[Cite as State v. McKenzie , 2021-Ohio-536.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY STATE OF OHIO, : : Case No.: 19CA3892 Plaintiff-Appellee, : 19CA3893 : v. : DECISION AND JUDGMENT : ENTRY WILLARD MCKENZIE, : : RELEASED: 02/23/2021 Defendant-Appellant. :

_____________________________________________________________ APPEARANCES: Karyn Justice, Portsmouth, Ohio, for Appellant. Shane A. Tieman, Scioto County Prosecuting Attorney, for Appell ee.

_____________________________________________________________ Wilkin, J. {¶1} This is an appeal from a Scioto County Court of Common Pleas judgment entry of conviction of Appellant, Willard McKenzie, fo r two counts of felonious assault in violation of R.C. 2903.11(A)(2) and R.C. 2 903.11(D)(1)(a), both second-degree felonies; and two counts of inducing panic i n violation of R.C. 2917.31(A)(2) and R.C. 2917.31(C)(4)(a), both fifth-degree felonies. Appellant asserts the following two assignments of error: (1) A ppellant’s criminal convictions for felonious assault were against the manifest wei ght of the evidence, and (2) Appellant’s counsel rendered ineffective assi stance of counsel. After our review of the record and the applicable law, we affir m the trial court’s judgment of conviction.Scioto App. Nos. 19CA3892 & 19CA3893 2

BACKGROUND {¶2} On May 18, 2017, the State charged Appellant with violating a protection order in case 17-CRB-0267 in violation of R.C. 2919. 27(A)(2) and (B)(3) (“ McKenzie I”). Appellant moved for a competency examination, which the trial court granted on October 31, 2017. On February 27, 2018, the trial court held a hearing in which the Appellant indicated that he would p lead guilty to violating the protection order. The parties then stipulated th at, pursuant to the competency report, Appellant was competent for purposes of unde rstanding the pending charge and that he did not qualify for a not-guilty-by- reason-of-insanity (“NGRI”) defense. The trial court then proceeded to inform App ellant of the rights he was waiving and that the offense was a fifth-degree felony t hat could result in a maximum sentence of twelve months in prison and a $2,500 fine . Ultimately, the trial court accepted Appellant’s guilty plea and set senten cing for May 2, 2018. {¶3} On April 30, 2018, the State filed a motion to revoke Appellant ’s bond due to the fact he “was in a stand-off with law enforcement whi ch involved a firearm,” which the trial court granted. Consequently, the Stat e filed new criminal charges against Appellant alleging that, on April 27, 2018, he committed two counts of felonious assault by knowingly causing or attempting to cause physical harm to Carl Keller and his son B.K. (a minor) by means of a de adly weapon, and two counts of inducing panic by causing the evacuation of a pub lic place or causing serious public inconvenience or alarm by threatening to commit an offense of violence that resulted in economic harm. (“ McKenzie II”) On May 2,Scioto App. Nos. 19CA3892 & 19CA3893 3 2018, the Court continued the sentencing hearing in McKenzie I, and set a new bond amount of $500,000, based on the new charges. {¶4} On July 27, 2018, Appellant moved for a competency examination, which the trial court granted, and a notice of intent to use a NGRI defense. On October 16, 2018, after reviewing the record and the competency report, the trial court found Appellant was not competent to stand trial, and ord ered him placed with Summit Behavioral Healthcare in an attempt to restore his competency. {¶5} On May 31, 2019, the trial court held a hearing in which the pa rties stipulated that Appellant was restored to competency regarding the pending charges in McKenzie II based on a report prepared by Summit Behavior Healthcare. The trial court issued an entry finding that Appel lant’s competency had been restored, and set a pretrial hearing for June 7, 2019. {¶6} On June 7, 2019, Appellant filed a motion for an evaluation of his sanity at the time of the alleged offenses, which the trial cou rt granted. On July 12, 2019, Psychologist, Dr. Erin Nichting, issued a report conc luding that while Appellant did suffer from a “serious mental disease” at the tim e of the shooting, he nevertheless understood that his action of shooting the gun was wrong, so the Doctor opined that a NGRI defense was not supported. Neverthel ess, on August 12, 2019, Appellant filed a motion notifying the trial court th at he would pursue both a ”not guilty defense as well as a [NGRI] defense.” {¶7} After a two-day trial in September 2019, the jury returned a ve rdict finding Appellant guilty on both counts of felonious assault an d both counts of inducing panic. For purposes of sentencing, the trial court me rged both counts ofScioto App. Nos. 19CA3892 & 19CA3893 4 inducing panic with the two counts of felonious assault, and se ntenced Appellant to four years in prison on each assault count to be served cons ecutive to each other, and consecutive to a one-year prison sentence in McKenzie I for violating the civil protection order, for an aggregate sentence of nine y ears in prison. It is from this judgment that Appellant appeals, asserting two assign ments of error. ASSIGNMENT OF ERROR I APPELLANT’S CONVICTIONS ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE {¶8} In his first assignment of error, Appellant alleges that his co nvictions for felonious assault are against the manifest weight of the ev idence. More specifically, Appellant argues the offense of felonious assault requires the State to prove beyond a reasonable doubt that he knowingly caused or attempted to cause physical harm to Carl Keller and his son, B.K., on the da y of the shooting. Appellant argues that knowingly requires a mental state that on e ought to know one’s actions will “probabl y cause certain results.” He claims that the “record supports [his] testimony that he did not aim (the gun) at anyon e and shot into an open field.” Therefore, he argues, because he did not knowingl y attempt to cause harm to anyone, the jury lost its way, and its verdict is against the manifest weight of the evidence. {¶9} In response, the State argues that witnesses testified that App ellant initially pointed the gun at his head, but then pointed it side ways and fired several shots, which were fired in the general direction of Carl Keller and his son, B.K., to the extent that Keller testified that he heard the bullets “whi stle” by him and his son, B.K. The State also alleges that another neighbor testifi ed that prior to theScioto App. Nos. 19CA3892 & 19CA3893 5 shooting “[Appellant] was threatening to kill everyone. He ret urned to the house and came back outside with a gun and was firing it towards my h ouse and the neighbors.” Accordingly, the State argues that the jury did not lose its wa y in convicting Appellant of felonious assault. Consequently, it ar gues that this court should overrule Appellant’s first assignment of error.
LAW {¶10} In determining whether a defendant’s conviction is against the manifest weight of the evidence, the reviewing court must exami ne “the entire record, weigh the evidence and all reasonable inferences, consi der the credibility of the witnesses, and determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and created such a manif est miscarriage of justice that the conviction must be reversed and a new trial gr anted.” State v. Anderson , 4th Dist. Washington No. 03CA3, 2004-Ohio-1033, ¶ 32, citing State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997). “In reviewing the evidence, we must be mindful that the jury, as the original tri er of fact, was in the best position to judge the credibility of witnesses and the wei ght to be given to the evidence.” Id ., citing State v. DeHass , 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus. This is because “[t]he fact finder ‘is best able to view the witnesses and observe their demeanor, gestures and voice inflections, and use these observations in weighing the credibi lity of the proffered testimony.’ ” State v. Picklesimer , 4th Dist. Pickaway No. 14CA17, 2015-Ohio1965, ¶9, quoting Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984). As a result, even when “conflicting eviden ce is presented atScioto App. Nos. 19CA3892 & 19CA3893 6
trial, a conviction is not again st the manifest weight of the e vidence simply because the jury believed the testimony presented by the state. ” State v. Harper , 4th Dist. Lawrence No. 14CA19, 2015-Ohio-671, ¶ 12, citing State v. Tyson, 4th Dist. Ross No. 12CA3343, 2013-Ohio-3540, ¶ 21. “The jury can s imply reject the defendant's defense and find the evidence in the state's case-i n-chief more persuasive.” Id . Accordingly, “[a] reviewing court should not disturb the fac tfinder's resolution of conflicting evidence unless the fact-fin der clearly lost its way.” State v. Newman , 4th Dist. Scioto No. 14CA3658, 2015-Ohio-4283, 45 N.E.3d 624, ¶ 56, citing State v. Davis, 4th Dist. Washington No. 09CA28, 2010- Ohio-555, 2010 WL 596976, ¶ 16-17. {¶11} Appellant was convicted of felonious assault under R.C. 2903.11(A)(2), which provides “No person shall knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a d eadly weapon.” (Emphasis added.) {¶12} R.C. 2901.22(B) provides: A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A perso n has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, suc h knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact. {¶13} “[T]o commit an act ‘knowingly’ requires only that the crimin al defendant be aware ‘that [the] r esult is practically certain to follow from his conduct, whatever his desire may be as to that result.’ ” State v. Berecz , 4th Dist.Scioto App. Nos. 19CA3892 & 19CA3893 7
Washington No. 08CA48, 2010-Ohio-285, ¶ 58, quoting United States v. Bailey , 444 U.S. 394, 404, 100 S.Ct. 624, 62 L.Ed.2d 575 (1980). “The test for whether a defendant acted knowingly is a subjective one, but it is deci ded on objective criteria.” State v. McDaniel , 2nd Dist. Montgomery No. 16221, 1998 WL 214606, *7 (May 1, 1998), citing State v. Elliott , 104 Ohio App.3d 812, 821, 663 N.E.2d 412 (10th Dist. 1995) (A “[d]efendant's subjective state of min d may be determined from reasonable inferences arising from the evidence .”) {¶14} “ [A] firearm is an inherently dangerous instrumentality, use of which is reasonably likely to produce serious injury or death.” State v. Widner , 69 Ohio St.2d 267, 270, 431 N.E.2d 1025 (1982), citing State v. Lockett , 49 Ohio St.2d 48, 358 N.E.2d 1062 (1976), paragraphs three and four of the sy llabus (reversed on other grounds, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973). “Thus, courts have often affirmed a finding that the defendant acted knowingl y when the defendant shot a gun in a place where there is a real and subst antial risk of injury to persons.” Berecz , 4th Dist. Washington No. 08CA48, 2010-Ohio-285, ¶ 58. Accord State v. Dixson , 1st Dist. Hamilton No. C-030227, 2004-Ohio-2575, ¶ 6, 28 (“Firing a gun at a car is evidence of knowingly attempting to harm the car passengers for purposes of felonious assault.). ANALYSIS {¶15} There were several witnesses to the shooting, including Appella nt’s Mother, Eunice McKenzie; Appellant’s brother-in-law and sister , Nelson Slusher and Jill Slusher; Appellant’s neph ew’s wife, Leigha Plummer; a nd neighbors, Carl Keller and his son, B.K. Statements given by several of t hese witnesses toScioto App. Nos. 19CA3892 & 19CA3893 8 police shortly after the shooting indicated that prior to the s hooting Appellant was threatening people. Nelson Slusher told police that “[Appellan t] was on the back porch going crazy. Wanting to hurt somebody. After a few minu tes he goes in the house and comes out shooting and holding a gun to his head, going to shoot his self.” Leigha Plummer told police “[Appellant] was threate ning to kill everyone. He returned to the house and came back outside with a gun and was firing towards my house and the neighbors.” Even, Appellant’s mother, Eunice McKenzie, admitted that Appellant told her “I could kill you no w.” {¶16} At trial, Appellant testified that he struggled with mental issues, including depression, and on the day of the shooting, after arg uing with his mother, he decided that he “had enough” and “was going to shoot myself.” Appellant testified that he retrieved the gun from the house, i nitially held it to his head, but then pointed the gun away from his head and “I shot a ll the bullets out.” He testified that he did not hold it “sideways,” but fired it i nto an “open area” and did not intend to hurt anyone. App ellant’s sister and brother- in-law, Jill Slusher and Nelson Slusher, also testified that Appellant fired the gun upward and that he was not shooting at anyone. {¶17} However, Carl Keller testified that, although Appellant did not aim the gun at anyone in particular, after initially pointing the g un at his head, Appellant pointed the gun “sideways” and fired in the general d irection of he and his son, B.K., to the extent that Carl could hear the “whistle of [the bullets] going by.” Leigha Plummer also testified that after pointing the gun at his head, Appellant “turned [the gun] sideways and started firing it.” (E mphasis added.)Scioto App. Nos. 19CA3892 & 19CA3893 9 {¶18} Thus, there was testimony presented to the jury that Appellant verbally threatened persons prior to shooting the gun, as well as testimony that Appellant pointed the gun sideways in the general direction of Carl Keller and B.K. It was within the prerogative of the jury to believe this evidence, instead of the testimony indicating that Appellant fired the gun into the air. Harper , 4th Dist. Lawrence No. 14CA19, 2015-Ohio-671, ¶ 12. And it was reasonabl e for the jury to infer from this evidence that Appellant knowingly attempted to harm Carl Keller and B.K. by pointing the gun sideways. Berecz , 4th Dist. Washington No. 08CA48, 2010-Ohio-285, ¶ 58. Therefore, because we find that the jury did not clearly lose its way in finding Appellant guilty of felonious a ssault so as to create a manifest miscarriage of justice that Appellant’s convictions must be reversed and a new trial granted, we overrule Appellant’s first assignme nt of error. ASSIGNMENT OF ERROR II APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL {¶19} Appellant next argues that his trial counsel was ineffective be cause he failed to object to the admission of Dr. Nichting’s report, which addressed Appellant’s sanity at the time of the shooting, into evidence w ithout any limiting instruction; thus, opening the door for the State to ask Appell ant incriminating questions on cross examination based on the report. Appellant c ites R.C. 2945.371(J) in support of this argument. Appellant also argues that his trial counsel effectively abandoned Appellant’s “[NGRI] defense by fa iling to subject Dr. Nichting or her report to rigorous cross examination.”Scioto App. Nos. 19CA3892 & 19CA3893 10 {¶20} The State argues that Appellant’s strategy was to allow the rep ort into evidence, because, while Dr. Nichting concluded that Appel lant understood the wrongfulness of his actions, she also found that Appellant had a “serious mental disease” at the time of the shooting. Consequently, con trary to Appellant’s assertion, the State argues that in addition to arg uing that the State had failed to prove its case, Appellant’s trial counsel also ar gued that Appellant was NGRI based on Appellant’s serious mental disease at the tim e of the shooting. The State argues that given the facts of the case an d Appellant’s defense strategy at trial, admission of the report was an objec tively reasonable action by Appellant’s counsel. LAW 1. Ineffective Assistance of Counsel {¶21} “To establish a claim of ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficien t, and (2) the deficient performance prejudiced the defense so as to deprive t he defendant of a fair trial.” State v. McCoy , 4th Dist. Pickaway No. 19CA1, 2020-Ohio-1083, ¶ 28, citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “ ‘Failure to establish either element is fatal to the claim.’ ” State v. Book , 4th Dist. Ross No. 09CA3107, 2009-Ohio-6168, ¶ 11, quoting In re B.C.S., Washington App. No. 07CA60, 2008-Ohio-5771, at ¶ 16, citing Strickland at 687. “ To show prejudice, the defendant must show a reasonable probabi lity that, but for counsel's errors, the result of the proceeding wo uld have been different.” State v. Jarrell , 4th Dist. Gallia No. 15CA8, 2017-Ohio-520, 85 N.E.3dScioto App. Nos. 19CA3892 & 19CA3893 11
175, ¶ 48, citing State v. Conway 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. “[S]peculati on is insufficient to establish the prejudice component of an ineffective assistance of counsel claim.” State v. Blackburn , 4th Dist. Jackson No. 18CA3 2020-Ohio-1084, ¶ 37, citing State v. Tabor , 4th Dist. Jackson No. 16CA9, 2017-Ohio-8656, ¶ 34; State v. Jenkins , 4th Dist. Ross No. 13CA3413, 2014-Ohio-3123, ¶ 22; State v. Simmons , 4th Dist. Highland No. 13CA4, 2013-Ohio-2890, ¶ 25; State v. Halley , 4th Dist. Gallia No. 10CA13, 2012-Ohio-1625, ¶ 25; State v. Leonard , 4th Dist. Athens No. 08CA24, 2009- Ohio-6191, ¶ 68. Accord State v. Powell , 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 86 (stating that an argument that is purely s peculative cannot serve as the basis for an ineffectiveness claim). {¶22} “In Ohio, a properly licensed attorney is presumed competent. ” State v. Shifflet , 4th Dist. Athens No. 13CA23, 2015-Ohio-4250, 44 N.E.3d 966, ¶ 37, citing State v. Davis, 4th Dist. Scioto Nos

. 13CA3589, 13CA3593, 2014-Ohio5371; State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62; State v. Moore, 4th Dist. Adams No. 13CA965, 2014-Ohio-3024, ¶ 25. Consequently, “ ‘the defendant must overcome the presumption th at, under the circumstances, the challenged action might be considered sound trial strategy.’ ” State v. Vance , 4th Dist. Jackson No. 18CA2, 2018-Ohio-5344, ¶ 10, quoting Strickland at 689. “Debatable strategic and tactical decisions may not fo rm the basis of a claim for ineffective assistance of counsel, even if , in hindsight, it looks as if a better strategy had been available.” State v. Detienne , 4th Dist. Athens No. 16CA13, 2017-Ohio-9105, ¶ 35, citing State v. Cook , 65 Ohio St.3d 516,Scioto App. Nos. 19CA3892 & 19CA3893 12 524, 605 N.E.2d 70 (1992). “Hindsight is not permitted to dist ort the assessment of what was reasonable in light of counsel's perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel.” Id. Finally,“ ‘[t]he scope of crossexamination falls within the ambit of trial strategy, and debat able trial tactics do not establish ineffective assistance of counsel.’ ” State v. Hammond , 4th Dist. Ross No. 18CA3662, 2019-Ohio-4253, ¶ 42, quoting Conway 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 101. ANALYSIS {¶23} Initially, we note that although Appellant in part alleges that permitting the State to cross examine Appellant with regard to Dr. Nichting’s report resulted in incriminating answers, he fails to identify any incriminating answers in the trial transcript. “[I]t is not the reviewing co urt’s obligation to search the record for evidence to support an appellant's argume nt as to any alleged error[.]” State v. Ozeta , 4th Dist. Adams No. 02CA746, 2004-Ohio-329, ¶ 18, citing State v. McGuire (Dec. 14, 1994), 9th Dist. Nos. 16423 and 16431. Nevertheless, a review of the trial transcript appears to revea l that, at most, the State asked Appellant two questions on cross examination pertai ning to Dr. Nichting’s report: (1) was Appellant drinking prior to shooting the gun, and (2) did Appellant recall telling Dr. Nic hting that if he (Appellant) ac ted suicidal maybe they would take you seriously. Thus, the question is whether Ap pellant’s trial counsel was ineffective for not objecting to the admission of A ppellant’s sanityScioto App. Nos. 19CA3892 & 19CA3893 13 report, or not objecting to these questions posed by the State on cross examination. a. Counsel’s Failure to Object to the Admission of the Sanity R eport {¶24} It was Appellant who moved the trial court for a sanity evaluation hoping to support an NGRI defense. Unfortunately for Appellant , Dr. Nichting concluded that her examination of Appellant did not support an NGRI defense. However, Dr. Nichting did find that Appellant was suffering fro m a “severe mental disease” at the time of the shooting, which Appellant’s trial c ounsel confirmed on cross examination. Contrary to Appellant’s assertion, we find that his trial counsel did not abandon Appellant’s NGRI defense. In his closi ng, Appellant’s trial counsel acknowledged the doctor’s unfavorable opinion reg arding Appellant’s NGRI defense, but noted the doctor’s finding that A ppellant suffered a “severe mental disease,” and appeared to urge the jury to dis avow the doctor’s opinion that a NGRI defense was unwarranted. And, the trial jud ge instructed the jury on the NGRI defense. Therefore, we find that Appellant ha s not proven that his trial counsel’s failure to object to the admission of Appel lant’s report was other than a strategy to assert the additional defense of NGRI. Vance , 4th Dist. Jackson No. 18CA2, 2018-Ohio-5344, ¶ 10. b. Counsel’s Failure to Object to State’s Cross Examination {¶25} Appellant argues that his trial counsel should have objected to the State’s cross examination of him based on his sanity report pur suant to R.C. 2945.371(J). {¶26} R.C. 2945.371(J) states:Scioto App. Nos. 19CA3892 & 19CA3893 14

No statement that a defendant makes in an evaluation or hearing under divisions (A) to (H) of this section relating to the defendant's competence to stand trial or to the defendant's mental condition at the time of the offense charged shall be used against the defendant on the issue of guilt in any criminal action or proceeding, but, in a criminal action or proceeding, the prosecutor or defense counsel may call as a witness any person who evaluated the defendant or prepared a report pursuant to a referral under this section. Neither the appointment nor the testimony of an examiner appointed under this section precludes the prosecutor or defense counsel from calling other witnesses o 

### r presenting other evidence on competency or insanity issues. (Emphasis added.) {¶27} The Ohio Supreme Court found that “[t]he plain language of the statute strictly prohibits the use of a defendant’s statements on the issue of guilt .” (Emphasis Added.) State v. Harris , 142 Ohio St. 3d 211, 2015-Ohio-16628 N.E.3d 1256, ¶ 28. The Court went on to state: “Accordingly, R .C. 2945.371(J) also prohibits the admission of evidence from the d efendant’s psychiatric evaluation if the defendant neither initiates the e valuation nor attempts to introduce any psychiatric evidence.” Id . The Court continued: “these restrictions” do not prohibit considering defendant’s statement s addressing the issue of the defendant’s mental state or sanity. Id

. {¶28} Unlike in Harris , Appellant initiated his evaluation for purposes of supporting an NGRI defense, and asserted an NGRI defense at tri al. Further, the State’s questions on cross (i.e. whether Appellant had been drinking prior to shooting the gun and whether App ellant could recall telling Dr. Nichting that if he (Appellant) acted suicidal maybe they would take you seriously) addressed Appellant’s mental state or sanity, which is permitted under Harris ’s reading ofScioto App. Nos. 19CA3892 & 19CA3893 15 R.C. 2945.371(J). Therefore, we find that trial counsel’s fail ure to object to these questions on cross examination was not deficient representation

. c. Counsel’s Cross Examination of Dr. Nichting {¶29} Trial counsel elected to rely on Dr. Nichting’s finding that Ap pellant suffered a “serious mental disease” at the time of the shooting to support his argument that Appellant was NGRI. However, as we previously di scussed, Dr. Nichting also opined that his examination of Appellant did not support a NGRI defense. Under these circumstances, we find that a less aggres sive cross examination of Dr. Nichting is within the ambit of trial strate gy so as not to draw further attention of Dr. Nichting’s opinions that were unfavora ble to Appellant’s defense. See generally Hammond , 4th Dist. 2019-Ohio-4253, ¶ 42. {¶30} In sum, we find that trial counsel’s representation of Appellan t was not deficient because the Appellant has failed to prove that hi s trial counsel’s actions were other than strategic decisions that were consisten t with the law, and even assuming arguendo counsel’s representation was deficient, we find that Appellant has failed to “show a reasonable probability that, bu t for counsel's errors, the result of the proceeding would have been different. ” Jarrell , 4th Dist. Gallia No. 15CA8, 2017-Ohio-520, 85 N.E.3d 175, ¶ 48. Therefore, we overrule Appellant’s second assignment of error.Scioto App. Nos. 19CA3892 & 19CA3893 16

CONCLUSION {¶31} Accordingly, having overruled both of Appellant’s assignments o f error, we affirm the trial court’s judgment entry of conviction

.

JUDGMENT AFFIRMED.Scioto App. Nos. 19CA3892 & 19CA3893 17

JUDGMENT ENTRY It is ordered that the JUDGMENT BE AFFIRMED and costs be asses sed to Appellant. The Court finds there were reasonable grounds for this appeal. It is ordered that a special m andate issue out of this Court d irecting the Scioto County Common Pleas Court to carry this judgment into ex ecution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed s ixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay d uring the pendency of proceedings in that court. If a stay is continued by this e ntry, it will terminate at the earlier of the expiration of the sixty-day period, or the f ailure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in th e forty-five-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Pract ice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dism isses the appeal prior to expiration of sixty days, the stay will terminate as o f the date of such dismissal. A certified copy of this entry shall constitute the mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Hess, J. and Abele, J.: Concur in Judgment and Opinion. For the Court,

BY: ______________________________ Kristy S. Wilkin Judge

NOTICE TO COUNSEL Pursuant to Local Rule No. 14, t his document constitutes a fin al judgment entry and the time peri od for further appeal commences from the date of filing with the clerk.