[Cite as State v. Manley, 2011-Ohio-5082.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, CASE NO. 1-11-04 

 v. 

RICKY D. MANLEY, JR., O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CR2010 0216 

Judgment Reversed and Cause Remanded 

Date of Decision: October 3, 2011 

 

APPEARANCES: 

Thomas Sobecki for Appellant 

Jana E. Emerick for Appellee 
Case No. 1-11-04 

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WILLAMOWSKI, J.

{¶1} Defendant-appellant Ricky D. Manley (“Manley”) brings this appeal 

from the entry of judgment of conviction by the Court of Common Pleas of Allen 

County based upon a jury verdict finding Manley guilty of various felonies and 

sentencing Manley on those convictions. For the reason set forth below, the 

judgment is reversed. 

{¶2} On June 30, 2010, Manley was observed by W.K. exiting a vehicle 

with a shotgun. Tr. 143-44. W.K. saw Manley fire the weapon in a southwesterly 

direction across the intersection of Allentown Road and Cornell Dr. Tr. 144-46. 

W.K. then saw Manley run back to the vehicle which then left the scene. Tr. 146-

47. W.K. then contacted the police and gave them the license plate number from 

the vehicle and identified Manley as the person who fired the shotgun. Tr. 149-59. 

{¶3} The Lima Police Department investigated the incident and determined 

that the intended victim was Barry Ward Jr. (“Ward”), who at the time of the 

shooting was in a vehicle at the intersection in question. Tr. 180-83. Earlier that 

day, Ward had assaulted Manley at the Lima Municipal Court. Tr. 176-77. The 

blast from the shotgun missed the vehicle, but did strike and damage a nearby 

home, which was occupied at the time. Tr. 230-52. 

{¶4} On August 12, 2010, the Allen County Grand Jury indicted Manley on 

five counts: 1) felonious assault, a felony of the second degree in violation of 
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R.C. 2903.11(A)(2) with a firearm specification; 2) felonious assault, a felony of 

the second degree in violation of R.C. 2903.11(A)(2) with a firearm specification; 

3) improper handling of a firearm in a motor vehicle, a felony of the fourth degree 

in violation of R.C. 2923.16(B)(1 & 2); 4) improperly discharging a firearm at or 

into a habitation, a felony of the second degree in violation of R.C. 

2923.161(A)(1); and 5) discharge of a firearm on or near prohibited premises, a 

felony of the third degree in violation of R.C. 2923.162(A)(3) & (C)(2). A jury 

trial was held on December 13 and 14, 2010. The jury returned a verdict on 

December 14, 2010, finding Manley guilty as charged on all counts. A sentencing 

hearing was immediately held and the trial court sentenced Manley to a total of 

eighteen years in prison. Manley appeals from this judgment and raises the 

following assignments of error. 

First Assignment of Error 

The Court of Common Pleas erred when it denied [Manley’s] 

motion to suppress identification testimony. 

Second Assignment of Error 

The Court of Common Pleas plainly erred by failing to find that 

the prosecutor improperly vouched for one of its key witnesses 

and improperly impugned the motivation of defense counsel in 

his closing argument. 
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Third Assignment of Error 

The Court of Common Pleas erred in finding that [Manley’s] 

relationship with the victim facilitated the offense. 

{¶5} In the first assignment of error, Manley claims that the trial court erred 

by not suppressing the identification testimony. When considering a motion to 

suppress, the standard of review is a mixed review of the facts and a question of 

law. State v. Hoppert, 181 Ohio App.3d 787, 2009-Ohio-1785, 910 N.E.2d 1106. 

Our standard of review with respect to motions to suppress is 

whether the trial court’s findings are supported by competent, 

credible evidence. See State v. Winand (1996), 116 Ohio App.3d 

286, 688 N.E.2d 9, citing City of Tallmadge v. McCoy (1994), 96 

Ohio App.3d 604, 645 N.E.2d 802. * * * This is the appropriate 

standard because ‘in a hearing on a motion to suppress evidence, 

the trial court assumes the role of trier of facts and is in the best 

position to resolve questions of fact and evaluate the credibility 

of witnesses.’ State v. Hopfer (1996), 112 Ohio App.3d 521, 679 

N.E.2d 321. However, once we accept those facts as true, we 

must independently determine, as a matter of law and without 

deference to the trial court’s conclusion, whether the trial court 

met the applicable legal standard. 

State v. Lloyd (1998), 126 Ohio App.3d 95, 100-101, 709 N.E.2d 913. 

Prior to suppressing identification testimony, a trial court must 

engage in a two-step analysis. First, there must be a 

determination that the identification procedure was so 

impermissibly suggestive as to give rise to a substantial 

likelihood of misidentification. Neil v. Biggers (1972), 409 U.S. 

188, 93 S.Ct. 375, 34 L.Ed.2d 401. Second, it must be 

determined that the identification itself was unreliable under the 

totality of the circumstances. Id. * * * 
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In Biggers, the court listed the five factors that must be 

considered when evaluating the reliability under the totality-ofthe-circumstances test: (1) the witness’s opportunity to view the 

offender at the time of the crime, (2) the witness’s degree of 

attention at the time of the crime, (3) the accuracy of the 

witness’s prior description of the offender, (4) the witness’s level 

of uncertainty when identifying the suspect at the confrontation, 

and (5) the length of time that elapsed between the crime and the 

confrontation. Id. at 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401.

State v. Monford, 190 Ohio App.3d 35, 2010-Ohio-4732, ¶38-39, 940 N.E.2d 634. 

A pretrial identification is only suppressed if it is both unnecessarily suggestive 

and unreliable given the totality of the circumstances. Id. Even if the original 

identification procedure was suggestive, the actual identification is still admissible 

as long as it is reliable. Manson v. Brathwaite (1977), 432 U.S. 98, 97 S.Ct. 2243, 

53 L.Ed.2d 140 and State v. Moody (1978), 55 Ohio St.2d 64, 9 O.O.3d 71, 377 

N.E.2d 1008. The burden of proving that the identification procedure was 

suggestive and unreliable rests on the defendant. State v. Taylor, 3d Dist. No. 1-

03-20, 2003-Ohio-7115. 

{¶6} In this case, W.K. originally described the shooter as a black male 

approximately six feet tall, thin, wearing a long sleeve hooded, blue sweatshirt and 

pants. Suppression Hearing Tr. 14, 34. The shooter’s hair was done in cornrows. 

Id. at 35. W.K. also testified that he was approximately 25 feet away from the 

shooter. Id. at 49. Three hours after the shooting, W.K. was shown a photo array, 

and picked out a person he thought was the shooter, but was unable to 
Case No. 1-11-04 

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unequivocally identify the person as the shooter. Id. On July 14, 2010, W.K. 

appeared pursuant to a subpoena at a preliminary hearing. While waiting in the 

hall to be called into the hearing, Manley was walked past W.K. wearing jail attire 

and handcuffs and into the courtroom. W.K. observed Manley walk up the steps 

and told Detective Kent Miller (“Miller”) that Manley was the man who fired the 

gun. Id. at 41. W.K. testified that he saw Manley for approximately five seconds 

at around 1:30 p.m. on June 30, 2010. Id. at 43. At the time of the preliminary 

hearing, Miller did not know that Manley was being brought into the courtroom or 

that he was even near because his back was to the stairwell. Id. at 47. The State 

asked W.K. at the suppression hearing how certain he was of his identification on 

a scale of 1 to 10 with 10 being the most certain. Id. at 49. W.K. responded that 

on that scale, his certainty was a 10. Id. W.K. then proceeded to identify Manley 

in open court as the man who fired the gun. Id. at 50. 

{¶7} At the conclusion of the hearing, the trial court made the following 

findings and conclusions of law. 

First of all, at the preliminary hearing [W.K.] was down there. 

He know – knew that there was going to be a preliminary 

hearing. There’s no evidence that there was any suggestion as to 

when the suspect, defendant, was coming up. When he saw the 

defendant he said that’s the guy or words to that affect or – and 

then said I’m sure that’s the guy who did the shooting. Officer 

Miller wasn’t even talking to him when they’re bringing him up 

the steps. 
Case No. 1-11-04 

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The court would further note that then you have to go back at 

the time of the Neil v. Biggers to determine the conditions at the 

time of the crime, the length of the observation. He saw the 

defendant – the person get out of the vehicle, had a gun, he left. 

He came – he heard the gun be – rifle or gun be fired. He came 

back. He had a hood. The hood was off. He looked right at 

him. He was 20 – around 25 feet away. He had a good view of 

him, lighting conditions at the time of – it was the middle of the 

day. It was nice outside. He was – what I think is important too 

the – [W.K.] was not an alleged victim. That he was a witness 

who was able to observe what was going on. 

The court finds that the reliability in this particular instance, 

after concerning – after considering the totality of the 

circumstances that it is reliable and as a result the motion to 

suppress is overruled and denied. 

Id. at 60-61. 

{¶8} In this case, the five factors to be considered when determining the 

reliability of the identification include first, the witness’ opportunity to view the 

offender at the time of the crime. Biggers, supra. The evidence from the hearing 

indicated that the crime took place in the early afternoon, on a sunny, clear day. 

Manley stood no more than 25 feet from W.K. and looked directly at W.K. for 

roughly five seconds. W.K. also testified that he was wearing his glasses at the 

time. Thus, the trial court’s findings concerning the ability of W.K. to observe the 

offender are supported by competent, credible evidence. 

{¶9} Next, the court considers the witness’s attention to details at the time 

of the crime. Id. W.K. was able to identify the vehicle in which Manley arrived 
Case No. 1-11-04 

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as a blue sedan and to obtain the license plate number on the vehicle. He also 

heard the gun shot and looked directly at the shooter as he returned to the vehicle. 

He was able to provide the license plate to the dispatcher and to give a fairly 

detailed description of the offender to Miller three hours after the incident. These 

facts indicate that W.K.’s attention to detail was good. 

{¶10} The third factor is the accuracy of the witness’s prior description of 

the offender. Id. Miller testified that W.K. identified the shooter as a six foot tall, 

slim black male with long, braided hair. Tr. at 14. The shooter was identified as 

wearing a dark hooded sweatshirt and long pants. Id. This description matches 

that stated in the original police report filed the date of the incident and made part 

of the record per Manley’s discovery request. August 26, 2010 Discovery 

Response. Pursuant to Manley’s driver’s license information, Manley is 6’01” and 

170 pounds. Exhibit A. He also has long braided hair and is a black male. Thus, 

the original description given by W.K. was fairly accurate. 

{¶11} The fourth factor is the level of certainty the witness expresses when 

making the identification. W.K. testified that he was pretty sure that the offender 

was in the original photo array, but was not positive, so did not make a definite 

identification at that time. Tr. at 49. However, when he observed Manley at the 

courthouse, he was positive that he was the shooter. W.K. then volunteered to 

Miller, who did not know that Manley had appeared, that the police had arrested 
Case No. 1-11-04 

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the person who did the shooting. This identification was not solicited by the State, 

but was volunteered by the witness. During the suppression hearing, W.K. again 

identified Manley as the shooter and expressed that he was 100% confident in his 

identification of Manley. 

{¶12} Finally, the fifth factor requires that the court consider the length of 

time between the crime and the identification. The crime occurred on June 30, 

2010. W.K. first made a positive identification of Manley on July 14, 2010, a 

mere two weeks after the event. This identification was subsequently repeated on 

December 10, 2010, at the hearing on the motion to suppress. At no time did 

W.K. waiver in his identification of Manley. Given all of these factors, the 

evidence supports the trial court’s determination that the identification was 

reliable. An identification is admissible if it is reliable regardless of the 

suggestiveness of the original identification. Manson, supra and Moody, supra. 

Here, the trial court determined that W.K.’s identification was reliable and that 

finding is supported by the evidence. Since the identification was reliable, it was 

admissible. Therefore, the trial court did not err in denying the motion to 

suppress. The first assignment of error is overruled. 

{¶13} In the second assignment of error, Manley claims that the trial court 

erred by allowing the State to improperly vouch for the credibility of its witness 

and by improperly impugning the character of defense counsel. Manley claims 
Case No. 1-11-04 

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that the improper statements made by the State amount to prosecutorial 

misconduct and is sufficient to warrant reversal. However, this court notes that 

Manley did not object to either of the statements to which he assigns error. A 

claimed error not objected to will not be reviewed on appeal absent a showing of 

plain error. Crim.R. 52(B), State v. Underwood (1983), 3 Ohio St.3d 12, 444 

N.E.2d 1332. To rise to the level of plain error, the record must show that the 

error occurred and that the error affected the outcome of the trial. Id. 

{¶14} The test regarding prosecutorial misconduct during closing 

arguments is whether the remarks were improper and, if so, whether they 

prejudicially affected the substantial rights of the defendant. State v. Davis, 116 

Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31. “In making this determination, an 

appellate court should consider several factors: (1) the nature of the remarks, (2) 

whether an objection was made by counsel, (3) whether corrective instructions 

were given by the court, and (4) the strength of the evidence against the 

defendant.” State v. Braxton (1995), 102 Ohio App.3d 28, 41, 656 N.E.2d 970. 

“The touchstone of the analysis ‘is the fairness of the trial, not the culpability of 

the prosecutor.’” Davis, supra at ¶231 (quoting Smith v. Phillips (1982), 455 U.S. 

209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78). Prosecutorial misconduct is generally 

not grounds for reversal unless it so taints the proceedings as to deprive the 
Case No. 1-11-04 

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defendant of a fair trial. State v. Johns, 3d Dist. No. 13-04-23, 13-04-24, 13-04-

25, 2005-Ohio-1694, ¶25. 

{¶15} Manley argues that two specific statements made by the prosecutor 

during closing argument were instances of prosecutorial misconduct. The first is 

as follows. 

In particularly – well, what’s particularly offensive is the idea 

that Detective Stechschulte, who can’t stand at this microphone 

and speak to you directly and defend that sort of accusation, nor 

can anyone else from the Lima Police Department, that anyone 

from that department would for a minute say to themselves, by 

God, we’re going to get a Manley off the street and then shape 

their investigation in that direction. 

I know these people, and frankly, it’s offensive. 

Tr. 456. Manley argues that the prosecutor was vouching for the credibility of the 

witnesses with this statement. “An attorney may not express a personal belief or 

opinion as to the credibility of a witness.” Davis, supra at ¶232. Contrary to the 

argument set forth by the State, this statement was improper. The prosecutor put 

forth his opinion that these witnesses would not do what Manley claimed. That is 

vouching for the witnesses and is impermissible. Davis, supra. Thus, an error 

occurred. 

{¶16} The second statement to which Manley assigns error is as follows. 

Now, evaluating this case, it’s not unlike picking up a pair of 

binoculars and looking out into the distance. When you first 

pick up those binoculars and you look out in the distance, okay, 
Case No. 1-11-04 

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it might be blurry. You sharpen that image. You focus, and it 

becomes clear. And defense attorneys, if they’re doing their job, 

frankly, if they’re doing their job, and it’s their job, is to make 

that, if they can within the bounds of the rules and bounds of 

propriety, make that image a little more fuzzy. That’s the 

tension between a prosecutor and a defense attorney. We try to 

make it clear. They try to make it more fuzzy. 

Tr. 462. This statement is completely improper. The implication is that the State 

is telling the truth and the defense counsel is not. Prosecutors must not make 

insinuations and assertions designed to mislead the jury. State v. Smith (1984), 14 

Ohio St.3d 13, 14, 470 N.E.2d 883. Although prosecutors are given wide latitude 

during closing arguments, that latitude does not permit the prosecutor to denigrate 

the role of defense counsel. State v. Keenan (1993), 66 Ohio St.3d 402, 613 

N.E.2d 203. 

{¶17} In a case similar to the one before this court, the First District Court 

of Appeals of Ohio held as follows. 

A prosecutor may argue and argue ardently that the evidence 

does not support the conclusion postulated by defense counsel. 

A prosecutor may not, however, denigrate the role of defense 

counsel by injecting his personal frustration with defense tactics, 

especially when, as here, the prosecutor continues in this 

fashion: 

“And when you think about that you gain valuable insight into 

their whole method of operation. Crank up the fog machine. 

Let’s try and conjure up a reasonable doubt.” 

The prosecutor was not entitled to employ rebuttal argument to 

denigrate the role of defense counsel and to insinuate to the jury 
Case No. 1-11-04 

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that [the defendant] and his counsel, by exercising their right to 

suggest what conclusions may or may not have been drawn from 

the evidence found at trial, were seeking to hide the truth. * * * 

The prosecutor’s remarks in rebuttal also constituted improper 

conduct. 

State v. Hart (1994), 94 Ohio App.3d 665, 673-74, 641 N.E.2d 755. Like the 

prosecutor in Hart, the prosecutor in this case insinuated that defense counsel was 

attempting to hide the truth by making it “more fuzzy.” The attempt to denigrate 

the role of defense counsel is misconduct by the prosecutor. 

{¶18} Having found that prosecutorial misconduct occurred in the closing 

argument, the next step is to determine whether the statements were so prejudicial 

as to rise to the level of plain error. Even if a prosecutor’s statements during 

closing arguments are improper, reversal based upon those statements only occurs 

if the attitude of the statements permeates the entire atmosphere of the trial. State 

v. Tumbleson (1995), 105 Ohio App.3d 693, 664 N.E.2d 1318. This inquiry is 

guided by the four factors discussed above. Johns, supra at ¶25. The nature of the 

remarks has already been discussed. Also discussed was the fact that Manley did 

not object to the remarks during trial. The third factor is whether a curative 

instruction was given. Although the trial court did not tell the jury to disregard the 

specific statements, the jury was instructed that the statements made during 

closing arguments were not to be considered as evidence. Tr. 472. The trial court 

also instructed the jury that it was the sole judge of the credibility of the witnesses. 
Case No. 1-11-04 

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Tr. 473. Thus, curative instructions were given. Finally, this court must consider 

the strength of the evidence. The jury heard all the evidence and evidently 

believed the testimony of W.K. This court does not find that the evidence was so 

weak that there would have been no conviction absent the prosecutorial 

misconduct. Therefore, the statements do not rise to the level of plain error and 

the second assignment of error is overruled. 

{¶19} Although the prosecutorial misconduct did not rise to the level of 

plain error, this court must emphasize that prosecutors must be diligent in their 

efforts to remain within the boundaries of acceptable argument. Prosecutors must 

adhere to the highest standards due to their unique role in the justice system. A 

prosecutor “may prosecute with earnestness and vigor * * *. But, while he may 

strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to 

refrain from improper methods calculated to produce a wrongful conviction as it is 

to use every legitimate means to bring about a just one.” Berger v. United States

(1935), 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314. 

{¶20} Manley claims in the third assignment of error that the trial court 

erred in finding that his relationship with the victim facilitated the crime. 

(A) Unless otherwise required by [R.C. 2929.13 or 2929.14], a 

court that imposes a sentence under this chapter upon an 

offender for a felony has discretion to determine the most 

effective way to comply with the purposes and principles of 

sentencing set forth in [R.C. 2929.11]. In exercising that 
Case No. 1-11-04 

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discretion, the court shall consider the factors set forth in 

divisions (B) and (C) of this section relating to the seriousness of 

the conduct and the factors provided in division (D) and (E) of 

this section relating to the likelihood of the offender’s recidivism 

and, in addition, may consider any other factors that are 

relevant to achieving those purposes and principles of 

sentencing. 

(B) The sentencing court shall consider all of the following that 

apply regarding the offender, the offense, or the victim, and any 

other relevant factors, as indicating that the offender’s conduct 

is more serious than conduct normally constituting the offense: 

* * * 

(6)The offender’s relationship with the victim facilitated the 

offense. 

R.C. 2929.12. To facilitate means to make easier. The American Heritage 

Dictionary (2 Ed. 1985) 484. In order to have the relationship facilitate the 

offense, the defendant must have used his relationship with the victim to help 

commit the offense. State v. McDade, 6th Dist. No. 06-OT-001, 06-01-004, 2007-

Ohio-749. In other words, the defendant must have used the relationship to allow 

him to commit the offense in a manner which he could not have accomplished 

without the relationship. 

{¶21} The trial court in this case found that Manley’s relationship with 

Ward facilitated the offense. However, the evidence indicates that any 

relationship between Ward and Manley was not friendly, but was rather 

combative. Although the relationship between Ward and Manley may have 
Case No. 1-11-04 

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provided the motive for the crime, it did not make it easier for Manley to commit 

the crime.1

 The testimony at trial by Ward was that there was no real relationship 

between the two. Tr. 196. A review of Ward’s testimony indicated that Ward was 

rather dismissive of Manley and did not consider him as either a friend or an 

enemy, but rather just someone who was there. Ward admitted that he struck 

Manley at the courthouse. Tr. 191. Before that day, there was no physical contact 

between the two. Tr. 195. In Ward’s opinion, Manley was a thief, but not a 

fighter based upon a prior incident in which he believed Manley may have stolen 

something from his car. Tr. 195-96. There was no evidence presented that 

Manley was able to use his relationship with Ward to commit the offense. Thus, 

the trial court erred in finding that the relationship facilitated the offense. 

{¶22} Although the relationship did not facilitate the offense, this error is 

not necessarily prejudicial. The trial court in this case considered more than just 

one factor of those set forth in R.C. 2929.12(B), it considered all of statutory 

factors. The trial court need not specifically address each and every factor that it 

considers, but may instead just indicate that it has considered the statutory factors. 

State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1 and State v. 

Alvarado, 3d Dist. No. 12-07-14, 2008-Ohio-4411, ¶47. The Ohio Supreme Court 

 

1

 Rather than facilitate the offense, the combative nature of the earlier interaction was more likely to put the 

victim on guard against the defendant. It did not make the actual commission of the offense any easier for 

the defendant. 
Case No. 1-11-04 

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in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph seven of the 

syllabus, held that “[t]rial courts have full discretion to impose a prison sentence 

within the statutory range and are no longer required to make findings or give their 

reasons for imposing maximum, consecutive, or more than the minimum 

sentences.” The trial court specifically stated that it had considered the factors 

set forth in R.C. 2929.12. Dec. 17, 2010, Entry, 6. The sentences imposed upon 

Manley for the various offenses were all within the statutory ranges. Thus, 

Manley did not suffer prejudicial error due to the finding and any error was 

harmless. For this reason, the third assignment of error is overruled. 

{¶23} Although this court has not found error with any of the stated 

assignments of error, this court sua sponte chooses to address a plain error in the 

sentencing in this matter. A review of the verdict forms shows that the levels of 

offense and/or aggravating factors were not specified. 

R.C. 2945.75(A) plainly requires that in order to find a 

defendant guilty of “an offense * * * of more serious degree,” the 

guilty verdict must either state “the degree of the offense of 

which the offender is found guilty” or state that “additional 

element or elements are present.” R.C. 2945.75(A)(2) also 

provides, in the very next sentence, what must occur if this 

requirements is not met: “Otherwise, a guilty verdict constitutes 

a finding of guilty of the least degree of the offense charged.” 

When the General Assembly has written a clear and complete 

statute, this court will not use additional tools to produce an 

alternative meaning. 
Case No. 1-11-04 

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State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, ¶12, 860 N.E.2d 735. For 

Count Three, the verdict form reads as follows: 

We the jury, being duly impaneled and sworn, find the 

Defendant, Ricky D. Manley, Jr. [Guilty] if Improper Handling 

of a Firearm in a Motor Vehicle as charged in the Indictment. 

Verdict Form Count Three. The indictment specifies that Manley was charged 

with a felony of the fourth degree. However, the minimum offense in the statute is 

a fourth degree misdemeanor. R.C. 2923.16. The verdict form did not set forth 

the degree of culpability or specify any aggravating factors. Thus, pursuant to 

R.C. 2945.75(A)(2) and the holding of the Ohio Supreme Court in Pelfrey, 

Manley should have been found guilty of a fourth degree misdemeanor, not a 

fourth degree felony. 

{¶24} In count five of the indictment, Manley was charged with a third 

degree felony for improperly discharging a firearm near prohibited premises. The 

lowest degree of culpability listed in the statute is a fourth degree misdemeanor. 

The verdict form reads as follows: 

We the jury, being duly impaneled and sworn, find the 

Defendant, Ricky D. Manley, Jr. [Guilty] of Discharging of 

Firearm On Or Near Prohibited Premises as charged in the 

Indictment.

Verdict Form Count Five. Once again, no degree of culpability was specified and 

no aggravating elements were listed. Therefore, the trial court erred in finding 
Case No. 1-11-04 

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Manley guilty of the third degree felony. The trial court should have found him 

guilty of a fourth degree misdemeanor. As a result of these sentencing errors, the 

judgment of conviction and subsequent sentences is reversed. 

{¶25} Having found error prejudicial to the defendant, the judgment of the 

Court of Common Pleas of Allen County is reversed and the matter is remanded to 

the trial court for a proper judgment of conviction and for resentencing. 

Judgment Reversed and 

Cause Remanded 

ROGERS, P.J. concurs. 

/jlr 

SHAW, J. concurs in Judgment Only. 

{¶26} The record in this case establishes a properly framed indictment, 

properly framed issues at trial, and properly framed jury instructions, all of which 

resulted in a full and complete apprisal by the defense, prosecution, judge and the 

jury of the charges, what was to be defended, and the exact convictions returned. 

{¶27} As a result, there is no possibility of prejudice to the defendant, or 

any conceivable misunderstanding for that matter, resulting from the verdict form 

in this case. In this regard, this case is identical to the circumstances addressed in 

the prior decision of this court in State v. Ligon, 179 Ohio App.3d 544, 2008-

Ohio-6085. For all of the same reasons set forth in my separate concurrence in 
Case No. 1-11-04 

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Ligon, as compelled only by the decision of the Ohio Supreme Court in Pelfrey, 

supra, I concur in judgment only in this case. 

/jlr