Court of Appeals of Ohio, Second District, Montgomery
Criminal Appeal from Common Pleas Court, Trial Court Case No.
MATHIAS H. HECK JR., by MICHAEL P. ALLEN, Atty. Reg. No.
0095826, Attorney for Plaintiff-Appellee
RICHARD HEMPFLING, Atty. Reg. No. 0029986, Attorney for
1} Ryan Scott appeals from his conviction and
sentence for felonious assault with a repeat-violent-offender
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,  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
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
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.
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,