[Cite as State v. Sinclair, 2018-Ohio-3363.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 105726

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

LOGAN DANIEL SINCLAIR

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-601632-A 

BEFORE: Laster Mays, J., E.A. Gallagher, A.J., and Stewart, J. 

RELEASED AND JOURNALIZED: August 23, 2018 

-i- 
ATTORNEY FOR APPELLANT 

Thomas A. Rein 

820 West Superior Avenue, Suite 800 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE 

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: Daniel A. Cleary 

Kerry A. Sowul 

Assistant County Prosecutors 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113
ANITA LASTER MAYS, J.: 

{¶1} Defendant-appellant, Logan Daniel Sinclair (“Sinclair”), appeals his jury convictions 

on multiple criminal counts arising from two separate events occurring on November 28, 2015, 

resulting in a life sentence with parole eligibility after 50 years. After a review of the record, we 

affirm. 

I. Charges and Sentence

{¶2} On December 7, 2015, Sinclair was indicted on the following counts:1

Count Charge

Count 1 Aggravated murder of Robert Sposit, R.C. 2903.01(A) with 

one- and three-year firearm specifications (R.C. 2941.141 and 

2941.145). 

Count 2 Aggravated murder of Robert Sposit, R.C. 2903.01(B) with 

one- and three-year firearm specifications (R.C. 2941.141 and 

2941.145). 

Count 3 Murder of Robert Sposit, R.C. 2903.02(B) with one- and 

three-year firearm specifications (R.C. 2941.141 and 

2941.145). 

Count 4 Aggravated robbery of Robert Sposit, R.C. 2911.01(A)(3) with 

one- and three-year firearm specifications (R.C. 2941.141 and 

2941.145). 

Count 5 Aggravated robbery of Robert Sposit, R.C. 2911.01(A)(1) with 

one- and three-year firearm specifications (R.C. 2941.141 and 

2941.145). 

Count 6 Felonious assault of Robert Sposit, R.C. 2903.11(A)(1) with 

one- and three-year firearm specifications (R.C. 2941.141 and 

2941.145). 

Count Charge

 1

 The victims are further identified below. 
Count 7 Felonious assault of Steve Oska, Sr., R.C. 2903.11(A)(1) with 

one- and three-year firearm specifications (R.C. 2941.141, 

R.C. 2941.145). 

Count 8 Felonious assault of Steve Oska, Jr., R.C. 2903.11(A)(1) with 

one- and three-year firearm specifications (R.C. 2941.141, 

R.C. 2941.145). 

Count 9 Kidnapping of Robert Sposit, R.C. 2905.01(A)(2) with oneand three-year firearm specifications (R.C. 2941.141 and 

2941.145). 

Count 10 Aggravated robbery of Carlo Russo, R.C. 2911.01(A)(1) with 

one- and three-year firearm specifications (R.C. 2941.141 and 

2941.145). 

Count 11 Kidnapping of Carlo Russo, R.C. 2905.01(A)(2) with one- and 

three-year firearm specifications (R.C. 2941.141 and 

2941.145). 

Count 12 Aggravated robbery of Hassib Merhi, R.C. 2911.01(A)(1) with 

one- and three-year firearm specifications (R.C. 2941.141 and 

2941.145). 

Count 13 Kidnapping of Hassib Merhi, R.C. 2905.01(A)(2) with oneand three-year firearm specifications (R.C. 2941.141 and 

2941.145). 

II. Proceedings 

A. Pretrial Matters

{¶3} The case was set for trial on October 24, 2016. The defense announced that 

Sinclair desired to enter a plea, but the trial court chose to initially address the results of 

Sinclair’s competency examination following his suicide attempt the previous week. The 

court’s psychiatric clinic determined that Sinclair was “competent within a reasonable 

psychological certainty and also ineligible for mental health court participation.” (Tr. 29-30.) 

Both the state and defense counsel stipulated to the report. 

{¶4} Sinclair then entered into the plea agreement that included a minimum sentence of 
life with parole eligibility at 26 years, and a maximum sentence of life without parole. On 

November 10, 2016, the trial court held a hearing on Sinclair’s motion to withdraw the guilty 

plea based on: (1) his limited opportunity to consult with counsel in light of the magnitude of 

the matter, (2) his relative youth at 21 years of age, and (3) lack of experience with the criminal 

justice system. After an in camera review of the crime scene security video in the presence of 

counsel, the trial court granted the motion. The on-the-record discussion after the video review 

revealed that, due to the frequently shifting security camera angles, the parties disagreed on what 

the videos actually depicted. 

B. Trial 

{¶5} Hassib Merhi (“Merhi”) testified that on November 28, 2015, while he was doing 

paperwork at the front counter by the register at Charlie’s Beverage on Ridge Road in Cleveland, 

Sinclair entered the store. Another worker, Carlo Russo (“Russo”), was in the rear of store. 

{¶6} Sinclair entered the store as though shopping, wearing a winter hat that was pulled 

down covering most of his face. Sinclair turned and walked toward Merhi, pointed a black 

gun and removed $40 from the register. Appellant warned Merhi that he would shoot him if he 

followed. Appellant left the store. Russo observed the entire incident. Merhi called 911 and 

the incident was recorded by the security video. 

{¶7} Shortly afterward, a robbery occurred at a Sunoco station in Parma. Father and 

son, Steve Oska, Sr. (“Oska, Sr.”) and Steve Oska, Jr. (“Oska, Jr.”), who are both hearing 

impaired, pulled into the station about 9:00 p.m. and saw a male entering the building wearing 

what appeared to be a hoodie partially covering his face. Oska, Jr. saw the male, later identified 

as the appellant, pointing a gun at the owner, Robert Sposit (“Sposit”), whose hands were raised. 
{¶8} Oska, Jr. and Oska, Sr. blocked the door from the outside, stopping appellant from 

leaving. Sposit pulled out a gun and shot Sinclair as he was departing. Sinclair fell to the 

floor. While Sposit was attempting to hold Sinclair down, Oska, Sr. and Oska, Jr. entered, and 

Sposit told Oska, Jr. to call 911. 

{¶9} While the appellant and Sposit struggled on the floor, appellant’s gun “was 

concealed in his pocket.” (Tr. 395.) “The robber [appellant] took the gun out of his pocket. 

But dad grabbed his wrist.” (Tr. 397.) Oska, Jr. could tell by the vibration when shots were 

fired. By the time the police arrived at the scene, Sinclair had run out of the store, dropping his 

gun. Sposit was dead. 

{¶10} Detective Jonathan Fullerton (“Det. Fullerton”) of the Parma Police Department 

(“PPD”) obtained vehicle registration information for the tan sedan driven by Sinclair, a young 

blond male. He was familiar with the registered owner due to a prior complaint and believed a 

younger male matching the appellant’s description also resided at the listed address. After 

arriving at the listed address, Det. Fullerton observed fresh blood spots in a tan Toyota sedan 

parked in the driveway and radioed for assistance. Sinclair, who had a left arm and hip injury, 

reluctantly surrendered to a S.W.A.T. team and hostage negotiator approximately one and 

one-half hours later. 

{¶11} Detective Elliot Landrau of the Cleveland Police Department (“CPD”) reviewed 

the surveillance video for the Charlie’s case and collaborated with Detective Wells of the PPD 

who was investigating the Sunoco shooting. They later conducted a joint interview with 

Sinclair who admitted that he committed both robberies using the same gun. 

{¶12} Sinclair told the detectives that he was unable to get out of the door due to his arm 

injury and that Sposit stood over him, said “f**k you” and fired again. Sinclair shot back, hitting 
Sposit. Sinclair dropped the gun before departing and was shot in the buttocks by Oska, Sr. 

while he was running out of the door. 

{¶13} The trial judge granted the Crim.R. 29 motion as to the robbery of Russo in 

Count 11. The jury returned the following verdict: 

Count Charge Verdict Resolution

1 Aggravated murder of Sposit, 

R.C. 2903.01(A) with one- and 

three-year firearm specifications 

Guilty of lesser included 

offense of murder with 

specifications 

2 Aggravated murder of Sposit, 

R.C. 2903.01(B) with one- and 

three-year firearm specifications 

Guilty with specifications 

3 Murder of Sposit, 

R.C. 2903.02(B) with one- and 

three-year firearm specifications 

Guilty with specifications 

4 Aggravated robbery of Sposit, 

R.C. 2911.01(A)(3) with oneand three-year firearm 

specifications 

Guilty with specifications 

5 Aggravated robbery of Sposit, 

R.C. 2911.01(A)(1) with oneand three-year firearm 

specifications 

Guilty with specifications 

6 Felonious assault of Sposit, 

R.C. 2903.11(A)(1) with oneand three-year firearm 

specifications 

Guilty with specifications 

7 Felonious assault of Oska, Sr., 

R.C. 2903.11(A)(1) with oneand three-year firearm 

specifications 

Guilty with specifications 

8 Felonious assault of Sposit, 

R.C. 2903.11(A)(1) with oneand three-year firearm 

specifications 

Guilty with specifications 
Count Charge Verdict Resolution

9 Kidnapping of Sposit, 

R.C. 2905.01(A)(2) with oneand three-year firearm 

specifications 

Guilty with specifications 

10 Aggravated robbery of Russo, 

R.C. 2911.01(A)(1) with oneand three-year firearm 

specifications 

Not guilty 

11 Kidnapping of Russo, 

R.C. 2905.01(A)(2) with oneand three-year firearm 

specifications 

Crim.R. 29 motion for 

acquittal granted 

12 Aggravated robbery of Merhi, 

R.C. 2911.01(A)(1) with oneand three-year firearm 

specifications 

Guilty with specifications 

13 Kidnapping of Merhi, 

R.C. 2905.01(A)(2) with oneand three-year firearm 

specifications 

Guilty with specifications 

{¶14} Counts 1, 2, 3, and 6 merged for sentencing. The state elected to proceed on 

Count 2. Counts 4, 5, and 9 merged for sentencing. The state elected to proceed on Count 5; 

Counts 7 and 8 stood alone. Counts 12 and 13 merged for sentencing, and the state elected to 

proceed on Count 12. The one-year firearm specifications in Counts 2, 5, 7, 8, and 12 merged 

into the three-year firearm specifications for the respective counts. 

{¶15} Sinclair was sentenced to a life sentence with parole eligibility after 50 years with 

mandatory postrelease control on a number of counts. Sinclair timely appealed. 

III. Assignments of Error 

{¶16} Sinclair offers seven assigned errors: 
I. The trial court erred by failing to grant a judgment of acquittal pursuant to 

Crim.R. 29(A) on the charges as the evidence was insufficient to support 

the convictions in violation of Appellant’s right to Due Process of Law, as 

guaranteed by the Fourteenth Amendment to the United States 

Constitution. 

II. Sinclair’s convictions are against the manifest weight of the evidence. 

III. The trial court erred by failing to order a separate trial for two separate 

incidents. 

IV. The trial court erred by admitting other acts testimony in violation of R.C. 

2945.59, Evid.R. 404(B) and Sinclair’s rights under Article I, Section 10, 

of the United States Constitution. 

V. The trial court erred by failing to instruct the jury on the lesser included 

offenses requested by Sinclair. 

VI. Sinclair was denied effective assistance of counsel as guaranteed by 

Article I, Section 10, of the United States Constitution and the Sixth and 

Fourteenth Amendments. 

VII. The trial court erred by ordering Sinclair to serve a consecutive sentence 

without making the appropriate findings under R.C. 2929.14 and HB 86. 

IV. Discussion 

A. Sufficiency and Manifest Weight of the Evidence 

{¶17} We combine Sinclair’s first and second assigned errors for analysis. 

{¶18} A Crim.R. 29(A) motion for acquittal tests the sufficiency of the evidence. 

State v. Hill, 8th Dist. Cuyahoga No. 98366, 2013-Ohio-578, ¶ 13. The Ohio Supreme Court 

has explained that, “[t]he legal concepts of sufficiency of the evidence and weight of the 

evidence are both quantitatively and qualitatively different.” State v. Thompkins, 78 Ohio St.3d 

380, 386, 678 N.E.2d 541 (1997). 

{¶19} “Sufficiency of the evidence is a test of adequacy as to whether the evidence is 

legally sufficient to support a verdict as a matter of law, but weight of the evidence addresses the 

evidence’s effect of inducing belief.” State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202, 
865 N.E.2d 1264, ¶ 25, citing Thompkins at 386-387. While an appellate court “may determine 

that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless 

conclude that the judgment is against the weight of the evidence.” Thompkins at 387. 

{¶20} The sufficiency question is whether, if believed and viewed in a light most 

favorable to the prosecution, the evidence admitted at trial supported the conviction. State v. 

Starks, 8th Dist. Cuyahoga No. 91682, 2009-Ohio-3375, ¶ 25, citing Thompkins at 387. Would 

“any rational trier of fact” find that “‘the essential elements of the crime [have been] proven 

beyond a reasonable doubt.’” State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 

N.E.2d 229, quoting State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of 

the syllabus. 

{¶21} On the other hand, a manifest weight inquiry requires that “[w]e consider 

whether the state has met its burden of production at trial.” State v. Hunter, 8th Dist. Cuyahoga 

No. 86048, 2006-Ohio-20, ¶ 41, citing Thompkins, 78 Ohio St.3d at 390, 678 N.E.2d 541. The 

appellate court sits “‘as a thirteenth juror.’” Thompkins at 387, quoting Tibbs v. Florida, 457 

U.S. 31, 42, 102 S.Ct. 2211, 72 L.Ed.2d 652 (1982). 

“The court, reviewing the entire record, weighs the evidence and all reasonable 

inferences, considers the credibility of witnesses and determines whether in 

resolving conflicts in the evidence, the jury clearly lost its way and created such a 

manifest miscarriage of justice that the conviction must be reversed and a new 

trial ordered. The discretionary power to grant a new trial should be exercised 

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

conviction.” 

Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st 

Dist.1983). 

{¶22} We consider whether a greater amount of credible trial evidence supports “one 

side of the issue rather than the other.” Thompkins at 387. “‘Weight is not a question of 

mathematics, but depends on its effect in inducing belief.’” Id., quoting Black’s Law 
Dictionary 1594 (6th Ed.1990). 

{¶23} The record reflects that the Crim.R. 29 motion was proffered on all counts, 

though Sinclair’s appellate brief focuses on Count 2, aggravated murder of Sposit under R.C. 

2903.01(B), specifically, that Sinclair is guilty of “purposely causing the death” of Sposit 

“while committing, attempting to commit, or fleeing immediately after committing” “aggravated 

robbery” in violation of R.C. 2911.01(A). As the state points out, the elements of aggravated 

robbery are satisfied and uncontested in this appeal. 

{¶24} Sinclair argues that the evidence does not support the allegation that he 

“purposely” caused the death of Sposit and that he was, in fact, defending himself when Sposit 

stood over him to shoot him again. In addition, he argues, Oska, Sr. grabbed his wrist at this 

time. 

{¶25} The culpability statute provides in pertinent part, that “a person acts purposely” 

“when the gist of the offense is a prohibition against conduct of a certain nature, regardless of 

what the offender intends to accomplish thereby.” R.C. 2901.22(A). The commission of the 

aggravated robbery is the “gist of the offense” in this case, so the mens rea has been satisfied. 

{¶26} The state argues that a robber knows that he is inviting dangerous resistance, and 

that forcible defense to defend self, family friends, and property “is a primal human instinct.” 

State v. Dixon, 2d Dist. Montgomery No. 18582, 2002-Ohio-541, ¶ 19, citing State v. Chambers, 

53 Ohio App.2d 266, 373 N.E.2d 393 (9th Dist.1977). Further offered by the state is the 

premise that “risk of harm to others during the aggravated robbery was reasonably foreseeable.” 

See 

also State v. Meek, 53 Ohio St. 2d 35, 372 N.E.2d 341 (1978). We agree. 
{¶27} Sinclair was fleeing the scene after commission of an aggravated robbery when 

Sposit was murdered. We find that Sinclair purposely shot Sposit. The evidence in this case 

supports the elements of the conviction of aggravated murder. 

{¶28} We also find that the aggravated murder conviction was not against the manifest 

weight of the evidence. Sinclair entered into the Sunoco gas station owned and operated by 

Sposit. Sinclair committed the act of aggravated robbery and attempted to exit the gas station. 

Sposit was attempting to defend his property when Sinclair pulled his gun out of his pocket and 

shot him. We find that this is not the exceptional case where reversal is warranted. 

{¶29} We also reject Sinclair’s self-defense argument. 

In Ohio, the affirmative defense of self-defense has three elements: (1) the 

defendant was not at fault in creating the violent situation, (2) the defendant had a 

bona fide belief that he was in imminent danger of death or great bodily harm and 

that his only means of escape was the use of force, and (3) that the defendant did 

not violate any duty to retreat or avoid the danger. 

State v. Thomas, 77 Ohio St.3d 323, 673 N.E.2d 1339 (1997), citing State v. Williford, 49 Ohio 

St.3d 247, 249, 551 N.E.2d 1279 (1990), citing State v. Robbins, 58 Ohio St.2d 74, 388 N.E.2d 

755 (1979), paragraph two of the syllabus. Sinclair is unable to meet the first element. He 

created the situation by engaging in the aggravated robbery. Therefore, we find that Sinclair’s 

self-defense argument fails. 

{¶30} Appellant’s first and second assignments of error are overruled. 

B. Separate Trials 

{¶31} Sinclair asserts the trial court erred in failing to require separate trials for the 

robberies. Sinclair did not file a motion to sever the charges, therefore, we may only consider 

plain error. Crim.R. 52(B) provides that “plain errors or defects affecting substantial rights may 

be noticed although they were not brought to the attention of the court.” We consider whether it 
is apparent that “[b]ut for the error,” “the outcome of the trial clearly would have been different.” 

Solon v. Woods, 8th Dist. Cuyahoga No. 100916, 2014-Ohio-5425, ¶ 11. “Notice of plain 

error should be taken with the utmost caution, under exceptional circumstances and only to 

prevent a manifest miscarriage of justice.” Id. 

{¶32} To support a finding of plain error, there must be (1) a deviation from a legal rule 

constituting error; (2) an “obvious” defect in the trial court proceedings; and (3) the error must 

have impacted the defendant’s “substantial rights,” in that the error must have compromised the 

outcome of the trial. State v. Pridgett, 8th Dist. Cuyahoga No. 101823, 2016-Ohio-687, ¶ 

26-28, citing Crim.R. 52(B), State v. Hill, 92 Ohio St.3d 191, 200, 205, 749 N.E.2d 274 (2001), 

State v. Sanders, 92 Ohio St.3d 245, 257, 750 N.E.2d 90 (2001). 

{¶33} Where the requirements of Crim.R. 8(A) are satisfied, the law favors joining 

multiple offenses in a single trial. State v. Ferrell, 8th Dist. Cuyahoga No. 100659, 

2014-Ohio-4377, ¶ 38. Crim.R. 8(A) allows multiple offenses to be joined in a single trial where 

the offenses are of “similar character,” are based on similar transactions or acts, or “are part of a 

course of criminal conduct.” Id. A trial court may grant severance if it appears the defendant 

would be prejudiced by the joinder. Crim.R. 14; State v. Diar, 120 Ohio St.3d 460, 

2008-Ohio-6266, 900 N.E.2d 565, ¶ 95. Further: 

“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, 2014-Ohio-5341, ¶ 33, citing State v. Torres, 66 

Ohio St.2d 340, 343-344, 421 N.E.2d 1288 (1981). Joinder is therefore not 

prejudicial when the evidence is direct and uncomplicated and can reasonably be 

separated as to each offense. Id. 

State v. Sutton, 8th Dist. Cuyahoga Nos. 102300 and 102302, 2015-Ohio-4074, ¶ 22. 

{¶34} We find that, in this case, the evidence was direct, uncomplicated, and could 
reasonably be separated as to each offense. The acts are similar and constitute a course of 

conduct. There were two robberies with a gun at different locations that occurred within a one 

hour time period. The victims were easily identified, and the record reflects due consideration 

by the jury of each count. The jury reduced the Count One aggravated murder charge to murder 

and found Sinclair not guilty of the kidnapping of Russo. 

{¶35} The testimony as to each victim and the separate events relating to them was 

distinctive and distinguishable. In addition, the robbery at Charlie’s Beverage was a minor part 

of the proceedings as compared to the bulk of testimony and evidence addressing the events 

surrounding the Sunoco incident. Sinclair was positively identified by the witnesses at both 

scenes and video evidence exists for both locations. 

{¶36} Sinclair is unable to demonstrate prejudice. We find the third assignment of 

error to be without merit. 

C. Other Acts Testimony 

{¶37} Sinclair’s fourth assigned error challenges the admission of other acts evidence in 

violation of R.C. 2945.59, Evid.R. 404(B), and Article I, Section 10 of the United States 

Constitution. Sinclair asserts that the evidence introduced regarding the two robberies tainted 

the jury’s ability to determine the separate counts and incidents. In light of our finding that the 

trial court did not err in entertaining the joined cases, Sinclair’s argument hereunder is moot. 

App.R. 12(A). 

D. Lesser Included Offense Jury Instruction 

{¶38} Sinclair requested instructions on the following lesser included offenses: (1) 

voluntary manslaughter and reckless homicide2

 on Count 1 aggravated murder; (2) involuntary 

 2

 Sinclair does not attack the trial court’s denial of this instruction. 
manslaughter on Count 3 in commission with an aggravated assault; and (3) aggravated assault 

on Count 6 felonious assault. The court agreed to provide a lesser included offense instruction 

of murder on Count 1, and to let the jury decide on the indicted counts, citing State v. Rhodes, 63 

Ohio St.3d 613, 590 N.E.2d 261 (1992).3

 

{¶39} Three types of lesser included offenses may be considered under R.C. 2945.74 

and Crim.R. 31(C). State v. Deem, 40 Ohio St.3d 205, 207, 533 N.E.2d 294 (1988): “1) 

attempts to commit the crime charged, if such an attempt is an offense at law; (2) inferior degrees 

of the indicted offense; or (3) lesser included offenses.” Id. 

{¶40} Sinclair’s entitlement to a lesser included offense instruction turns on satisfying a 

two-part test: (1) whether the requested charge is a lesser included offense of the current charge; 

and, if so, (2) whether the evidence in the record supports entitlement to the instruction. State v. 

Hill, 8th Dist. Cuyahoga No. 87645, 2006-Ohio-6425, ¶ 27, citing State v. Kidder, 32 Ohio St.3d 

279, 280-281, 513 N.E.2d 311 (1987), citing Deem, 40 Ohio St.3d 205, 533 N.E.2d 294. 

{¶41} To determine whether the requested charge is a lesser included offense, we 

consider whether: 

“one offense carries a greater penalty than the other, whether some element of the 

greater offense is not required to prove commission of the lesser offense, and 

whether the greater offense as statutorily defined cannot be committed without the 

lesser offense as statutorily defined also being committed.” 

Middleburg Hts. v. Lasker, 2016-Ohio-5522, 76 N.E.3d 372, ¶ 24 (8th Dist.), quoting State v. 

Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889. Where the elements of the 

 3

 A defendant must prove the existence of mitigating factors such as sudden passion, rage, or serious 

provocation by a preponderance of the evidence. Rhodes at 617, affirming trial court’s refusal to give voluntary 

manslaughter instruction for aggravated murder charge. See also State v. Henry, 8th Dist. Cuyahoga No. 102634, 

2016-Ohio-692, affirming trial court’s refusal to give aggravated assault instruction for felonious assault charge, 

citing Rhodes. 
requested charge are identical to the actual charge, except for “one or more additional mitigating 

elements,” the requested charge is an inferior degree of the indicted offense. Deem at 207. 

{¶42} If a “jury could reasonably find the defendant not guilty of the charged offense,” 

but guilty of the lesser included offense, the instruction for the lesser included offense should be 

given. Evans at ¶ 13, citing Shaker Hts. v. Mosely, 113 Ohio St.3d 329, 2007-Ohio-2072, 865 

N.E.2d 859, ¶ 11, citing State v. Shane, 63 Ohio St.3d 630, 632-633, 590 N.E.2d 272 (1992). 

 1. Count One Voluntary Manslaughter 

{¶43} Voluntary manslaughter is an inferior degree of aggravated murder. State v. 

Nitsche, 8th Dist. Cuyahoga No. 103174, 2017-Ohio-529, ¶ 26, citing Shane. Voluntary 

manslaughter is defined as 

knowingly causing the death of another while under the influence of sudden 

passion or in a sudden fit of rage, either of which is brought on by serious 

provocation occasioned by the victim that is reasonably sufficient to incite the 

person into using deadly force. 

R.C. 2903.03(A). 

{¶44} Sinclair was shot as he attempted to leave the scene during his commission of 

an aggravated robbery. He explains that he shot at Sposit only because of the threat that Sposit 

was going to shoot him again. Sinclair created the situation. 

{¶45} We have already rejected Sinclair’s self-defense argument. As the state points 

out, Sinclair’s explanation expresses fear versus rage or serious provocation. 

“Fear alone is insufficient to demonstrate the kind of emotional state necessary to 

constitute sudden passion or fit of rage.” State v. Mack, 82 Ohio St.3d 198, 201, 

1998 Ohio 375, 694 N.E.2d 1328 (1998); see also State v. Harris, 129 Ohio 

App.3d 527, 535, 718 N.E.2d 488 (10th Dist.1998) (“evidence * * * that the 

defendant feared for his own and other’s personal safety, does not constitute 

sudden passion or a fit of rage as contemplated by the voluntary manslaughter 

statute”). 
State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 157. 

 {¶46} We do not find that the evidence presents a mitigating element such as serious 

provocation pursuant to R.C. 2903.03(A). Nitsche, 8th Dist. Cuyahoga No. 103174, 

2017-Ohio-529, at ¶ 27. A “jury could not reasonably find” Sinclair “not guilty” of the 

aggravated murder “but guilty of the lesser included offense” of voluntary manslaughter due to 

the lack of evidence supporting the elements of the lesser charge. See Evans, 122 Ohio St.3d 

381, 2009-Ohio-2974, 911 N.E.2d 889, at ¶ 13. Therefore, no instruction was required. 

2. Count Three Involuntary Manslaughter

{¶47} The mens rea for murder requires proof that Sinclair acted “purposely” or with 

the “specific intention to cause” the death of Sposit R.C. 2901.22(A) and 2903.02(A). State v. 

Brown, 8th Dist. Cuyahoga No. 68761, 1996 Ohio App. LEXIS 801, at 24 (Feb. 29, 1996). 

{¶48} Involuntary manslaughter is described in R.C. 2903.04(A). “[N]o person shall 

cause the death of another” “as a proximate result of the offender’s committing or attempting to 

commit a felony.” Id. Involuntary manslaughter is a lesser included offense of murder. Id. 

at 25, citing State v. Thomas, 40 Ohio St. 3d 213, 533 N.E.2d 286 (1988), paragraph one of the 

syllabus, citing State v. Kidder, 32 Ohio St.3d 279, 282, 513 N.E.2d 311 (1987). 

{¶49} “The culpable mental state for the offense of involuntary manslaughter” under R.C. 

2903.04(A) “is supplied by the underlying [felony] offense.” State v. Campbell, 74 Ohio 

App.3d 352, 358-359, 598 N.E.2d 1244 (1st Dist.1991). Sinclair requested that aggravated 

assault serve as the underlying felony. R.C. 2903.12(A)(1) governing aggravated assault 

provides, 

No person, while under the influence of sudden passion or in a sudden fit of rage, 

either of which is brought on by serious provocation occasioned by the victim 

that is reasonably sufficient to incite the person into using deadly force, shall 

knowingly: 

(1) Cause serious physical harm to another or to another’s unborn. 
Id. “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.” R.C. 

2901.22(B). 

{¶50} Fear alone is not enough to satisfy the mitigation factor. Thomas, 

2014-Ohio-4751, 23 N.E.3d 1096, at ¶ 157. The requested instruction was not required based 

on the evidence in this case. Sinclair was aware that firing the gun at Sposit would “probably 

cause a certain result.” Id. R.C. 2901.22(B). 

3. Count Six Aggravated Assault 

{¶51} Count 6 charged felonious assault of Oska, Sr. pursuant to R.C. 2903.11(A): 

(A) No person shall knowingly do either of the following: 

(1) Cause serious physical harm to another or to another’s unborn; 

(2) Cause or attempt to cause physical harm to another or to another’s unborn by 

means of a deadly weapon or dangerous ordnance. 

 

{¶52} The requested lesser included offense of aggravated assault is governed by R.C. 

2903.12: 

(A) No person, while under the influence of sudden passion or in a sudden fit of 

rage, either of which is brought on by serious provocation occasioned by the 

victim that is reasonably sufficient to incite the person into using deadly force, 

shall knowingly: 

(1) Cause serious physical harm to another or to another’s unborn; 

(2) Cause or attempt to cause physical harm to another or to another’s unborn by 

means of a deadly weapon or dangerous ordnance, as defined in section 2923.11 

of the Revised Code. 

{¶53} “‘Aggravated assault is an inferior degree of felonious assault since its elements 

are identical’” “‘except for the additional mitigating element of serious provocation.’” State v. 
Parr, 8th Dist. Cuyahoga No. 103894, 2016-Ohio-5629, ¶ 14, quoting State v. Ruppart, 187 Ohio 

App.3d 192, 2010-Ohio-1574, 931 N.E.2d 627, ¶ 25 (8th Dist.). 

{¶54} “A finding of not guilty of felonious assault precluded a finding of guilty of 

aggravated assault, given the identical essential elements of each offense.” Ruppart at ¶ 1. 

We reiterate that fear does not constitute serious provocation. Thomas, 2014-Ohio-4751, 23 

N.E.3d 1096, at ¶ 157. The trial court properly denied the request. 

{¶55} Sinclair’s fifth assignment of error is overruled. 

E. Ineffective Assistance of Counsel 

{¶56} Sinclair argues in the sixth assigned error that he was denied the effective 

assistance of counsel in violation of Article I, Section 10, of the United States Constitution and 

the Sixth and Fourteenth Amendments, due to counsel’s failure to request separate trials. In 

light of our finding that no error exists for 

failure to sever the counts for trial in the third assignment of error, this assigned error is also 

moot. App.R. 12(A). 

F. Consecutive Sentences 

{¶57} The Ohio Supreme Court recently held that a trial court is required to “make 

three statutory findings” “in order to impose consecutive prison terms for convictions of multiple 

offenses. State v. Beasley, Slip Opinion No. 2018-Ohio-493, ¶ 252, citing R.C. 2929.14(C) and 

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. 

{¶58} First, a trial court must find that consecutive sentences are “necessary to protect 

the public or to punish the offender. R.C. 2929.14(C)(4).” Id. at ¶ 252. Second, a trial court 

must find that “consecutive sentences are not disproportionate to the seriousness of the 

offender’s conduct and to the danger that the offender poses to the public. Id.” Id. The third 
requirement is that the trial court make one of the findings set forth in R.C. 2929.14(C)(4)(a). 

Id. The findings must be set forth on the record at the sentencing hearing as well as in the 

sentencing entry. Id. at ¶ 253, citing Bonnell at ¶ 37. 

{¶59} The findings required by R.C. 2929.14(C)(4)(a-c) are as follows: 

(a) The offender committed one or more of the multiple offenses while the 

offender was awaiting trial or sentencing, was under a sanction imposed pursuant 

to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under 

post-release control for a prior offense. 

(b) At least two of the multiple offenses were committed as part of one or more 

courses of conduct, and the harm caused by two or more of the multiple offenses 

so committed was so great or unusual that no single prison term for any of the 

offenses committed as part of any of the courses of conduct adequately reflects the 

seriousness of the offender’s conduct. 

(c) The offender’s history of criminal conduct demonstrates that consecutive 

sentences are necessary to protect the public from future crime by the offender. 

{¶60} The trial court stated, 

Now the Court is imposing the sentences consecutively because they’re necessary 

to protect the public. I find that they’re not disproportionate to the seriousness of 

what happened that day, and that the harm meted out was so great that a single 

prison term does not adequately reflect the seriousness of the defendant’s conduct. 

 

(Tr. 937.) 

{¶61} The sentencing entry provides, 

The state considered all required factors of the law. * * * The court finds 

that prison is consistent with the purpose of R.C. 2929.11. * * * The court 

imposes prison terms consecutively finding that consecutive service is necessary 

to protect the public from future crime or to punish defendant; that the 

consecutive sentences are not disproportionate to the seriousness of defendant’s 

conduct and to the danger defendant poses to the public; and that, at least two of 

the multiple offenses were committed in this case as part of one or more courses 

of conduct, and the harm caused by said multiple offenses was so great or unusual 

that no single prison term for any of the offenses committed as part of any of the 

courses of conduct adequately reflects the seriousness of defendant’s conduct. 
Journal entry No. 98671105 (Apr. 27, 2017). 

{¶62} The trial court addressed each of the requisite elements at the sentencing hearing 

and accurately journalized the findings. The seventh assigned error is without merit. 

V. Conclusion

{¶63} The trial court’s judgment is affirmed. 

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

The court finds there were reasonable grounds for this appeal. 

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

court to carry this judgment into execution. 

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

Rules of Appellate Procedure. 

_____________________________________ 

ANITA LASTER MAYS, JUDGE 

EILEEN A. GALLAGHER, A.J., and 

MELODY J. STEWART, J., CONCUR