COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 59762 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION EDWARD JAKUB : : Defendant-appellant : : DATE OF ANNOUNCEMENT : JANUARY 30, 1992 OF DECISION : CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 245530 JUDGMENT : AFFIRMED IN PART AND REVERSED AND REMANDED IN : PART FOR RE-SENTENCING. DATE OF JOURNALIZATION : APPEARANCES: For plaintiff-appellee: For defendant-appellant: ROBERT M. INGERSOLL, ESQ. STEPHANIE TUBBS JONES The Marion Building Cuyahoga County Prosecutor 1276 West Third Street, #307 GEORGE F. LONJAK Cleveland, OH 44113-1569 Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, OH 44113 - 2 - PATTON, J., Defendant-appellant Edward Jakub ("appellant") appeals from the trial court's decision finding him guilty of two counts of murder (R.C. 2903.02), each with a gun specification, as a lesser included offense of aggravated murder (R.C.2903.01) with mass murder specifications./1\ The uncomplicated facts are as follows: On October 16, 1989, appellant, a sixty-two year old male, purchased a handgun. In the early morning hours of October 20, 1989, he returned to his sister's and brother-in-law's home in Parma after an alleged argument with them earlier that day and fatally shot them. Appellant then drove to the Parma Police Station and confessed to killing his sister and brother-in-law. Appellant handed the gun over to police in a box and informed them that entry could be easily gained by the open back door. Appellant was then arrested. At trial, he pled the affirmative defense of insanity and offered the testimony of one expert witness, Dr. James L. Brown, who averred appellant was legally insane at the time of the offenses due to the mental disease of paranoid schizophrenia. The state did not offer any rebuttal testimony, lay or expert, indicating that appellant was sane on October 20, 1989. /1\ Appellant waived his right to a jury trial and was tried by a three-judge panel. - 3 - Appellant's timely appeal raises the following errors for our review: I. EDWARD JAKUB HAS BEEN DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS CONVICTIONS FOR MURDER, AS THE EVIDENCE ADDUCED AT TRIAL WAS, AS A MATTER OF LAW, INSUFFICIENT TO SUPPORT HIS CONVICTIONS. II. EDWARD JAKUB HAS BEEN DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY HIS TWO CONSECUTIVE THREE YEAR SENTENCES ON TWO FIREARM SPECIFICATIONS, WHEN HE WAS INVOLVED IN ONLY ONE TRANSACTION. I. In appellant's first assignment of error, he argues the evidence was insufficient to support his murder convictions. Specifically, he avers that: (1) he proved by a preponderance of the evidence that he was legally insane at the time of the offenses; and (2) the state did not produce any rebuttal testimony lay or expert, to refute Dr. Brown's finding of legal insanity. A defendant who pleads the affirmative defense of not guilty by reason of insanity bears the burden of proof by a preponderance of the evidence. State v. Curry (1989), 45 Ohio St. 3d 109. The defendant "must establish by a preponderance of the evidence that a disease or other defect of his mind had so impaired his reason that, at the time of the criminal act with which he is charged, either he did not know that such act was wrong or he did not have the ability to refrain from doing that act." State v. Staten (1969), 18 Ohio St. 2d 13, paragraph two - 4 - of the syllabus. "'Preponderance of the evidence' means nothing more than that the evidence on one side of the scale outweighs that on the other." [citations omitted]. State v. Conn (1982), 13 Ohio App. 3d 251, 253. Moreover, the law presumes every person sane until the contrary is affirmatively established. Id. "[T]his presumption of sanity serves the state as the full equivalent of express proof until such time as it is made to appear by a preponderance of the evidence that the defendant was insane at the time of committing the crime alleged against him." State v. Austin (1905), 71 Ohio St. 317, paragraph two of the syllabus. Significantly, an "expert's opinion, even if uncontradicted, is not conclusive." State v. Brown (1983), 5 Ohio St. 3d 133, 135, citing United States v. Hall (C.A. 5, 1978), 598 F. 2d 995. However, expert testimony may not arbitrarily be ignored. Id. There must be some objective reasons for ignoring expert testimony. Id. In this case, appellant's expert, Dr. Brown testified that appellant was legally insane at the time of the offenses. However, Dr. Brown conceded that appellant "did have knowledge of the criminal nature of his act; that it was against the law, ***." (Tr. 100-01). Dr. Brown, however, testified appellant thought that the act of killing his sister and brother-in-law was morally correct. He had explained that appellant suffered from paranoid schizophrenia and, as a result, believed his sister and - 5 - brother-in-law to be the ringleaders of a conspiracy against him, which also involved other members of his family. Dr. Brown explained appellant had been hospitalized in a psychiatric unit in the early 1980's but was released. Appellant's former employer, TRW, apparently offered him an early retirement, with benefits, which made appellant suspicious. He then believed upper management at TRW was part of a conspiracy to kill him as well. Dr. Brown's testimony did not prove by a preponderance of the evidence that due to appellant's paranoid schizophrenia, he did not know that killing his sister and brother-in-law was wrong; nor did his testimony prove appellant had an inability to refrain from killing them. First, the record unequivocally indicates that appellant appreciated the wrongfulness of actions. This is evidenced by the mere fact that he drove to the police station after murdering his sister and brother-in-law and confessed. He knew his actions were wrong. Although the term "wrong" is not qualified in a legal or moral sense, we construe it to mean legally wrong. If we were to enforce our laws according to each individual's moral standards, our society would be one of anarchy. Second, the facts do not reveal to this court that appellant demonstrated inability to refrain from his actions. Appellant purchased the murder weapon four days prior to the killings. He drove back to the victim's house after an alleged argument - 6 - ensued earlier with the victims and during another argument, he shot and killed them both at close range. Significant to our determination is the fact appellant turned himself into the police after killing the victims. This evidences the important fact he knew the killings were legally wrong. As such, appellant was not legally insane. Appellant relies on State v. Brown (1983), 5 Ohio St. 3d 133, where the court concluded that the defendant established by a preponderance of the evidence that he was insane at the time of the shooting. In Brown, the defense presented three expert witnesses and three lay witnesses which established the defendant suffered from acute schizophrenic reaction which included hysterical moods and at times, he heard commands from the devil. The testimony revealed the defendant was experiencing an acute schizophrenic episode at the time of the shooting. Three lay witnesses bolstered the experts' testimony and defined specific instances of the defendant's extreme and bizarre behavior. There was no rebuttal testimony, lay or expert, indicating the defendant was sane. However, defense clearly met its burden of establishing insanity by the preponderance of the evidence./2\ In this case, although the state did not produce rebuttal testimony, the defense never met its burden by a preponderance of /2\ For these same reasons, State v. Conn (1982), 13 Ohio App. 3d 251, a case appellant relies on, is distinguishable and hence, inapplicable. - 7 - the evidence that appellant was legally insane at the time of the shootings. Dr. Brown testified appellant knew his actions were legally wrong. Further, Dr. Brown did not demonstrate that appellant demonstrated an inability to refrain from his actions. Moreover, we note that this case was tried to a three-judge panel. Accordingly, a presumption arises that a judge considers "*** only the relevant, material and competent evidence in arriving at a judgment, unless the contrary affirmatively appears from the record." [citation omitted]. State v. Eubank (1979), 60 Ohio St. 2d 183, 187. We therefore give weight to the fact this case was tried to a three-judge panel, rather than a jury and presume that the trial judges considered only relevant, competent and material evidence in arriving at their decision. Accordingly, the first assignment of error is overruled. II. In appellant's second assignment of error, he argues the trial court erred in imposing two separate consecutive three-year terms of actual incarceration pursuant to R.C. 2929.71. We agree. R.C. 2929.71(B), which provides for an additional three years of actual incarceration for offenses that involved a firearm, provides that: (B) If an offender is convicted of, or pleads guilty to, two or more felonies and two or more specifications charging him with having a firearm on or about his person or under his control while committing the felonies, each of the three-year terms of - 8 - actual incarceration imposed pursuant to this section shall be served consecutively with, and prior to the life sentences or indefinite terms of imprisonment imposed pursuant to section 2907.02, 2907.12, 2992.02 or 2929.11 of the Revised Code, unless any of the felonies were committed as part of the same act or transaction. If any of the felonies were committed as part of the same act or transaction, only one three-year term of actual incarceration shall be imposed for those offenses, which three-year term shall be served consecutively with, and prior to, the life sentences or indefinite terms of imprisonment imposed pursuant to section 2907.02, 2907.12, 2929.02, or 2929.11 of the Revised Code. (Emphasis added). Thus, R.C. 2929.71(B) provides that only one three-year term of actual incarceration can be imposed by the trial court where the felonies charged were committed as part of the same act or transaction. This court, with regard to the imposition of multiple three- year terms of actual incarceration pursuant to R.C. 2929.71(B) held in State v. Patterson (November 13, 1986), Cuyahoga App. No. 51231, unreported, at 18, that: "Patterson argues that the trial court should have sentenced him to only one three- year term of actual incarceration instead of three three-year terms of actual incarcera- tion since the murder of Albert Bullock and the attempted murder of Cheryl Bullock and Tommie Gary were part of the 'same act or transaction.' That phrase is not defined in the statute. However, in State v. Carpenter (Jan. 2, 1986), Cuyahoga App. No. 49951, unreported, this Court adopted the definition set forth by the Second District Court of Appeals in State v. Fudge (March 29, 1984), Clark App. No. 1973, unreported, which interpreted the word 'transaction' to be 'sufficiently flexible to comprehend any - 9 - number of criminal offenses so long as such offenses have a logical relationship and are committed within a continuous time sequence.' Id., at p. 3. Motivation is also a factor to be considered." Appellant argues the trial court should have sentenced him to only one three-year term of actual incarceration since the two murders had a logical relationship, to wit: conspiracy to kill him. Clearly, the record reveals that the shootings of his sister and brother-in-law were part of the same act or transaction. The shootings had a logical relationship in that they were committed for the same purpose. Moreover, the offenses were committed within a continuous time sequence; one murder immediately after the other one. As such, the trial court erred in imposing two separate consecutive three-year terms of actual incarceration. Accordingly, the second assignment of error is well-taken. Judgment affirmed in part and reversed in part and remanded for re-sentencing. - 10 - This cause is affirmed in part and reversed in part and remanded for re-sentencing. It is ordered that appellee recover of said appellant its costs herein. It is ordered that a special mandate be sent to said court to carry this judgment into execution. The defendant's convic- tion having been affirmed in part, any bail pending appeal is terminated. Case remanded to the trial court for re-sentencing and execution thereof. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, C.J. KRUPANSKY, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journaliza- tion, at which time it will become the judgment and order of the court and time period for review will begin to run. .