[Cite as State v. Mitchell,
2025-Ohio-2772.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 114545
v. :
JAYSON MITCHELL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: August 7, 2025
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-22-674402-A and CR-22-676740-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Tyler W. Blair, Assistant Prosecuting
Attorney, for appellee.
Susan J. Moran, for appellant.
EMANUELLA D. GROVES, J.:
Defendant-appellant Jayson Mitchell (“Mitchell”) appeals his
convictions for felonious assault and multiple other offenses. For the reasons that
follow, we affirm in part, reverse in part, and remand for resentencing.
Factual and Procedural History
On September 20, 2022, a grand jury was convened, and Mitchell was
indicted in an 11-count indictment for an incident alleged to have occurred in
Cleveland Heights on July 26, 2022 (the “Cleveland Heights Case”). The charges
included two counts of failure to comply, felonies of the third degree (Counts 1 and
2). Count 1 contained a furthermore clause that Mitchell’s conduct was the
proximate cause of serious physical harm to persons or property. Count 2 contained
a furthermore clause that Mitchell’s conduct caused a substantial risk of serious
physical harm to persons or property. A third count of failure to comply alleged that
Mitchell was fleeing immediately after the commission of a felony, a felony of the
fourth degree (Count 3). Counts 1 through 3 also included 1-year firearm
specifications and forfeiture specifications.
The remaining charges were two counts of having weapons while
under disability, felonies of the third degree, each with an 18-month firearm
specification, a one-year firearm specification, and a forfeiture specification (Counts
4 and 5); improperly handling a firearm in a motor vehicle, a felony of the fourth
degree, including a forfeiture specification (Count 6); trafficking
methamphetamine, a felony of the third degree, which included a one-year firearm
specification and three forfeiture specifications (Count 7); drug possession,
methamphetamines, a felony of the third degree, which included a one-year firearm
specification and three forfeiture specifications (Count 8); possession of criminal
tools, a felony of the fifth degree, including three forfeiture specifications (Count 9);
vandalism, with a furthermore clause that the property value or physical harm was
in the amount of $7,500 or more but less than $150,000 (Count 10); and criminal
damaging, with a furthermore clause that the violation created a risk of physical
harm to any person, a misdemeanor of the first degree (Count 11).
On December 16, 2022, a grand jury was convened and Mitchell was
indicted in a 13-count indictment for an incident alleged to have occurred in East
Cleveland on October 7, 2022 (the “East Cleveland Case”). The charges included
two counts of felonious assault against a peace officer, felonies of the first degree,
each with 18-month firearm specifications, one-year firearm specifications, and
forfeiture specifications (Counts 1 and 2); two counts of having weapons while under
disability, felonies of the third degree, each with 18-month firearm specifications,
one-year firearm specifications, and forfeiture specifications (Counts 3 and 4); one
count of failure to comply, with a furthermore clause alleging Mitchell’s conduct was
the proximate cause of serious physical harm to persons or property, a felony of the
third degree, including an 18-month firearm specification, one-year firearm
specification, and forfeiture specification (Count 5); two counts of aggravated
vehicular assault, with a furthermore clause that Mitchell committed the offense
while driving under suspension, felonies of the third degree, each with one-year
firearm specifications and forfeiture specifications (Counts 6 and 7); two counts of
aggravated vehicular assault, felonies of the fourth degree, each with one-year
firearm specifications, and forfeiture specifications(Counts 8 and 9); one count of
receiving stolen property, a felony of the fourth degree, including a one-year firearm
specification and forfeiture specification (Count 10); one count of improperly
handling firearms in a motor vehicle, a felony of the fourth degree (Count 11); one
count of drug possession, cocaine, a felony of the fifth degree (Count 12); and one
count of criminal damaging, a misdemeanor of the first degree (Count 13).
The State moved to join the two cases for trial. The defense filed an
objection. After considering arguments of counsel, the trial court granted the
motion. Mitchell waived his right to a jury trial on the having-weapons-while-
under-disability charges and the 18-month firearm specifications, all of which
required proof of prior convictions. Trial commenced on September 30, 2024, at
which time the following evidence was presented.
The Cleveland Heights Case
Cleveland Heights Patrolman Michael Hill (“Ptl. Hill”) testified that
on July 26, 2022, he was driving northbound on South Taylor Road near Antisdale
Avenue when he witnessed a tan GMC Acadia (the “SUV”), traveling southbound on
South Taylor Road at a high rate of speed. Ptl. Hill maneuvered his cruiser behind
the SUV and initiated a traffic stop, utilizing his overhead lights and sirens. The SUV
stopped right before Cedar Road.
As he approached the driver’s side window, Ptl. Hill observed that the
driver was a black male between the age of 30 and 35 and that there was no one else
in the vehicle. Just as Ptl. Hill reached the window, the driver sped off. Ptl. Hill
returned to his cruiser and attempted to follow the vehicle. However, he stopped
after 30 seconds when he realized that the SUV was accelerating, determining that
it was unsafe to continue chasing the vehicle. Ptl. Hill turned off his lights and sirens
and reported the situation over the radio to his colleagues and to the next city in the
suspect vehicle’s trajectory, Shaker Heights. Ptl. Hill continued to follow the SUV
from a distance. He saw the SUV turn from South Taylor Road onto Fairmount
Boulevard. When he was about six houses from the intersection of South Taylor
Road and Fairmount Boulevard, a young woman ran into the street, flagged him
down, and reported that a car hit a house.
A doctor testified that she was driving home after visiting a friend
around 11:00 p.m., on July 26, 2022. She was driving on South Taylor Road near
Tullamore Road headed towards Fairmount Boulevard when she saw a vehicle
coming up behind her traveling at a high rate of speed. The vehicle moved into the
opposite lane of travel to pass her, then moved in front of her car. The doctor saw
the vehicle run the red light at the Fairmount Boulevard intersection, narrowly
missing two cars. She observed the driver losing control of the vehicle as he
attempted to turn left. The vehicle then skidded, flipped over, and hit a house
located at the Fairmount Boulevard and Taylor Road intersection. Other witnesses
testified about the accident and described a vehicle traveling at a high rate of speed,
running the red light, losing control, and hitting a nearby house.
Ptl. Hill testified that he used his spotlight to scan the area and
observed pieces of a car and a house, and the SUV completely on its side. He
observed that the SUV had hit a house on Fairmount Boulevard. Testimony also
established that Mitchell hit the garage, a car parked outside the garage, a fence, and
a motorcycle. When Ptl. Hill approached the SUV he determined there was one
person in the SUV. The driver later identified himself to the paramedics as Mitchell
and indicated that he was alone in the car and the accident occurred when he was
fleeing from the police, missed a turn, and crashed into a house. The State
introduced photographs of the damage taken by officers; however, the owner(s) of
the damaged property did not testify, and the State did not introduce evidence
regarding the value of the property or the cost of repair.
During a search of the SUV, police discovered a firearm, a Glock 42,
several methamphetamine pills, and a scale. The parties stipulated that the gun was
test fired and operable. The registered owner of the SUV appeared at the scene to
identify her vehicle. She also identified herself as Mitchell’s significant other. The
SUV’s owner did not testify at trial.
The East Cleveland Case
Maple Heights Police Officer Tyler Vasko (“Off. Vasko”) testified that
in the early morning hours of October 4, 2022, he took a stolen vehicle report that a
black Hyundai Sonata was stolen. The owner of the Hyundai was also the owner of
the SUV from the Cleveland Heights Case. She informed Off. Vasko that she knew
the identity of the person who had her vehicle. Off. Vasko subsequently entered the
car as stolen in the Law Enforcement Access Data System (“LEADS”).
On October 7, 2022, East Cleveland Patrolman Yadiel Roman (“Ptl.
Roman”) and his partner were stationed near Shaw High School when they were
alerted that a nearby vehicle, a black Hyundai Sonata, had previously been reported
stolen. After receiving the notice, Ptl. Roman testified that they checked the vehicle
on LEADS, which confirmed the vehicle was reported stolen. They decided to
conduct a “high risk stop” because, in addition to the stolen vehicle report, the car
had heavily tinted windows such that they were unable to see inside.
At the time of the stop, the car was parked at a pump at the Sunoco
gas station near Euclid Avenue and Shaw Avenue. Ptl. Roman called for backup,
and Patrolmen Jason Anderson (“Ptl. Anderson”) and Kevin Frye (“Ptl. Frye”) came
to assist. When they arrived, Ptl. Anderson and Ptl. Frye positioned their cruiser in
front of the suspect’s vehicle, while Ptl. Roman positioned theirs behind it. Ptl.
Anderson and Ptl. Frye stepped out of their cruiser and approached the suspect’s
vehicle with guns drawn. The driver of the suspect’s vehicle almost immediately
reversed, ramming into the cruiser parked behind his car. The driver then drove
forward towards Ptl. Anderson, almost hitting him and Ptl. Frye. Ptl. Anderson fired
one shot at the car, and Ptl. Frye fired two shots. The driver then fled westbound on
Euclid Avenue. The officers radioed to dispatch regarding the fleeing car and shots
fired. After checking to ensure Ptl. Anderson and Ptl. Frye were all right, Ptl. Roman
and his partner attempted to follow the vehicle; however, it managed to get away.
Ultimately, Patrolmen Roman found the car near Euclid and Superior, where it
crashed after hitting another vehicle.
A construction worker (“victim-son”) testified that he had taken his
mother (“victim-mother”) out that night to a casino for a belated birthday
celebration. They were on their way home, his mother was driving, and they were
stopped for quite some time at the light on Superior approaching Euclid Avenue.
When the light finally turned green, they entered the intersection and were
immediately hit by another car.
The victim-son did not remember much about the accident other than
seeing headlights before they were “T-boned.” At some point, he blacked out and
woke up in the hospital. He and his mother were in the hospital for approximately
three months. He suffered a broken hip, pelvis, and femur. As a result, doctors
placed a rod in his leg and several screws in his spine. The victim-son was diagnosed
with post-traumatic stress disorder (PTSD) because he could not sleep, had night
terrors, and struggled with loud noises. As a construction worker prior to the
accident, his injuries severely impacted his ability to work. He testified that now he
struggles with walking, going up and down stairs, sitting or standing for long periods
of time, and lifting more than 30 pounds.
The victim-mother did not testify. Prior to trial, her medical records
were accompanied by a notarized statement that they were created in the ordinary
course of business. The parties stipulated to the authenticity of both the victim-son’s
and his mother’s medical records. When the State notified the court that the victim-
mother would not be testifying, the defense objected to the introduction of her
medical records without her testimony. The court overruled the objection.
In the absence of his mother’s testimony, the victim-son identified his
mother’s name and date of birth on the medical records and indicated the medical
records were hers. Her medical records established she fractured her pelvis, left
lumbar vertebrae, and multiple ribs during the accident. She also suffered from
anoxic brain damage. The victim-son testified that he sees his mother every day and
he observed that she is not the same since the accident. She is overly anxious and
her anxiety levels are always “through the roof.” She does not like to get in cars and
it is hard to get her to go places. He testified that since the accident, his mother
bends over when she walks.
Cleveland Heights Police Lieutenant David Spence (“Lt. Spence”)
testified he worked with a special task force that responds to fatal or major crashes
within the county and assists with investigations in East Cleveland. On October 7,
2022, the East Cleveland Police Department asked him to conduct an accident
investigation into this case. After explaining his process, the measurements he took,
and the basis for his analysis, Lt. Spence testified that the suspect’s vehicle was
traveling approximately 80 ½ m.p.h., and the victim-mother’s car was traveling
approximately 9 m.p.h., at the time of impact. Video from a nearby Shell station
corroborated Lt. Spence’s testimony. The video also showed that the victim-
mother’s car rolled multiple times before hitting a pole.
When Ptl. Roman approached the scene, he initially detained a man
who was walking near the Hyundai Sonata. However, he later determined the man
was not involved in the incident. Ptl. Roman located Mitchell outside of the Hyundai
Sonata on the passenger side. He was arrested, and during a search of the car,
officers found a .22-caliber Ruger LCP pistol and suspected drugs, later identified as
cocaine. Video from the Sunoco station, where police initially stopped the Hyundai
Sonata, showed someone wearing dark pants and a black and white patterned
pullover walking from the station to the driver’s side of the car. The person can be
seen opening the driver’s side door and entering the car. East Cleveland Police
Commander Joseph Marche (“Cmdr. Marche”) testified that the video depicted
Mitchell entering the driver’s side of the Hyundai Sonata right before the vehicle fled
from police. Video from Ptl. Roman’s body-camera captured Mitchell’s arrest. The
video depicted Mitchell wearing dark pants and a patterned black and white
pullover. Pictures of the driver’s side of the car also showed significant damage to
the driver’s side door.
In addition, Cmdr. Marche identified several recorded calls from the
Cuyahoga County Jail by the jail call logs as calls made by Mitchell after his arrest.
The trial court admitted the evidence over the defense’s objection. In the recordings,
the collect call prompt identifies the caller as “Jason,” and the caller made
statements in one call about fleeing from East Cleveland and in another that he had
the black Hyundai Sonata. The State did not present a witness to identify the voice
as belonging to Mitchell.
Conclusion of the Trial
After the submission of evidence, the defense moved for acquittal
under Crim.R. 29. The State objected but conceded that there was no evidence to
support the criminal-damaging charge, Count 11 in the Cleveland Heights Case. The
trial court granted the motion for Count 11 but denied it for the remaining charges.
The defense did not renew its motion to sever the indictments at the conclusion of
the State’s case or at the conclusion of trial.
The jury and the trial court found Mitchell guilty on all charges. In
both cases, the State elected to merge all the one-year firearm specifications with the
18-month specifications. In the East Cleveland Case, the trial court sentenced
Mitchell to an aggregate term of 11 years to 13 ½ years. The trial court did not merge
any of the counts. In the Cleveland Heights Case, the trial court sentenced Mitchell
to an aggregate sentence of four years to run consecutively to the sentence in the
East Cleveland Case, for a total aggregate sentence of 15 years to 17 ½ years. The
trial court did not merge any of the counts in this case either.
Mitchell appeals and assigns the following errors for our review:
Assignment of Error No. 1
[Mitchell’s] Double Jeopardy Rights under the U.S. Constitutional
Amendment V and Ohio Const. Art. 1 Section 10 were violated by the
trial court’s imposition of separate sentences for allied offenses of
similar import under R.C. 2941.25.
Assignment of Error No. 2
Trial court erred when it denied [Mitchell’s] motion for relief from
prejudicial joinder, which allowed the State to introduce improper
character evidence of [Mitchell] in violation of Evid.R. 401-404,
thereby denying him Due Process and a right to a fair trial under both
the United States and Ohio Constitutions.
Assignment of Error No. 3
[Mitchell] was denied his right to confrontation under the Sixth
Amendment to the United States Constitution and Article I, Section 10
of the Ohio Constitution when sustaining his conviction of aggravated
vehicular assault without the testimony of the alleged victim.
Assignment of Error No. 4
The verdicts in this case are against the sufficiency of the evidence and
should be reversed because the convictions violate the Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution, and Article
1, Section 10 of the Constitution of the State of Ohio.
Assignment of Error No. 5
[Mitchell’s] convictions are against the manifest weight of the evidence
in violation of the Due Process Clause of the 14th Amendment to the
U.S. and of the Ohio Constitution.
Law and Analysis
For ease of analysis, we will address the assignments of error out of
order, beginning with the second assignment of error.
Relief from Prejudicial Joinder
In his second assignment of error, Mitchell argues that the trial court
erred when it joined his two cases for trial because it allowed the State to introduce
improper other acts evidence that otherwise would not have been admissible if the
cases had been tried separately. Specifically, Mitchell argues that while the evidence
in each case was simple and direct, the State was also required to establish that the
evidence would not have been excluded under Evid.R. 404(A) and 404(B)(1).
Mitchell stresses that this was particularly prejudicial with respect to the East
Cleveland Case, because Mitchell’s identity was in question and the joinder allowed
the jury to improperly infer that he acted in conformity with his actions in the
Cleveland Heights Case. Mitchell’s argument is not well-taken.
Crim.R. 13 governs joint trials for multiple indictments, noting that
joinder is proper “if the offenses or the defendants could have been joined in a single
indictment or information.” Crim.R. 8(A), which governs joinder of offenses in the
same charging document, holds that
two or more offense 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.”
State v. Belle, 2019-Ohio-787, ¶ 17 (8th Dist.), quoting Crim.R. 8(A).
Joining multiple offenses in a single trial is favored if the
requirements of Crim.R. 8(A) are satisfied “because it conserves judicial resources,
lessens the inconvenience to witnesses, and minimizes the possibility of inconsistent
results before different juries.” Id. at ¶ 18 citing State v. Anderson,
2017-Ohio-931,
¶ 23 (8th Dist.), citing State v. Torres,
66 Ohio St.2d 340 (1981), State v. Schiebel,
55 Ohio St.3d 71, 86-87 (1990), and State v. Schaim,
65 Ohio St.3d 51, 58 (1992).
However, a trial court should not join cases where it appears the
defendant would be prejudiced, even if joinder would be permissible under Crim.R.
13 and 8(A). State v. Lucas, 2022-Ohio-3278, ¶ 47 (3d Dist.), citing State v. Gordon,
2018-Ohio-259, ¶ 20. Crim.R. 14 provides:
If it appears that a defendant . . . is prejudiced by a . . . joinder for trial
together of indictments, informations or complaints, the court shall
order an election or separate trial of counts, . . . or provide such other
relief as justice requires.
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, 2016-Ohio-8126,
¶ 62, quoting Torres at 343. The State can challenge the claim of prejudice “by
showing either that (1) it could have introduced evidence of the joined offenses as
‘other acts’ under Evid.R. 404(B) or (2) the ‘evidence of each crime joined at trial is
simple and direct.’” Id., quoting State v. Lott,
51 Ohio St.3d 160, 163 (1990).
An appellate court ordinarily reviews a trial court’s ruling on joinder
for an abuse of discretion. State v. Lee, 2017-Ohio-1449, ¶ 15 (8th Dist.), citing State
v. Dean,
2015-Ohio-4347, ¶ 60; State v. Webster,
2016-Ohio-2624, ¶ 42 (8th Dist.).
However, a “‘motion for severance due to prejudicial misjoinder . . . must be renewed
at the close of the State’s case or at the conclusion of all the evidence and unless
made at that time, it is waived.’” State v. Quinn,
2022-Ohio-2038, ¶ 12 (8th Dist.),
quoting State v. Owens,
51 Ohio App.2d 132 (9th Dist. 1975). This rule also applies
to the joinder of two indictments. Id. at ¶ 13, citing State v. Frazier, 2019-Ohio-
1433, ¶ 11 (8th Dist.) (“[T]o properly preserve the issue of a trial court’s joinder of
indictments for appeal, the defendant must object to the joinder of indictments at
the time of trial, and at the close of the State’s case or at the close of evidence.”).
Failure to renew the objection at the close of the State’s case or the close of evidence
waives all but plain error. Id.
To establish plain error, a defendant must show an error that
constitutes an obvious defect in the trial proceedings and demonstrate that the error
affected the outcome of the trial. State v. Gordon, 2018-Ohio-259, ¶ 23, citing State
v. Rogers,
2015-Ohio-2459, ¶ 22. However, we do not need to consider whether the
trial court plainly erred, because, as Mitchell admits in his brief, the evidence
presented was simple and direct. “‘[W]hen simple and direct evidence exists, an
accused is not prejudiced by joinder regardless of the nonadmissibility of evidence
of these crimes as “other acts” under Evid.R. 404(B).’” Belle,
2019-Ohio-787, at ¶ 24
quoting Lott,
51 Ohio St.3d at 163; see also State v. Franklin,
62 Ohio St.3d 118, 122,
(1991) (“[I]f the State can meet the joinder test [i.e., the simple and direct test], it
need not meet the stricter other-acts test.”).
Evidence of each crime is simple and direct when it is “so clearly
separate and distinct as to prevent the jury from considering evidence of [one crime]
as corroborative of the other.” State v. Quinones, 2005-Ohio-6576, ¶ 48 (11th Dist.).
“The purpose of the ‘joinder test’ is to prevent the finder of fact from confusing the
offenses.” State v. Varney,
2008-Ohio-5283 ¶ 19 (4th Dist.).
Here, although the cases were joined for trial, the State presented all
of the evidence in the Cleveland Heights Case first and then presented all of the East
Cleveland Case’s evidence. In the Cleveland Heights Case, there was simple and
direct evidence that Mitchell was stopped by Ptl. Hill, fled from the stop, and drove
recklessly at a high rate of speed, culminating in an accident that damaged the
property of others. He also admitted to paramedics that he fled from police and was
involved in the accident.
In the East Cleveland Case, the evidence was likewise simple and
direct. Officers approached a car that was reported stolen. Video evidence showed
Mitchell enter the driver’s side of the car, wearing the clothes that he was later
wearing after he hit the victim-mother’s car. Despite being blocked by police,
Mitchell reversed, hitting Ptl. Roman’s cruiser, then maneuvered around the police
car, almost hitting Ptl. Anderson and Ptl. Frye, and then fled culminating in his
vehicle hitting the victim-mother’s car at Euclid and Superior. While Mitchell was
found on the passenger’s side of the car, he was seen entering the driver’s side of the
vehicle, and the evidence established that the airbag deployed on the driver’s side
only. Additionally, pictures of the black Hyundai Sonata establish that the driver’s
side door was crumpled as a result of the accident, leaving the passenger side door
the only means of egress.
Based on the foregoing, we find that the evidence presented was
simple and direct, and, therefore, the trial court did not commit plain error when it
joined the cases. Accordingly, the second assignment of error is overruled.
Admissibility of the Medical Records
In the third assignment of error, Mitchell argues the trial court erred
in admitting the victim-mother’s medical records after the State informed the court
that she would not be testifying. Mitchell argues that the trial court’s decision
affected a substantial right because there was insufficient evidence to establish
serious physical harm to the victim-mother without the admitted medical records.
Additionally, Mitchell argues that the inability to cross-examine her violated
Mitchell’s right to confrontation under the Sixth Amendment of the U.S.
Constitution. After a review of the evidence, we find that the trial court did not err
when it admitted the medical records and Mitchell’s right to confrontation under
both the United States and Ohio Constitutions was not violated.
Preliminarily, we address the admissibility of the medical records. An
appellate court will not disturb the trial court’s broad discretion in deciding the
admission and or exclusion of evidence unless the trial court “‘“clearly abused its
discretion and appellant is materially prejudiced”’” by the decision. State v.
Worship, 2022-Ohio-52, ¶ 12 (12th Dist.), quoting State v. Sizemore, 2019-Ohio-
4400, ¶ 35 (12th Dist.), quoting State v. Martin,
2007-Ohio-7073, ¶ 9 (12th Dist.).
Here, the parties stipulated to the authenticity of the medical records
prior to trial. The defense only interposed an objection to admissibility when it
learned that the State was not calling victim-mother to testify. However, even
without the stipulation, R.C. 2317.422 provides that medical records are self-
authenticating under Evid.R. 902(10) as long as certain conditions are met. Id. at
¶ 13. R.C. 2317.422 provides, in pertinent part:
[T]he records, or copies or photographs of the records, of a hospital
. . . in lieu of the testimony in open court of their custodian, person who
made them, or person under whose supervision they were made, may
be qualified as authentic evidence if any such person endorses thereon
the person’s verified certification identifying such records, giving the
mode and time of their preparation, and stating that they were
prepared in the usual course of the business of the institution.
Evid.R. 902(10) provides
Extrinsic evidence of authenticity as a condition precedent to
admissibility is not required with respect to the following:
...
Presumptions created by law. Any signature, document, or other
matter declared by any law of a jurisdiction, State or federal, to be
presumptively or prima facie genuine or authentic.
The victim-mother’s medical records were accompanied by a
notarized document by University Hospitals’ manager of Health Information
Services, i.e., the custodian of records, certifying that the records provided for her
were
true and authentic copies of the medical records for the above named
patient from 10/7/22 to 11/7/22 and were prepared in the usual course
of business of University Hospital Cleveland Medical Center, and that
they were prepared by the employees of the institution on the dates
endorsed herein.
Evid.R. 803(6) provides that business records are not excluded under
the hearsay rule if they are made in the ordinary course of business. This is “‘because
the courts presume that such records are trustworthy given the self-interest to be
served by the accuracy of such entries.’” Bohl v. ALCOA, Inc., 2020-Ohio-2824, ¶ 30
(8th Dist.) quoting State v. Cassano,
2012-Ohio-4047, ¶ 21 (8th Dist.), citing Weis
v. Weis,
147 Ohio St. 416, 425-426 (1947). The contents of the victim-mother’s
medical records were admissible under the rule. “[I]t is well established that
certified medical records from hospitals, including the opinions and diagnoses
contained within those records, are admissible under the business records exception
to the hearsay rule.” Bohl at ¶ 34 citing Ford v. Sunbridge Care Ents., 2016-Ohio-
1122, ¶ 13 (8th Dist.); Smith v. Dillard’s Dept. Stores,
2000-Ohio-2689 (8th Dist.).
Accordingly, the trial court did not abuse its discretion when it admitted the medical
records.
Next, we examine Mitchell’s Confrontation Clause challenge. Both
the United States and Ohio Constitution guarantee a criminal defendant the right to
confront witnesses. In re H.P.P., 2020-Ohio-3974, ¶ 20 (8th Dist.). The Ohio
Constitution provides no greater right to confrontation than the Sixth Amendment
to the United States Constitution. State v. Self,
56 Ohio St.3d 73, 79 (1990).
However, that right is only implicated when a party seeks to admit “out-of-court
statements that are testimonial in nature when the declarant does not testify in the
proceeding.” Lorain v. Brown,
2021-Ohio-2161, ¶ 10 (9th Dist.). A person is a
“witness” for the purposes of the Confrontation Clause if their statements are
testimonial in nature.
Id. ‘“It is the testimonial character of the statement that
separates it from other hearsay that, while subject to traditional limitations upon
hearsay evidence, is not subject to the Confrontation Clause.”’
Id., quoting Davis v.
Washington,
547 U.S. 813, 821 (2006).
Mitchell does not argue that the medical records contained
testimonial statements from the victim-mother that required cross-examination.
Rather, Mitchell argues that the admission of her medical records without her
testimony was an error that substantially prejudiced him because “the inability to
cross-examine the witness who could provide context to establish the essential
elements of serious physical harm and verify the records’ accuracy undermines the
reliability of the evidence and violates the defendants’ rights under the confrontation
clause.” However, as already established, the records were certified and self-
authenticating and did not require the victim-mother’s testimony for verification.
Additionally, the doctors’ diagnoses were admissible as part of a business record
under Evid.R. 803(6) and did not require extrinsic testimony from the doctors or
the victim-mother as a prerequisite for admissibility.
Accordingly, the third assignment of error is overruled.
Sufficiency of the Evidence
In the fourth assignment of error, Mitchell challenges his convictions
based on the sufficiency of the evidence. Mitchell argues that his convictions for
failure to comply, trafficking, and vandalism in the Cleveland Heights Case were not
supported by sufficient evidence. He further argues that his convictions for
receiving stolen property and possession of criminal tools in the East Cleveland Case
were not supported by sufficient evidence. After an extensive review of the record
and the law, we find that Mitchell’s argument with respect to the vandalism charge
is well taken; however, the State presented sufficient evidence on the remaining
charges to sustain the convictions.
A challenge to the sufficiency of the evidence supporting a conviction
examines whether the State met its burden of production. State v. Hunter, 2006-
Ohio-20, ¶ 41 (8th Dist.), citing State v. Thompkins, 78 Ohio St.3d 380, 390 (1997).
It involves a review of the evidence admitted at trial and a determination of
“‘whether such evidence, if believed, would convince the average mind of the
defendant’s guilt beyond a reasonable doubt.’” State v. Goins,
2021-Ohio-1299, ¶ 13
(8th Dist.), quoting State v. Jenks,
61 Ohio St.3d 259 (1991), paragraph two of the
syllabus. The question is ‘“whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.”’
Id. quoting Jenks at
id.
The question is not “‘whether the State’s evidence is to be believed, but whether, if
believed, the evidence against a defendant would support a conviction.’”
Id., quoting
Thompkins at 390.
With respect to the failure-to-comply charge in the Cleveland Heights
Case, Mitchell challenges the furthermore clause, arguing the State failed to present
sufficient evidence to establish that Mitchell caused serious physical harm to the
property on Fairmount Boulevard. Specifically, Mitchell claims that the State only
introduced photographs of the damage sustained to the property and that the
photographs alone were insufficient to establish serious physical harm.
“Serious physical harm to property” is defined as “any physical harm
to property that does either of the following”:
(a) Results in substantial loss to the value of the property or requires a
substantial amount of time, effort, or money to repair or replace;
(b) Temporarily prevents the use or enjoyment of the property or
substantially interferes with its use or enjoyment for an extended
period of time.
R.C. 2901.01(A)(6).
Mitchell argues that the State failed to present evidence that there was
a substantial loss of value to the property or that the repair required a substantial
amount of time, effort, or money to repair or replace the damaged property.
However, R.C. 2901.01(A)(6)(b) provides that the State could also meet its burden
by establishing that the incident temporarily prevented the use or the enjoyment of
the property. The property owner’s car was practically crushed as a result of the
accident. Moreover, the photographs depicted significant damage to the attached
brick garage; the outside wall was demolished and the only thing remaining was the
roof, which was hanging precariously from the house. The jury could find serious
physical harm to property because the damage, supported by the photographic
evidence, would temporarily prevent the use or enjoyment of the car and garage.
Additionally, the jury could infer that, given the extent of the damage, the damage
would interfere with the use and enjoyment of the property for a substantial period
of time. See State v. Rembert, 2017-Ohio-7922, ¶ 11 (9th Dist.) (finding that
evidence of how much time, effort, or money was spent to repair the property was
unnecessary to establish that the harm temporarily prevents or interferes with the
use or enjoyment of the property). Accordingly, there was sufficient evidence
presented to support the conviction for failure to comply as charged in the
indictment.
Mitchell also challenges his conviction for trafficking in the Cleveland
Heights Case. Without citation to authority, Mitchell alleges that there was no
evidence of trafficking since the only testimony offered was that the drugs were
found in the car. Further, Mitchell argues that there was no testimony to support a
finding that the weight of the drugs alone was sufficient to prove trafficking.
Mitchell was convicted of one count of drug trafficking in violation of
R.C. 2925.03(A)(2), which provides:
No person shall knowingly do any of the following: Prepare for
shipment, ship, transport, deliver, prepare for distribution, or
distribute a controlled substance or a controlled substance analog,
when the offender knows or has reasonable cause to believe that the
controlled substance or a controlled substance analog is intended for
sale or resale by the offender or another person.
The testimony at trial established that officers found
methamphetamine greater than the bulk amount of in a baggy, a digital scale, a razor
blade, and a firearm inside the vehicle Mitchell was driving. This court and others
have noted that “items such as plastic baggies, wrapping devices, digital scales, and
large sums of money are often used in drug trafficking and may constitute
circumstantial evidence of the conduct proscribed by R.C. 2925.03(A)(2).” State v.
Townsend, 2019-Ohio-544, ¶ 16 (8th Dist.), citing State v. Hawthorne, 2016-Ohio-
203, ¶ 23 (8th Dist.), citing State v. Bowling,
2010-Ohio-3595, ¶ 60 (8th Dist.); State
v. Forte,
2013-Ohio-5126, ¶ 10 (8th Dist.), quoting State v. Rutledge, 2013-Ohio-
1482, ¶ 15 (6th Dist.) (collecting cases). Thus, regardless of the weight of drugs, there
was sufficient circumstantial evidence of trafficking found in the vehicle. Looking
at the evidence in a light most favorable to the prosecution, we find there was
sufficient evidence to establish the crime of trafficking.
With respect to his conviction for vandalism in the Cleveland Heights
Case, Mitchell argues that there was insufficient evidence that he acted knowingly
and that the value of the property or the amount of physical harm involved was
$7,500 or more but less than $150,000.
To establish vandalism, the State must prove that (1) Mitchell
knowingly caused serious physical harm to an occupied structure or any contents
owned by another, and (2) furthermore that the value of the property or the amount
of physical harm involved is $7,500 or more but less than $150,000.
“Knowingly” is statutorily defined, as follows:
A person acts knowingly, regardless of purpose, when the person is
aware that the person’s conduct will probably cause a certain result or
will probably be of a certain nature. A person has knowledge of
circumstances when the person is aware that such circumstances
probably exist.
R.C. 2901.22(B).
The commentary to the statute explains further that
“[k]nowledge” is cast in this section in terms of an awareness of the
probability that one’s conduct will cause a certain result or be of a
certain nature, or that certain circumstances exist. . . . Basing the
definition of knowledge on probability and the definition of
recklessness on likelihood is intentional. Something is “probable”
when there is more reason for expectation or belief than not, whereas
something is “likely” when there is merely good reason for expectation
or belief.
In contrast, “[a] person is reckless with respect to circumstances
when, with heedless indifference of the consequences, the person disregards a
substantial and unjustifiable risk that such circumstances are likely to exist.”
R.C. 2901.22(C).
We are mindful that
[m]ens rea is a graduated assessment of culpability based upon an
actor’s subjective appreciation of risk. As the degree of risk resulting
from an action increases, so does the degree of culpability. Hence,
recklessness implies an element of chance — the actor proceeding
despite knowing that the conduct contains a risk that a certain result is
likely. Knowing conduct means that the actor acts with a degree of
certainty in one’s intention that a result will occur.
State v. Robinson, 2007-Ohio-3646, ¶ 10 (8th Dist.).
The testimony established that Mitchell fled from police at a high rate
of speed. His reckless driving in a residential neighborhood posed a substantial and
unjustifiable risk of harm to other drivers and property owners. The doctor who was
driving by testified that Mitchell ran a red light and nearly hit two cars that had the
right of way. Notably, Mitchell’s conduct was reckless since it posed a substantial
and unjustifiable risk that he could fail to perceive other cars or lose control and
cause an accident. Because we find Mitchell’s conduct was reckless, but not knowing
there was insufficient evidence to support the conviction for vandalism.
Finally, in the East Cleveland Case, Mitchell challenges the sufficiency
of the evidence for receiving stolen property and possession of criminal tools.
With respect to receiving stolen property, the State needed to
establish that Mitchell received, retained, or disposed of the property of another,
knowing or having reasonable cause to believe that the property had been obtained
through the commission of a theft offense. R.C. 2913.51(A). Mitchell’s main concern
is whether there was sufficient evidence to establish that he knew or had reasonable
cause to believe the car was stolen, where the only testimony established the owner
reported the theft.
Knowledge is relevant to this offense as well. With respect to
circumstances, “[a] person has knowledge of circumstances when the person is
aware that such circumstances probably exist.” R.C. 2901.22(B).
“When knowledge of the existence of a particular fact is an element of
an offense, such knowledge is established if a person subjectively
believes that there is a high probability of its existence and fails to make
inquiry or acts with a conscious purpose to avoid learning the fact.”
R.C. 2901.22(B). Absent an admission by a defendant, the question of
whether the defendant had reasonable cause to believe an item was
stolen can only be proved by circumstantial evidence.” State v. Rivera,
2013-Ohio-3203, ¶ 9 (12th Dist.).
In re M.P.A.S.,
2025-Ohio-700, ¶ 12 (12th Dist.).
It is not necessary for an owner to testify at trial to establish the
vehicle was stolen. State v. Perez, 2008-Ohio-471, ¶ 11 (6th Dist.). The only
evidence necessary is “evidence of a wrongful taking from the possession of another.
. . .”
Id., quoting State v. Emmons,
57 Ohio App.2d 173, 177 (2d Dist. 1978).
Accordingly, the police officer’s testimony that the owner reported the car was stolen
was sufficient to establish that there was a wrongful taking from the possession of
another. With respect to a defendant’s knowledge that the vehicle was stolen,
a defendant’s unexplained possession of stolen property may give rise
to the permissive inference that the defendant is guilty of a theft
offense. Likewise . . . the jury could properly infer that [the accused]
had knowledge that the property was stolen.
State v. Wilson, 21 Ohio App.3d 171, 172 (9th Dist. 1985), see also In re A.F., 2008-
Ohio-5479, ¶ 11 (8th Dist.); In re R.T.,
2014-Ohio-5686, ¶ 14 (8th Dist.) (citations
omitted)(also noting that the inference may be “particularly significant when . . . the
defendant offers no explanation for his possession of the stolen goods”).
Furthermore, this court has found that “‘erratic driving and flight
from police officers is circumstantial evidence that the driver was aware that the
vehicle he was in was stolen.’” State v. James, 2009-Ohio-3284, ¶ 22 (8th Dist.),
quoting State v. McNeir,
2000 Ohio App. LEXIS 5562 *16, (Nov. 30, 2000, 6th
Dist.). In the instant case, it does not appear that Mitchell was ever questioned about
how the car came into his possession, so that factor is absent from this case.
However, Mitchell fled from police, raising the inference that he knew the car was
stolen. Based on the foregoing there was sufficient evidence presented regarding
the elements of receiving stolen property.
Turning to Mitchell’s claim regarding his possession-of-criminal-
tools conviction, Mitchell argues without citation to authority or the record, that
there was no testimony that the items in question, the gun, cell phone, or scale, were
criminal tools and thus he should not have been convicted. We decline to address
this argument because Mitchell failed to comply with appellate rules. App.R.
16(A)(7); App.R. 12(A)(2).1 An appellate court is not required to search the record
for evidence in support of an appellant’s argument nor is it required to search for
supportive law. Mayfair Village Condo. Owners Assn. v. Grynko, 2013-Ohio-2100,
¶ 6 (8th Dist.), citing Nob Hill E. Condo. Assn. v. Grundstein,
2011-Ohio-2552, ¶ 11
(8th Dist.), and Strauss v. Strauss,
2011-Ohio-3831, ¶ 72 (8th Dist.).
1 App.R. 12(A)(2) provides: The court may disregard an assignment of error
presented for review if the party raising it fails to identify in the record the error on which
the assignment of error is based or fails to argue the assignment separately in the brief,
as required under App.R. 16(A).
Weight of the Evidence
In the fifth assignment of error, Mitchell challenges the weight of the
evidence for his convictions. Nevertheless, Mitchell only briefed two issues, and we
will confine our review to those items. In the East Cleveland Case, Mitchell argues
that the greater weight of the evidence failed to establish his identity as the
perpetrator. Additionally, he argues that the greater weight of the evidence did not
support a finding that he knowingly caused or attempted to cause physical harm to
Ptl. Anderson and Ptl. Frye by means of an automobile. We find no merit in
Mitchell’s arguments.
“‘[W]eight of the evidence involves the inclination of the greater
amount of credible evidence.’” State v. Harris, 2021-Ohio-856, ¶ 32, quoting
Thompkins,
78 Ohio St.3d at 387. The examination of the weight of the evidence
relates to “‘the evidence’s effect of inducing belief.’”
Id., quoting State v. Wilson,
2007-Ohio-2202, ¶ 25, citing
Thompkins at 386-387. The appellate court must
consider all of the evidence in the record, the reasonable inferences from it, and the
credibility of the witnesses to determine “‘whether in resolving conflicts in the
evidence, the factfinder clearly lost its way and created such a manifest miscarriage
of justice that the conviction must be reversed and a new trial ordered.’”
Id., citing
Thompkins at 387, quoting State v. Martin,
20 Ohio App.3d 172 (1st Dist. 1983).
With respect to his identity, Mitchell argues that no one saw him
driving the black Hyundai Sonata because the windows were heavily tinted, DNA
did not connect him to the driver’s side of the car, and he was located outside of the
car on the passenger side of the vehicle. Further, Mitchell argues that when the
police first arrived at the accident scene, they were focused on the victim-mother’s
car, which allowed time for the “real driver” to escape. Finally, he points out that
the police initially detained another man, believing he was involved in the crime.
The identity of the accused is an element of the crime and is part of
the State’s burden to prove the defendant is guilty beyond a reasonable doubt. State
v. Tate, 2014-Ohio-3667, ¶ 15. The identity of the perpetrator, like any other
element of a crime, may be proven by direct or circumstantial evidence. State v.
Fabal,
2021-Ohio-1793, ¶ 26 (10th Dist.), citing State v. Watkins,
2016-Ohio-1029,
¶ 22 (10th Dist.), citing State v. Mickens,
2009-Ohio-1973, ¶ 18 (10th Dist.). The
two types of evidence, direct and circumstantial, “are of equal evidentiary value.” Id.
at ¶ 27, citing State v. Robinson,
2018-Ohio-1809, ¶ 20 (10th Dist.), citing Jenks,
61
Ohio St.3d at 272.
Direct evidence exists when a witness testifies about something
within their personal knowledge, “such that a trier of fact is not required to draw an
inference from the evidence to the proposition that it is offered to establish.” State
v. Cassano, 2012-Ohio-4047, ¶ 13 (8th Dist.). Circumstantial evidence, in contrast,
is “‘proof of facts by direct evidence from, which the trier of fact may infer or derive
by reasoning other facts in accordance with the common experience of mankind.’”
Fabal at ¶ 26 quoting State v. Wright,
2019-Ohio-5201, ¶ 22 (10th Dist.), quoting
Robinson at ¶ 20.
In the instant case, there was direct evidence that someone wearing
the same clothes as Mitchell at the time of his arrest left the Sunoco gas station,
walked to the driver’s side of the black Hyundai Sonata, opened the driver’s side
door, and entered the car. There was also direct evidence, in the form of
photographs, that the driver’s side of the car was severely damaged as a result of the
accident and that the driver’s side airbag deployed. The jury could infer from that
evidence that Mitchell was the driver of the car. Ptl. Roman’s dash came established
there was less than a minute and a half between the time Mitchell fled the Sunoco
station and the time Ptl. Roman arrived at the accident scene. Further, the jury
could infer from the damage to the driver’s door that Mitchell, as the driver of the
vehicle, had to exit the car through the passenger side.
Mitchell’s argument that the officers missed the driver leaving the
scene because they were focused on the victim-mother’s car was merely speculation.
Further, although the officers initially detained another individual, they testified
that they cleared that person of involvement with the incident. Based on the
foregoing, the State established Mitchell’s identity by the greater weight of the
evidence.
In regard to his convictions for felonious assault, Mitchell argues that
the evidence did not establish that he acted knowingly. Mitchell argues that he was
trying to drive away from the area and that it was the officers who intentionally
moved into his path. In his argument, Mitchell conflates purposeful and knowing
conduct, arguing that the officers were wrongly permitted to testify that Mitchell
drove at Anderson in an attempt to strike him.
To establish the crime of felonious assault under R.C. 2903.11(A)(2),
the State needed to show that Mitchell knowingly caused or attempted to cause
physical harm to another or to another’s unborn by means of a deadly weapon or
dangerous ordnance. As discussed above, knowing conduct, is established when
“regardless of purpose, . . . the person is aware that the person’s conduct will
probably cause a certain result or will probably be of a certain nature.”
R.C. 2901.22(B). When combined with R.C. 2901.22(B), this court has found, in
discussing felonious assault under R.C. 2903.11(A)(1), that felonious assault “‘does
not require that a defendant intend to cause “serious physical harm,” but that the
defendant acts with an awareness that [his] conduct probably will cause such
harm.’” State v. Reed, 2008-Ohio-312, ¶ 7 (8th Dist.), quoting State v. Lee,
1998
Ohio App. LEXIS 4150 (10th Dist. Sept. 3, 1998). A similar argument can be made
regarding R.C. 2903.11(A)(2), that the State does not have to prove that the
defendant intended to attempt to cause or cause physical harm with an automobile,
but he acts knowingly when there is an awareness that the conduct probably will
cause such harm. “A defendant acts knowingly when, although not intending the
result, he or she is nevertheless aware that the result will probably occur.” Reed at
id.
Here, Mitchell was parked at a gas pump, with police cruisers
blocking him in both the front and the rear. There was also a car parked at the gas
pump to the left of the driver’s side of the vehicle. When he tried to flee, Mitchell
turned the car to the left towards the gap between the parked car and the front police
cruiser. Ptl. Anderson was standing between the parked car and his cruiser, and Ptl.
Frye was standing behind him closer to their cruiser. A jury could infer that it was
Mitchell’s intention, i.e., to escape. However, he did so with knowledge that both
Ptl. Anderson and Ptl. Frye were in close proximity to his vehicle and that he was
further hemmed in by the car parked at the adjacent pump. The video established
that Ptl. Anderson was so close to the Hyundai Sonata that he had to throw out his
hand to push himself off the windshield to avoid being hit. Ptl. Frye dodged behind
the cruiser to get out of the way. Given the foregoing, the evidence establishes that
Mitchell knew that by trying to force his car through a narrow gap between two
cruisers and a parked car, where two police officers were also standing, it was
probable that he could hit one or both of the officers. Accordingly, we find that the
felonious assault convictions were supported by the greater weight of the evidence.
Based on the foregoing, the fifth assignment of error is overruled.
Merger of Allied Offenses of Similar Import
Finally, in the first assignment of error, Mitchell argues that the trial
court erred when it failed to merge charges at sentencing because they were allied
offenses of similar import. In the Cleveland Heights Case, Mitchell alleges it was
error for the trial court to fail to merge the three failure-to-comply charges, and that
it was error for the trial court to fail to merge the two having-weapons-while-under-
disability charges. In the East Cleveland Case, Mitchell argues that the trial court
erred when it failed to merge the two having-weapons-while-under-disability
charges and the four aggravated-vehicular-assault charges. The State argues that
the trial court did not err and the counts were not required to merge; however, if
there was an error, the case should be remanded for resentencing. After reviewing
the record and the applicable law, we find that the trial court did not err when it
decided not to merge the failure-to-comply charges. However, Mitchell’s argument
is well taken with respect to merger of the having-weapons-while-under-disability
and aggravated-vehicular-assault charges.
We review the decision on whether offenses should be merged as
allied offenses of similar import under a de novo standard of review. State v. Bailey,
2022-Ohio-4407, ¶ 6, citing R.C. 2941.25, State v. Williams,
2012-Ohio-5699, ¶ 1.
However, although the parties discussed the merger of some of the offenses in an
earlier hearing, Mitchell did not object to the trial court’s decision regarding the
merger of offenses at sentencing. Therefore, we must review the decision for plain
error.
Id. at ¶ 7 citing State v. Rogers,
2015-Ohio-2459, ¶ 28 (“[T]he failure to raise
the allied offense issue at the time of sentencing forfeits all but plain error.”).
Reviewing courts are exhorted to notice plain error “only under
exceptional circumstances to prevent injustice.” Id. at ¶ 8, citing State v. Long, 53
Ohio St.2d 91 (1978), paragraph three of the syllabus. Plain error is established
when an accused demonstrates that there was an obvious error “and that there is a
reasonable probability that the error results in prejudice.” (Emphasis in original.)
Rogers, at ¶ 22. Even if we find that there was an obvious error, “it must have
affected a substantial right” such that the error “‘affected the outcome of the trial.’”
Id., quoting State v. Barnes,
94 Ohio St.3d 21, 27 (2002). Therefore, Mitchell must
demonstrate “a reasonable probability that the error resulted in prejudice.”
Id.,
citing United States v. Dominguez Benitez,
542 U.S. 74, 81-83 (2004). He may do
so by demonstrating “a reasonable probability that his convictions constituted allied
offenses of similar import.” Id. at ¶ 29.
When a defendant’s conduct “supports more than one offense . . . a
court must conduct an analysis of allied offenses of similar import to determine
whether the offenses merge or whether the defendant may be convicted of separate
offenses.” State v. Ruff, 2015-Ohio-995, ¶ 24, citing R.C. 2941.25(B). When offenses
are found to be allied offenses of similar import, the defendant, though charged with
two or more offenses, may only be convicted of a single offense. Id. at ¶ 13, citing
R.C. 2941.25(A).
To determine whether a defendant may be convicted of multiple
sentences, we employ a three-part test. State v. Earley, 2015-Ohio-4615, ¶ 12. We
must consider:
(1) were the offenses dissimilar in import or significance – in other
words, did each offense cause separate identifiable harm? (2) Were
they committed separately? And (3) Were they committed with
separate animus or motivation? An affirmative answer to any of the
above will permit separate convictions. The conduct, the animus, and
the import must all be considered.
Ruff at ¶ 31.
In the Cleveland Heights Case, Mitchell was indicted for failure to
comply based on three acts: (1) that his conduct was the proximate cause of
substantial harm to persons or property; (2) that his conduct posed a substantial
risk of harm to persons or property; and (3) that he committed the act of fleeing
immediately after committing a felony. At the outset it is clear that, under Ruff, the
offenses caused separate identifiable harm and were committed separately from one
another. When he fled from Ptl. Hill, Mitchell possessed a gun while under
disability and methamphetamines. He was thus in violation of failure to comply in
Count 3 when he fled from Ptl. Hill at the initial traffic stop. After that, Mitchell
continued to drive at a high rate of speed, driving in the wrong lane of traffic to pass
the doctor, and then nearly missing two cars when he entered the intersection of
Fairmount and South Taylor. At that point, Mitchell was in violation of failure to
comply by creating a substantial risk of harm to persons or property, as alleged in
Count 2. Finally, Mitchell lost control of his vehicle and crashed into the property
on Fairmont, in violation of Count 1. Based on the foregoing, the offenses were not
allied offenses of similar import, the offenses were dissimilar in import, and the trial
court was not required to merge the counts.
Next, Mitchell was charged with two counts of having weapons under
disability in both cases under R.C. 2923.13(A)(2) and (A)(3). In the East Cleveland
Case, Mitchell was charged with having weapons while under disability due to a
prior conviction in 2008 for robbery with a one-year firearm specification (Count 4)
and for a 2013 conviction for drug trafficking (Count 5). In the Cleveland Heights
Case, the underlying offense for Count 3 was a different 2013 conviction for drug
trafficking, and the underlying offense for Count 4 was the same 2008 robbery
conviction used in the East Cleveland Case. For ease of analysis, and because the
analysis for the two cases is the same, we will confine our discussion to the Cleveland
Heights Case.
R.C. 2923.13(A)(2) and (3) provides that “[u]nless relieved from
disability under operation of law or legal process, no person shall knowingly acquire,
have, carry, or use any firearm or dangerous ordnance, if any of the following apply”:
(2) The person is under indictment for or has been convicted of any
felony offense of violence or has been adjudicated a delinquent child for
the commission of an offense that, if committed by an adult, would
have been a felony offense of violence.
(3) The person is under indictment for or has been convicted of any
felony offense involving the illegal possession, use, sale,
administration, distribution, or trafficking in any drug of abuse or has
been adjudicated a delinquent child for the commission of an offense
that, if committed by an adult, would have been a felony offense
involving the illegal possession, use, sale, administration, distribution,
or trafficking in any drug of abuse.
R.C. 2923.13(A)(2) and (3).
R.C. 2923.13(A)(2) and (3) could be committed with the same
conduct. The evidence established that Mitchell had a gun in his vehicle at the time
of the offense. Mitchell’s conduct did not cause separate identifiable harm. The
violations of R.C. 2923.13(A)(2) and (3) were not committed separately, and
Mitchell did not commit the crimes with separate motivations or animus. The
conduct in this case was Mitchell’s possession of one firearm, while his disability was
a status created by his prior convictions. See State v. Creech, 2016-Ohio-8440, ¶ 38
(while finding that it was reversible error for the trial court to refuse to allow the
defense to stipulate to an existing disability in a having-weapons-while-under-
disability case, the court noted that “‘proof of the defendant’s status goes to an
element entirely outside the natural sequence of what the defendant is charged with
thinking and doing to commit the current offense. Old Chief [v. United States,
519
U.S. 172,] 191 (1997).’”). Nonetheless, the possession of a single gun cannot result
in multiple convictions having of weapons under disability.2
Accordingly, the having-weapons-while-under-disability charges
were allied offenses of similar import and should have been merged at sentencing.
Based on the foregoing, we find that the trial court erred when it failed to merge the
two having-weapons-while-under-disability charges in the Cleveland Heights Case.
Furthermore, the facts of the East Cleveland Case warrant merger of the two having-
weapons-while-under-disability convictions in that case. Accordingly, the trial court
erred when it failed to merge Counts 3 and 4 in the Cleveland Heights Case and when
it failed to merge Counts 4 and 5 in the East Cleveland Case.
We now turn to the four aggravated-vehicular-assault charges in the
East Cleveland Case. Mitchell was charged with aggravated vehicular assault
pursuant to R.C. 2903.08(A)(2)(b) in all four counts. Counts 6 and 7 included a
2 Moreover, see State v. King, 2013-Ohio-2021, ¶ 34 (2d Dist.) (finding that the
“simultaneous, undifferentiated possession of multiple weapons can constitute one act of
having weapons while under disability” but “multiple convictions are appropriate if
“‘there is evidence that the weapons were stored in different places or acquired at different
time.’”) (citations omitted).
sentencing enhancement that increased the penalty from a felony of the fourth
degree to a felony of the third degree if the offender was driving while under
suspension at the time of the offense.
Preliminarily, this court has found that “[w]here a defendant commits
the same offense against different victims during the same course of conduct and
the offense is defined in terms of conduct toward another,” the crimes are of
dissimilar import for each person. (Citations omitted.) State v. Spock, 2014-Ohio-
606, ¶ 33 (8th Dist.); see also, Ruff, 2015-Ohio-995, at ¶ 26 (“When a defendant’s
conduct victimizes more than one person, the harm for each person is separate and
distinct, and therefore, the defendant can be convicted of multiple counts.”).
Therefore, the question here is limited to whether the counts
involving the victim-mother should merge and separately whether the counts
involving the victim-son should merge. In the instant case, Mitchell’s actions
stemmed from a single course of conduct. Further, his license suspension was a
status, just like his disability, and thus predated the actions that comprise the
offenses. His actions did not have dissimilar import or significance, because we
cannot say that the count of aggravated vehicular assault with a license suspension
and the count without the suspension caused separate, identifiable harm, nor were
they committed separately, or with separate animus or motivation. See Ruff at ¶ 25.
Accordingly, the trial court should have merged Counts 6 and 8 and Counts 7 and 9.
Based on the foregoing, the first assignment of error is overruled with
respect to the East Cleveland Case charges of failure-to-control, sustained on the
having-weapons-while-under-disability counts in the Cleveland Heights Case,
sustained on the charges for having weapons while under disability in the East
Cleveland Case, and sustained for the two aggravated-vehicular-assault counts in
the East Cleveland Case for the victim-son, and for the two aggravated-vehicular-
assault counts for the victim-mother. Accordingly, the sentences on those counts
are vacated, and the case is remanded for the State to elect which charges they will
proceed on and for the trial court to resentence Mitchell.
Judgment affirmed in part, reversed in part, and remanded for
resentencing.
It is ordered that costs herein taxed be split between the parties.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EMANUELLA D. GROVES, JUDGE
EILEEN A. GALLAGHER, A.J., and
MICHAEL JOHN RYAN, J., CONCUR
