[Cite as State v. Burns, 2012-Ohio-2698.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

VS. 

DAJUAN BURNS, 

 DEFENDANT-APPELLANT. 

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 CASE NO. 09-MA-193 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 09CR527 

JUDGMENT: Affirmed in part 

Reversed and remanded in part 

APPEARANCES: 

For Plaintiff-Appellee Paul Gains 

Prosecutor 

Ralph M. Rivera 

Assistant Prosecutor 

21 W. Boardman St., 6th Floor 

Youngstown, Ohio 44503-1426 

For Defendant-Appellant Attorney J. Dean Carro 

University of Akron 

School of Law 

Akron, Ohio 44325 

JUDGES: 

Hon. Gene Donofrio 

Hon. Cheryl L. Waite 

Hon. Mary DeGenaro 

 

 

 Dated: June 12, 2012 
[Cite as State v. Burns, 2012-Ohio-2698.]

DONOFRIO, J. 

{¶1} Defendant-appellant, DaJuan Burns, appeals from a Mahoning County 

Common Pleas Court judgment convicting him of possession of a deadly weapon 

while under detention and felonious assault, following a jury trial, and the resulting 

sentence. 

{¶2} During 2008, appellant was housed at the Ohio State Penitentiary 

(OSP). Corrections Officers there alleged that he was involved in five different 

incidents spanning an eight-month period. The allegations were that appellant 

assaulted and/or harassed numerous officers with a bodily substance. 

{¶3} Of importance to this appeal is the incident that occurred on October 

31, 2008, involving Officer Jeremy Ifft. Officer Ifft was passing out cleaning supplies 

to the inmates in C-block where appellant was housed. Officer Ifft offered appellant a 

broom and dust pan to clean his cell. Appellant accepted. Officer Ifft passed the 

supplies to appellant through the “cuff port.” The cuff port is a metal flap on the front 

of the cell door opened by a key through which the corrections officers pass food and 

other necessary items to the inmate in the cell. 

{¶4} Appellant passed the broom and dustpan back through the cuff port to 

Officer Ifft and Officer Ifft gave appellant some paper towels. Officer Ifft then asked 

appellant if he wanted a mop. Appellant said that he did. As Officer Ifft handed 

appellant the mop through the cuff port, appellant grabbed Officer Ifft’s wrist and 

stabbed and cut him in the forearm. Officer Ifft described the item that appellant used 

to cut him as a shiny piece of metal. It required nine stitches to close the wound on 

Officer Ifft’s arm. 

{¶5} A Mahoning County Grand Jury indicted appellant on one count of 

possession of a deadly weapon while under detention, a third-degree felony in 

violation of R.C. 2923.131(A)(B)(C)(2)(c); one count of felonious assault, a seconddegree felony in violation of R.C. 2903.11(A)(2)(D); six counts of harassment with a 

bodily substance, fifth-degree felonies in violation of R.C. 2921.38(A)(D); and one 

count of assault, a fifth-degree felony in violation of R.C. 2903.13(A)(C)(2)(a). 
-2-

{¶6} Appellant filed a motion for relief from improper joinder requesting that 

the court grant him five separate trials for each of the five incidents. The trial court 

overruled this motion. 

{¶7} On the day of trial and over appellant’s objection, the court granted 

plaintiff-appellee’s, the State of Ohio’s, motion to amend count one of the indictment 

to include language that appellant was under detention at a detention facility serving 

a sentence for a second-degree felony and to include the mens rea of “knowingly.” 

{¶8} The matter proceeded to a jury trial. The jury found appellant guilty of 

possession of a deadly weapon while under detention at a detention facility and guilty 

of felonious assault. On the remaining seven counts, the jury found appellant not 

guilty. 

{¶9} The trial court subsequently sentenced appellant to eight years for 

felonious assault and five years for possession of a deadly weapon while under 

detention. The court ordered appellant to serve these sentences consecutive to one 

another and consecutive to the sentence he was already serving. 

{¶10} Appellant filed a timely notice of appeal on November 20, 2009. 

{¶11} Appellant raises seven assignments of error, the first of which states: 

 APPELLANT BURNS’ SIXTH AMENDMENT RIGHT TO 

COUNSEL WAS VIOLATED WHEN THE TRIAL COURT HELD 

HIS TRIAL COUNSEL IN CONTEMPT, TRIGGERING AN 

ACTUAL CONFLICT OF INTEREST THAT DENIED 

APPELLANT BURNS THE EFFECTIVE ASSISTANCE OF 

COUNSEL UNDER THE SIXTH AMENDMENT. 

{¶12} Two incidents occurred during the course of trial concerning this 

assignment of error. 

{¶13} The first incident occurred at the close of the state’s examination of 

Michael Wylie, the OSP institutional investigator. Appellant’s counsel asked the court 

for permission to call Wylie in her case in chief in defense of appellant. (Tr. 343). 
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The court stated that she should complete any questioning of Wylie at the present 

time and it would not permit her to recall him later. (Tr. 343). Counsel tried to make 

her point to the court that the state had told her that it would have video equipment 

available to use during questioning. (Tr. 344). The court interrupted her and called 

counsel out of the jury’s presence. (Tr. 344). The court stated that it had already 

advised both counsel that they were not to argue in front of the jury and were not to 

contest the court’s rulings in front of the jury. (Tr. 344). It informed counsel that if 

she failed to follow this rule again, it would hold her in contempt. (Tr. 344-45). 

{¶14} The second incident occurred during counsel’s cross examination of 

Ohio State Trooper Vicki Casey. (Tr. 551, 564, 571). Later, in chambers, the court 

and counsel put the incident on the record. (Tr. 601-605). The court stated that it 

called its own side bar during defense counsel’s cross examination because it was 

“bewildered at the presentation” and asked her to explain it. (Tr. 601). The court 

stated that it was satisfied with counsel’s explanation at the time and she continued 

her questioning until the court interrupted again. (Tr. 601-602). The court felt it was 

under an obligation to stop the irrelevant or improper evidence from being offered. 

(Tr. 602). The court then instructed counsel to cease what she was doing or to 

summarize it. (Tr. 602). The court stated that counsel continued to do exactly what it 

had instructed her to stop doing. (Tr. 603). Because it found that counsel acted in 

deliberate disregard of its directive, the court held her in contempt. (Tr. 604). Finally, 

the court informed counsel that it would conclude the contempt hearing at the 

conclusion of the trial and “a lot of what I do will probably depend upon your conduct 

in this trial in the future.” (Tr. 605). 

{¶15} At the close of evidence, counsel moved for a mistrial. (Tr. 700). As a 

basis, she stated: 

I do believe that what has transpired over the past two days has 

interfered with my preparation and presentation of the case 

ineffectively representing Mr. Burns. I do think there were things 

subtle and otherwise in front of the jury that would have impacted 
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- - or I should say potentially impacted what they were 

perceiving and seeing and how they would view the case[.] (Tr. 

701). 

The court overruled her motion. (Tr. 702). 

{¶16} Appellant asserts that once the trial court held his counsel in contempt, 

she could not effectively represent him due to a conflict of interest between protecting 

herself and defending him. He argues that even the most competent attorney cannot 

effectively represent her client when faced with contempt sanctions from the trial 

court. Appellant contends that the conditions created by the trial court made it 

impossible for counsel to render effective assistance of counsel. 

{¶17} In order to establish a violation of the Sixth Amendment’s right to 

effective assistance of counsel, “‘a defendant * * * must demonstrate that an actual 

conflict of interest adversely affected his lawyer's performance.’ (Emphasis added.) 

Cuyler v. Sullivan (1980), 446 U.S. 335, 348, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333, 

346–347. A possible conflict is insufficient. Id. at 350, 100 S.Ct. at 1719, 64 L.Ed.2d 

at 347.” State v. Getsy, 84 Ohio St.3d 180, 187, 702 N.E.2d 866 (1998). A conflict of 

interest occurs when counsel’s regard for one duty tends to lead to the disregard of 

another duty. Id., citing State v. Manross, 40 Ohio St.3d 180, 18, 532 N.E.2d 735 

(1988). 

{¶18} In this case, the court did not hold appellant’s counsel in contempt until 

after the state rested its case. Appellant’s counsel did not move for a mistrial or 

assert a conflict of interest until both sides had rested and the court was going 

through the jury instructions and wrapping things up with counsel. Thus, appellant’s 

counsel proceeded through most of the trial without the contempt finding or the 

“stress” of a possible conflict of interest. Counsel apparently believed that she could 

effectively represent appellant when the court held her in contempt or she would 

have moved for a mistrial at that point. 

{¶19} Furthermore, an examination of counsel’s representation of appellant 

after the court held her in contempt reveals that she zealously presented a defense 
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that likely resulted in appellant’s acquittal on seven of the nine charges he faced. 

Counsel presented three witnesses. The first witness was a forensic biologist who 

tested certain garments for bodily substances. The witness testified that no bodily 

substances were found on two garments that were submitted for testing. (Tr. 623). 

This testimony effectively defeated two of the harassment with a bodily substance 

charges against appellant. The next witness was an OSP nurse who examined two 

corrections officers who claimed appellant had thrown a hot substance at them and 

burned them. He testified that no burns were noted on either officer. (Tr. 635-37). 

This testimony could have likely resulted in the acquittal of the assault charge. The 

third witness was an OSP lieutenant who testified that a search of appellant’s cell did 

not turn up the weapon used to assault Officer Ifft. (Tr. 649). Thus, although the jury 

ultimately convicted appellant of this charge, it was not because his counsel failed to 

zealously present a defense to it. 

{¶20} In sum, counsel’s performance did not adversely affect appellant’s 

defense. Counsel’s representation cannot be viewed as ineffective. In fact, the jury 

acquitted appellant of seven of the nine felony charges he faced. 

{¶21} Accordingly, appellant’s first assignment of error is without merit. 

{¶22} Appellant’s second assignment of error states: 

 THE STATE FAILED TO PRESENT EVIDENCE 

SUFFICIENT TO PROVE THE DEADLY-WEAPON ELEMENT 

BEYOND A REASONABLE DOUBT FOR FELONIOUS 

ASSAULT WITH A DEADLY WEAPON, R.C. 2903.11(A)(2), 

AND POSSESSION OF A DEADLY WEAPON WHILE UNDER 

DETENTION, R.C. 2923.131(B), AND AS A RESULT, 

APPELLANT BURNS’ FOURTEENTH AMENDMENT RIGHTS 

WERE VIOLATED. 

{¶23} Appellant argues that the state failed to produce sufficient evidence that 

he possessed a “deadly weapon.” For support, he points out that Officer Ifft’s wound 
-6-

was only 1.5 inches long and .74 inches deep. He further notes that the “weapon” 

was never recovered. 

{¶24} Sufficiency of the evidence is the legal standard applied to determine 

whether the case may go to the jury or whether the evidence is legally sufficient as a 

matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684 

N.E.2d 668 (1997). In essence, sufficiency is a test of adequacy. State v. 

Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). Whether the evidence is 

legally sufficient to sustain a verdict is a question of law. Id. In reviewing the record 

for sufficiency, the relevant inquiry is 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. Smith, 80 Ohio 

St.3d at 113. 

{¶25} Appellant only takes issue with the “deadly weapon” element of both 

felonious assault and possession of a deadly weapon while under detention. R.C. 

2923.11(A) defines “deadly weapon” as “any instrument, device, or thing capable of 

inflicting death, and designed or specially adapted for use as a weapon, or 

possessed, carried, or used as a weapon.” 

{¶26} Officer Ifft testified that he was passing out cleaning supplies to the 

inmates on the day in question. (Tr. 581). He gave appellant a broom and dustpan 

through the cuff port and when appellant was done, he passed those items back to 

Officer Ifft. (Tr. 581). Next, Officer Ifft gave appellant some paper towels. (Tr. 581). 

Officer Ifft then asked appellant if he wanted a mop. (Tr. 582). Appellant stated that 

he did. (Tr. 582). Officer Ifft handed appellant a mop through the cuff port. (Tr. 582). 

As he did so, appellant grabbed the officer’s right wrist, stabbed him in the forearm, 

and cut him. (Tr. 582). Officer Ifft was able to then pull his hand out. (Tr. 582). 

Officer Ifft described the item appellant stabbed him with as “a shiny piece of metal.” 

(Tr. 583). 

{¶27} The cut to Officer Ifft’s arm required nine stitches to close. (Tr. 585). 

The stiches were not just surface stiches. (Tr. 586). Some stiches were deep 
-7-

underneath. (Tr. 586). The wound was approximately one and a half inches long 

and three-quarters of an inch deep. (Tr. 585). It left a scar. (Tr. 583). 

{¶28} Trooper Vicki Casey, who investigated the stabbing, reported that no 

weapon was found in appellant’s cell. (Tr. 559). 

{¶29} To prove the shiny piece of metal was a “deadly weapon,” the state had 

to prove: “1) it was capable of inflicting death, and 2) it was designed or specially 

adapted for use as a weapon or, was used as a weapon.” State v. Miller, 7th Dist. 

No. 10-MA-14, 2010-Ohio-6390, ¶19. Clearly, the shiny piece of metal was used as 

a weapon. Officer Ifft testified that appellant used it to stab and cut him. Thus, the 

only question is whether the shiny piece of metal was capable of inflicting death. 

{¶30} A jury could likely view a shiny piece of metal that was used to cut and 

stab someone as being very similar to a knife. A knife is not presumed to be a 

deadly weapon. Id. But Officer Ifft’s testimony and resulting wound, especially when 

viewed in a light most favorable to the state, could lead a reasonable jury to conclude 

that the shiny piece of metal was a deadly weapon. Officer Ifft’s wound required nine 

stiches to close, some of which were deep in his arm. This demonstrated that the 

shiny piece of metal penetrated deep into his arm and was capable of causing a 

serious physical injury. Had appellant stabbed Officer Ifft in the neck or chest, his 

injury could have been deadly. 

{¶31} Courts have held that objects similar to a shiny piece of metal may be 

considered “deadly weapons.” In fact, one court commented: “‘It almost follows 

without the need to cite legal authority that either a knife or a screwdriver is capable 

of inflicting a deadly wound. This is especially so if either one were plunged into the 

victim's neck.’” State v. Brown, 6th Dist. No. WD-09-058, 2010-Ohio-1698, ¶14, 

quoting State v. Umphries, 4th Dist. No. 02CA2662, 2003-Ohio-599. A box cutter 

has likewise been found to be a deadly weapon. See State v. Hill, 10th Dist. No. 

09AP-398, 2010-Ohio-1687. 

{¶32} As such, the state presented sufficient evidence to prove the “deadly 

weapon” element of both felonious assault and possession of a deadly weapon while 
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under detention. Accordingly, appellant’s second assignment of error is without 

merit. 

{¶33} Appellant’s third assignment of error states: 

 APPELLANT BURNS WAS PREJUDICED BY A 

DEFECTIVE INDICTMENT IN VIOLATION OF SECTION 10, 

ARTICLE I OF THE OHIO CONSTITUTION WHEN THE STATE 

AMENDED THE INDICTMENT TO INCLUDE AN ELEMENT 

WHICH INCREASED THE LEVEL OF THE CRIME AND 

THEREFORE CHANGING ITS IDENTITY EVEN THOUGH 

THAT ELEMENT WAS NOT FOUND BY THE GRAND JURY. 

{¶34} Appellant’s original indictment on the possession of a deadly weapon 

while under detention stated that appellant “did possess a deadly weapon, to wit: a 

sharp, metal object, while under detention at a detention facility, in violation of 

Section 2923.131(A)(B)(c) [sic.] of the Revised Code, a Felony of the Third Degree.” 

The caption of the indictment, however, read “POSSESSION OF A DEADLY 

WEAPON WHILE UNDER DETENTION R.C. 2923.131(A)(B)(c)(2)(c) [sic.] F-3.” 

{¶35} Just prior to trial, the state moved to amend the indictment to add the 

additional statement that while committing the crime, appellant was serving a 

sentence having been convicted of a second-degree felony after 1996. (Tr. 2, 6-7). 

The court allowed this amendment. (Tr. 9-10). 

{¶36} Appellant contends that his indictment was faulty because it did not 

include either of the necessary elements required to elevate the crime of possession 

of a weapon under detention to a third-degree felony. He argues that when the court 

allowed the state to amend the indictment to add the missing element, it allowed the 

state to change the level of the offense and, therefore, the identity of the crime 

charged. Appellant goes on to argue that the grand jury transcripts do not mention 

that appellant was under detention for a second-degree felony committed after July 
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1, 1996. Thus, he asserts this was not just a clerical error. Instead, he contends this 

element was never presented to the grand jury. 

{¶37} Possession of a deadly weapon while under detention can range from a 

fifth-degree felony to a first-degree felony depending on the circumstances. R.C. 

2923.131. Appellant was charged with a third-degree felony. 

{¶38} There are two statutory provisions that can qualify the charge as a thirddegree felony: (1) the most serious offense for which the person was under 

detention is a second-degree felony committed on or after July 1, 1996, or is a 

second-degree aggravated felony or a first-degree felony committed prior to July 1, 

1996 (R.C. 2923.131(C)(2)(c)(i)); or (2) If the person was under detention as an 

alleged or adjudicated delinquent child, the most serious act for which the person 

was under detention was committed on or after July 1, 1996, and would be a seconddegree felony if committed by an adult, or was committed prior to July 1, 1996, and 

would have been a second-degree aggravated felony or a first-degree felony if 

committed by an adult (R.C. 2923.131(C)(2)(c)(ii)). 

{¶39} Because the indictment did not specify which provision appellant was 

charged with violating, appellant argues we cannot be sure that the charge on which 

he was tried was the same charge found by the grand jury. 

{¶40} Appellate courts review a trial court's decision to permit the amendment 

of an indictment for an abuse of discretion. State v. Beach, 148 Ohio App.3d 181, 

2002-Ohio-2759, 772 N.E.2d 677, ¶23. Abuse of discretion connotes more than an 

error of law; it implies that the trial court's decision was unreasonable, arbitrary, or 

unconscionable. State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). 

{¶41} Article I, Section 10 of the Ohio Constitution provides that “no person 

shall be held to answer for a capital, or otherwise infamous, crime, unless on 

presentment or indictment of a grand jury.” Accordingly, the Ohio Constitution 

guarantees an accused that the essential facts constituting the offense will be found 

in the indictment. State v. Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 772 N.E.2d 

677, ¶14. 
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{¶42} Crim.R. 7(D) allows the amendment of the indictment as follows: 

The court may at any time before, during, or after a trial amend 

the indictment, information, complaint, or bill of particulars, in 

respect to any defect, imperfection, or omission in form or 

substance, or of any variance with the evidence, provided no 

change is made in the name or identity of the crime charged. 

{¶43} If an amendment changes the penalty or degree of the charged offense, 

it changes the identity of the offense and is not permitted by Crim.R. 7(D). Pepka, at 

¶15, citing State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4527, ¶1. So long as the 

state complies with Crim.R. 7(D), it may amend a defective indictment, even if the 

original indictment omits an essential element of the offense with which the defendant 

is charged. Id., citing State v. O'Brien, 30 Ohio St.3d 122, 127-128, 508 N.E.2d 144 

(1987). 

{¶44} In this case, appellant was not misled or prejudiced by the omission of 

the element from the indictment. 

“An indictment, which does not contain all the essential elements 

of an offense, may be amended to include the omitted element, if 

the name or the identity of the crime is not changed, and the 

accused has not been misled or prejudiced by the omission of 

such element from the indictment.” O’Brien, 30 Ohio St.3d at 

paragraph two of the syllabus. 

{¶45} First, although the body of the indictment did not contain the additional 

element that appellant was under detention for a second-degree felony, the 

indictment’s caption set out this statutory subsection. Thus, if appellant referred to 

the statute as stated in the indictment’s caption, he would be informed of the specific 

subsection the state was alleging that he violated. 
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{¶46} Second, the body of the indictment did state that appellant was being 

charged with a third-degree felony. Thus, by amending the indictment the state did 

not change the penalty or degree of the offense. 

{¶47} And third, the bill of particulars put appellant on notice, if he was not 

already on notice, of the specifics of the charge. The bill of particulars alleged that 

appellant 

did knowingly possess a deadly weapon, specifically a sharp 

metal object, while under detention at said penitentiary; and the 

most serious offense for which he was incarcerated is a felony of 

second degree committed after July 1, 1996, rendering said 

possess a felony of the third degree in violation of Ohio Revised 

Code Section 2923.131(B)(C)(2)(c). 

{¶48} Given these considerations, the trial court did not abuse its discretion in 

allowing the state to amend the indictment. Accordingly, appellant’s third assignment 

of error is without merit. 

{¶49} Appellant’s fourth assignment of error states: 

 THE TRIAL COURT MADE FINDINGS OF FACT AT 

SENTENCING THAT WERE NOT IMPLICIT IN THE JURY’S 

VERDICT AND THEREBY VIOLATED APPELLANT BURNS’ 

SIXTH AND FOURTEENTH AMENDMENT RIGHTS. 

{¶50} Appellant contends here that the trial court engaged in unconstitutional 

judicial fact-finding in sentencing him, which is prohibited by Blakely v. Washington, 

542 U.S. 296 (2004) and United States v. Booker, 543 U.S. 220 (2005). Specifically, 

he argues that the jury found that Officer Ifft suffered “physical harm” but the court 

found that he suffered “serious physical harm.” 

{¶51} The Ohio Supreme Court has held that in reviewing felony sentences, 

the appellate courts must use a two-prong approach. 
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First, they must examine the sentencing court's compliance with 

all applicable rules and statutes in imposing the sentence to 

determine whether the sentence is clearly and convincingly 

contrary to law. If this first prong is satisfied, the trial court's 

decision in imposing the term of imprisonment shall be reviewed 

under an abuse of discretion standard. State v. Kalish, 120 Ohio 

St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶4, citing State v. 

Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. 

{¶52} Appellant does not contend that the trial court abused its discretion, 

only that his sentence is contrary to law. 

{¶53} For felonious assault, a second-degree felony, the trial court sentenced 

appellant to eight years in prison. The possible sentences for a second-degree 

felony are two, three, four, five, six, seven, or eight years. R.C. 2929.14(A)(2). For 

possession of a deadly weapon while under detention at a detention facility, a thirddegree felony, the court sentenced appellant to five years in prison. The possible 

prison sentences for a third-degree felony at the time appellant was sentenced were 

one, two, three, four, or five years. Former R.C. 2929.14(A)(3).1 Thus, appellant’s 

sentences are within the applicable statutory ranges. 

{¶54} Appellant’s argument under this assignment of error must fail. 

Appellant contends that the trial court engaged in unconstitutional fact-finding when, 

in considering the seriousness factors under R.C. 2929.12(B)(C), the court found that 

the “victim suffered serious physical harm.” (Tr. 831). The court considered this 

factor in sentencing appellant to maximum, consecutive sentences. 

 

1. {¶a} R.C. 2929.14(A)(3) was amended in 2011 and now reads: 

{¶b} (3)(a) For a felony of the third degree that is a violation of section 2903.06, 2903.08, 2907.03, 

2907.04, or 2907.05 of the Revised Code or that is a violation of section 2911.02 or 2911.12 of the 

Revised Code if the offender previously has been convicted of or pleaded guilty in two or more 

separate proceedings to two or more violations of section 2911.01, 2911. 02, 2911.11, or 2911.12 of 

the Revised Code, the prison term shall be twelve, eighteen, twenty-four, thirty, thirty-six, forty-two, 

forty-eight, fifty-four, or sixty months. 

{¶c} (b) For a felony of the third degree that is not an offense for which division (A)(3)(a) of this section 

applies, the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months. 
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{¶55} Pursuant to Foster, at paragraphs one and three of the syllabus, R.C. 

2929.14(B)(C) and (E) are unconstitutional because they require trial courts to 

engage in fact-finding. These unconstitutional statutes required trial courts to make 

specific findings, not proven to the jury, before sentencing an offender to maximum 

and/or concurrent sentences. Id. at ¶83. But as to R.C. 2929.12, at issue in this 

case, Foster stated that it only requires trial courts to “consider” the factors listed. Id. 

at ¶42. One of the factors listed is that the victim suffered serious physical harm. 

R.C. 2929.12(B)(2). 

{¶56} This court has rejected appellant’s argument here. 

 “Simply put, Foster held that it was unconstitutional for the 

Ohio General Assembly to mandate that a trial court find a 

particular fact before imposing a particular sentence. 

Furthermore, the decision explicitly stated that trial courts would 

have to engage in fact-finding when sentencing felony offenders 

in the future.” State v. Stroud, 7th Dist. No. 07MA91, 2008-Ohio3187, ¶ 8. See, also, Simmons, 7th Dist. No. 07JE22, 2008-

Ohio-3337, ¶ 11-14 (it is statutorily-required specific judicial factfinding that is prohibited, not the discretionary expression of the 

existence of various sentencing considerations). 

 In reaching our holding, we noted “that the United States 

Supreme Court [in Blakey ] was careful to clarify that a 

defendant's right to a jury trial is not violated when a judge finds 

facts when determining an appropriate sentence.” Stroud, supra, 

at ¶ 11, citing Blakely, supra, at 308-309. Rather, the right to a 

jury trial was violated when a trial court finds “facts mandated by 

statute when determining an appropriate sentence .” Id., citing 

Blakely, supra, at 308-309. 

* * * 
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 Reviewing our decision in Stroud, we find that it does not 

violate Foster, Blakely, or the spirit of those decisions. 

Furthermore, we find that the Ohio Supreme Court's indication 

that courts shall “consider” the factors in R.C. 2929.12, does not 

mean that courts are only permitted to “consider” those factors if 

they are an element of the convicted offense. To find otherwise 

is illogical. To consider something is to take it into account. 

www.merriam-webster.com/dictionary/consider. Thus, by 

definition, the trial court was permitted to take any factor that 

could be derived from the facts presented at trial into account 

when determining the appropriate sentence. As we have recently 

stated, “A sentencing court is permitted to express its 

impressions derived from trial.” Jones, supra, at ¶ 20. 

 To hold otherwise would raise questions about the 

applicability and purpose of R.C. 2929.12. If a factor can be 

considered by the trial court, but cannot be used in determining 

the appropriate sentencing unless that factor is an element of the 

offense, what is the use of R.C. 2929.12 in setting forth factors 

for the court to consider? Likewise, logically how does a trial 

court exercise its discretion in that instance? While the jury's 

function in a criminal trial is immensely important, it is not the 

jury's function to sentence the offender. Rather, that duty is the 

sole responsibility of the sentencing judge. The Ohio Supreme 

Court has clearly indicated that trial judges have discretion in 

sentencing. The judges have this discretion because they are in 

the best position to give a sentence that is commensurate with 

the offense committed. Sentencing courts see a vast array of 

offenses, criminals and factual scenarios involving the crimes 

committed. This knowledge should be used in determining the 
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appropriate sentence to impose on an offender given all the facts 

presented. State v. Austin, 7th Dist. No. 09-MA-167, 2010-Ohio6583, ¶15-19. 

{¶57} Thus, the trial court here was permitted to consider whether the victim 

suffered serious physical harm. Accordingly, appellant’s fourth assignment of error is 

without merit. 

{¶58} Appellant’s fifth assignment of error states: 

 THE TRIAL COURT ERRED IN SENTENCING 

APPELLANT BURNS TO MULTIPLE PUNISHMENTS, IN 

VIOLATION OF R.C. 2941.25 AND THE DOUBLE JEOPARDY 

CLAUSES OF THE UNITED STATES AND THE OHIO 

CONSTITUTIONS, FOR FELONIOUS ASSAULT WITH A 

DEADLY WEAPON AND POSSESSION OF A DEADLY 

WEAPON WHILE UNDER DETENTION, WHICH ARE ALLIED 

OFFENSES FROM A SINGLE ACT WITH A SINGLE VICTIM 

WITH A SINGLE ANIMUS. 

{¶59} Appellant argues that his two offenses are allied offenses of similar 

import that should have been merged at sentencing. He relies on State v. Johnson, 

128 Ohio St.3d 153, 2010-Ohio-6314, syllabus, where the Ohio Supreme Court held: 

“When determining whether two offenses are allied offenses of similar import subject 

to merger under R.C. 2941.25, the conduct of the accused must be considered. 

(State v. Rance (1999), 85 Ohio St.3d 632, 710 N.E.2d 699, overruled.)” Appellant 

asserts that it is possible to commit felonious assault while possessing a deadly 

weapon under detention and the offenses were committed at the same time and for 

the same purpose. He contends that while the guilty verdicts should remain intact, 

we must remand this matter for resentencing. 
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{¶60} Merger of allied offenses is a question of law. State v. Taylor, 7th Dist. 

No. 07-MA-115, 2009-Ohio-3334, ¶19. Therefore, we must use a de novo standard 

of review. 

{¶61} Pursuant to R.C. 2941.25, the merger statute: 

 (A) Where the same conduct by defendant can be 

construed to constitute two or more allied offenses of similar 

import, the indictment or information may contain counts for all 

such offenses, but the defendant may be convicted of only one. 

 (B) Where the defendant's conduct constitutes two or 

more offenses of dissimilar import, or where his conduct results 

in two or more offenses of the same or similar kind committed 

separately or with a separate animus as to each, the indictment 

or information may contain counts for all such offenses, and the 

defendant may be convicted of all of them. 

{¶62} Johnson changed the way courts are to analyze the issue of allied 

offenses of similar import. Under the old analysis, courts were to compare the 

elements of the offenses in the abstract in order to determine whether the elements 

corresponded to such a degree that the commission of one offense would result in 

the commission of the other offense. Rance, 85 Ohio St.3d at the syllabus. But now, 

under Johnson, 128 Ohio St.3d at the syllabus, courts are to consider the 

defendant’s conduct in determining whether the offenses are of similar import. 

{¶63} Even though Johnson changed the way we are to consider whether 

offenses are allied offenses of similar import, it did not provide us with a controlling 

test to use. This is because Johnson does not contain a majority opinion. Instead, it 

contains two plurality opinions and one minority opinion. “Our only new guidance is 

to consider the defendant's conduct and thus the particular facts of each case to 

determine whether the offenses are of similar import.” State v. Gardner, 7th Dist. No. 

10-MA-52, 2011-Ohio-2644, ¶23. 
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{¶64} Appellant was sentenced in 2009, before Johnson was decided in 

2010. So he could not have specifically raised an argument under Johnson. 

Appellant’s counsel did raise an argument at sentencing that appellant’s sentences 

should be concurrent because the jury could not have found felonious assault without 

finding that appellant possessed a deadly weapon. (Tr. 822). Thus, while counsel 

did not argue merger per se, counsel’s argument was sufficient to preserve this issue 

for appeal. Furthermore, even if counsel did not specifically preserve this issue, the 

Ohio Supreme Court has held that the imposition of multiple sentences for allied 

offenses of similar import is plain error. State v. Underwood, 124 Ohio St.3d 365, 

2010-Ohio-1, 922 N.E.2d 923, ¶31. 

{¶65} First, we must examine the elements of both offenses at issue here. 

{¶66} Appellant was convicted of felonious assault in violation of R.C. 

2903.11(A)(2), which provides that no person shall knowingly “[c]ause or attempt to 

cause physical harm to another * * * by means of a deadly weapon * * *.” 

{¶67} Appellant was additionally convicted of possession of a deadly weapon 

while under detention at a detention facility in violation of R.C. 2923.131(B), which 

states: “No person under detention at a detention facility shall possess a deadly 

weapon.” 

{¶68} Under the felonious assault statute, appellant was convicted of causing 

physical harm to Officer Ifft by means of a deadly weapon. In order to do so, he 

necessarily had to possess a deadly weapon. Appellant possessed a shiny piece of 

metal. This shiny piece of metal, standing alone, was not a deadly weapon. It was 

not until appellant used it in a manner so as to stab and seriously injure Officer Ifft 

that it became a deadly weapon. And because appellant was under detention when 

he committed felonious assault with a deadly weapon, he also necessarily committed 

possession of a deadly weapon while under detention. Additionally, the state 

presented no evidence that appellant possessed this shiny piece of metal prior to or 

after stabbing Officer Ifft. Thus, when considering appellant’s specific conduct, and 

not just the elements of the offenses in the abstract, felonious assault with a deadly 
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weapon and possession of a deadly weapon while under detention are allied 

offenses of similar import in this case. As such, the trial court should have merged 

them at sentencing. 

{¶69} Accordingly, appellant’s fifth assignment of error has merit. 

{¶70} Appellant’s appointed counsel states that appellant’s sixth and seventh 

assignments of error are presented solely at appellant’s request. 

{¶71} Appellant’s sixth assignment of error states: 

 APPELLANT BURNS WAS DENIED DUE PROCESS OF 

LAW UNDER ARTICLES 1 & 16 OF THE OHIO 

CONSTITUTION AND THE 14TH AMENDMENT OF THE 

UNITED STATES CONSTITUTION BECAUSE THE INSTANT 

PROSECUTION WAS NOT BEGUN BY A COMPLAINT AS 

REQUIRED BY CRIM.R. 3 AND R.C. 2935.09. 

{¶72} Appellant argues that the investigating officer failed to file a complaint in 

this case and instead merely requested that he be charged. He contends that the 

officer’s failure to file a complaint violated Crim.R. 3 and R.C. 2935.09, which prohibit 

a case from being directly presented to a grand jury. 

{¶73} In a Fourth District case, the appellant raised a similar argument as 

appellant does here. In overruling the appellant’s argument, the court reasoned: 

 [A]s the Ohio Supreme Court has previously noted, “[a]n 

accused in a felony case is not tried upon the affidavit filed 

against him but on the indictment by the grand jury.” Foston v. 

Maxwell (1964), 177 Ohio St. 74, 76, 202 N.E.2d 425. The grand 

jury has the discretion to review the evidence presented to it and 

determine which offenses to charge. “The fact that the grand jury 

determines that an accused shall be charged with a felony other 

than that made against him in the affidavit [or complaint] 
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originally filed and upon which he is bound over to the grand jury 

has no effect on the validity of the indictment returned by the 

grand jury.” Id., citing Clinger v. Maxwell (1964), 175 Ohio St. 

540, 196 N.E.2d 771. See, also, State v. Klingenberger (1925), 

113 Ohio St. 418, 426, 149 N.E. 395 (Noting that grand juries 

have plenary and inquisitorial powers and may lawfully, upon 

their own motion, originate charges against offenders.). 

Furthermore, even if Thacker alleged that the original complaints 

contained defects, such defects would be irrelevant and 

harmless to Thacker's convictions based upon the grand jury 

indictment. See State v. Martin, Lawrence App. No. 01CA24, 

2002-Ohio-6140, at ¶ 24. State v. Thacker, 4th Dist. No. 04-CA5, 2004-Ohio-3978, ¶12. 

{¶74} Based on the reasons set out in Thacker, any error that occurred by 

failing to file a complaint in this case was rendered harmless once the grand jury 

charged appellant. Accordingly, appellant’s sixth assignment of error is without merit. 

{¶75} Appellant’s seventh assignment of error states: 

 THE TRIAL COURT ABUSED ITS DISCRETION WHEN 

IT REFUSED TO SEVER THE CHARGES AGAINST 

APPELLANT BURNS, DENYING APPELLANT BURNS A FAIR 

TRIAL. 

{¶76} Appellant argues that the trial court abused its discretion in denying his 

request for separate trials. He points out that the indictment charged him with nine 

offenses arising from five separate incidents and spanning over eight months that did 

not include common evidence or witnesses. 
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{¶77} An appellate court will only reverse a trial court's denial of severance if 

the trial court abused its discretion. State v. Skatzes, 104 Ohio St.3d 195, 2004-

Ohio-6391, 819 N.E.2d 215, ¶33. 

{¶78} Crim.R. 8(A) provides that two or more offenses may be charged in the 

same indictment if the offenses are (1) of the same or similar character, or (2) are 

based on the same act or transaction, or (3) are based on two or more acts or 

transactions connected together or constituting parts of a common scheme or plan, 

or (4) are part of a course of criminal conduct. “The law favors joining multiple 

offenses in a single trial under Crim.R. 8(A) if the offenses charged ‘are of the same 

or similar character.’” State v. Lott, 51 Ohio St.3d 160, 163, 555 N.E.2d 293 (1990), 

quoting State v. Torres, 66 Ohio St.2d 340, 421 N.E.2d 1288 (1981). 

{¶79} If it appears that a defendant is prejudiced by the joinder of offenses, 

the trial court may grant a severance. Crim.R. 14. But the burden is on the 

defendant to prove prejudice and to prove that the trial court abused its discretion in 

denying severance. State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 

N.E2d 959, ¶29. 

{¶80} In this case, the nine offenses appellant was charged with were of 

similar character. All of the alleged offenses occurred while appellant was under 

detention at the OSP. And all of the alleged offense consisted of some sort of 

assault on a corrections officer or harassment of a corrections officer with a bodily 

substance. Thus, the offenses were properly joined in the indictment. 

 When a defendant claims that he was prejudiced by the 

joinder of multiple offenses, a court must determine (1) whether 

evidence of the other crimes would be admissible even if the 

counts were severed, and (2) if not, whether the evidence of 

each crime is simple and distinct. State v. Schaim, 65 Ohio 

St.3d 51, 59, 600 N.E.2d 661 (1992). 
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{¶81} When simple and distinct evidence exists, an accused is not prejudiced 

by the joinder of multiple offenses in a single trial, regardless of whether the evidence 

is admissible as other-acts evidence. State v. Coley, 93 Ohio St.3d 253, 260, 754 

N.E.2d 1129 (2001). 

{¶82} Here, the evidence of the other crimes would likely not have been 

admissible if the counts were severed. The crimes each had their own distinct victimwitnesses and it seems unlikely that the victim-witnesses would testify in a case that 

did not have to do with the offense against them. 

{¶83} Nonetheless, the evidence of each crime was simple and distinct. Each 

of the officers who had been a victim of one of the alleged offenses simply testified 

regarding that particular offense. None of their testimonies were very long or 

involved. And the jury must have been able to keep the evidence as to each offense 

separate in their minds. They acquitted appellant on seven offenses, which made up 

four of the incidents, and convicted appellant of two offenses, which made up the fifth 

incident. Thus, appellant cannot demonstrate that he was prejudiced by the court’s 

decision denying severance. 

{¶84} Accordingly, appellant’s seventh assignment of error is without merit. 

{¶85} For the reasons stated above, appellant’s convictions are hereby 

affirmed. His sentence is reversed and the matter is remanded for merger of his 

convictions and resentencing at which time the state shall elect which allied offense it 

will pursue. 

Waite, P.J., concurs. 

DeGenaro, J. concurs.