[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-Appellee,

 vs.

STANLEY M. ANDERSON,

 Defendant-Appellant.

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APPEAL NO. C-240023 

TRIAL NO. B-2302051

 O P I N I O N.

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: August 16, 2024

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Norbert Wessels, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Timothy J. McKenna, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS

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KINSLEY, 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 reentered the passing lane 

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

driver of the Kia then “brake checked” his 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, an individual later identified as Stanley Anderson. 

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

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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.
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{¶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.

Sufficiency 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, 2024-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

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{¶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, thereby removing 

the 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 to 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 his 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, we disagree.

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

in any particular direction. Rather, 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 in 
OHIO FIRST DISTRICT COURT OF APPEALS

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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 consisting
OHIO FIRST DISTRICT COURT OF APPEALS

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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, as 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 discharged the firearm, the footage was 

recorded sufficiently close in time to inform traffic conditions at the time. These facts 

and circumstances sufficiently support Anderson’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, 386-387 (1997). Mindful

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

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

2019-Ohio-5211, ¶ 30 (1st Dist.). Accordingly, reversal 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

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{¶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, regardless 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 supports

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

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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 

his actions created a substantial risk of harm to any person.

{¶27} Trial counsel 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, 141-142 (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 687-688. 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

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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

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

defects. 

{¶32} The transcript of proceedings indicates the sentence announced in open 

court on 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 Specification 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 the 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 errors, the trial court issued a 

nunc pro tunc entry on February 23, 2024. By that time, however, 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 divests a trial court of jurisdiction 

to do so. 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 loses 
OHIO FIRST DISTRICT COURT OF APPEALS

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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; see also State ex rel. Rock v. 

School Emps. Retirement Bd., 2002-Ohio-3957, ¶ 8 (“once 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. This renders the 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.). We note, 

however, that the trial court is free to simply refile 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, the record contains sufficient evidence supporting Anderson’s 

conviction and that 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.

BOCK, P.J., and ZAYAS, J., concur.

Please note:

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