an attitude on the part of the trial court that is unreasonable, arbitrary, or unconscionable.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).

       {¶44} Dukles argues that the trial court erred by issuing him a sentence that was

“considerably closer to the maximum than the minimum,” as a lengthier sentence was not

warranted under the factors set forth in R.C. 2929.12. “R.C. 2929.12(A) sets forth the general

guidance factors associated with felony sentencing, including the seriousness of the conduct, the

likelihood of recidivism, and ‘any other factors that are relevant to achieving those purposes and

principles of sentencing.’” State v. Jones, 9th Dist. Summit No. 24469, 2010-Ohio-879, ¶ 39,

quoting R.C. 2929.12(A).      According to Dukles, the court did not specifically discuss its

consideration of the sentencing factors contained in R.C. 2929.12, and those factors do not

support the six-year sentence he received.

       {¶45} “[W]here the trial court does not put on the record its consideration of [R.C.]

2929.11 and 2929.12, it is presumed that the trial court gave proper consideration to those

statutes.” (Alterations omitted.) State v. Steidl, 9th Dist. Medina No. 10CA0025-M, 2011-Ohio-
                                                20


2320, ¶ 13, quoting Kalish at ¶ 18, fn. 4. The trial court wrote in its sentencing entry that, in

imposing Dukles’ term of imprisonment, the court found that the term “would adequately punish

[Dukles] and/or protect the public from future crimes by [him] * * *.” The court’s statement is

derived directly from the purposes of felony sentencing outlined in R.C. 2929.11. Accordingly,

the language in the court’s entry belies Dukles’ assertion that the court failed to consider R.C.

2929.11 and 2929.12 in imposing his sentence.

       {¶46} The record also reflects that there was a pre-sentence investigation report (“PSI”)

completed in this matter.    Both attorneys and the court referenced the PSI at sentencing.

Moreover, the court clearly relied on it, as the court discussed at sentencing Dukles’ prior

convictions, the fact that he was a “high-risk offender” based “on the ORAS score,” and the

number of rule infractions Dukles had incurred while incarcerated. The record, however, does

not contain the PSI. “When a trial court has clearly relied upon a PSI in imposing a sentence, a

defendant challenging his sentence bears the burden of ensuring that the PSI is included in the

appellate record. In the absence of a complete record, this Court has no choice but to presume

regularity.” (Internal citations omitted.) State v. Linde, 9th Dist. Summit No. 26714, 2013-

Ohio-3503, ¶ 23. Dukles failed to ensure that the appellate record contained his PSI. “Given the

record before us, we cannot conclude that the trial court failed to consider the appropriate

sentencing factors before sentencing [Dukles] or that its decision to sentence [Dukles] to more

than the [minimum] prison term * * * constituted error.” Id. at ¶ 24. Dukles’ fifth assignment of

error is overruled.

                              Assignment of Error Number Seven

       THE COURT ERRED BY NOT GRANTING THE JAIL TIME CREDIT
       REQUESTED IN MR. DUKLES’ PRO SE MOTION.
                                                 21


       {¶47} In his seventh assignment of error, Dukles argues that the court erred by not

granting his pro se motion for jail-time credit. We disagree.

       {¶48} This Court has held that

       a motion to correct [jail-time credit] is appropriate only where the alleged error
       involves a mistake other than an allegedly erroneous legal determination. Absent
       any evidence that the trial court was required to grant credit for time served where
       it granted none, or intended to grant a different amount of credit than it awarded, a
       motion to correct is not appropriate. Absent such evidence, the defendant is
       essentially challenging an allegedly erroneous legal determination, which
       challenge is properly launched only upon appellate review.

State v. Harbert, 9th Dist. Summit No. 20955, 2002-Ohio-6114, ¶ 17. See also State v. Clark,

9th Dist. Summit No. 26673, 2013-Ohio-2984, ¶ 15-17 (trial court lost jurisdiction to award

further jail-time credit once appeal had been filed). In his pro se motion for jail-time credit,

Dukles argued that he did not receive all the credit to which he was entitled because the court

failed to count the days he spent incarcerated on the post-release control violation charges that

resulted from his fight with Diluzio. Dukles’ motion, therefore, was premised upon the trial

court having made an erroneous legal determination in its jail-time credit calculation, not simply

a mistake. Accordingly, the proper way for Dukles to challenge the alleged error was by way of

appeal. Harbert at ¶ 17. As such, the trial court did not err by failing to grant his motion for jail-

time credit. Dukles’ seventh assignment of error is overruled.

                                                 III

       {¶49} Dukles’ assignments of error are overruled. The judgment of the Medina County

Court of Common Pleas is affirmed.

                                                                                 Judgment affirmed.
                                                22


       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.



                                                     BETH WHITMORE
                                                     FOR THE COURT


CARR, P. J.
CONCURS.

BELFANCE, J.
CONCURRING IN JUDGMENT ONLY.

       {¶50} I concur in the majority’s judgment.

       {¶51} The premise of Mr. Dukles’ fourth assignment of error is that, in the initial entry

reflecting the verdict, the trial court acquitted him of count one and, because of that, the trial

court could not alter the entry with a nunc pro tunc as such would violate his right against double

jeopardy. However, because I would conclude that Mr. Dukles’ premise is faulty, I agree that his

assignment of error is properly overruled. The journal entry ruling on Mr. Dukles’ Crim.R. 29

motion states that the motion is well taken with respect to Count II but not well taken with
                                                 23


respect to Counts I and III. Accordingly, in that same entry, the trial court ordered a judgment of

acquittal with respect only to Count II. Following the bench trial, the trial court entered an entry

reflecting the verdict. In that entry, the trial court discussed events that had already taken place,

stating “[t]he Court granted the [Crim.R. 29] motion as to Count I, but denied it as to Counts II

and III.” (Emphasis added.)        Unfortunately, the trial court inaccurately relayed what it had

ordered in the entry ruling on Mr. Dukles’ Crim.R. 29 motion. Mr. Dukles interprets the above

quoted phrase as granting a judgment of acquittal on Count I.             I cannot agree with that

interpretation. The above quoted language does not order an acquittal; instead, it inaccurately

reflects a prior order of the trial court. Further, there is no entry that states that the trial court

grants a judgment of acquittal on Count I. Accordingly, I cannot conclude that the trial court

ever acquitted Mr. Dukles on Count I. As such, Mr. Dukles’ argument concerning double

jeopardy must also fail.

       {¶52} With respect to Mr. Dukles’ fifth assignment of error, I agree that it is properly

overruled. Mr. Dukles appears to argue that the trial court improperly weighted the factors in

R.C. 2929.12 and, as a result, imposed an unreasonably harsh sentence. However, because Mr.

Dukles has not included the PSI in the record, which was considered at sentencing, this Court

cannot know the totality of the information before the trial court in rendering its sentence.

Accordingly, this Court must presume that the trial court, in evaluating all the evidence before it,

properly considered and weighed the factors at issue in arriving at a sentence. See, e.g., State v.

Weems, 9th Dist. Summit No. 26532, 2013-Ohio-2673, ¶ 10.

APPEARANCES:

SEAN BUCHANAN, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and MATTHEW A. KERN, Assistant Prosecuting
Attorney, for Appellee.
