State v. JamesState v. James
Atty. Gina DeGenova, Mahoning County Prosecutor, Atty. Edward A. Czopur, Assistant Mahoning County Prosecutor, for Plaintiff-Appellee and
Atty. James R. Wise, for Defendant-Appellant.
{1} Defendant-Appellant Dustin Lee James appeals after being convicted in the Mahoning County Common Pleas Court after a bench and jury trial. As to the bench trial on the charge of having a weapon while under disability, Appellant challenges the sufficiency and the weight of the evidence presented to the court on whether he had possession of the gun. As to the jury trial on the charges of felonious assault and domestic violence, he challenges the sufficiency and the weight of the evidence presented to the jury. Lastly, he points out the trial court failed to make consecutive sentence findings before running the sentence in this case consecutively to a sentence he was already serving in another case. For the following reasons, the trial court and jury verdicts are affirmed, but the judgment of sentence is reversed and the case is remanded for resentencing due to the imposition of a consecutive sentence without consecutive sentence findings.
STATEMENT OF THE CASE
{2} On June 19, 2022, Appellant‘s live-in girlfriend was treated in the emergency room for injuries, which she said Appellant caused that day. He was arrested in the hospital lobby. Five days later, the victim‘s mother called the Boardman police to report finding a gun in the nightstand while she was cleaning out the apartment for the victim, who moved out after the assault.
{3} On July 28, 2022, Appellant was indicted for felonious assault (second-degree felony), having a weapon while under disability (third-degree felony), and misdemeanor domestic violence (first-degree felony). Appellant waived a jury trial on the charge of having a weapon while under disability, and the court heard evidence on this count.
{4} At the jury trial on the other two counts, a police officer who responded to the hospital testified he observed swelling and bruising on the victim‘s nose, a cut on her upper lip, and marks around her right upper arm and forearm. Photographs he took were introduced as evidence. (Tr. 135-138); (St.Ex. 1-6). He described the victim as distraught, upset, in pain, and crying. (Tr. 138). He said the victim attributed the injuries on her arm to Appellant grabbing her. He said, “As far as the injuries on her face, I don‘t
{5} The victim testified she dated Appellant exclusively and lived with him for seven years. (Tr. 146). On the day of the incident, they continued an argument from the prior night. (Tr. 148). After approximately an hour, Appellant “flipped a table, he was getting angry, and I knew this was usually where he got physical.” He was yelling at her, and she decided to flee the apartment hoping she would be safer by the busy road. (Tr. 148-149). However, he followed her outside and continued the argument.
{6} According to her testimony, “I just remember him threatening me, telling me he was going to count down, if I didn‘t get inside the apartment he was going to hurt me.” (Tr. 149). She then testified, “I just remember pleading with him not to . . . The next thing I recall was [sitting] at the apartment next door and there was like blood all over my shirt, and the guy that lived [with Appellant‘s cousin] next door was just looking at me and I was crying.” (150-151).
{7} The victim responded in the affirmative when the prosecutor asked if she blacked out. (Tr. 150). When she woke up confused in his cousin‘s apartment, Appellant “tried to convince” the victim and Appellant‘s cousin that the victim fell at the single step outside of their apartment. (Tr. 152, 170).
{8} After the victim voiced that she needed to go to the hospital, they returned to the victim‘s apartment where Appellant‘s cousin had her change into clean clothes (instead of wearing her bloodied pajama top and pants). (Tr. 152-153). Appellant gave the victim toilet paper because her nose “was bleeding pretty bad.” According to the victim‘s testimony, when the cousin left to get ready to transport them to the hospital, Appellant said, “well, I really messed up this time” (or “[s]omething along th[ose] lines“). (Tr. 153). When the victim arrived at the emergency room with Appellant at her side, she reported she had been in a fight but testified this was what Appellant told her to say. (Tr. 153, 174).
{9} Regarding her injuries, the victim testified, “My nose was broken, my orbital nose was broken, and my lip was busted up.” When asked if she experienced a lot of pain, she explained, “Yeah, my face was pretty swollen on this side and I was bleeding
{10} The victim disclosed being ashamed, embarrassed, and fearful to report Appellant‘s abuse. (Tr. 175). However, just before she was released (with Appellant in the waiting room), she was encouraged by a female friend she was texting “to let them know what actually happened.” (Tr. 154-155, 174-175). The victim then did so by telling a nurse and the physician assistant about what happened to her and answering yes when asked if she wanted them to call the police. (Tr. 156). She estimated she had been at the hospital for an hour before disclosing Appellant‘s abuse. (Tr. 157). When defense counsel asked why she thought Appellant hurt her if she could not remember what happened between his threat and waking up bleeding, the victim replied, “I don‘t remember it, but I know what happened . . . because I know how he would get. He would get physical with me when he would get like that; so, I know.” (Tr. 160).
{11} The victim read a letter Appellant sent her from jail. The letter said he would always love her and pleaded with her to call his attorney who wanted to talk to her. In the letter, Appellant also stated, “I never got to explain, but just know this. It didn‘t happen the way you think. Please remove any thoughts you have of me hitting you over and over again. That‘s just not the case. Damn the drugs. I hope you realize we weren‘t ourselves those past few months.” (Tr. 159); (St.Ex. 7-8). As to this reference to drugs, the victim said they used fentanyl daily, including the night before the incident; she did not believe the drug would have continued to affect her by the time the incident occurred. (Tr. 160).
{12} An emergency room physician assistant testified the victim presented with a lot of swelling to the sides of the face, facial bones, and nasal bridge. Her eyes were also swollen. She had “a very fat lip with a split in the top” and bruising on the left side of her face and her right upper arm and forearm. The CT scan showed a nasal fracture (on the bridge of the nose) and a fractured maxillary bone extending into cheek regions (as pointed to from the stand). The physician assistant described the injury as “Very, very painful” and opined the victim would experience pain until it healed. She prescribed ice and Percocet. (Tr. 210-215).
{14} In the bench trial portion of the case, the victim testified she did not possess a firearm. She answered in the affirmative upon being asked, “did you know [Appellant] to possess a firearm?” When asked where Appellant would keep his firearm, she disclosed, “In the apartment, sometimes in the room or in the closet.” (Tr. 179). On cross-examination, the victim testified she knew there was a weapon at the apartment on the day of the incident, and she noted Appellant bought it from a friend a few years earlier. (Tr. 182). After the incident, the victim returned to their apartment only to gather some necessities before entering a rehabilitation facility, at which time her family cleaned out the apartment. (Tr. 180).
{15} The victim‘s mother testified she went to the apartment to clean out her daughter‘s belongings and found a gun in the drawer of the nightstand. (Tr. 187-188). She called the police without touching the gun. (Tr. 188).
{16} Lastly, a detective testified the victim‘s mother called on June 24, 2022 to report the gun she found. (Tr. 193-194). The detective knew Appellant was not permitted to possess a firearm due to a pending felony indictment in Mahoning County C.P. No. 22 CR 84, which included two counts of felonious assault. (Tr. 195-196, 198). He identified as exhibits Appellant‘s March 10, 2022 indictment containing notice that he was prohibited from possessing a weapon due to the pending indictment and the March 22, 2022 arraignment entry showing Appellant had been served with the indictment. (Tr. 198-199); (St.Ex. 20-21). Upon obtaining a search warrant, the detective retrieved the gun and a loaded magazine from the top drawer of the nightstand; the gun‘s serial number was
{17} The court found Appellant guilty of having a weapon while under disability. The jury found Appellant guilty of felonious assault and domestic violence. At sentencing, the court imposed a prison sentence of 8 to 12 years for felonious assault (with lesser concurrent sentences on the other offenses for a total sentence of 8 to 12 years). As the state requested, the court ordered the sentence in this case to be served consecutively to the sentence Appellant was serving in 22 CR 84 (the prior case resulting in Appellant‘s ban from possessing a weapon). Appellant filed a timely notice of appeal from the February 8, 2024 sentencing entry.
ASSIGNMENT OF ERROR ONE
{18} Appellant sets forth three assignments of the error, the first of which alleges:
“The Trial Court erred in finding the defendant guilty of having a weapon under disability as there was insufficient evidence in which to convict the defendant and the finding is against the weight of the evidence.”
{19} Sufficiency of the evidence and weight of the evidence are distinct concepts with different tests. State v. Thompkins, 78 Ohio St.3d 380, 386-387 (1997). Whether the evidence is legally sufficient to sustain a conviction is a question of law dealing with adequacy. Id. at 386. An evaluation of witness credibility is not involved in a sufficiency review, as the question is whether the evidence is sufficient if it is believed. State v. Murphy, 91 Ohio St.3d 516, 543 (2001). In other words, sufficiency involves the state‘s burden of production rather than its burden of persuasion. Thompkins at 390 (Cook, J., concurring). In reviewing the sufficiency of the evidence, the court views the evidence, including reasonable inferences, in the light most favorable to the prosecution to ascertain whether “any” rational trier of fact could have found the elements of the offense proven beyond a reasonable doubt. State v. Getsy, 84 Ohio St.3d 180, 193 (1998), quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (consider all evidence in the light most favorable to the prosecution, including reasonable inferences); State v. Filiaggi, 86 Ohio St.3d 230, 247 (1999) (viewing reasonable inferences in favor of the state); State v. Goff, 82 Ohio St.3d 123, 138, (1998).
{21} Regarding the firearm, a detective testified the firearm was test-fired, and the defense stipulated to the operability of the firearm. Appellant‘s pending indictment for a prior felonious assault case containing notice of the weapons disability was admitted into evidence at the bench trial along with the entry showing Appellant was served with the indictment. In any case, he does not contest these elements.
{22} “A person acts knowingly, regardless of purpose, when the person is aware that the person‘s conduct will probably cause a certain result or will probably be of a certain nature.”
{23} Possession satisfies the “have” element in the statute defining the offense of having weapons while under disability. State v. Anderson, 2023-Ohio-3335, ¶ 12 (7th Dist.) (reopening denied). “[A] person can ‘have’ an object through immediate physical possession or constructive possession, which involves dominion and control.” State v. Anderson, 2023-Ohio-945 (7th Dist.), ¶ 55, citing State v. Wolery, 46 Ohio St.2d 316, 329 (1976).
{24} As set forth in a case cited by Appellant, “Actual possession exists when the circumstances indicate that an individual has or had an item within his immediate physical possession . . . To establish constructive possession, the state must prove that the defendant was conscious of the object, and able to exercise dominion or control over it even though that object may not be within his immediate physical possession.” State v. St. John, 2009-Ohio-6248, ¶ 19 (7th Dist.), quoting State v. Kingsland, 2008-Ohio-4148, ¶ 13 (4th Dist.) and citing State v. Hankerson, 70 Ohio St.2d 87, 90-91 (1982).
{25} Appellant claims the state failed to present sufficient evidence of possession in attempting to prove the “have” element. He emphasizes the following holding: “the mere fact that property is located within premises under one‘s control does not, of itself, constitute constructive possession. It must also be shown that the person was conscious of the presence of the object.” Hankerson at 87, 91 (affirming the conviction even after applying a now-rejected rule requiring circumstantial evidence to be irreconcilable with any reasonable theory of innocence). Notably, in addition to being valuable in proving the mens rea of knowingly, “circumstantial evidence can be relied upon to establish constructive possession.” Anderson, 2023-Ohio-945, at ¶ 55, quoting State v. Floyd, 2019-Ohio-4878, ¶ 16 (7th Dist.). And, circumstantial evidence inherently possesses the same probative value as direct evidence. Treesh, 90 Ohio St.3d at 485 (as opposed to the former circumstantial evidence test applied in Hankerson).
{26} Here, Appellant and the victim lived together as boyfriend and girlfriend in a small one-bedroom apartment. (Tr. 149-150, 179). Five days after Appellant‘s arrest, the victim‘s mother found the firearm in the top drawer of the nightstand by their bed (while she was cleaning out the apartment for the victim who moved in with her after the assault and Appellant‘s arrest). (Tr. 187-188). The victim‘s mother called the police who recovered the gun the same day she found it. (Tr. 193-196).
{27} The victim testified she only returned to the apartment briefly after Appellant‘s arrest to gather necessities (before she entered rehab and moved to her mother‘s house) and she did not take a gun with her to the apartment. (Tr. 180). She specifically testified Appellant kept a firearm at their apartment. (Tr. 179). She noted Appellant bought the firearm from a friend a few years earlier and kept it in a room or a closet depending on where he moved it. (Tr. 179-182-183). She specifically testified that she knew there was a weapon at the apartment on the day of the incident. (Tr. 182). She also declared that she did not possess a firearm. (Tr. 179).
{28} The evidence and testimony showed Appellant owned the recovered gun and was consciously aware of its presence in their apartment where he maintained it and exercised dominion and control over it. Upon viewing the evidence, including reasonable
{29} Weight of the evidence concerns the effect of the evidence in inducing belief, and our review evaluates “the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other.” Thompkins, 78 Ohio St.3d at 387. The appellate court considers whether the state met its burden of persuasion. Id. at 390 (Cook, J., concurring) (as opposed to the state‘s burden of production involved in a sufficiency review). When a defendant claims the conviction is contrary to the manifest weight of the evidence, the appellate court reviews the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether, in resolving conflicts in the evidence, the trier of fact 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. Lang, 2011-Ohio-4215, ¶ 220, citing Thompkins at 387.
{30} Assigning weight to evidence and credibility to witnesses are tasks primarily left to the trier of the facts. State v. Hunter, 2011-Ohio-6524, ¶ 118. The trier of fact occupies the best position from which to weigh the evidence and judge the witnesses’ credibility by observing their gestures, voice inflections, and demeanor. Seasons Coal Co. v. Cleveland, 10 Ohio St.3d 77, 80 (1984). “We therefore generally proceed under the premise that when there are two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievable, we do not choose which one we believe is more credible.” State v. Carter, 2017-Ohio-7501, ¶ 105 (7th Dist.), citing State v. Gore, 131 Ohio App.3d 197, 201 (7th Dist. 1999).
{31} Upon reviewing the entire record, we find this not an exceptional case where the fact-finder clearly lost its way and created a manifest miscarriage of justice when weighing the evidence and assigning credibility. We incorporate the facts recited in our statement of the case and our sufficiency review above. The trial court saw and heard the victim‘s testimony on Appellant‘s gun and was entitled to believe her testimony. The court was also entitled to believe the testimony of the victim‘s mother that she found the gun in the nightstand and did not touch it. The direct and circumstantial evidence made
ASSIGNMENT OF ERROR TWO
{32} Appellant‘s second assignment of error contends:
“The Trial Court erred in finding the defendant guilty of felonious assault and domestic violence as there was insufficient evidence in which to convict the defendant and the finding is against the weight of the evidence.”
{33} While the prior assignment of error challenged the evidence supporting the trial court‘s verdict after the bench trial portion of the case, this assignment of error challenges the evidence supporting the jury verdict on felonious assault and domestic violence. The charge of felonious assault has the following elements: “knowingly . . . Cause serious physical harm to another or to another‘s unborn. . .”
{34} Appellant challenges the sufficiency of the evidence on the question of what or who caused the victim‘s injuries. In doing so, Appellant says the following portion of his letter to the victim should not be construed as an admission: “I never got to explain, but just know this. It didn‘t happen the way you think. Please remove [any] thoughts you have of me hitting you over and over again. That‘s just not the case. Damn the drugs. I hope you realize we weren‘t ourselves those past few months.” (Tr. 159); (St.Ex. 7-8).
{35} Appellant emphasizes the victim‘s lack of memory of the events between Appellant flipping over a table and her waking up at the neighboring apartment. He glosses over the words and actions occurring outside of the apartment. Contrary to Appellant‘s argument, evidence of an assault is not legally inadequate merely because a victim cannot recall the strikes as they occurred (possibly due to blacking out). In fact, criminal trials often proceed without a victim even testifying. Here, as the state points out, the context and sequence of events relayed through the victim‘s testimony provides important circumstantial evidence. See, e.g., State v. Donaldson, 2023-Ohio-3538, ¶ 18 (6th Dist.) (rejecting sufficiency and weight challenges where the victim was speaking with a lone individual and was hit from behind just as he turned away from that individual). Again, circumstantial evidence inherently possesses the same probative value as direct evidence. Treesh, 90 Ohio St.3d at 485.
{36} When they woke up on the day of the incident, Appellant continued an argument from the prior night. They lived together for many years, and due to the victim‘s past experience with Appellant‘s conduct when he was angry, she feared he would use physical force against her while he was yelling at her. According to the victim‘s trial testimony, after approximately an hour, Appellant “flipped a table, he was getting angry, and I knew this was usually where he got physical.” (Tr. 167). She thus fled the apartment hoping for safety by the busy road. (Tr. 148-149). However, he followed her outside to continue the argument. The victim recounted, “I just remember him threatening me, telling me he was going to count down, if I didn‘t get inside the apartment he was going to hurt me.” (Tr. 149, 167). She also remembered “pleading with him not to.” (Tr. 150).
{37} As the victim initially explained, “The next thing I recall was [sitting] at the apartment next door and there was like blood all over my shirt . . . and a little bit on my pants.” She said she was crying as a man who lived with Appellant‘s cousin/neighbor looked at her. She responded in the affirmative when the prosecutor asked if she had blacked out. (Tr. 150-151).
{39} The victim‘s testimony also mentioned Appellant “tried to convince” her (and Appellant‘s cousin) that she fell at the single step outside of their apartment. (Tr. 152, 170). Furthermore, just before they left for the hospital, Appellant said “[s]omething along the lines of well, I really messed up this time.” (Tr. 153). Viewing the evidence and reasonable inferences in the light most favorable to the prosecution, it is clear that some rational juror could conclude Appellant knowingly caused serious physical harm to the victim.
{40} As for the weight of the evidence, in addition to incorporating the law in the prior assignment of error (on evaluating whether a verdict is contrary to the manifest weight of the evidence), we point out where a criminal case has been tried by a jury, only a unanimous appellate court can reverse on manifest weight of the evidence grounds. Thompkins, 78 Ohio St.3d at 389, citing
{41} Appellant suggests the victim lacks credibility because she did not report Appellant as the cause of her injuries until after texting with her friend from the hospital. Contrary to Appellant‘s construction of the testimony, the victim did not imply the friend told the victim to blame Appellant. Rather, the victim testified she was worrying about returning to Appellant upon her release from the emergency room (with Appellant in the waiting room), and the female friend she was texting encouraged her “to let them know what actually happened.” (Tr. 154-155, 174-175).
ASSIGNMENT OF ERROR THREE
{43} Appellant‘s final assignment of error provides:
“Defendant was not properly sentenced to consecutive sentences by the trial court.”
{44} The court sentenced Appellant to 8 to 12 years in prison for felonious assault and lesser concurrent sentences for the other offenses, for a total sentence of 8 to 12 years. As the state requested, the court ran the sentence in this case consecutively with the sentence Appellant was serving in Mahoning County C.P. No. 22 CR 84, the aforementioned felonious assault case (among other offenses). In requesting the current sentence to be served consecutively to 22 CR 84, the state pointed out Appellant committed the current offenses while out on bond in the other case and opined he failed to take responsibility for his actions over the past two years. (Tr. 3-4). The state mentioned Appellant‘s “completely inappropriate” trial conduct, noting he made faces during the victim‘s testimony and called out to her as she walked away from the stand. Lastly, the state said Appellant had a “significant” criminal history, including two prior felonies in addition to those in 22 CR 84. (Tr. 4).
{45} Notably, after mentioning Appellant committing these offenses while on bond in 22 CR 84, the prosecutor informed the trial court, “[this] is one of the findings the court can make for consecutive sentences being appropriate.” The court replied, “I don‘t need to make that finding on two separate cases.” The prosecutor responded, “Just
{46} On appeal, Appellant contends the court was in fact required to make consecutive sentence findings when imposing the sentence in this case consecutively to the sentence he was already serving. The state concedes the trial court committed reversible error by failing to make consecutive sentence findings in this situation, agreeing we should remand for resentencing on this issue. Citing State v. Johnson, 2023-Ohio-2008, ¶ 8-9, 25-39 (6th Dist.) (where the court applied
{47} As the Supreme Court has pointed out, there is a statutory presumption in favor of concurrent sentences. State v. Bonnell, 2014-Ohio-3177, ¶ 23. “Except as provided in division (B) of this section, division (C) of section 2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a prison term, jail term, or sentence of imprisonment shall be served concurrently with any other prison term, jail term, or sentence of imprisonment imposed by a court of this state, another state, or the United States.” (Emphasis added.)
{48} Division (C) of
(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.
{49} When imposing consecutive sentences, the trial court must make the required findings at the sentencing hearing and in the sentencing entry. Bonnell at ¶ 19, 37 (remanding for resentencing while noting a nunc pro tunc entry can be used if the consecutive sentence findings were made at sentencing and only missing from the entry).
{50} The Bonnell Court also generally stated, “With exceptions not relevant here, if the trial court does not make the factual findings required by
In Ohio, multiple sentences of imprisonment are generally presumed to run concurrently,
R.C. 2929.41(A) , except in certain circumstances not applicable here, see, e.g.,R.C. 2929.14(C)(1) through(3) . A trial court must make particularized findings to justify its use of discretion to impose consecutive sentences.R.C. 2929.14(C)(4) . This also means that a trial court may make the necessary findings and “order a prison sentence to be
served consecutively to a prison sentence previously imposed on the same offender by another Ohio court.” State v. Bates, 118 Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶ 1.
State v. Jones, 2022-Ohio-4485, ¶ 12.
{51} These conclusions are based on the language of
{52} Where a sentence was imposed consecutively to a prison term the defendant was already serving, this district observed, “consecutive sentencing findings are required when the sentences are imposed in separate cases.” State v. Hill, 2014-Ohio-1965, ¶ 6, 20 (7th Dist.), abrogated on other grounds in State v. Marcum, 2016-Ohio-1002 (former change to standard of review). We then remanded for resentencing due to the failure to make consecutive sentence findings at the sentencing hearing, based in part on the imposition of the sentence consecutively to a previously imposed prison sentence the defendant was already serving. Id. at ¶ 3, 5, 18-34. We have consistently concluded that consecutive sentence findings must be made at the sentencing hearing if the trial court orders the defendant to serve his current and prior sentences consecutively. State v. Patterson, 2019-Ohio-881, ¶ 25-26 (7th Dist.) (the sentence “is clearly and convincingly contrary to law” in the absence of such findings), citing State v. Hudson, 2017-Ohio-645, ¶ 44 (7th Dist.).
{53} Other districts have also reversed for resentencing due to a trial court‘s failure to make consecutive sentence findings where the individual prison terms on the
{54} In one case, the state specifically argued consecutive sentencing findings did not apply because the court was not sentencing the defendant on “multiple counts” as the term was used in the former statutory equivalent to
{55} To the contrary, the state here concedes the error in imposing the sentence in the case at bar consecutively to a prior sentence imposed in 22 CR 84. Based on the Supreme Court holdings and our case law, we agree with the parties that the trial court was required to make consecutive sentence findings at the sentencing hearing and incorporate those findings into the sentencing entry in order to impose the sentence in the current case consecutively to an earlier case on which he was already imprisoned. On this basis, Appellant is entitled to resentencing, and his third assignment of error has merit.
{56} For the foregoing reasons, the trial court and jury verdicts are affirmed, but the judgment of sentence is reversed and the case is remanded for resentencing due to the lack of consecutive sentence findings at the sentencing hearing and in the judgment entry.
Waite, J., concurs.
Dickey, J., concurs.
For the reasons stated in the Opinion rendered herein, it is the final judgment, and order of this Court that the trial court and jury verdicts are affirmed. The judgment of sentence is reversed and the case is remanded for resentencing due to the lack of consecutive sentence findings at the sentencing hearing and in the judgment entry, for further proceedings according to law and consistent with this Court‘s Opinion. Costs to be taxed against the Appellee.
A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.