State v. Jackson

                                                                   [Cite as State v. Jackson,

.]
                             COURT OF APPEALS OF OHIO

                           EIGHTH APPELLATE DISTRICT
                              COUNTY OF CUYAHOGA


STATE OF OHIO,                                :

                  Plaintiff-Appellee,         :
                                                            No. 112949
                  v.                          :

STANLEY JACKSON,                              :

                  Defendant-Appellant.        :


                             JOURNAL ENTRY AND OPINION

                  JUDGMENT: AFFIRMED
                  RELEASED AND JOURNALIZED: March 14, 2024


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                            Case No. CR-22-676089-A


                                        Appearances:

                  Michael C. O’Malley, Cuyahoga County Prosecuting
                  Attorney, and Chauncey Keller and Ryan Bokoch,
                  Assistant Prosecuting Attorneys, for appellee.

                  Scott J. Friedman, for appellant.

EILEEN A. GALLAGHER, P.J.:

                  Defendant-appellant, Stanley Jackson, appeals his convictions on 34

counts arising from three incidents, following a jury trial. He contends that the trial

court committed plain error by failing to sever, for trial, the charges relating to each
incident; that he was denied the effective assistance of counsel because his trial

counsel failed to request severance of the charges and that the trial court erred in

imposing sentences on firearm specifications attached to three having weapons

while under disability charges because the state failed to present evidence of the date

Jackson was released from prison or completed postrelease control on a prior

offense. For the reasons that follow, we affirm.

I. Factual Background and Procedural History

             On November 16, 2022, a Cuyahoga County Grand Jury indicted

Jackson on 34 counts: five counts of aggravated robbery, 11 counts of kidnapping,

one count of grand theft, three counts of having weapons while under disability, one

count of carrying a concealed weapon, two counts of disrupting public services, one

count of arson, two counts of improperly handling firearms in a motor vehicle, seven

counts of rape and one count of aggravated arson. Many of the counts included

specifications,   including   firearm   specifications,   repeat    violent   offender

specifications, sexual motivation specifications, sexually violent predator

specifications, notice of prior conviction specifications and forfeiture of weapon

specifications.   The charges arose from three incidents that allegedly occurred on

May 24, 2022, June 1-2, 2022 and July 28, 2022. Jackson pled not guilty to all

charges and the case proceeded to trial.

             Jackson waived his right to a jury trial on the having weapons while

under disability charges, the notice of prior conviction specifications, the repeat

violent offender specifications, the sexual motivation specifications, the sexually
violent predator specifications and the 18-month and 54-month firearm

specifications. The remaining charges were tried to a jury. A brief summary of facts

relevant to this appeal, as presented at trial, follows.

      A. May 24, 2022 Incident

             On the evening of May 23, 2022, A.A. picked up a friend, D.M., in her

2008 Honda CRV and drove to the parking lot of Charles Dickens Elementary

School in Cleveland. A.A. testified1 that she and D.M. sat in the car, listening to

music and looking up at the stars, until the early morning hours of May 24, 2022.

While they were in the car, a black male wearing a mask and black clothing tapped

on the window with a gun. The man ordered A.A. and D.M. out of the car. They

complied. The man demanded money. They told him they had none. He then put

on gloves, took their cell phones out of the car and smashed them on the ground.

Pointing the gun at the couple, he ordered them to take off their clothes and shoes

and then walk while he followed them in A.A.’s vehicle. Again, they complied. After

they walked for approximately one block, the man drove away in A.A.’s vehicle.

             After the man drove off, A.A. and D.M walked back to the school,

attempting to retrieve their clothing. They discovered the man had taken their

clothing but had left their shoes. They put on their shoes and walked to the home of

a friend of D.M. A.A. then called her mother, who picked her up and took her home,

and called the police. A.A. stated that she could not identify her assailant.




      1 D.M. did not testify at trial.
             A.A. testified that a few days after the incident, while she was on a break

at work, she saw someone driving her car on Euclid Avenue in Cleveland and notified

police.   A few weeks later, her car was recovered by police, undriveable and

unrepairable, with fire damage. A.A. testified that she did not know anyone named

Stanley Jackson and that there was no reason why his DNA or anything belonging

to him should be in her car.

       B. June 1-2, 2022 Incident

             On the evening of June 1, 2022, B.T. and her then four-year-old son,

D.T., accompanied B.T.’s friend, N.D., while N.D. delivered food for Door Dash. B.T.

and N.D. testified that around 11 p.m. on June 1, 2022 or midnight on June 2, 2022,

N.D. drove her car, a white 2012 Lincoln MZK, to a secluded parking lot near

Kinsman Road in Cleveland, and B.T. and N.D. exited the vehicle to go to the

bathroom while D.T. remained in the backseat of the car, asleep. While the women

were out of the car, a masked, dark-skinned black male with a gun approached them

and ordered them to get into the car. The man (whom B.T. later identified as

Jackson) was wearing a black mask, black clothing, white or clear plastic gloves and

dingy white shoes. The women complied with that demand. N.D. sat in the driver’s

seat, B.T. sat in the front passenger seat and Jackson sat in the backseat with B.T.’s

son.

             B.T. and N.D. testified that Jackson ordered the women to give him

their phones and demanded cash. N.D. testified that she gave him the $20 or $30

in cash she had, but B.T. had only a bank card, so he ordered N.D. to drive to several
ATMs in order that B.T. could withdraw cash from her accounts using her bank card.

As they traveled in the vehicle, Jackson kept his gun pointed at B.T. B.T. testified

that she withdrew approximately $900 in multiple transactions, which she gave to

the Jackson. At one point, Jackson fired the gun out the car window, causing the

women to scream. Jackson then ordered N.D. to drive to an empty field near East

116th Street and Kinsman, ordered the women to get out of the car and to walk

toward the field, following behind them with the gun in his hand. The women

complied. D.T. remained in the back seat of the car, pretending to be asleep.

             B.T. and N.D. testified that once they were in the field, Jackson ordered

them, at gun point, to take off their clothes. He then ordered them to perform oral

sex on one another, and he raped both women, twice. B.T. testified that, at first,

Jackson was wearing a condom, but he later removed it. At all times, the gun was

next to Jackson, within his reach. After raping the women, Jackson walked to

another car, a small bluish-grey SUV (later identified as the vehicle that had been

stolen from A.A.), that was parked nearby and he retrieved a can of gasoline or

lighter fluid. B.T. screamed and begged Jackson to allow her to get her son out of

the car. After several minutes, Jackson told B.T. to pick up the clothing they had

removed, bring it to N.D.’s car and get D.T. out of the car. She did so. Jackson then

ordered N.D., B.T. and D.T. back to the field. He poured gasoline or lighter fluid on

N.D.’s car and ignited it with a lighter, setting N.D.’s car on fire.

               After Jackson drove away in the SUV, B.T., D.T., and N.D. ran to a

house next to the field where N.D.’s “auntie” lived. The woman allowed them entry,
provided clothing to the naked women and allowed B.T. use her phone to call her

mother and 911. Police, fire and EMS responded and the women were taken to the

hospital where sexual assault examinations were performed on B.T. and N.D.

             Neither B.T. nor N.D. identified Jackson in a photo array as the

perpetrator. However, B.T. identified Jackson in court as the man who had robbed

and assaulted them. B.T. testified that she had seen Jackson earlier that evening —

before they pulled into the parking lot to go to the bathroom—walking on the

sidewalk along Kinsman Road. At that time, he was not wearing a mask. N.D.

testified that she had also seen the man earlier that evening, i.e., he had walked past

the car when she was stopped at a stop sign on the corner of East 117th Street and

Kinsman Road. She stated that she noticed the man because “he looked weird,”

wearing a mask and gloves when “[i]t was nice outside.” N.D. testified that she did

not see his full face, just his eyes and lips. The women did not know Jackson and

had never seen him before that evening.

      C. July 28, 2022 Incident

              During the evening hours of July 27, 2022, K.C. went out to dinner and

then to a bar. K.C. testified that at approximately 2:00 a.m., she left the bar and

drove toward East 93rd Street and Kinsman Road to pick up her child from the

babysitter. As she was driving, she realized she was tired and “a bit overintoxicated,”

so she pulled over to the side of the road on East 143rd Street, with her car windows

“cracked open,” to “rest [her] eyes for a second.” While she was on the phone with

a friend, she dozed off. She awoke to a man (later identified as Jackson) entering
her car through the front passenger-side door with a gun. He had accessed the car,

a black Q8 Audi, through the cracked-open window. She stated that Jackson wore

a blue “COVID-19” medical mask, black or dark clothing and blue medical gloves.

              K.C. testified that Jackson sat in the front passenger seat, took her

bank card from her purse and ordered her, at gunpoint, to drive to an ATM. She

complied. She withdrew $500 from her account, her ATM daily limit, and gave it to

Jackson.

              K.C. testified that Jackson ordered her to continue driving and

ultimately told her to stop the car and park. He spoke to her about his children and

about how she looked and was dressed. Jackson then ordered K.C. to get into the

backseat of the car and remove her clothes. When K.C. told Jackson he did not have

to do this, he fired the gun and shot out her sunroof. Jackson raped her in the car.

K.C. stated that, at first, Jackson took a glove off and put it on his penis, but later

removed it as he raped her. K.C. then “blacked out a little bit.”

              K.C. testified that after Jackson raped her, he rubbed her vagina with

a car-cleaning cloth that had been in her vehicle, then sprayed air freshener on

surfaces he had touched and wiped them down with the cloth. K.C. got back into the

driver’s seat and Jackson ordered her to look straight ahead. K.C. complied. K.C.

continued looking straight ahead as Jackson left the car. K.C. grabbed her phone to

take a picture of where she was, i.e., East 116th Street and Union Avenue in

Cleveland, then drove to the nearest location where there were other people at a gas

station and called police. K.C. stated after he left the car, she saw Jackson on the
side of the road, riding a bike. Police and EMS responded, and K.C. was taken to the

hospital where a sexual assault examination was performed. K.C. identified Jackson

in court as the man who had robbed and assaulted her. She stated that even though

he was wearing a mask, she could tell he was bald from “touching on him,” that he

had facial hair “from the puffiness from his mask” and that she remembered his tired

“[b]rown dark eyes.” She said, “I made sure I got a good look if he was going to kill

me that day.” K.C. testified that she did not know Jackson and that there would be

no reason why his DNA would be on anything associated with her or her car.

              In addition to the victims, the state presented testimony from N.D.’s

“auntie,” responding police officers, a fire investigator, nurses who performed the

sexual assault examinations of B.T., N.D. and K.C. and police officers and detectives

who were involved in investigating the incidents, recovering and securing evidence

and/or arresting Jackson.      The state also introduced, among other things,

surveillance footage capturing portions of the incidents, photographs of the scenes

of the incidents and the vehicles involved, the sexual assault examination kits and

medical records, items recovered from the scenes of the incidents, from A.A.’s

vehicle and lab reports documenting the results of forensic analysis.

      D. Items Recovered from A.A.’s Vehicle

             A.A.’s vehicle, a 2008 Honda CRV, was recovered by police on June 16,

2022, after it had been burnt and abandoned. When the vehicle was processed,

police found several items in the vehicle that were ultimately linked to Jackson,

including a cigarette butt, a latex glove, a pair of jeans and a Taco Bell employee
timecard receipt. The employee timecard receipt was dated May 28-29, 2022, had

the name “Stanley Jackson” on it and included a store number associated with the

Taco Bell Cantina at Public Square in Cleveland. Police contacted the restaurant and

learned that Jackson had been employed there. Jackson was later arrested at the

restaurant when a detective, pretending to be a manager of the restaurant, contacted

Jackson and made arrangements with him to pick up a final “paycheck” at the

restaurant.

      E. DNA Evidence

              The state presented evidence that Jackson’s DNA profile matched

DNA found on the latex glove recovered from A.A.’s stolen vehicle that was three

nonillion times (outer surface of the glove) and 563 octillion times (interior surface

of the glove) more probable than a coincidental match to an unrelated African-

American person and matched DNA found on the cigarette butt recovered from

A.A.’s stolen vehicle that was 349 billion times more probable than a coincidental

match to an unrelated African-American person.

              The state presented evidence that Jackson’s DNA profile matched

DNA found in two samples collected as part of B.T.’s sexual assault kit that were

168,000 times and 1.19 billion times more probable than a coincidental match to an

unrelated African-American person and matched DNA found in the sperm fraction

of vaginal swabs collected in K.C.’s sexual assault kit that was 2.49 nonillion times

more probable than a coincidental match to an unrelated African-American person.
      F. Jackson’s Testimony

              Jackson testified in his defense. He denied committing any of the acts

of which he was accused relating to the May 24, 2022 incident, including forcing

A.A. and D.M. to undress, taking their cell phones, stealing A.A.’s vehicle or setting

fire to the vehicle. As a possible explanation for the presence of his DNA or items

belonging to him in A.A.’s stolen vehicle, Jackson claimed that his cousins had

driven similar vehicles and that he had previously ridden in one of their cars.

Jackson testified that the timecard receipt from Taco Bell and the latex glove

containing his DNA must have fallen out of his pocket when he reached for his wallet

to pay the driver for giving him a ride to or from work. Jackson acknowledged that

the jeans which police had recovered from A.A.’s vehicle belonged to him, but he

claimed that he had given them to his cousin.

              Jackson likewise denied kidnapping B.T., N.D. or K.C. at gunpoint,

sexually assaulting them or setting fire to N.D.’s car. Jackson admitted to having

had sex with B.T. and K.C. (but not N.D.) and claimed that he had met the women

through an escort app or website, that he had paid them for sex and that the sex was

consensual. Jackson stated that the women had fabricated the rape charges after a

dispute arose regarding payment.

              The jury returned guilty verdicts on all charges tried to the jury. The

trial court returned guilty verdicts on all charges and specifications tried to the

bench. In June 2023, the trial court sentenced Jackson to an aggregate prison term
of 376.5 years to life. Jackson was also designated a violent offender, arson offender

and a Tier III sex offender.

               Jackson appealed, raising the following three assignments of error for

review:

      Assignment of Error 1: The trial court committed plain error when it
      failed to order separate trials.

      Assignment of Error 2: The Appellant was denied the effective
      assistance of counsel, in derogation of his rights under the Sixth
      Amendment to the United States Constitution, and Article I, Section 10
      of the Ohio Constitution.

      Assignment of Error 3: The trial court erred when it imposed a prison
      sentence for firearm specifications for a violation of R.C. 2923.13,
      having a weapon under disability.

II. Law and Analysis

      A. Failure to Sever the Charges

               In his first assignment of error, Jackson argues that the trial court

committed plain error in failing to, sua sponte, sever the charges relating to each of

the three incidents for trial.

               Crim.R. 8(A) governs the joinder of offenses in a single indictment.

Under Crim.R. 8(A), two or more offenses may be charged together if the offenses

“are of the same or similar character, or are based on the same act or transaction, or

are based on two or more acts or transactions connected together or constituting

parts of a common scheme or plan, or are part of a course of criminal conduct.”

               The law favors joining multiple offenses in a single trial if the

requirements of Crim.R. 8(A) are satisfied. State v. Lott, 

, 

 (1990). “Joinder is liberally permitted to conserve judicial resources,

reduce the chance of incongruous results in successive trials, and diminish

inconvenience to the witnesses.” State v. Schaim, 

, 

 (1992), citing State v. Torres, 

, 

 (1981),

and 2 LaFave & Israel, Criminal Procedure, Section 17.1, 354-355 (1984). And “[i]n

some circumstances, “‘the defendant may prefer the disadvantages of joinder to the

harassment, delay, trauma, and expense of multiple prosecutions.”’” 

,

quoting 

, quoting 2 ABA Standards for Criminal Justice, Section 13-

2.1, 13.14 (2d Ed.1980).

              Crim.R. 14, however, requires separate trials when it appears joinder

would result in prejudice. The rule states, in relevant part: “If it appears that a

defendant or the state is prejudiced by a joinder of offenses … in an indictment

…, the court shall order an election or separate trial of counts … or provide such

other relief as justice requires.” “Severance may be warranted if the trial court finds

a serious risk that a joint trial would prevent the jury from making a reliable

judgment about guilt or innocence.” State v. Jackson, 8th Dist. Cuyahoga No.

102394, 

, citing United States v. Zafiro, 

, 

, 

 (1993); see also State v. Williams, 8th Dist. Cuyahoga No.

112481, 

 (“Generally, joinder is disfavored where the jury could

potentially confuse the issues and the facts essential to the elements of the distinct

crimes.”). Under Crim.R. 12, a request for severance under Crim.R. 14 must be

raised before trial. Crim.R. 12(C)(5), (H)
               It is the defendant’s burden to affirmatively demonstrate that joinder

is prejudicial. State v. Gordon, 

, 

, 

, quoting Torres at syllabus; State v. Woods, 8th Dist. Cuyahoga Nos. 112579

and 112580, 

. The defendant has “‘the burden of furnishing the

trial court with sufficient information so that it can weigh the considerations

favoring joinder against the defendant’s right to a fair trial.’” State v. Spaulding, 

, 

, 

, ¶ 62, quoting 

. “But

even if the equities appear to support severance, the state can overcome a

defendant’s claim of prejudicial joinder” by showing either that (1) it could have

introduced evidence of the joined offenses as other-acts evidence under Evid.R.

404(B) (the “other acts test”) or (2) the “‘evidence of each crime joined at trial is

simple and direct’” (the “simple and direct test” or “joinder test”). State v. Ford, 

, 

, 

, ¶ 104, quoting 

; see also

 (“When a defendant claims that he was prejudiced by the joinder of

multiple offenses, a court must determine (1) whether evidence of the other crimes

would be admissible even if the counts were severed, and (2) if not, whether the

evidence of each crime is simple and distinct.”).

      1. Standard of Review

               Ordinarily, an appellate court reviews a denial of severance under

Crim.R. 14 for abuse of discretion. Spaulding at ¶ 63, citing State v. Hand, 

, 

, 

, ¶ 166. Where, as here, however, the

defendant did not object to joinder and did not file a Crim.R. 14 motion for severance
in the trial court, we review a claim of prejudicial joinder for plain error. Gordon,

, 

, 

; Lott, 

, 

; State v. Miller, 8th Dist. Cuyahoga No. 111785, 2023-Ohio-

1141, ¶ 83; see also Woods at ¶ 27 (“If a defendant fails to timely file his or her motion

[under Crim.R. 14], the right to severance of a trial is deemed waived.”), citing State

v. Day, 8th Dist. Cuyahoga No. 108435, 

, ¶ 69, citing State v.

O’Neal, 6th Dist. Lucas No. L-92-279, 

, 2 (Aug. 6, 1993);

Crim.R. 12(H) (“Failure by the defendant to raise defenses or objections or to make

requests that must be made prior to trial … shall constitute waiver of the defenses

or objections ….”).

               Crim.R. 52(B) provides that “[p]lain errors or defects affecting

substantial rights may be noticed although they were not brought to the attention of

the court.” Plain error is an obvious error or defect in the trial court proceedings

that affects a substantial right. State v. Rogers, 

, 2015-Ohio-

2459, 

. Reversal for plain error requires a showing that there

was an error, that the error was obvious and that “there is ‘a reasonable probability

that the error resulted in prejudice,’ meaning that the error affected the outcome of

the trial.” (Emphasis deleted.) State v. McAlpin, 

, 2022-Ohio-

1567, 

, quoting 

. The party asserting plain error

“bears the burden of proof to demonstrate plain error on the record.” 

, citing State v. Quarterman, 

, 

, 

. An appellate court notices plain error ‘“with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.’”

State v. Barnes, 

, 

 (2002), quoting State v.

Long, 

, 

 (1978), paragraph three of the syllabus.

              Jackson argues that the offenses relating to each incident should have

been severed for trial because (1) the case involved “three separate incidents

involving different victims,” (2) Evid.R. 404(B) and R.C. 2907.02(D) would have

“prohibited evidence of all three incidents” if there had been separate trials and (3)

“the evidence was not simple and direct” and “tended to blur together, due to the

similarity of the allegations.”

               The state responds that Jackson’s convictions should be affirmed

because Jackson “fails to assert his claim through the appropriate standard of

review” and, thereby, “fails to articulate a viable basis for relief.” The state further

asserts that joinder of the offenses was proper because (1) the other-acts evidence

was admissible under Evid.R. 404(B) as evidence of modus operandi, as evidence of

a common scheme or plan or to refute Jackson’s claim that he did not rape B.T.,

N.D. and K.C. and (2) the state’s evidence was simple and direct.

          2. Admissibility of Evidence as Other-Acts Evidence

               Pursuant to Evid.R. 404(B)(1), “[e]vidence of any other crime, wrong,

or act is not admissible to prove a person’s character in order to show that on a

particular occasion the person acted in accordance with the character.”2 In general,


      2 Jackson also claims that evidence of the other incidents would have been
inadmissible under R.C. 2907.02(D). That provision states, in relevant part:
“[e]vidence that [a defendant] committed a crime other than the one for which he is

on trial is not admissible when its sole purpose is to show the accused’s propensity

or inclination to commit crime or that he acted in conformity with bad character.”

State v. Williams, 

, 

, 

.

However, evidence of other crimes, wrongs, or acts may be admissible “for another

purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident.” Evid.R. 404(B)(2).

               “The key is that the evidence must prove something other than the

defendant’s disposition to commit certain acts. Thus, while evidence showing the

defendant’s character or propensity to commit crimes or acts is forbidden, evidence



      Evidence of specific instances of the defendant’s sexual activity … shall not
      be admitted under this section unless it involves evidence of the origin of
      semen, pregnancy, or sexually transmitted disease or infection, the
      defendant’s past sexual activity with the victim, or is admissible against the
      defendant under section 2945.59 of the Revised Code, and only to the extent
      that the court finds that the evidence is material to a fact at issue in the case
      and that its inflammatory or prejudicial nature does not outweigh its
      probative value.

However, Jackson concedes that “[t]he rules of evidence and R.C. 2945.59 provide
exceptions to this rule, and allow the admission of ‘other acts’ evidence to prove motive,
opportunity, intent preparation, plan, knowledge, identity, or absence of mistake or
accident.” (Appellant’s Br. at 11.) R.C. 2945.59 states:

      In any criminal case in which the defendant’s motive or intent, the absence
      of mistake or accident on his part, or the defendant’s scheme, plan, or system
      in doing an act is material, any acts of the defendant which tend to show his
      motive or intent, the absence of mistake or accident on his part, or the
      defendant’s scheme, plan, or system in doing the act in question may be
      proved, whether they are contemporaneous with or prior or subsequent
      thereto, notwithstanding that such proof may show or tend to show the
      commission of another crime by the defendant.

Accordingly, we do not further address R.C. 2907.02(D) here.
of other acts is admissible when the evidence is probative of a separate,

nonpropensity-based issue.” State v. Hartman, 

, 2020-Ohio-

4440, 

.

              For other-acts evidence to be admissible: (1) the other-acts evidence

must be relevant under Evid.R. 401; (2) the other-acts evidence must be introduced

for a purpose other than proving propensity, such as one or more of the permitted

purposes set forth in Evid.R. 404(B)(2) and (3) the probative value of the other-acts

evidence must not be substantially outweighed by the risk of unfair prejudice,

confusion of the issues or misleading the jury under Evid.R. 403(A). 

; 

; Miller, 

.

               Evidence is relevant if it has “any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or

less probable than it would be without the evidence.” Evid.R. 401. In the Evid.R.

404(B) context, however, “the inquiry is not whether the other-acts evidence is

relevant to the ultimate determination of guilt.” 

. The proffered

evidence must relevant to a legitimate nonpropensity purpose and the

nonpropensity purpose for which the evidence is offered “must go to a ‘material’

issue that is actually in dispute between the parties.” Id. at ¶ 26-27; see also State v.

Smith, 

, 

, 

 (“[T]he relevance

examination asks whether the proffered evidence is relevant to the particular

purpose for which it is offered, as well as whether it is relevant to an issue that is

actually in dispute.”).
              Courts are precluded from admitting improper character evidence

under Evid.R. 404(B) but have discretion to admit other-acts evidence that is

admissible for a permissible purpose. 

, citing 

;

.

      3. Simple and Direct Evidence

              Evidence is “simple and direct” if the trier of fact is capable of

segregating the proof required for each offense. State v. Belle, 8th Dist. Cuyahoga

Nos. 107046 and 107300, 

, citing State v. Gravely, 

, 

, 

 (10th Dist.). The object of the

“simple and direct” test is to prevent the jury from improperly considering evidence

of various crimes as corroborative of one another. State v. Echols, 

, 

 (1st Dist.1998). “‘“The very essence of the rule is that the

evidence be such that the jury is unlikely to be confused by it or misuse it.”’”

State v. Abudu, 8th Dist. Cuyahoga No. 111837, 

, ¶ 29, quoting

Echols, 

, 

, quoting Drew v. United States, 

 (D.C.Cir.1964). “‘Ohio appellate courts routinely find no prejudicial

joinder where the evidence is presented in an orderly fashion as to the separate

offenses or victims without significant overlap or conflation of proof.”’ State v.

Echols, 8th Dist. Cuyahoga No. 102504, 

, quoting State v.

Lewis, 6th Dist. Lucas Nos. L-09-1224 and L-09-1225, 

, ¶ 33.
         4. Jackson’s Arguments Relating to Severance

              In support of his claim that the trial court erred in failing to sever the

offenses and hold separate trials on the offenses relating to each incident, Jackson

relies on three cases, which he claims contain “a fact pattern similar to the one in

this case”: State v. Quinones, 11th Dist. Lake No. 2003-L-015, 

;

State v. Frazier, 8th Dist. Cuyahoga No. 83024, 

; and Schaim, 

, 

. These cases are readily distinguishable from this

case.

              In Quinones, the defendant was convicted of four counts of gross

sexual imposition. Quinones at ¶ 1. The charges arose from allegations of improper

sexual contact between the defendant and his nine-year-old granddaughter during

1999-2000 and allegations of sexual conduct and sexual contact with the eight-year-

old daughter of a previous girlfriend during 2000-2001. Id. at ¶ 2-5, 8-9. The

Eleventh District held that the trial court had committed plain error when it failed

to hold separate trials on the offenses relating to each victim based on prejudicial

joinder. Id. at ¶ 47, 55. The court determined that evidence of the other child’s

allegations of abuse, “which occurred at a wholly different time period and involved

a separate set of circumstances,” would not have been admissible if the offenses

relating to each victim had been tried separately because there was “no distinct

pattern of abuse or relationship to the offenses that would permit the overlapping of

the evidence.” Id. at ¶ 47.
              The court also found that the evidence relating to the two victims was

not “simple and direct.” The court indicated that because both child victims alleged

that the defendant “inappropriately touched them on their ‘private parts’” and both

described an incident that took place on a couch, while watching television or a

movie, the jury could “readily confuse” the evidence related to one child’s allegations

with that of the other and “consider[] evidence of each child’s accusations as

corroborative of the other.” Id. at ¶ 48-49. The court also determined that the

manner in which the state presented its witnesses, i.e., the “continual change of

attention” between the two victims’ allegations against the defendant, “further

mingled the evidence in the case,” “creat[ing] an extremely difficult task, at best, for

the jury to keep the allegations separate when rendering the verdicts.” Id. at ¶ 50.

That is not the situation here.

              Frazier, 

, which was not a plain error case, also

involved sex crimes against young children. In that case, the defendant was indicted

in two separate cases and charged with sex-related offenses against two young

relatives, who were 8 and 11 at the time of the alleged offenses. Id. at ¶ 2-3. Over

the defendant’s objection, the trial court granted the state’s motion to join the two

indictments, and the case proceeded to a jury trial. Id. at ¶ 4.

              The first victim testified that, during two separate incidents in 1996,

the defendant grabbed her arm, put her in his room, pushed her on his bed and

raped her when she went to his apartment on errands for her grandmother. Id. at

¶ 5.   The second victim also testified regarding two incidents involving the
defendant. She testified that in December 2001, while she was watching television

at the defendant’s house, the defendant “put [her] on the wall” and put his hand

underneath her shirt “going towards [her] chest.” Id. at ¶ 6. She testified that in

January 2002, the defendant came to her apartment and that, while she was sitting

on the couch watching television, the defendant sat next to her, grabbed her arm,

put his hand on her knee in an attempt to separate them, and said, “Let’s do it.” Id.

She indicated that she refused, pushed the defendant away and told him to leave the

apartment, which he did. Id.

              As to first victim, the jury found the defendant guilty of two counts of

kidnapping, two counts of rape and two counts of gross sexual imposition. Id. at ¶ 8.

As to the second victim, the jury found the defendant guilty of kidnapping,

attempted gross sexual imposition and attempted rape. Id. On appeal, this court

reversed and remanded the case for new, separate trials for each victim. Id. at ¶ 22.

              With respect to whether the defendant’s other acts would have been

admissible if the offenses against each victim been tried separately, the opinion —

as to which two of the three panel members concurred in judgement only — stated

that the second victim’s testimony regarding the defendant’s sexual conduct towards

her would not have been admissible to prove that the defendant raped the first

victim because “[w]hat happened between [the defendant and the second victim]

was not relevant to the rape charge involving [the first victim].” Id. at ¶ 16. The

opinion acknowledged that “[a]s pertains to the testimony of [the first victim]

regarding the offenses involving [the first victim], evidence that [the defendant]
exhibited a pattern of isolating young relatives for the purpose of sexual gratification

may be admissible” but that “[e]ven if appropriately limited, … any testimony

regarding the rape of [the first victim] would be inadmissible because the prejudice

to [the defendant] would outweigh its probative value.” Id.

                  With respect to whether “a finding of prejudice [was] precluded”

because the evidence was “simple and distinct,” the opinion stated:

       We make no such finding. … [T]he offenses in this case are highly
       inflammatory in nature. Sexually-related offenses elicit emotional
       outrage, even more so when those offenses involve children. This,
       combined with the fact that the offenses against each victim varied in
       degree and that the testimony by each victim was similar, the fact-finder would have had a very difficult time looking at the evidence
       supporting each offense as simple and distinct because the temptation
       would be too great to respond to the evidence emotionally rather than
       rationally.

Id. at ¶ 17-18.

                  The opinion concluded that the first victim’s testimony prejudiced the

defendant because the second victim’s testimony was not sufficient to demonstrate

a “substantial step” toward rape, as required for a conviction for attempted rape. Id.

at ¶ 19. The opinion explained:

       Notwithstanding that the trial court ignored the law regarding
       attempted rape, the jury most likely would not have convicted appellant
       for this offense involving Victim II but for the otherwise inadmissible
       testimony regarding the rape of Victim I. Victim I’s testimony was that
       appellant was seated next to her on a sofa, put his hand on her knee,
       grabbed her arm and said, “Let’s do it.” When Victim II refused, she
       pushed away from appellant and he left the apartment. On this
       evidence, there could be no “substantial step” toward rape as is
       required to support a conviction for attempted rape.… Had these
       offenses against each of the victims been tried separately and evidence
       of other acts appropriately limited, it is unlikely that appellant would
       have been convicted of attempted rape. Instead, the jury heard the
       details of the evidence supporting the charges of rape involving Victim
       I, and most likely, concluded that appellant had the propensity to
       commit the same crime against Victim II on evidence that would
       otherwise be insufficient to support a conviction for attempted rape.

Id. at ¶ 19. This is not that case. See also State v. Woodruff, 1st Dist. Hamilton Nos.

C-140256 and C-140257, 

, ¶ 14 (finding “the logic of Frazier to be

flawed” and “declin[ing] to follow it,” stating: “As we understand the second part of

the joinder test, the focus is not on the emotional impact of the evidence but on the

potential for juror confusion. We cannot presume that just because evidence may

garner a strong emotional response that jurors are incapable of segregating the

evidence in their minds. To accept the logic of Frazier would mean that sex counts

could rarely be joined, because the evidence will often be inflammatory. Instead we

believe the same rules on joinder should apply in sex cases as in any other case.”)

               In Schaim, 

, 

 — also not a plain error

case — a single indictment charged the defendant with sexual offenses against three

different victims, i.e., two counts of forcible rape involving the defendant’s 20-year-

old adopted daughter, one count of gross sexual imposition involving the

defendant’s young, minor daughter and two counts of sexual imposition involving

an adult employee. 

. The trial court denied the defendant’s motion to sever

the case into three different trials, each involving the charges against a single victim.

Id. at ¶ 54, 58.

               The adult daughter testified that the defendant had subjected her to a

pattern of sexual abuse that began when she was a preteen, that her father regularly
gave her back rubs, which became a prelude to sexual fondling when she was ten or

eleven years old and which thereafter escalated to a variety of sexual acts. The adult

daughter testified that her father had vaginal intercourse with her twice when she

was 20 and that she did not consent but that, based on her history with him, she “felt

like if [she] didn’t do it, [she] would be punished for it.” Id. at 52.

               The defendant’s minor daughter testified that her father regularly

gave her backrubs and that, on one occasion, he touched her buttock underneath

her underwear during a backrub. Id. at 53. The defendant’s employee testified that

the defendant had, on two occasions, put his hand under her blouse and attempted

to put his hand under her bra. Id.

              Following a jury trial, the defendant was convicted of the forcible rape

of his adult daughter and gross sexual imposition of his minor daughter. The

defendant was acquitted of the sexual imposition charges involving the employee.

Id. at 53. The First District reversed the convictions for forcible rape of the adult

daughter, holding that the state had not proved the defendant used force or threat

of force, but affirmed the conviction for gross sexual imposition involving the minor

daughter. Id. The defendant appealed his conviction for gross sexual imposition,

claiming that the trial court had committed prejudicial error in refusing to grant his

motion to sever the charges for trial, and the state cross-appealed the reversal of the

rape convictions. Id. at 53-54.

               The Ohio Supreme Court affirmed the reversal of the defendant’s

conviction for forcible rape but reversed the defendant’s conviction for gross sexual
imposition. The court remanded the case for a new trial on that count, concluding

that the defendant had been prejudiced by the trial court’s refusal to sever the

charges. Id. at 63, 65. The court concluded that the defendant was prejudiced by

the joinder of the offenses because the evidence presented on the gross sexual

imposition charge was “at best thin” and “barely” sufficient to support a conviction

for gross sexual imposition and joinder of the offenses “allowed the jury to consider

significant amounts of other acts evidence that would not have been admissible if

the charges had been severed for trial.” Id. at 57, 62. The court noted that the

testimony of defendant’s employee would not have been admissible to prove that the

defendant committed any offenses against his daughters and that although, “on the

limited issue of the defendant’s purpose,” the adult daughter’s testimony regarding

the manner in which the defendant’s backrubs led to sexual fondling would be

relevant to prove that the defendant touched the minor’s daughter’s buttock for the

purpose of sexual gratification “this testimony would not include [the adult

daughter’s] testimony concerning the remainder of her father’s alleged sexual acts

because the prejudicial value of the additional testimony would outweigh its

probative value.” Id. at 60-61.

              The court rejected the state’s argument that the defendant was not

prejudiced by joinder under the “simple and direct” test, noting that, in that case,

the court of appeals had apparently confused the adult daughter and minor

daughter’s testimony when considering the sufficiency of the state’s evidence on the

gross sexual imposition charge. Id. at 62. The court stated: “We surely cannot
maintain the fiction that a jury was capable of segregating the evidence when three

judges were not.” Id. at 62-63. “Given the highly inflammatory nature of the

offenses, the similarities between portions of the daughters’ testimony, and the fact

that joinder allowed the state to circumvent the prohibition on other acts

testimony,” the court concluded that “the defendant was prejudiced by the

consolidated trial.” Id. at 63. Once again, this is not that case.

      5. Jackson Has Not Shown Plain Error

              Following a thorough review of the record, we find no plain error here.

The offenses relating to the three incidents were charged together under Crim.R.

8(A) because they were of the “same or similar character” and were “based on two

or more acts or transactions connected together” that were part of a “course of

criminal conduct” occurring in close proximity, in or around the same geographic

area, over a relatively short period of time. Jackson has not shown that the trial

court’s failure to, sua sponte, sever the offenses for trial constituted an obvious error

or that there is a reasonable probability that any alleged error resulted in prejudice,

affecting the outcome of the trial.

          a. Applying the Other-Acts Test and Simple and Direct Test

              First, we are not convinced that evidence of the other offenses would

have been inadmissible other-acts evidence if the offenses related to each incident

here had been tried separately. As detailed above, Jackson used A.A.’s vehicle,

which he stole in the first incident, to facilitate his crimes against B.T. and N.D. in

the second incident. Further, there were a number of striking similarities between
the manner in which the offenses in the three incidents were committed, suggestive

of a modus operandi. Each incident occurred in the early morning hours, involving

one or two vulnerable victims. In each incident, Jackson, wearing all black clothing,

white shoes, a mask and gloves, approached the victims while they were in, or near,

their vehicles, then drew a black firearm, demanded money and threatened the

victims at gunpoint. In each incident, Jackson demanded that the victims remove

their clothing and left the victims of the first and second incidents naked at the

scene.

              In the second and third incidents (where the victims had bank cards),

he forced the victims drive to various ATMs to withdraw money and give it to him.

As he drove with his victims, Jackson demonstrated his willingness to use his

firearm by firing it from inside the vehicle (out an open window in the second

incident and out the sunroof in the third incident) before directing the victims to a

secluded area where he raped them. After he was finished with B.T. and N.D., he set

fire to N.D.’s car. And when A.A.’s car was recovered, it was discovered that it, too,

had been set on fire. “To be admissible to prove identity through a certain modus

operandi, other-acts evidence must be related to and share common features with

the crime in question.” (Emphasis deleted.) State v. Lowe, 

, 

 (1994), paragraph one of the syllabus. Although the crimes differed in

certain respects, “[a]dmissibility is not adversely affected simply because the other

[crimes] differed in some details.” State v. Jamison, 

, 

 (1990). “Slight differences between the current and other acts will not
affect the admissibility of the other-acts evidence as long as it establishes ‘a modus

operandi identifiable with the defendant.’” (Emphasis deleted.) State v. Worley,

, 

, 

, quoting 

.

              In addition, the kidnapping and rape offenses with which Jackson was

charged were specific-intent crimes. As such, his intent was a material issue in the

case. Because Jackson defended against the rape charges by claiming that the

encounters had been consensual, i.e., that the women were “escorts” he had paid to

have sex with him, he placed his intent at issue. Thus, even if the offenses had been

tried separately, the evidence offered in support of the kidnapping and rape charges

in the second incident would have arguably been admissible to rebut Jackson’s claim

of consent and prove his intent to engage in nonconsensual sex with K.C. in the third

incident (and vice versa). Cf. State v. N.S., 10th Dist. Franklin Nos. 20AP-66 and

20AP-67, 

 (trial court did not abuse its discretion when it

joined the two indictments for trial over defendant’s objection because the proffered

evidence in support of the rape and kidnapping convictions in the first indictment

would be admissible, under Evid.R. 404(B), when offered to prove defendant’s

intent to engage in nonconsensual sex with the victim in the second indictment).

              Further, even if Evid.R. 404(B) would have precluded the

admissibility of evidence of the other incidents if the charges had been tried

separately, a defendant cannot show prejudice arising from the joinder of offenses

if the evidence relevant to the charges in each case is simple and direct. When the

evidence is “simple and direct,” a defendant is not prejudiced by joinder regardless
of the nonadmissibility of evidence of the crimes as other-acts evidence under

Evid.R. 404(B). Lott, 

, 

; Miller, 2023-Ohio-

1141, at ¶ 80.

                 Although the crimes committed during the three incidents at issue

were similar in type and character, they were distinct in proof. The crimes were

committed on different dates, at different locations and involved different victims.

A.A., B.T., N.D. and K.C. each provided detailed testimony regarding the specific

crimes of which they were the victims. The state also presented surveillance video

footage capturing portions of the incidents and extensive testimony from police

officers, detectives, medical professionals and forensic scientists detailing the

investigation, evidence collection and forensic analysis performed related to each

incident. Although several of the state’s witnesses were involved in the investigation

of multiple incidents, these witnesses testified regarding the evidence relating to

each incident and victim separately, clearly, succinctly, in a straightforward manner

and without significant overlap or conflation of proof. Although the witnesses’

discussion of the DNA evidence may have appeared complicated due to the scientific

testing involved, the application of that evidence was simple and direct. See Echols,

 (“[DNA] evidence, although scientific in nature and

presented through expert testimony, is simple in its application.”). “A trier of fact is

believed capable of segregating the proof on multiple charges when the evidence as

to each of the charges is uncomplicated.” State v. Lunder, 8th Dist. Cuyahoga No.

101223, 

.
              There is nothing to indicate that the jury was incapable of separating

the evidence as to each victim here. Joinder is not prejudicial where “the evidence

is direct and uncomplicated and can reasonably be separated as to each offense.” 

Although Jackson asserts “‘the fact-finder would have had a very difficult time

looking at the evidence supporting each offense as simple and distinct because the

temptation would be too great to respond to the evidence emotionally rather than

rationally,’” (Appellant’s Br. at 12, quoting Frazier, 

), he has

not pointed to anything in the record to suggest that the jury here was confused by

the evidence, “respond[ed] to the evidence emotionally rather than rationally” or

was otherwise improperly influenced by the cumulative effect of the joinder. See

App.R. 16(A)(7) (“The appellant shall include in its brief … [a]n argument

containing the contentions of the appellant with respect to each assignment of error

presented for review and the reasons in support of the contentions, with citations to

the authorities, statutes, and parts of the record on which appellant relies.”)

(Emphasis added.) Prejudice cannot be presumed merely because the jury heard

evidence of a defendant’s commission of separate crimes. Williams, 2024-Ohio-

337, at ¶ 18. Further, the jury was specifically instructed:

             The charges set forth in each count in the indictment constitutes
      a separate and distinct matter. And you must consider each count and
      the evidence applicable to each count separately. And you must state
      your findings as to each count uninfluenced by your verdict as to any
      other count.

             The defendant may be found guilty or not guilty of any one or all
      of the offenses charged.
We presume the jury followed the trial court’s instructions. McAlpin, 

, 

, 

; State v. Garner, 

,

 (1995).

               b. No Showing Any Error Affected the Outcome

              Even if the trial court should have severed the offenses for trial, we

would still find no reversible error. To support a reversal based on plain error,

Jackson needed to show not only that there was an obvious error but that “there is

‘a reasonable probability that the error resulted in prejudice,’” i.e., that “the error

affected the outcome of the trial.” (Emphasis deleted). McAlpin, 

, 

, 

, quoting Rogers, 

,

, 

. Jackson has not met his burden here.

              Although Jackson recites the plain error standard of review in his

appellate briefs, he does not actually apply that standard of review when making his

argument in support of his first assignment of error. Jackson argues only that the

trial court erred in failing to sever the charges. He has not argued — must less shown

— that a reasonable probability exists that the failure to sever the charges affected

the outcome of this case. (Appellant’s Br. at 7-11, 15; Reply Br. at 3-5.)

              As detailed above, the state presented substantial, if not

overwhelming, evidence supporting Jackson’s convictions. The victims’ testimonies

were credible and compelling. Jackson’s testimony was not. Portions of the

incidents were captured on surveillance video footage that was shown to the jury.

B.T. and K.C. identified Jackson in court as the man who had stolen from them,
kidnapped them, threatened them and raped them at gunpoint. DNA evidence from

items recovered from A.A.’s car and from B.T. and K.C.’s sexual assault examination

kits linked Jackson to the incidents and crimes at issue and corroborated B.T. and

K.C.’s testimonies that Jackson was their perpetrator. Jackson does not contend

that any of his convictions were not supported by sufficient evidence or were against

the manifest weight of the evidence. The record reveals no confusion on the part of

the jury as to which charges the evidence was offered to prove.

              After careful consideration, we find no plain error here. This is not

the “‘exceptional’” case in which reversal is necessary to correct a plain error “‘to

prevent a manifest miscarriage of justice.’’’ Barnes, 

, 

, quoting Long, 

, 

, at paragraph three of the

syllabus; see also Spaulding, 

, 

, 

,

at ¶ 74 (no plain error where joinder of counts was “not erroneous on its face at the

outset of trial” and “even if it had been, given the substantial evidence of [the

defendant’s] guilt, the alleged error was not outcome determinative”).

              Jackson’s first assignment of error is overruled.

         B. Ineffective Assistance of Counsel

              In his second assignment of error, Jackson contends that he was

denied the effective assistance of counsel in violation of his rights under the Sixth

Amendment to the United States Constitution and Article I, Section 10 of the Ohio
Constitution based on trial counsel’s failure to request severance of the charges

under Crim.R. 14.3

               A criminal defendant has the right to effective assistance of counsel.

Strickland v. Washington, 

, 

, 

(1984). As a general matter, to establish ineffective assistance of counsel, a

defendant must demonstrate: (1) deficient performance by counsel, i.e., that

counsel’s   performance      fell   below   an    objective   standard     of   reasonable

representation, and (2) that counsel’s errors prejudiced the defendant, i.e., a

reasonable probability that but for counsel’s errors, the outcome of the proceeding

would have been different. 

; State v. Bradley, 

,

 (1989), paragraphs two and three of the syllabus. “Reasonable

probability” is “probability sufficient to undermine confidence in the outcome.”

.

               In Ohio, a properly licensed attorney is presumed to be competent.

State v. Black, 

, 

, ¶ 35 (8th Dist.), citing State v.

Smith, 

, 

 (1985). Because there are “countless

ways to provide effective assistance in any given case,” a court must give great



       3 Although Jackson asserts that his constitutional right to counsel under both the

United States and Ohio Constitutions was violated, because Jackson does not claim that
he was entitled to greater protection or was afforded broader rights under the Ohio
Constitution, and because Ohio courts generally evaluate ineffective assistance claims
under the same standards that federal courts use, see, e.g., State v. Worley, 

, 

, 

, ¶ 95; State v. Wright, 2d Dist. Miami No. 2022-CA-
27, 

, we do not separately analyze Jackson’s rights under the United
States and Ohio Constitutions here.
deference to counsel’s performance and “indulge a strong presumption” that

counsel’s performance “falls within the wide range of reasonable professional

assistance.” 

; see also State v. Powell, 

, 

, ¶ 69 (8th Dist.) (“‘A reviewing court will strongly presume that counsel

rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.’”), quoting State v. Pawlak, 8th Dist. Cuyahoga

No. 99555, 

.

              Jackson asserts that “[g]iven the highly inflammatory nature of the

offenses, the similarities between parts of the victims’ testimony, and the fact that

joinder allowed the State to circumvent the prohibition of other acts testimony,” trial

counsel’s failure to request severance was objectively unreasonable and that “if not

for [the] trial counsel’s failure to request severance, there was a reasonable

probability that the proceeding would have been different, sufficient to undermine

confidence in the outcome.” We disagree.

              Jackson has not shown that defense counsel rendered ineffective

assistance of counsel by failing to request severance here. For the reasons stated

above, Jackson has not shown that a motion to sever, if filed, would have been

successful. Trial counsel cannot be deemed deficient or ineffective for failing to

perform a futile act. State v. Washington, 

, 

(8th Dist.), citing State v. May, 

, 

, ¶ 35 (8th Dist.);

State v. Witherspoon, 8th Dist. Cuyahoga No. 94475, 

, ¶ 33 (“[T]he

failure to do a futile act cannot be the basis for claims of ineffective assistance of
counsel and is not prejudicial.”). Additionally, Jackson has not shown that he was

prejudiced by the joinder of the offenses at issue. Based on the record before us, we

cannot say that there is a reasonable probability that the outcome of Jackson’s trial

would have been different if his trial counsel had requested severance. Accordingly,

we overrule Jackson’s second assignment of error.

      C.     Imposing Sentences on Firearm Specifications Attached to
             Having Weapons While Under Disability Charges

              In his third assignment of error, Jackson contends that the trial court

erred in imposing sentences on the firearm specifications attached to the three

having weapons while under disability charges of which he was convicted.

              Jackson was found guilty of three counts of having weapons while

under disability in violation of R.C. 2923.13(A)(2).       The trial court sentenced

Jackson, on each of these counts, to a 36-month prison term on the underlying

offense and a 54-month prison term on the firearm specification. Jackson did not

object to the trial court’s imposition of sentences on the firearm specifications below.

              R.C. 2929.14(B)(1)(e) states that a prison term for a firearm

specification shall not be imposed upon an offender for a violation of R.C. 2923.13

unless two requirements are met: (i) the offender has previously been convicted of

aggravated murder, murder or any first- or second-degree felony and (ii) “[l]ess than

five years have passed since the offender was released from prison or post-release

control, whichever is later, for the prior offense.” See also State v. Gray, 4th Dist.

Washington No. 21CA6, 

 (“R.C. 2929.14(B)(1)(e) …
provides that the offense of having a weapon while under a disability is not

enhanceable with a sentence from a firearm specification ‘unless the offender

previously has been convicted of aggravated murder, murder, or any first or second

degree felony, and less than five years have passed since the offender was released

from prison or post-release control, whichever is later, for the prior offense.’”),

quoting State v. Ellis, 6th Dist. Wood Nos. WD-17-035 and WD-17-036, 2019-Ohio-

427, ¶ 14.

              In this case, the parties stipulated to the admissibility of the final

judgment entry related to Jackson’s prior conviction in Cuyahoga C.P. No. CR-08-

517051 (“517051”) for aggravated robbery, a first-degree felony. The judgment entry

indicates that on January 21, 2009, Jackson was sentenced to five years in prison

(one year on a firearm specification to be served prior to and consecutive to four

years on the underlying offense) and five years of postrelease control. No evidence

was presented as to when Jackson was released from prison or postrelease control

for that offense.

              Jackson argues that because the state failed to present evidence of the

date he completed his prison sentence and postrelease control in case number

517051, the state “failed to demonstrate that less than five years had passed since

[Jackson] was released from prison or post-release control” for that offense under

R.C. 2929.14(B)(1)(e)(ii) and the sentences imposed on the firearm specifications

associated with the having weapons under disability charges were, therefore,

“unlawful” and “should be reversed.”
              Jackson failed to raise this issue in the trial court. Accordingly, our

appellate review is, once again, limited to plain error. State v. Wiley, 8th Dist.

Cuyahoga No. 107417, 

; State v. Stewart, 10th Dist. Franklin

No. 18AP-496, 

. As stated above, reversal for plain error

requires a showing that there was an error, that the error was obvious and that “there

is ‘a reasonable probability that the error resulted in prejudice,’ meaning that the

error affected the outcome of the trial.” (Emphasis deleted). McAlpin, 

, 

, 

, quoting Rogers, 

, 

, 

. The party asserting plain error bears

the burden of demonstrating plain error on the record. Rogers at ¶ 22.

              Jackson has failed to show that the court committed plain error in

sentencing him. Jackson points to no evidence in the record that shows that the

requirements of R.C. 2929.14(B)(1)(e) were not met here. Wiley at ¶ 22; State v.

Woods, 8th Dist. Cuyahoga No. 106476, 

 (finding that

“[w]ithout sufficient evidence of [the R.C. 2929.14(B)(1)(e)] factors, [the defendant]

cannot show that the outcome of his sentence would have been different”).

              Jackson admits that he was previously convicted of aggravated

robbery, a first-degree felony, in 517051. This satisfies the first requirement of the

statute, R.C. 2929.14(B)(1)(e)(i). With respect to the second requirement of the

statute, R.C. 2929.14(B)(1)(e)(ii), the offenses at issue were committed from

May 24, 2022 to July 28, 2022. The judgment entry in 517051 reflects that on

January 21, 2009, Jackson was sentenced to five years in prison to be followed by
five years of postrelease control. The trial court’s docket in 517051, of which we take

judicial notice, further shows that on September 12, 2012, Jackson was granted 95

days of jail-time credit and that on December 28, 2012, the trial court denied his

motion for judicial release. From these facts, it could be reasonably inferred that

“less than five years had passed since [Jackson] was released from prison or post-

release control, whichever is later, for the prior offense,” thereby satisfying the

second requirement under R.C. 2929.14(B)(1)(e)(ii). Jackson has pointed to no

evidence in the record to the contrary.

              We find no plain error in the trial court’s imposition of prison

sentences on the firearm specifications associated with Jackson’s convictions for

having weapons while under disability. Jackson’s third assignment of error is

overruled.

              Judgment affirmed.

      It is ordered that appellee recover from appellant the costs herein taxed.

      The court finds that there were reasonable grounds for these appeals.

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

Cuyahoga County Court of Common Pleas to carry this judgment into execution.

The defendant’s conviction having been affirmed, any bail pending appeal is

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

of the Rules of Appellate Procedure.




EILEEN A. GALLAGHER, PRESIDING JUDGE

MARY J. BOYLE, J., CONCURS;
MICHAEL JOHN RYAN, J., CONCURS IN PART AND DISSENTS IN PART
(WITH SEPARATE OPINION)


MICHAEL JOHN RYAN, J., CONCURRING IN PART AND DISSENTING IN
PART:

              I concur with the majority’s resolution of the first and second

assignments of error, but I respectfully dissent as to its resolution of the third

assignment of error. In his third assignment of error, Jackson contends that the

imposition of a sentence for the firearm specifications attendant to the convictions

for having weapons while under disability was unlawful. I believe on the record

presented in this case he is correct.

              As the majority correctly notes, a prison term for a firearm

specification “shall not” be imposed upon an offender for a having weapons while

under disability conviction “unless” “[t]he offender previously has been convicted of

aggravated murder, murder, or any felony of the first or second degree” and “[l]ess

than five years have passed since the offender was released from prison or post-

release control, whichever is later, for the prior offense.” R.C. 2929.14(B)(1)(e).
               In my view, the record in this case only established the first

requirement under R.C. 2929.14(B)(1), that is, that Jackson had the requisite prior

conviction. Specifically, the parties stipulated to Jackson’s prior conviction for

aggravated robbery, a felony of the first degree, which was rendered in Cuyahoga

C.P. No. CR-08-517051.

               In regard to the second portion of the statutory requirement, despite

the majority acknowledging that “[n]o evidence was presented as to when Jackson

was released from prison or postrelease control for that offense,” it finds, after taking

judicial notice of the docket from Jackson’s prior case, that it “could be reasonably

inferred” that the second portion of the statute was met. Majority opinion at ¶ 74,

78.

               I realize we are conducting a plain-error review of this issue, but even

under that standard, I would find that the second requirement under

R.C. 2929.14(B)(1)(e) was not met. Further, I am aware of this court’s decision in

State v. Woods, 8th Dist. Cuyahoga No. 106476, 

, and believe it was

wrongly decided.

               Woods, too, reviewed this issue for plain error. In Woods, there was

“no evidence in the record regarding whether [the defendant] was previously

convicted of aggravated murder, murder, or any first- or second-degree felony.”

(Emphasis added.) Id. at ¶ 19. Further, there was “no evidence in the record

regarding how many years have passed since [the defendant] was released from

prison or postrelease control.” (Emphasis added.) Id. The Woods panel concluded
that “without sufficient evidence of these two factors, [the defendant] cannot show

that the outcome of his sentence would have been different.” Id. I believe the Woods

court placed an improper burden on the defendant — that is, to prove a negative.

See State v. Wiley, 8th Dist. Cuyahoga No. 107417, 

(E.A. Gallagher, J., dissenting).     It was the state that sought the sentencing

enhancement, and the state should have demonstrated that it applied. Likewise,

here, it was the state’s responsibility to make sure Jackson qualified for the

enhancement, and I would decline to make a possible reasonable inference, even

under a plain-error-standard of review, to find that it fulfilled its obligation.

              I would follow the dissent on this issue in Wiley, which was released

subsequent to Woods. In Wiley, under review for plain error, the dissent disagreed

with the analysis on this issue as set forth in Woods, stating that, because

R.C. 2929.14(B)(1)(e) makes it “abundantly clear that a court ‘shall not impose’ a

prison term ‘unless’ both subdivisions apply,” she believed that the defendant’s

sentence on the offending charge and specification should have been vacated and

the case remanded for the limited purpose of determining whether the statute

applied. Wiley at ¶ 37-38 (E.A. Gallagher, J., dissenting).

               On the record before us, I respectfully dissent as to the majority’s

resolution of the third assignment of error. I concur with the remainder of the

opinion.