[Cite as State v. Anderson , 2024

- Ohio

- 3118.]



### IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO

,

Plaintiff

- Appell ee

,

vs.

STANLEY M. ANDERSON

,

Defendant

- Appell ant

. :

:

:

:

: APPEAL NO

. C

- 2400 23

TRIAL NO. B

- 2302051

O P I N I O N

.

C riminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is : Affirmed and Cause R emanded

Date of Judgment Entry on Appeal: August 16, 2024

Melissa A. Powers

, Hamilton County Prosecuting Attorney, and Norbert Wessels

, Assistant Prosecuting Attorney, for Plaintiff

- Appell ee

,

Timothy J. McKenna

, for Defendant

- Appell ant

.OHIO FIRST DISTRICT COURT OF APPEALS

2 K INSLEY

, Judge.



### {¶1} Defendant

- appellant Stanley Anderson appeals his conviction for

discharge of a firearm on or near prohibited premises

. Because the conviction is

supported by the sufficiency and weight of the evidence, and because Anderson’s trial

counsel was not remiss in omitting to procure an expert reconstructionist, we uphold

the conviction. However, because the judgment entry does not reflect the sentence

announced in open court, we remand for the limited purpose of correcting the

sentencing entry

.

Factual and Procedural Background



### {¶2} Around 5:23 p.m. on May 4, 2023, a man was driving home from work

on the interstate in Cleves, Ohio. The man testified he proceeded on an entrance ramp

to southbound Interstate 275 when he noticed a white Kia quickly approach and

closely ride his rear bumper. Once their vehicles cleared the bend in the entrance

ramp

, the man got over to allow the Kia to pass. There were no other vehicles around

at the time.



### {¶3} The vehicles soon approached a section of highway where other vehicles

were merging onto Interstate 275. The man testified he re entered the passing lane

behind the Kia to make room for the merging vehicles. According to the man , t he

driver of the Kia then “brake checked” hi s vehicle, causing the man to lose control and

forcing him back into the lanes with merging traffic. Fortunately, the man ’s vehicle

did not collide with any other vehicles in the process.



### {¶4} The man caught up to the Kia to obtain its license plate number because

he wanted to report the driver , a n individual later identified as Stanley Anderson

.

Believing Anderson was attempting to evade him, the man maneuvered his vehicle inOHIO FIRST DISTRICT COURT OF APPEALS

3 front of the Kia. The man testified that he looked in his side

- view mirror at that time

and saw Anderson holding a black pistol out of his driver’s side window. According to

the man

, Anderson fired two shots. Believing he was the target, the man immediately

ducked down in his seat. Neither the man ’s vehicle nor the man himself were struck

by any bullets.



### {¶5} Around this time, Deputy Alex Grasso of the Hamilton County Sheriff’s

Office was parked on a median on Interstate 275 near the Kilby Road exit. The man

testified he jumped the median and approached Grasso’s cruiser. The man told the

deputy Anderson had shot at him on the highway. Grasso pursued and stopped

Anderson at the end of the Kilby Road exit.



### {¶6} Grasso testified he made contact with Anderson and asked what

happened. According to Grasso, Anderson replied that it was road rage and nothing

more. Anderson initially denied having a gun in the Kia, but later admitted to it.

Grasso testified Anderson admitted to firing a single round into the median but denied

firing at the man in the other car

. Grasso retrieved a black Tisas .45

- caliber handgun

from beneath the front passenger seat of the Kia near the rear floorboard. The firearm

contained a magazine housing six live rounds of ammunition and held a round in the

chamber.



### {¶7} Anderson was indicted on one count of discharge of a firearm on or near

prohibited premises in violation of R.C. 2923.162(A)(3), a felony of the third degree,

accompanied by possession and brandishing specifications. The indictment further

levied a charge of improperly handling firearms in a motor vehicle in violation of R.C.

2923.16, a felony of the fourth degree.OHIO FIRST DISTRICT COURT OF APPEALS

4 

### {¶8} Following a bench trial, the court found Anderson guilty as charged

.

Anderson was sentenced to a term of nine months in prison on the discharge of a

firearm count and a mandatory, consecutive

, 36

- month term on the brandishing

specification. The court merged the possession specification into the brandishing

specification and merged the improper handling count into the discharge of a firearm

count for purposes of sentencing

. This resulted in an aggregate prison term of 45

months. Anderson timely appealed.

S ufficiency of the Evidence



### {¶9} In his first assignment of error, Anderson challenges the sufficiency of

the evidence supporting his felony conviction for discharge of a firearm on or near

prohibited premises

.



### {¶10} To assess whether a conviction is supported by sufficient evidence, we

ask 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. State v. Yeban

, 202 4

- Ohio

- 2545

, ¶ 57 (1st Dist.)

, citing

State v. Jenks

, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus.



### {¶11} R.C. 2923.162 proscribes the offense of discharge of a firearm on or near

prohibited premises. Anderson was convicted of a violation of subsection (A)(3),

which provides that “[n]o person shall . . . [d]ischarge a firearm upon or over a public

road or highway .” A violation of this subsection constitutes a felony of the third degree

where the offender’s conduct “created a substantial risk of physical harm to any person

or caused serious physical harm to property[.]” R.C. 2923.162(C)(2). In the absence

of such harm, the offense constitutes a misdemeanor of the first degree. R.C.

2923.162(C)(1).OHIO FIRST DISTRICT COURT OF APPEALS

5 

### {¶12} The parties stipulated to the operability of the Tisas .45

- caliber handgun

at trial. In addition, the parties do not dispute that Anderson fired a gun on a public

highway. Rather, Anderson argues the evidence does not support the conclusion that

his act of firing the pistol on the highway created the requisite risk of physical harm to

persons or caused serious physical harm to property to support a felony conviction. If

accurate, the offense would be a misdemeanor of the first degree, there by removing

th e specifications and mandatory prison time.



### {¶13} To begin, the record clearly does not support a conviction for the

enhanced offense on the grounds that the shooting “caused serious physical harm to

property .” (Emphasis added.) See R.C. 2923.162(C)(2). While Anderson maintained

he fired into a median, Grasso testified another officer examined the median and did

not observe any damage t o it

. Nor does the record support that the other driver ’s

vehicle sustained any damage from the incident.



### {¶14} Regarding the risk of harm to persons, R.C. 2901.01(A)(8) defines

“substantial risk” as “ a strong possibility, as contrasted with a remote or significant

possibility, that a certain result may occur or that certain circumstances may exist.”

Anderson argues hi s act of firing a gun into the highway median created only a

speculative risk of physical harm to persons

. After thoroughly scrutinizing the facts

and circumstances of the case, w e disagree.



### {¶15} The other driver initially testified Anderson was not aiming the firearm

in any particular direction

. R ather, it appeared more like Anderson was showcasing

the firearm to scare him. The man assumed Anderson was firing at him, but he

admittedly did not see whether the gun was trained on him or “if Anderson shot up inOHIO FIRST DISTRICT COURT OF APPEALS

6 the air or what.” After he ducked down, the other driver did not look in the side

- view

mirror again or look behind him to view the gun.



### {¶16} Even so, it is not speculative to conclude that Anderson’s actions created

a strong possibility that the man in the other vehicle or another driver on the road

could have sustained physical harm as a result of the shooting

. The other driver ’s

testimony established that Anderson was just feet from the man ’s bumper when he

fired off at least one shot. The other driver could have been struck, either directly or

by a ricochet of the bullet off concrete or asphalt. In addition, the incident took place

during rush hour. One of the many other motorists on the road at the time could have

been struck by the one or two rounds discharged by Anderson, or a ricochet thereof,

even discharged into a median. As the Eighth District Court of Appeals reasoned,

“[t] he act of shooting in an area where individuals are located and in the range of the

shooter creates a substantial risk of physical harm.” State v. Spates

, 2015

- Ohio

- 1014,

¶ 67 (8th Dist.), citing State v. Ingram

, 2009

- Ohio

- 1302, ¶ 16 (3d Dist.)

, and State v.

Windom

, 1997 Ohio App. LEXIS 6006 (10th Dist. Dec. 30, 1997) ( finding it reasonable

to infer that defendant’s conduct of shooting into a group created a substantial risk of

serious physical harm to all persons in the group).



### {¶17} Here, Anderson’s act of firing into the highway median similarly created

a substantial risk of physical harm to the other driver and to anyone traversing the

highway around this time. Again, the incident took place during rush hour. The one

or two rounds fired by Anderson, or a ricochet of a shot toward the median, could have

struck other passing drivers , including the driver who testified at trial

.



### {¶18} The record establishes there were vehicles in the vicinity around the

time of the shooting. The evidence depicted this section of Interstate 275 as consistingOHIO FIRST DISTRICT COURT OF APPEALS

7 of three lanes in each direction separated by a median. Grasso described the traffic at

the time as “medium to heavy.” Indeed, the deputy testified he was unable to hear the

shots fired over the din of traffic. And

, a s the trial court noted, there were cars visible

in the background on Grasso’s body

- worn camera footage , which was admitted as an

exhibit at trial . While the footage did not commemorate the precise traffic

surrounding Anderson’s vehicle when he d ischarged the firearm , the footage was

record ed sufficiently close in time to inform t raffic conditions at the time. These facts

and circumstances sufficiently support Ander son’s conviction for the felony offense of

discharge of a firearm on or near prohibited premises

.



### {¶19} Anderson’s first assignment of error is overruled.

Manifest Weight of the Evidence



### {¶20} In his second assignment of error, Anderson challenges the weight of

the evidence supporting his conviction for discharge of a firearm on or near prohibited

premises.



### {¶21} A manifest weight challenge requires us to review whether the trier of

fact created a manifest miscarriage of justice in resolving conflicting evidence, even

though the evidence of guilt was legally sufficient. Yeban

, 2024

- Ohio

- 2545, at ¶ 57

(1st Dist.), citing State v. Thompkins

, 78 Ohio St.3d 380, 386

- 3 87 (1997). Mindful

that the trier of fact sees and hears the witnesses during trial proceedings, w e afford

substantial deference to the trier ’s credibility determinations. See State v. Glover

,

2019

- Ohio

- 5211, ¶ 30 (1st Dist.)

. Accordingly, r eversal is warranted “ only in the

exceptional case in which the evidence weighs heavily against the conviction.” State

v. Martin

, 20 Ohio App.3d 172, 175 (1st Dist. 1983).OHIO FIRST DISTRICT COURT OF APPEALS

8 

### {¶22} Both Anderson and the state argued sufficiency and manifest weight

together in their briefs. We analyze the latter separately only to acknowledge two

inconsistencies in the evidence. One concerned whether Anderson fired one or two

shots. The trial court ascribed greater weight to the other driver ’s recollection of two

shots. Regardless, Anderson admitted to discharging at least one shot across the

interstate . One shot is all that is required to support a guilty finding under the facts

and circumstances of this case. The number of shots could have affected the felony

enhancement analysis, to be sure. On this record, however, whether the firing of shots

created a substantial risk of physical harm to any person did not hinge upon one versus

two shots. Therefore, this conflict in the evidence did not bear heavily on the outcome

of the case.



### {¶23} Another potential inconsistency surrounded the number of rounds of

live ammunition retrieved from the firearm seized from the Kia. The testimony on this

subject was less than clear. However, r egardless of the correct number, it remains

undisputed that the firearm was indeed loaded and Anderson admitted to discharging

a shot. This discrepancy is thus of no moment.



### {¶24} These minor irregularities aside, the remainder of the record support s

the trial court’s verdicts from a manifest weight standpoint. See, e.g., Ingram

, 2009

-

Ohio

- 1302, at ¶ 16 (3d Dist.). The testimony establishes that Anderson fired at least

one shot from an operable

, loaded firearm across a public interstate. See id. The trial

court’s guilty finding on this front did not represent a manifest miscarriage of justice.

Accordingly, Anderson’s conviction for discharge of a firearm on or near a prohibited

premises does not defy the manifest weight of the evidence.



### {¶25} The second assignment of error is overruled.OHIO FIRST DISTRICT COURT OF APPEALS

9 Ineffective Assistance of Counsel



### {¶26} In his third assignment of error, Anderson argues trial counsel was

ineffective for failing to call an expert to reconstruct the shooting scene to dispel that

hi s actions created a substantial risk of harm to any person.



### {¶27} Trial c ounsel will not be considered ineffective unless (1) counsel’s

performance was deficient and (2) the defendant suffered prejudice as a

result. Strickland v. Washington

, 466 U.S. 668, 687 (1984); State v. Bradley

, 42 Ohio

St.3d 136, 141

- 1 42 (1989). The failure to satisfy either prong is fatal to an ineffective

assistance claim. State v. Madrigal , 87 Ohio St.3d 378, 389 (2000).



### {¶28} Deficient performance is that which falls below an objective standard

of reasonableness. Strickland at 687

- 6 88. Likewise, a defendant is prejudiced by

counsel’s performance only if there is a reasonable probability that

, but for counsel’s

errors, the outcome of the proceedings would have been different. Id. at 694.



### {¶29} Here, Anderson offers nothing material to demonstrate how or why a

reconstructionist could have offered testimony informing the substantial risk of harm

beyond the evidence already before the trial court. In fact, no evidence of what a

reconstructionist would have opined appears in the record. Thus, at this stage of the

case

, any testimony a reconstructionist might have provided is purely speculative, and

Anderson cannot demonstrate that the outcome of the proceedings would have been

different but for counsel’s omission to call such an expert. See State v. McHenry

,

2018

- Ohio

- 3383, ¶ 25 (1st Dist.).



### {¶30} Anderson’s third assignment of error is overruled.OHIO FIRST DISTRICT COURT OF APPEALS

10 Sentencing



### {¶31} In his fourth assignment of error, Anderson maintains the trial court’s

judgment entry fails to reflect the sentence announced in open court. The state insists

th e assignment of error is moot because the trial court’s nunc pro tunc entry cured any

defects.



### {¶32} T he transcript of proceedings indicates the sentence announced in open

court o n Count 1 for discharge of a firearm included a nine

- month term of

imprisonment on the underlying offense and a mandatory, consecutive

, 36

- month

term on Specification 2 (brandishing) to Count 1

. The court merged S pecification 1

(possession) to Count 1 into Specification 2 to Count 1 for purposes of sentencing. The

court similarly merged Count 2 for improper handling into Count 1 for purposes of

sentencing

. This yielded an aggregate term of incarceration of 45 months.



### {¶33} A review of the initial judgment entry of sentence reveals it did not

accurately reflect th e sentence announced in open court

. Specifically, the entry

omitted the nine

- month term of imprisonment on Count 1 and imposed only the 36

-

month term on Specification 2 to Count 1 for a sentence of 36 months in toto

. The

entry further purported to impose the 36

- month term concurrently with another,

unnamed sentence.



### {¶34} In a commendable attempt to rectify the error s , the trial court issued a

nunc pro tunc entry on February 23, 2024

. By that time, h owever, Anderson had

already filed his notice of appeal. While Crim.R. 36 permits a nunc pro tunc entry to

be filed “at any time,” the filing of a notice of appeal divest s a trial court of jurisdiction

to do s o. See State ex rel. Special Prosecutors v. Judges, Court of Common Pleas , 55

Ohio St.2d 94, 97 (1978). Indeed, once an appeal is perfected, “ the trial court losesOHIO FIRST DISTRICT COURT OF APPEALS

11 jurisdiction except to take action in aid of the appeal .” State v. Washington , 2013

-

Ohio

- 4982, ¶ 8

, quoting In re S.J. , 2005

- Ohio

- 3215, ¶ 9 ; s ee also State ex rel. Rock v.

Sch ool Emps. Ret irement Bd. , 2002

- Ohio

- 3957, ¶ 8 (“on ce an appeal is perfected, the

trial court is divested of jurisdiction over matters that are inconsistent with the

reviewing court ’ s jurisdiction to reverse, modify, or affirm the judgment ” )

.



### {¶35} In view of these legal principles, we hold that the trial court lost

jurisdiction to issue the nunc pro tunc entry once Anderson filed his notice of appeal

from the trial court’s judgment on January 11, 2024. Th is renders th e trial court’s

February 23, 2024 nunc pro tunc entry a nullity. State v. Alford , 2012

- Ohio

- 3490,

¶ 11 (2d Dist.), citing State v. Ward , 2010

- Ohio

- 1794, ¶ 45 (2d Dist.)

. W e note

,

however, that the trial court is free to simply re file the nunc pro tunc entry upon

remand from this court. See State v. Donley

, 2017

- Ohio

- 562, ¶ 173 (2d Dist.).



### {¶36} The fourth assignment of error is sustained.

Conclusion



### {¶37} In sum, t he record contains sufficient evidence supporting Anderson ’s

conviction and th at conviction is not against the manifest weight of the evidence. In

addition, defense counsel was not ineffective in failing to obtain an expert

reconstructionist. Accordingly

, we affirm the trial court’s judgment , but remand for

the trial court to issue a nunc pro tunc judgment entry reflecting the correct sentence.

Judgment affirmed and cause remanded

.

B OCK

, P.J., and Z AYAS

, J., concur

.

Please n ote:

The court has recorded its own entry on the date of the release of this opinion

.