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State v. Scott

Court of Appeals of Ohio, Second District, Montgomery

December 6, 2019

STATE OF OHIO Plaintiff-Appellee
v.
RYAN SCOTT Defendant-Appellant

          Criminal Appeal from Common Pleas Court, Trial Court Case No. 2016-CR-2634/2

          MATHIAS H. HECK JR., by MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Attorney for Plaintiff-Appellee

          RICHARD HEMPFLING, Atty. Reg. No. 0029986, Attorney for Defendant-Appellant.

          OPINION

          HALL, J.

         {¶ 1} Ryan Scott appeals from his conviction and sentence for felonious assault with a repeat-violent-offender (RVO) specification.

         {¶ 2} Scott advances four assignments of error. First, he contends the trial court erred in overruling his motion for a separate trial. Second, he claims the trial court erred in failing to give a complete jury instruction regarding aiding and abetting. Third, he challenges his conviction as being against the manifest weight of the evidence. Fourth, he asserts that the trial court erred in failing to note the "fact of conviction" for the repeat-violent-offender specification in its judgment entry.

         {¶ 3} The record reflects that Scott and a co-defendant, Javonn Hockett, jointly were indicted and tried on multiple charges for their roles in a non-fatal shooting outside of a liquor store. In an opinion resolving Hockett's appeal, [1] we summarized the evidence and the procedural history as follows:

On December 17, 2015, Kevin Webb was shot multiple times while in the parking lot of a liquor store known as Gina's. Webb and his sister Kaneisha McDonald had driven to Gina's to purchase alcohol. Once inside the store, Webb and McDonald encountered Hockett and Ryan Scott. Hockett made a remark to McDonald. While it is not clear what the exact remark was, the record indicates that it was suggestive or an attempt to "come on" to McDonald. The remark caused Webb to respond by saying something to the effect of "that's not going to happen." At that point, Hockett became angry, and he and Webb began arguing. Scott was also involved in the argument. Eventually, Webb, McDonald, Hockett and Scott left the store. Hockett and Scott entered the same vehicle, a silver Pontiac, which drove away.
A few moments later, the silver Pontiac returned to the parking lot at which time Webb was shot. Webb suffered gunshot wounds to the abdomen, right torso and right hand. Webb testified that he was first shot in the hand, and that he began to run back into the store while the shots continued. He then began to feel a burning sensation from the remaining shots to his body.
Webb was transported to the hospital, where he underwent emergency surgery requiring two trauma surgeons. During surgery, Webb lost the equivalent of four times his entire blood volume, requiring massive transfusions. Additionally, parts of Webb's liver and pancreas, as well as one entire kidney, were removed due to irreparable damage. His stomach had holes in both the front and back which required repair. The surgeons were not able to close Webb's abdomen following the initial surgery. He remained in the hospital for almost 60 days. As a result of his injuries, Webb underwent numerous additional surgeries. He also developed diabetes as a result of the pancreatic surgery, and he later began suffering seizures due to the inability to control the surgically-induced diabetes.
Following an investigation, the Dayton Police arrested Hockett and Scott. Both men were indicted on two counts of felonious assault, and each count had attendant firearm and repeat violent offender specifications. They were also both indicted on two counts of having a weapon while under disability with attendant firearm specifications.
The felonious assault charges proceeded to a jury trial; the jury found Hockett guilty of both counts of felonious assault as well as the firearm specifications. Scott was convicted of both counts of felonious assault but not the firearm specifications. Thereafter, a bench trial was conducted on the charges of having weapons while under disability and the repeat violent offender specifications. The trial court found both men guilty of those charges and specifications.
A sentencing hearing was conducted in October 2017. At that time, the trial court noted that a written jury waiver had not been filed for either defendant relating to the counts of having weapons while under disability. Thus, the trial court dismissed those counts, along with the related firearm specifications. The trial court ordered the merger of Count 1 (felonious assault/deadly weapon) and Count 2 (felonious assault/serious physical harm), and the State elected to proceed to sentencing on Count 2. The court sentenced Hockett to an aggregate prison term of 20 years.

State v. Hockett, 2d Dist. Montgomery No. 28141, 2019-Ohio-1257, ¶ 3-8.

         {¶ 4} For his part, Scott received an eight-year prison sentence for felonious assault and a consecutive eight-year prison sentence for the RVO specification. (Doc. # 186.) This appeal followed.

         {¶ 5} In his first assignment of error, Scott challenges the trial court's denial of his motion for a separate trial. In the February 2017 motion, Scott asserted that he and Hockett would be presenting antagonistic defenses insofar as they would be arguing at trial "that each other was the shooter." (Doc. # 41 at 4.) Scott also maintained that Hockett was "the one who got into the verbal and physical confrontation with Webb and had the reason to be upset (Webb bluntly and forcibly telling Hockett he would not allow Hockett to flirt with his sister)." (Id. at 5.) Scott expressed concern that the jury would infer his guilt simply by association with Hockett. (Id.)

         {¶ 6} In an April 21, 2017 decision, the trial court overruled Scott's motion. (Doc. # 66.) It reasoned:

Scott's defense is antagonistic in that he argues he did not shoot the gun allegedly involved in the indicted felonious assaults, but rather Hockett did. This antagonistic defense does not deny Scott a fair trial. The State intends to present the same witnesses to prove its case against Scott and Hockett. The State also has forensic evidence retrieved from the scene. Thus, Scott and Hockett do not become the government's best witnesses against each other, as Scott contends. Further, Scott's Motion only contains one sentence claiming that he and Hockett will each argue at trial that the other was the shooter. Scott has not otherwise articulated how Hockett's defense would be antagonistic to his (Scott's). For instance, it is not clear beyond Scott's unsupported assertion that Hockett will identify Scott as the shooter. * * * Without more, a limiting instruction that Scott's and Hockett's guilt or innocence must be considered separately and that evidence may be admitted against one but not the other would be sufficient to preserve Scott's right to a fair trial.

(Id. at 4-5.)

         {¶ 7} In State v. Humphrey, 2d Dist. Clark No. 2002CA30, 2003-Ohio-3401, this court recited the applicable law as follows:

Under Crim.R. 8(B), two defendants can be jointly indicted and tried for a non-capital offense as long as "they are alleged to have participated in the same act or transaction * * * or in the same course of criminal conduct." However, under Crim.R. 14, "if it appears that a defendant or the state is prejudiced by a joinder of * * * defendants * * * the court shall grant a severance of defendants, or provide such other relief as justice requires."
The law favors the joinder of co-defendants and the avoidance of multiple trials because it, "conserves judicial and prosecutorial time, lessens the not inconsiderable expenses of multiple trials, diminishes inconvenience to witnesses, and minimizes the possibility of incongruous results in successive trials before different juries." State v. Daniels (1993), 92 Ohio App.3d 473, 636 N.E.2d 336. As a result, a defendant claiming relief from joinder bears the initial burden of demonstrating that he will be materially prejudiced by the joinder. State v. Torres (1981), 66 Ohio St.2d 340, 421 N.E.2d 1288, 20 O.O.3d 313; State v. Brooks (1989), 44 Ohio St.3d 185, 542 N.E.2d 636. Absent a clear showing of abuse of discretion, a trial court's decision regarding severance will not be disturbed. Torres at 340, 421 N.E.2d 1288. * * *

Id. at ¶ 63-64.

         {¶ 8} In State v. Kleekamp, 2d Dist. Montgomery No. 23533, 2010-Ohio-1906, this court explained "antagonistic defenses" as follows:

"Antagonistic defenses exist when each defendant is trying to exculpate himself and inculpate his co-defendant." State v. Humphrey, Clark App. No. 2002-CA-30, 2003-Ohio-3401, ¶ 68. Although antagonistic defenses can be so prejudicial that they can deny a co-defendant a fair trial, antagonistic defenses are not prejudicial per se and separate trials are not required whenever co-defendants have conflicting defenses. Id., citing State v. Daniels (1993), 92 Ohio App.3d 473, 636 N.E.2d 336, and Zafiro v. United States (1993), 506 U.S. 534, 113 S.Ct. 933, 122 L.Ed.2d 317. As stated in Zafiro in the context of Fed.R.Civ.P. 14, which is substantially similar to Crim.R. 14, "a [trial] court should grant a severance under Rule 14 only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or ...

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