[Cite as State v. Fuller, 2014-Ohio-1351.]

STATE OF OHIO, MAHONING COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO, 

 PLAINTIFF-APPELLEE, 

V. 

DAWAN FULLER, 

 DEFENDANT-APPELLANT. 

)

)

)

)

)

)

)

)

)

CASE NO. 12 MA 185 

OPINION 

CHARACTER OF PROCEEDINGS: Criminal Appeal from Court of Common 

Pleas of Mahoning County, Ohio 

Case No. 11CR1359A 

JUDGMENT: Affirmed in part. Reversed in part and 

Remanded. 

APPEARANCES: 

For Plaintiff-Appellee Paul Gains 

Prosecutor 

Ralph Rivera 

Assistant Prosecutor 

21 W. Boardman St., 6th Floor 

Youngstown, Ohio 44503 

For Defendant-Appellant Attorney Rhys Cartwright Jones 

42 North Phelps Street 

Youngstown, Ohio 44503-1130 

JUDGES: 

Hon. Gene Donofrio 

Hon. Joseph J. Vukovich 

Hon. Cheryl L. Waite 

 

 
-2-

 Dated: March 27, 2014 
[Cite as State v. Fuller, 2014-Ohio-1351.]

DONOFRIO, J. 

{¶1} Defendant-appellant, Dawan Fuller, appeals from a Mahoning County 

Common Pleas Court judgment convicting him of two counts of attempted murder, 

with accompanying firearm specifications, following a bench trial. 

{¶2} In the early evening of November 23, 2011, Robert Shaffer and his 

mother, Michele Holmes, were each shot several times while in their home on 

Youngstown’s west side. They both survived the assault. 

{¶3} According to Shaffer and Holmes, two men came into their home and 

shot them. They identified one of the men as Sherrick Jackson. They both knew 

Jackson. Shaffer later identified appellant in court as the other man, although he 

could not positively identify appellant in a photo lineup. 

{¶4} According to Shaffer’s next-door neighbors, Brandon Randall and 

Jamie Seaman, appellant and Jackson were visiting at their house just prior to the 

shooting along with appellant’s son and Jackson’s girlfriend. And when Seaman 

heard gunshots, Randall went to Shaffer’s house and saw appellant and Jackson 

standing over Shaffer and Holmes. 

{¶5} According to Jackson, however, he acted alone in the shooting. He 

claimed that appellant did not even go with him to Shaffer’s house. Appellant is 

Jackson’s younger brother. 

{¶6} A Mahoning County Grand Jury indicted both appellant and Jackson on 

two counts of attempted murder, first-degree felonies in violation of R.C. 

2903.02(A)(D) and R.C. 2923.02(A), and two counts of felonious assault, seconddegree felonies in violation of R.C. 2903.11(A)(2)(D). Firearm specifications 

accompanied all counts. Both men pleaded not guilty to the charges in the 

indictment. 

{¶7} Jackson eventually entered a guilty plea just prior to trial to all counts in 

the indictment. 

{¶8} The case against appellant proceeded to a bench trial. The trial court 

found appellant guilty of all charges and specifications. At a later sentencing hearing, 

the court merged the felonious assault counts with the attempted murder counts and 
-2-

also merged the specifications for those counts. The court then sentenced appellant 

to ten years on each of the attempted murder counts and three years on each of the 

firearm specifications and ordered that the sentences run consecutively. Thus, the 

court sentenced appellant to a total of 26 years in prison. 

{¶9} Appellant filed a timely notice of appeal on October 16, 2012. 

{¶10} Appellant raises three assignments of error, the first of which states: 

 THE TRIAL COURT ERRED IN ENTERING JUDGMENTS OF 

CONVICTION ON THE COUNTS OF THE INDICTMENT, INSOFAR 

SUFFICIENT EVIDENCE DID NOT SUPPORT THE ELEMENTS OF 

IDENTITY, AND THE MANIFEST WEIGHT OF THE EVIDENCE DID 

NOT SUPPORT THE ELEMENT OF IDENTITY. 

{¶11} Appellant argues his conviction is against the manifest weight of the 

evidence because the trial court ignored the testimony of the only eyewitness. He 

asserts Jackson was the only person who actually saw what happened on the night 

in question and he testified that appellant was not there. 

{¶12} Additionally, appellant asserts that Jackson’s testimony is the only 

testimony that makes sense in this case. He contends that to believe Randall, one 

would have to believe that Randall was in Shaffer’s house or that he saw the 

exchange through draped windows. And appellant contends that to believe Shaffer, 

one would have to account for the fact that he was unable to identify appellant until 

he was in court, after having read articles implicating appellant. 

{¶13} In determining whether a verdict is against the manifest weight of the 

evidence, an appellate court must review the entire record, weigh the evidence and 

all reasonable inferences and determine whether, in resolving conflicts in the 

evidence, the jury clearly lost its way and created such a manifest miscarriage of 

justice that the conviction must be reversed and a new trial ordered. State v. 

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 668 (1997). “Weight of the evidence 

concerns ‘the inclination of the greater amount of credible evidence, offered in a trial, 
-3-

to support one side of the issue rather than the other.’” Id. (Emphasis sic.) In 

making its determination, a reviewing court is not required to view the evidence in a 

light most favorable to the prosecution but may consider and weigh all of the 

evidence produced at trial. Id. at 390. 

{¶14} Yet granting a new trial is only appropriate in extraordinary cases where 

the evidence weighs heavily against the conviction. State v. Martin, 20 Ohio App.3d 

172, 175, 485 N.E.2d 717 (1st Dist.1983). This is because determinations of witness 

credibility, conflicting testimony, and evidence weight are primarily for the trier of the 

facts who sits in the best position to judge the weight of the evidence and the 

witnesses' credibility by observing their gestures, voice inflections, and demeanor. 

State v. Rouse, 7th Dist. No. 04-BE-53, 2005-Ohio-6328, ¶49, citing State v. Hill, 75 

Ohio St.3d 195, 205, 661 N.E.2d 1068 (1996); State v. DeHass, 10 Ohio St.2d 230, 

227 N.E.2d 212 (1967), paragraph one of the syllabus. Thus, “[w]hen there exist two 

fairly reasonable views of the evidence or two conflicting versions of events, neither 

of which is unbelievable, it is not our province to choose which one we believe.” 

State v. Dyke, 7th Dist. No. 99-CA-149, 2002-Ohio-1152. 

{¶15} The trial court found appellant guilty of two counts of attempted murder 

in violation of R.C. 2903.02(A) and R.C. 2923.02(A). Pursuant to those sections, no 

person shall purposely engage in conduct that if successful would cause the death of 

another. It also found appellant guilty of two counts of felonious assault in violation of 

R.C. 2903.11(A)(2), which provides that no person shall knowingly cause serious 

physical harm to another. 

{¶16} The testimony was uncontroverted that Shaffer and Holmes were shot 

multiple times and that Jackson was one of the shooters. The only question at trial 

was whether appellant was with Jackson at the time and also shot the victims. The 

evidence at trial was as follows. 

{¶17} Youngstown Police Officer Ronald Jankowski was one of the first 

responders to the scene. (Tr. 23). He stated that when he arrived he found Shaffer 

and Holmes on the floor bleeding. (Tr. 24-25). He also saw Randall there. (Tr. 24). 
-4-

Officer Jankowski asked Shaffer who shot him. (Tr. 26). He testified that Shaffer 

pointed to Randall and said, “Ask him. It was his cousin.” (Tr. 26). Officer 

Jankowski then asked Randall. (Tr. 26). Officer Jankowski testified that at first 

Randall did not want to say anything, but he then told the officer it was Jackson and 

appellant. (Tr. 26). 

{¶18} Michele Holmes testified that on the day in question she was about to 

go out the back door to get her dog when a man put his hand around her mouth and 

brought her into the kitchen. (Tr. 38). She stated that she called to Shaffer, who was 

in the dining room, and he came to see what was happening. (Tr. 39-40). Holmes 

testified that the two men, one of whom she identified as Jackson, pulled out their 

guns and started shooting Shaffer. (Tr. 40-41). Holmes knew Jackson. (Tr. 53). 

She stated that Jackson shot her and both Jackson and the other man shot Shaffer. 

(Tr. 41). She was shot four times. (Tr. 46). Holmes stated that both men were 

wearing dark coats or hoodies. (Tr. 42). 

{¶19} Shaffer testified that earlier that day Jackson and appellant had been to 

his house talking about a woman, who had been at Shaffer’s house to buy drugs, 

stealing their wallet. (Tr. 64-65). He stated that the two men then left his house. (Tr. 

67). Shaffer testified that less than an hour later, the two men came back. (Tr. 67-

68). Shaffer stated that when they came back, he was doing a line of cocaine, his 

mother was taking the dog out, and his brother, William Shaffer, was in the house. 

(Tr. 68-69). He heard his mother cry for help from the kitchen and went to see what 

was going on. (Tr. 69-70). Shaffer found Jackson holding Holmes with one hand 

and a gun with the other hand. (Tr. 71). He also saw appellant in the kitchen. (Tr. 

73). Shaffer testified that when he walked into the kitchen, appellant shot him 

repeatedly. (Tr. 74). He stated the neighbors began coming to his house, so 

appellant and Jackson ran out. (Tr. 76). Shaffer testified they stole approximately 

$1,000 worth of marijuana, $1,000 worth of cocaine, and over $1,000 cash from his 

house. (Tr. 76-77). 

{¶20} On cross examination, Shaffer stated that he learned appellant’s name 
-5-

from the “paper,” although he stated it was not the newspaper. (Tr. 86, 123). And he 

admitted that when the police showed him photo lineups, although he positively 

identified Jackson, he did not positively identify appellant. (Tr. 116). Instead, he 

stated that one photo might be him or could be him and another photo looked like 

him. (Tr. 116-119). 

{¶21} William Shaffer corroborated Shaffer’s account of what happened 

earlier that day. He stated that Shaffer had a woman over earlier in the day and then 

appellant and Jackson came over and told Shaffer that the woman stole their money. 

(Tr. 128). William stated that appellant and Jackson then left. (Tr. 129). Later, while 

he was upstairs, William heard a knock at the door, followed by an argument, and 

then gunshots. (Tr. 129-130). When he came downstairs, William stated he saw 

someone with a hat and black coat shooting at the ground. (Tr. 130-131). He then 

found his mother and brother on the ground. (Tr. 132). He grabbed some rags and 

put pressure on their wounds. (Tr. 132). William stated that he did not have a gun 

and no guns were in the house. (Tr. 133). 

{¶22} Brandon Randall testified that on the day in question, appellant and 

Jackson, whom he referred to as his “God-brothers,” were at his house “hanging out” 

along with appellant’s son, Jackson’s girlfriend, and Randall’s girlfriend and their 

children. (Tr. 144-145). Randall stated that eventually he fell asleep on the couch 

until he was awoken by his girlfriend telling him she heard gunshots next door at 

Shaffer’s house. (Tr. 145). He testified that he ran to Shaffer’s house and opened 

the door. (Tr. 146). Randall saw appellant and Jackson standing over Shaffer and 

Holmes. (Tr. 146). He then went back to his house, waited a few minutes, and then 

went to see if Shaffer and Holmes were okay. (Tr. 147). When he returned, Shaffer 

found William, who asked to use his phone. (Tr. 148). When the police arrived and 

asked Shaffer who shot him, Randall testified, Shaffer told the police to ask Randall 

because “they was his brothers.” (Tr. 148). Randall stated that he initially resisted 

identifying appellant and Jackson because they were his family. (Tr. 149). 

{¶23} On cross examination, Randall admitted that during his police interview 
-6-

he never stated that he walked into Shaffer’s house. (Tr. 157). Instead, he stated 

that he looked through Shaffer’s door, which has a curtain over it. (Tr. 157-158). 

Randall tried to clarify his statements by saying he just stepped in the doorway. (Tr. 

158). 

{¶24} Jamie Seaman is Randall’s girlfriend. She corroborated Randall’s 

testimony about appellant and Jackson “hanging out” at their house that day. (Tr. 

177). She stated that Jackson left briefly and went to Shaffer’s to talk about money 

missing from his wallet and then he returned to her house. (Tr. 179). Seaman 

testified that Randall fell asleep and appellant and Jackson put on their black jackets 

and hats and left. (Tr. 180). She did not ask where they were going. (Tr. 181). 

Approximately half an hour later, Seaman heard gunshots and woke Randall. (Tr. 

181-182). She stated Randall got up and went out the back door, came back in, and 

then went out once more. (Tr. 182). Detective-Sergeant Ronald Rodway 

administered the photo lineups to Shaffer and Holmes. He testified that when Shaffer 

looked at appellant’s photograph, Shaffer stated that it looked like him “a little bit.” 

(Tr. 204). Det. Rodway stated that Holmes failed to make any identification of 

appellant. (Tr. 205). 

{¶25} Jackson testified in appellant’s defense. He stated that on the day in 

question, he was at appellant’s house with appellant and appellant’s son when he 

called Randall for a ride to go get drugs. (Tr. 222). Randall picked Jackson up and 

brought him to Randall’s house. (Tr. 222). Jackson stated that he “hung out” at 

Randall’s house for a while and they smoked some marijuana. (Tr. 224). He then 

went to Shaffer’s house to buy some cocaine, which he had bought from Shaffer in 

the past. (Tr. 225, 227). He stated he knocked on the door and Shaffer answered. 

(Tr. 227). Jackson and Shaffer went into the dining room and were “talking about 

business.” (Tr. 227). Jackson thought that the cocaine Shaffer was selling him was 

not the correct weight for the price. (Tr. 227-229). He testified this led to a verbal 

argument between him and Shaffer. (Tr. 229). While they were yelling at each other, 

Jackson stated, William came down the steps shooting. (Tr. 229). Consequently, 
-7-

Jackson pulled out his gun and began to shoot as he backed out of the house. (Tr. 

229). He stated he shot approximately five times and then ran from the house. (Tr. 

230). Jackson then “caught a ride” back to appellant’s house. (Tr. 231). 

{¶26} Jackson testified that appellant was never with him at Shaffer’s house. 

(Tr. 231). He stated appellant was home with his son during the entire incident. (Tr. 

231). 

{¶27} The state and defense also entered a stipulation that five of the six 

shells recovered by the police were fired from the same gun, while the sixth shell did 

not match the other five. (Tr. 207-208). Additionally, they stipulated that a gunshot 

residue test performed on William was positive. (Tr. 207). 

{¶28} The weight of the evidence supports appellant’s conviction. Appellant 

claims that Jackson was the only eyewitness to testify, so we should believe his 

version of the events. But that is not accurate. Both Shaffer and Holmes were 

eyewitnesses. And while they were not able to identify appellant in the photo lineup, 

they were both certain that two men came into their home and shot them. If we were 

to believe Jackson, who stated that he went to Shaffer’s house alone, then both 

Shaffer and Holmes would have to have been lying when they told the police that two 

men shot them. Moreover, when Shaffer saw appellant’s photograph in the lineup, 

he stated that it looked a little bit like the shooter. 

{¶29} Additionally, Shaffer’s identification of appellant at trial was further 

bolstered by Randall’s and Seaman’s testimony. Both Randall and Seaman stated 

that appellant and Jackson were “hanging out” at their house prior to the shooting. 

They both stated that Randall fell asleep. Seaman stated that appellant and Jackson 

then left together. Within a half an hour later, she heard gunshots and woke Randall. 

Randall stated he ran to Shaffer’s house where he saw appellant and Jackson 

standing over Shaffer and Holmes. There was some inconsistency between 

Randall’s initial statement to police and his testimony in court as to whether he 

actually entered Shaffer’s house or just looked through the door. But his testimony 

was consistent with his statement to police just after the shooting that the culprits 
-8-

were appellant and Jackson. Randall identified appellant and Jackson even though 

they were his “God-brothers.” 

{¶30} Jackson’s testimony, however, was inconsistent with the testimony of 

all of the other witnesses. According to Jackson, appellant never left home on the 

day in question, not even to go to Randall’s house. This contradicts Randall’s and 

Seaman’s testimony that appellant and Jackson were at their house for some time 

that day before the shooting. Additionally, Jackson stated that William began 

shooting, which caused him to open fire. This contradicts William’s testimony. 

William testified he did not have a gun and he did not come downstairs until the 

shooting was almost over. And according to Jackson he went alone to Shaffer’s 

house. This contradicts Shaffer’s and Holmes’ testimony that two men entered their 

house and shot them. 

{¶31} As an appellate court, we are permitted to independently weigh the 

credibility of the witnesses when determining whether a conviction is against the 

manifest weight of the evidence. State v. Wright, 10th Dist. No. 03AP-470, 2004-

Ohio-677, ¶11. But we must give great deference to the fact finder's determination of 

witnesses' credibility. Id. The policy underlying this presumption is that the trier of 

fact is in the best position to view the witnesses and observe their demeanor, 

gestures, and voice inflections, and use these observations in weighing the credibility 

of the proffered testimony. Id. 

{¶32} In this case, the trier of fact must have found Jackson’s testimony 

lacked credibility. This is likely because the great majority of the evidence weighed 

against his testimony. Appellant’s conviction is supported by the weight of the 

evidence. 

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

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

 THE TRIAL COURT ERRED IN TAKING EVIDENCE OF AN 

OVERLY-SUGGESTIVE IN-COURT IDENTIFICATION. 
-9-

{¶35} Here appellant contends the trial court should not have allowed Shaffer 

to make an in-court identification of him, given that Schaffer was unable to previously 

identify him. He contends Schaffer learned his name from the press. 

{¶36} We review a trial court's decision to admit an in-court identification for 

an abuse of discretion. State v. Mikolaj, 7th Dist. No. 05-MA-157, 2007-Ohio-1563, 

¶14. Abuse of discretion connotes more than an error of law or of judgment; it 

implies the trial court's decision is unreasonable, arbitrary, or unconscionable. State 

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

{¶37} Det. Rodway testified that when he showed Shaffer the photo lineup 

with appellant’s picture Shaffer stated that it “looks like him a little bit.” (Tr. 198). 

{¶38} Appellant does not take issue with the photo array nor did he argue that 

Shaffer’s ambiguous quasi-identification of him should have been suppressed. 

{¶39} During his testimony, Shaffer identified appellant as the man that shot 

him. (Tr. 66, 124-125). Appellant objected. (Tr. 66, 124-125). 

{¶40} Shaffer also identified appellant by name at trial. But he was not 

entirely clear how he had learned appellant’s name. When asked by defense 

counsel where he learned appellant’s name, Shaffer stated, “I seen it in the paper. I 

identified him right off the grid before I knew his name.” (Tr. 86). But later when 

defense counsel mentioned that Shaffer learned appellant’s name from the 

newspaper, Shaffer stated, “I ain’t say the newspaper. I didn’t see the newspaper. I 

seen it in the paper. My cousin showed me the paper.” (Tr. 122). Shaffer stated it 

was not a newspaper but “a paper I was seeing from my family” where he “knew who 

it was by his face.” (Tr. 123). 

{¶41} In addressing potentially tainted photo arrays, it has been held that 

“witness exposure to photographs of the suspect shown on television prior to 

identification does not require suppression of the identification.” State v. Monford, 

190 Ohio App.3d 35, 2010-Ohio-4732, 940 N.E.2d 634 (10th Dist.), ¶55. Moreover, if 

no state action was involved in the pretrial exposure to a newscast showing the 

defendant's picture, any suggestiveness goes to the weight and credibility of the 
- 10 -

witness's testimony, not to its admissibility, and is best addressed on cross 

examination. State v. Ware, 10th Dist. No. 00AP-43, 2004-Ohio-6984, ¶55. 

{¶42} Here it is unclear exactly where Shaffer saw appellant’s picture or 

learned his name. But if it was from a newspaper article or other news source, this 

would not require the court to exclude his identification of appellant. Instead, it would 

go to the weight and credibility to be given to the identification. 

{¶43} Moreover, the trial court, as the finder of fact in this case, was in the 

best position to observe Shaffer and judge the reliability of his identification. And 

given that this was a bench trial, we can presume the court, when considering the incourt identification, also took into consideration the fact that Shaffer failed to 

positively identify appellant in the photo lineup. Thus, we cannot find that the trial 

court abused its discretion in allowing Shaffer’s in-court identification of appellant. 

{¶44} Accordingly, appellant’s second assignment of error is without merit. 

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

 THE TRIAL COURT ERRED PLAINLY IN MERGING FULLER’S 

SENTENCES, RATHER THAN REQUIRING THE STATE TO ELECT 

THE CHARGE AS TO WHICH THE CONVICTION WOULD ATTACH, 

AND IN SENTENCING FULLER TO 10 YEARS ON HIS SECONDDEGREE FELONY CONVICTIONS. 

{¶46} Finally, appellant takes issue with his sentence. He argues that 

because he was convicted of allied offenses of similar import, the trial court was only 

to sentence him on one of the allied offenses instead of sentencing him on both and 

then merging the sentences. He claims this violated R.C. 2941.25. Additionally, 

appellant argues the trial court erred in sentencing him to ten years on each of the 

felonious assault counts because the maximum sentence for these second-degree 

felonies was eight years. Therefore, he contends his sentence is contrary to law. 

Appellant asserts we must reverse his sentence and remand the matter for a new 

sentencing hearing. 
- 11 -

{¶47} R.C. 2941.25(A) provides: “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.” 

{¶48} “[F]or purposes of R.C. 2941.25, a ‘conviction’ is the combination of a 

guilt determination and a sentence or penalty.” State v. Damron, 129 Ohio St.3d 86, 

2011-Ohio-2268, 950 N.E.2d 512, ¶17, citing, State v. Whitfield, 124 Ohio St.3d 319, 

2010-Ohio-2, 922 N.E.2d 182, ¶12. 

{¶49} In this case, the offenses of attempted murder and felonious assault 

were allied offenses of similar import. The trial court made such a finding at 

sentencing. (Sen. Tr. 16). Thus, while the state was able to indict and bring 

appellant to trial on two counts of attempted murder and two counts of felonious 

assault, appellant could only be convicted of one of each of the allied offenses. 

{¶50} The trial court complied with R.C. 2941.25 at the sentencing hearing. 

At the sentencing hearing, before imposing sentence, the trial court found that count 

one (attempted murder) and count two (attempted murder) merged with count three 

(felonious assault) and count four (felonious assault) and that the firearm 

specifications for those counts merged also. (Sen. Tr. 16). The court then sentenced 

appellant to ten years on count one, consecutive to three years on that firearm 

specification, and ten years on count two, consecutive to three years on that firearm 

specification, for a total of 26 years. (Sen. Tr. 17). 

{¶51} The trial court’s sentence, however, was not correctly set out in its 

judgment entry of sentence. 

{¶52} The judgment entry states that appellant is sentenced to ten years in 

prison on count one (attempted murder), ten years in prison on count two (attempted 

murder), ten years in prison on count three (felonious assault), and ten years in 

prison on count four (felonious assault). It then states for sentencing purposes 

counts three and four are to merge with counts one and two for a total of 20 years. 

Additionally, counts three and four of the gun specifications are to merge with counts 
- 12 -

one and two for a total of six years. The judgment entry states the total prison term is 

26 years. 

{¶53} There are two errors in the judgment entry. First, the court should have 

stated that the felonious assault counts merged with the attempted murder counts 

before setting out the sentence. Second, the court could not sentence appellant to 

ten years on felonious assault because it is a second-degree felony for which the 

maximum sentence is eight years, not ten. See R.C. 2929.14(A)(2). 

{¶54} These errors, however, are clerical in nature. This is because the 

sentencing judgment entry does not accurately reflect the merger by the trial court or 

the sentence it imposed at the sentencing hearing. At the sentencing hearing, the 

trial court correctly merged the offenses and entered a lawful sentence on only the 

attempted murder counts and specifications. Because the errors with the sentencing 

judgment entry are clerical errors, the trial court may simply issue a new judgment 

entry to correct them. Crim.R. 36 provides that a court may correct clerical mistakes 

in judgments at any time. 

{¶55} Appellant argues the trial court committed plain error by sentencing him 

to multiple sentences for allied offenses of similar import. He cites to decisions of this 

court in support of his position. See State v. Robinson, 7th Dist. No. 12-MA-128, 

2012-Ohio-1686; State v. Gardner, 7th Dist. No. 10 MA 52, 2011-Ohio-2644. But 

those cases are distinguishable. In neither Robinson nor Gardner did the trial court 

correctly merge the allied offenses and impose the correct sentence at the 

sentencing hearing as the trial court did in the case at bar. Instead, they sentenced 

the defendants on both of the allied offenses and ordered the sentences to run 

concurrently. Thus, there could be no clerical error in those cases. But here, as 

stated above, the trial court complied with the merger statute at the sentencing 

hearing and sentenced appellant only on the attempted murder counts and 

accompanying specifications. It did not sentence him on the felonious assault counts 

and order the sentences to run concurrently. 

{¶56} We are compelled, however, to raise a plain error with appellant’s 
- 13 -

consecutive sentences. Appellant’s co-defendant, Jackson, raised the issue in his 

appeal. See State v. Jackson, 7th Dist. No. 12-MA-199, 2014-Ohio-777. In neither 

appellant’s case, nor in Jackson’s, did the trial court make the statutorily-required 

findings before imposing consecutive sentences. 

{¶57} R.C. 2929.14(C)(4) provides: 

4) If multiple prison terms are imposed on an offender for convictions of 

multiple offenses, the court may require the offender to serve the prison 

terms consecutively if the court finds that the consecutive service is 

necessary to protect the public from future crime or to punish the 

offender and that consecutive sentences are not disproportionate to the 

seriousness of the offender's conduct and to the danger the offender 

poses to the public, and if the court also finds any of the following: 

(a) The offender committed one or more of the multiple offenses while 

the offender was awaiting trial or sentencing, was under a sanction 

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the 

Revised Code, or was under post-release control for a prior offense. 

(b) At least two of the multiple offenses were committed as part of one 

or more courses of conduct, and the harm caused by two or more of the 

multiple offenses so committed was so great or unusual that no single 

prison term for any of the offenses committed as part of any of the 

courses of conduct adequately reflects the seriousness of the offender's 

conduct. 

(c) The offender's history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future 

crime by the offender. 

{¶58} Although the trial court is not required to recite the statute verbatim or 

utter “magic” or “talismanic” words, there must be an indication that the court found 

(1) that consecutive sentences are necessary to protect the public from future crime 
- 14 -

or to punish the offender, (2) that consecutive sentences are not disproportionate to 

the seriousness of the offender's conduct and to the danger posed to the public, and 

(3) one of the findings described in R.C. 2929.14(C)(4)(a), (b), or (c). State v. 

Bellard, 7th Dist. No. 12-MA-97, 2013-Ohio-2956, ¶17. The court need not give its 

reasons for making those findings. State v. Power, 7th Dist. No. 12 CO 14, 2013-

Ohio-4254, ¶38. 

{¶59} In sentencing appellant, the trial court stated: 

Defendant Fuller was found guilty after a trial. The Court has 

also considered the principles and purposes of sentencing for 

Defendant Fuller, together with the recommendation contained in the 

pre-sentence investigation report that was prepared. The Court has 

considered both factors under 2929.11 and 2929.12. 

* * * The Court finds the defendant should be sentenced to the 

Department of Rehabilitation and Corrections because he is not 

amenable to community control; that prison is consistent with the 

principles and purposes of sentencing. 

(Sentencing Tr. 16-17). 

{¶60} The judgment entry of sentence does not add any other findings by the 

trial court. It simply repeats the findings the court made at the sentencing hearing. 

{¶61} The trial court failed to comply with R.C. 2929.14(C)(4) in sentencing 

appellant to consecutive sentences. The court did not make a finding that 

consecutive sentences were necessary to protect the public from future crime or to 

punish appellant. The court did not make a finding that consecutive sentences were 

not disproportionate to the seriousness of appellant’s conduct and to the danger 

posed to the public. And the court did not find any of the three situations set out in 

R.C. 2929.14(C)(4)(a)(b)(c). 

{¶62} We have found that even more comprehensive findings than those 

made here were insufficient to impose consecutive sentences. See Bellard, 2013-
- 15 -

Ohio-2956 (general statements about the seriousness of the defendant's conduct and 

his juvenile criminal history were not sufficient to comply with R.C. 2929.14(C)(4)); 

State v. Esmail, 7th Dist. No. 11-CO-35, 2013-Ohio-2165 (statement in judgment 

entry that court considered purposes and principles of sentencing and all other 

relevant factors pursuant to R.C. 2929.11 and R.C. 2929.12 along with statements at 

sentencing hearing regarding the defendant’s criminal history and that sentence was 

consistent with Senate Bill 86 were not sufficient to impose consecutive sentences). 

{¶63} An appellate court may, but need not, recognize plain error if 

substantial rights are affected, even if the error was not brought to the court’s 

attention. Crim.R. 52(B). Yet before an appellate court can recognize plain error, it 

must find obvious error affecting such substantial rights that the error was outcome 

determinative. State v. Noling, 98 Ohio St.3d 44, 781 N.E.2d 88, 2002-Ohio-7044, 

¶62. The failure of the trial court to make the required statutory findings before 

imposing consecutive sentences is plain error. State v. Jirousek, 11th Dist. Nos. 

2013-G-3128, 2013-G-3130 2013-Ohio-5267, ¶39; State v. Boynton, 10th Dist. Nos. 

12AP-975, 12AP-976, 2013-Ohio-3794, ¶12. 

{¶64} Accordingly, appellant’s third assignment of error has merit. 

{¶65} For the reasons stated above, appellant’s conviction is hereby affirmed. 

Appellant’s sentence is reversed and the matter is remanded for a new sentencing 

hearing. 

Vukovich, J., concurs. 

Waite, J., concurs.