[Cite as State v. Portis , 2021-Ohio-608.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. JARYLD PORTIS Defendant-Appellant : : : : : : : : : : Appellate Case No. 28677

Trial Court Case No. 2019-CR-3170 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 5th day of March, 2021.

. . . . . . . . . . . MATHIAS H. HECK, JR., by LISA M. LIGHT, Atty. Reg. No. 0097348, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellee JOHNNA M. SHIA, Atty. Reg. No. 0067685, P.O. Box 145, Springbor o, Ohio 45066 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

TUCKER, P.J.-2- {¶ 1} Defendant-appellant Jaryld Portis appeals from his convictions for felonious assault and aggravated robbery. Portis claims the State did no t present evidence sufficient to support his convictions and that the convictions were against the manifest weight of the evidence. He also claims the trial court abused its discretion when instructing the jury on complicity. Finally, Portis asserts th at prosecutorial misconduct

and cumulative error resulted in an unfair trial. {¶ 2} This court has reviewed the record and concludes that Portis’s assertions lack merit. Accordingly, the judgment of the trial court is af firmed.

I. Facts and Procedural Background {¶ 3} On September 24, 2019, Willie Smith and his cousin Errick Colem an were assaulted, and Smith was robbed. Following an investigation, P ortis was identified as the assailant. On October 2, 2019, Portis was indicted on two counts of felonious assault (deadly weapon) in violation of R.C. 2903.11(A)(2), two counts of felonious assault (serious harm) in violation of R.C. 2903.11(A)(1), and two coun ts of aggravated robbery in violation of R.C. 2911.01(A)(3). {¶ 4} The matter proceeded to a jury trial. In the State’s case, Smi th testified that he managed a rental property located at 78 and 80 Pointview Ave nue in Dayton. The property, a duplex, housed two families. Smith testified that Portis and Melinda Sturgill moved into 80 Pointview Avenue a few months prior to the Septem ber attack. {¶ 5} Smith was 80 years old, and therefore his cousin, Coleman, help ed him with maintenance of the properties. Smith testified that he picked up Coleman around noon on September 24, 2019, and the two went to the Pointview duplex to collect rent. Smith-3- testified that the 78 Pointview tenants and Sturgill met him ou tside and each paid him $550 in cash for their rent. He also testified that he and Col eman were ready to leave the duplex when Portis arrived in a vehicle; Portis informed Sm ith that he believed there was a problem with the fuse box, because the kitchen lights in his unit were not working properly. {¶ 6} Smith testified that he and Coleman descended into the basement and were looking at the fuse box when the lights by the stairs went out. Smith then observed Portis turn off another light which was near the fuse box. Smith test ified that Portis “started chopping me in the head” with something that felt like a machet e. Smith admitted he never saw the weapon used against him and did not observe who w as hitting him. Smith put his hands up to protect his head and then his finger was cu t, resulting in the finger being severed. Smith did not know how many times he was hit wi th the weapon. He testified that he fell to the floor and was still being hit whe n his assailant went through his pockets and removed the rent money and other items; the assaila nt then left, and Coleman helped Smith up the stairs and out of the unit. Once o utside, they asked neighbors to call 911. Smith sustained lacerations to his head which required approximately 37 staples to close. He also sustained a skull f racture and the loss of his finger. He remained in an intensive care unit for several days

. {¶ 7} The State also presented the testimony of Coleman. Coleman conf irmed that he accompanied Smith to the duplex on September 24, 2019. He f urther testified that Sturgill brought her rent money to the car and stated that she was $20 short. Smith and Sturgill agreed she could pay th e additional money the followin g day. Coleman testified that Portis then pulled up to the duplex in a tan Lincoln vehic le. Portis informed Smith-4- the kitchen lights were out and stated his belief there was an issue with the fuse box and

he did not know how to fix a fuse. {¶ 8} According to Coleman, he, Smith, and Portis went into the basem ent; the only entrance to the basement was through the unit, and the oth er duplex’s tenants could

not access Portis’s basement. Coleman testified there was a li ght switch at the top of the basement stairs, which controlled a light near the stairs, and another light further into the basement near the fuse box, which was controlled by a pull string. According to Coleman, the light in the basement was dim, but he was able to see. However, he had to use the flashlight on his cellphone in order to read the num bers on the fuse box,

because the numbers were small. Coleman testified that Portis stated he was going to retrieve a flashlight. A few moments later, as Coleman was loo king at the fuse box, the light near the stairs went out, and then the light near the fus e box went out. Coleman then felt something strike his head several times. He testifie d he observed the weapon, which appeared to be a machete or some type of knife. Coleman testified that, as he turned toward his attacker, the light on his phone shone on Por tis’s face. Portis then hit

Coleman in the face. Coleman testified that Portis also hit Sm ith and took the rent money from Smith’s pocket. Portis then ran up the basement stairs. Coleman testified he and Smith left the house and asked neighbors to call 911, because h is (Coleman’s) cell phone had been damaged during the assault. Coleman testified that he was hit approximately 13 to 15 times. During the attack, both his skull and jaw were fractured, he suffered multiple lacerations to his head, and he suffered a bleed in hi s brain. He remained in intensive care for several days. {¶ 9} Dayton Police Department Officer Justin Hayes testified that he was on-5- routine patrol when he received a dispatch regarding a stabbing at 80 Pointview Avenue.

When he arriv ed at the scene, he observed two older men seated in a Jeep and being attended to by emergency medical technicians. Hayes observed t hat Smith was missing a finger and had “numerous severe injuries to his head[.]” Tr. p. 92. Hayes described the wounds to Smith’s head as “divots in the back of his scalp and skull.” Id. According to Hayes, Coleman had similar injuries to his head, and the “le ft side of his face was starting to puff out grotesquely as though he had a fracture in his jaw or possibly [his] orbit area.” Tr. p. 93. Hayes testified that he asked Smith what ha d happened, and Smith indicated Portis had assaulted him and stolen his money. {¶ 10} Hayes called for backup because he did not know whether the sus pect was still in the home. Hayes testified that, upon the arrival of t he backup officers, they called out for anyone in the unit to exit and Sturgill came out. Stur gill informed Hayes that Portis was driving a Lincoln Town Car with license plates which belong ed to a different vehicle. Hayes put out a broadcast with the description of the car. {¶ 11} Hayes testified that he then reported to Miami Valley Hospital, where he took a statement from Coleman. Hayes testified he was able to see Coleman’s skull through the injuries to the scalp. Hayes also took a statement from Smith. Hayes testified that both men were lucid when he spoke to them, and b oth men identified Portis

as the attacker. {¶ 12} Dayton Police Lieutenant Randy Beane testified that the next mo rning (September 25, 2019), he was on routine patrol at 1:30 a.m. Be ane was traveling north on Riverside Drive; when he passed through the intersection wit h Helena Street, he spotted a car stopped at a red light on Helena Street that matc hed the vehicle description-6- given by Hayes. Beane testified the car’s lights turned off as it turned onto Riverside Drive. Beane called for assistance, turned around, and began t o follow the car. Another officer who was located further down Riverside Drive placed sto p sticks across the road. 1 As the Lincoln approached the stop sticks, Beane activated his cruiser lights and the car began to flee. The car crossed the stop sticks but continued o n, reaching a speed of 70 m.p.h. The car also ran a red light and crossed over into the oncoming lane. Beane

decided to use the front of his cruiser to hit the rear of the Lincoln, causing it to spin out and finally come to a stop. Beane testified that by the time h e was able to exit his cruiser, the driver of the car had fled into the woods. A female passen ger, later identified as Cora Pendal, was found in the vehicle. Beane testified other office rs began to chase the

driver. {¶ 13} Dayton Officer Chelsea Weitz testified that she responded to th e area where the car chase ended and began searching the area. After being informed the suspect had jumped into the river, she observed wet footprints on the a djacent bike path. Weitz and another officer followed the footprints and ultimately foun d Portis lying in a bushy area. Portis was arrested and transported to the Safety Buildi ng. {¶ 14} Dayton Police Detective Rod Roberts testified he interviewed bo th Portis and Pendal. During Pendal’s interview, it was determined that Portis had just picked her up at a local hotel and was taking her home when the chase bega n. She informed Roberts that she asked Portis to slow down during the chase, bu t Portis merely told her to shut up. {¶ 15} Roberts also interviewed Portis, who denied knowing how Smith a nd

1 Stop sticks consist of spikes whic h cause a vehicle’s tires to deflate in about one minute.-7- Coleman sustained their injuries. Portis admitted that he knew Smith and that Smith had recently asked him to prevent his dog from defecating in the ne ighbor’s yard. Portis stated he was aware Sturgill had already paid the rent when he asked Smith to check the fuse box. According to Portis’s statement to Roberts, Portis a ccompanied Smith and Coleman into the basement, then left the men in the basement an d left the premises in

the Lincoln automobile. Portis also stated that Smith and Cole man were still at the duplex when he returned. Portis told Roberts he left again bec ause he had a woman in his vehicle and had to take her somewhere; he indicated that he did not return home after that and stayed at a local hotel that night. Roberts testified that he later went to that hotel and learned that, during the late evening on the day of the att ack, Portis had secured a room for three days. {¶ 16} In his defense, Portis presented the testimony of Sturgill, who stated that Portis was her fiancé. Sturgill testified that she and Portis moved into 80 Pointview in the last week of July 2019. According to Sturgill, she had wor ked the night shift and arrived home at 9:00 a.m. on September 24, 2019; Smith came for the rent money at approximately 10:30 a.m., and she was only able to pay him $530 . Sturgill stated that Smith agreed to let her pay the remaining $20 the following day . After paying Smith, Sturgill went upstairs and wen t to bed. Sturgill testified tha t she was asleep when Portis called her on her cellphone and stated that the landlord had “a sked him to make sure the dog was in the house because they were about to cut the grass.” Tr. p. 273. According to Sturgill, she brought the dog into the house through the bac k door, locked the door, and went back to bed. Sturgill further testified she was again awakened by Portis, who asked if she knew where to find a flashlight. She indicated sh e did not know and then-8- tried to go back to sleep. When she heard voices, she walked d ownstairs and observed Portis, who informed her that “the landlord and the other perso n were there looking at the fuse box.” Tr. p. 276. She testified that Portis then walked up to the second floor, and she followed him; Portis then informed her that he was leaving, and he walked back

downstairs and out the front doo r. Sturgill testified she hear d a car start and drive away, at which point she went back to her bedroom, locked the door, a nd once again went to sleep. Sturgill was awakened again when the dog, which was in its cage on the first floor, began barking. She testified she heard a door slam, and she again went downstairs. According to Sturgill, both the front and back doo rs were open. She went to lock the back door and observed Smith and Coleman; she descr ibed both men as bloody. Sturgill asked the pair what had happened and whether they were okay. She testified that Coleman stated that they were okay, and the two men walked out of the unit. {¶ 17} Sturgill testified that she observed neighbors outside and then went upstairs to get dressed. She then heard a voice over a loudspeaker aski ng anyone inside 80 Pointview “to come outside with their hands up.” Tr. p. 280. Sturgill went outside and

was handcuffed. She testified she did not know where Portis ha d gone, but she told the police he was driving her Lincoln Town Car. She told the polic e the license plates on the car had been on her prior car. She also attempted to call Port is, but her call went straight to voicemail. She then texted Portis stating “that something h ad happened to the landlord, and that the police were asking about him, and [she] was scared.” Tr. p. 282. {¶ 18} Portis also testified at trial. He stated he made breakfast wh en Sturgill arrived home, then walked outside to go to the gas station; he saw Coleman and Smith, who asked him to put his dog away. Portis testified that he ca lled Sturgill from outside-9- the house and told her to put the dog inside. He then went to a gas station on Siebenthaler Avenue. On his way home, Portis stopped at a stor e on Pointview Avenue because he was flagged down by a woman he knew as Ginger. Acco rding to Portis, Ginger told him she needed a place to stay. When Portis inform ed Ginger she could not stay at his home, she asked him to take her to a hotel. She al so stated that she did not have any identification with which to secure a hotel room. Por tis testified that he drove back to his home in order to get his identification. {¶ 19} According to Portis, when he pulled up to his residence and exi ted the car,

Smith called him over to his car. Portis stated Smith asked hi m to stop letting his dog defecate in the neighbor’s yard. Portis then informed Smith th at one-half of the kitchen did not have electricity and that he thought a fuse had blown; Smith told him Coleman

would look at the fuse box. Portis indicated that he went insi de and placed his dog in a cage, then he unlocked the basement door and accompanied Smith and Coleman into

the basement. {¶ 20} Portis testified that the basement was dark, so he and Coleman used the flashlights on their respective cellphones to light the area. Portis testified that he asked the men if they wanted a flashlight, and one of them responded affirmatively. Portis went upstairs to find a flashlight, but he was unsuccessful. He the n went to the second floor and asked Sturgill where he could find a flashlight. When Stur gill stated she did not know where to locate a flashlight, Portis informed her that he was l eaving the house. Portis testified that he wanted to leave quickly because he did not wa nt Sturgill to see the woman who was still in his car. Portis testified that when he left, he went to his mother’s home for a few minutes and then to the Dayton Motor Hotel on Keowee Street; Portis secured-10- a room with his identification, and Ginger paid for the room. At some point thereafter, Portis received a text from Sturgill indicating that the police were searching for him. Portis testified he also received a call from a neighbor, who t old him the police were at his (Portis’s) home. {¶ 21} According to Portis, he parked his car and started walking and praying; he wanted to find out what was going on at home, but his phone had no power. Portis stated that he went back to the Dayton Motor Hotel, but because Ginger was a drug addict, he did not want to stay there. Portis eventually left the hotel i n his automobile and encountered Cora Pendal as he was driving on Lance Street; Pend al asked for a ride to a gas station. As Portis was driving her to the gas station, h e observed Beane’s cruiser. Portis testified he did not pull over for the traffic stop beca use he knew he had an active warrant against him and he did not want to go to jail. {¶ 22} Portis also testified that he was left-handed and his left arm had been previously wounded when he was the victim of a shooting. Porti s stated the injury to his arm limited his strength and mobility in that arm. He stated h e could not shoot a basketball because he could not lift his arm up without feeling pain. {¶ 23} On cross-examination, Portis testified that he rented the hotel room for Ginger at 12:40 p.m. When asked why he turned off his vehicle’ s lights when he was being pursued, Portis stated that he did not realize he had tur ned the lights off and must have panicked. Finally, he admitted he had a prior conviction for robbery. {¶ 24} Portis was found guilty on all four counts of felonious assault and one count of aggravated robbery. The jury found Portis not guilty on the count of aggravated robbery relating to Coleman.-11- {¶ 25} At sentencing, the counts of felonious assault (serious harm) w ere merged with the counts of felonious assault (deadly weapon), and the S tate elected to proceed to sentencing on the two counts of felonious assault (deadly weapo n). The trial court imposed an eight-year prison sentence on each count of feloniou s assault and an 11-year sentence for the aggravated robbery. All of the sentences were ordered to run consecutively, for an aggregate minimum prison term of 27 years and an aggregate maximum term of 32.5 years. {¶ 26} Portis appeals.

II. Sufficiency and Manifest Weight of the Evidence {¶ 27} The first assignment of error asserted by Portis states as foll ows: THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT AND

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE TO SUSTAIN

PORTIS’S CONVICTIONS. {¶ 28} Portis contends that the State did not present evidence suffici ent to support his convictions and the convictions were also against the manif est weight of the evidence. {¶ 29} “A sufficiency of the evidence argument disputes whether the St ate has presented adequate evidence on each element of the offense to a llow the case to go to the jury or sustain the verdict as a matter of law.” State v. Wilson , 2d Dist. Montgomery No. 22581, 2009-Ohio-525, ¶ 10, citing State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). In such situations, we apply the test from State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), which states: An appellate court's function when reviewing the sufficiency of the evidence-12- to support a criminal conviction is to examine the evidence adm itted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt . The relevant inquiry is whether, after viewing the evidence in a li ght most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doub t. (Citation omitted). Id. at paragraph two of the syllabus. {¶ 30} In contrast, “[a] weight of the evidence argument challenges th e believability of the evidence and asks which of the competing inferences sugg ested by the evidence is more believable or persuasive.” (Citation omitted.) Wilson at ¶ 12. In this situation, a “ ‘court [while] reviewing the entire record, weighs the eviden ce and all reasonable inferences, considers the credibility of witnesses and determin es whether in resolving conflicts in the evidence, the jury clearly lost its way and cr eated such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised on ly in the exceptional case in which the evidence weighs heavily against the conviction.’ ” Thompkins at 387, quoting

State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). {¶ 31} Further, “[a]lthough sufficiency and manifest weight are differ ent legal concepts, manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that a conviction is supported by the manifest weight o f the evidence necessarily includes a finding of sufficiency.” (Citations omitted.) State v. McCrary , 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11. Accord State v. Winbush , 2017-Ohio-696, 85 N.E.3d 501, ¶ 58 (2d Dist.). As a result, “a determination tha t a conviction is supported-13- by the weight of the evidence will also be dispositive of the i ssue of sufficiency.” (Citations omitted.) State v. Braxton , 10th Dist. Franklin No. 04AP-725, 2005-Ohio-2198, ¶ 15. {¶ 32} Also important is the axiom that “[b]ecause the factfinder * * * has the opportunity to see and hear the witnesses, the cautious exercis e of the discretionary power of a court of appeals to find that a judgment is against the manifest weight of the evidence requires that substantial deference be extended to the factfinder's determinations of credibility. The decision whether, and to wh at extent, to credit the testimony of particular witnesses is within the peculiar compet ence of the factfinder, who

has seen and heard the witness.” State v. Lawson , 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). {¶ 33} “Contrastingly, the decision as to which of several competing i nferences, suggested by the evidence in the record, should be preferred, i s a matter in which an appellate judge is at least equally qualified, by reason and ex perience, to venture an opinion.” Id . “Consequently, we defer more to decisions on what testimony s hould be credited, than we do to decisions on the logical force to be as signed to inferences suggested by evidence, no matter how persuasive the evidence ma y be.” State v.

Brooks , 2d Dist. Montgomery No. 21531, 2007-Ohio-1029, ¶ 28, citing Lawson at *4. {¶ 34} Portis first contends that the State failed to present evidence sufficient to establish identification. In support, he claims the basement w as dark, which prevented the two men from being able to see their attacker. He also not es that he and Coleman had not met prior to the day of the attack, that he and Smith h ad seen each other only on a few occasions, and thus that the victims were not “entirely f amiliar with [him] to be able to recognize him under the circumstances.” He also claims the men did not identify him-14- as the perpetrator when they were questioned at the scene. {¶ 35} During trial, Smith testified that the light near the basement stairs went out, and he then observed Portis turn off the string light, after wh ich he was immediately hit. He testified he was hit multiple times and that the rent money and other items were removed from his pocket while he was being hit. Smith testifie d he never saw Portis hit him because the basement was dark after the lights were turned off. However, Coleman testified he was hit in the head and that, as he turned, he obs erved Portis, who then hit him in the face and fractured his jaw. Coleman also testified that Portis hit Smith and took the money from Smith. Coleman testified he had a good opp ortunity to observe Portis when Portis first approached the men outside the unit ju st minutes before the attack

occurred. {¶ 36} Officer Hayes testified that Smith and Coleman were still at th e scene when they provided information identifying Portis as the perpetrator . He testified they also identified Portis when he interviewed them later at the hospita l. Hayes testified Smith

informed him that Portis was the assailant and that Portis took the rent money from him. {¶ 37} Based upon this evidence, we cannot say the jury lost its way i n concluding Portis was the principal actor in the attack on Coleman. Furth er, Coleman’s testimony supported a finding that Portis also attacked Smith. {¶ 38} Next, Portis contends the State did not present sufficient evid ence to establish that a deadly weapon was used in the commission of th e assaults. In support, he argues that no weapon was recovered and that there was no ex pert testimony regarding what caused the injuries to each man. {¶ 39} R.C. 2923.11(A) defines “deadly weapon” as “any instrument, dev ice, or-15- thing capable of inflicting death, and designed or specially ad apted for use as a weapon, or possessed, carried, or used as a weapon.” “Committee commen t on this generic definition points out that a deadly weapon is anything capable of causing death and is carried, possessed or used as a weapon such as a rock or cane w hen used for offensive or defensive purposes.” State v. Clark , 2d Dist. Clark No. 1298, 1979 WL 208322, *1 (May 23, 1979). “Illustrations of things, innocent in themselv es, that may be capable to causing death include a baseball bat, a Coke bottle, a toy pist ol and an unloaded gun. The statute is not limited to instruments that are dangerous or deadly per se, but includes anything that may be possessed that has an actual or potential danger of serious or deadly harm under the circumstances encountered in a theft offe nse such as robbery.”

Id. In other words, “[t]he definition of deadly weapon in R.C. 29 23.11(A) imposes two requirements of proof. First, the article must be capable of i nflicting death. Second, the article must either (1) have been designed or specially adapted for use as a weapon or (2) possessed, carried, or used as a weapon. When use is a fac tor, the manner of its use and the nature of the instrument itself determines its capa city to inflict death.” S tate v. Schooler , 2d Dist. Montgomery No. 19627, 2003-Ohio-6248, ¶ 21, citing State v.

Deboe , 62 Ohio App.2d 192, 406 N.E.2d 536 (6th Dist.1977); State v. Taylor , 2d Dist. Greene No. 2018-CA-9, 2019-Ohio-142, ¶ 90. {¶ 40} We first note that “expert testimony is only offered to assist the trier of fact, and such testimony may be believed or disbelieved by such trier .” State v. Coney , 10th Dist. Franklin No. 94APA05-670, 1995 WL 65013, *4 (Feb. 16, 199 5), citing Vetter v. Hampton , 54 Ohio St.2d 227, 230, 375 N.E.2d 804 (1978). Thus, contrar y to Portis’s suggestion, expert testimony is not required to establish that an instrumentality is capable-16- of causing death. Coney at *4. “Common sense and [the] experience of those upon [a] jury observing the instrument that was in the hands of [a defen dant], under the circumstances as presented within [a] case, dictate the appropr iate finding.” Id. {¶ 41} Next, although no weapon was recovered and Smith did not see wh at the assailant used in the assault, there was evidence that Coleman observed a weapon he

described as a machete or knife. Smith also testified he was h it with something he described as feeling sharp, like a machete. Further, the evide nce demonstrated that the assailant hit both men with something that was capable of denti ng their scalps, caused serious cuts to their heads, and severed Smith’s finger. Both men sustained severe injuries which caused them to be hospitalized in the intensive care unit for several days. {¶ 42} When viewed in a light most favorable to the prosecution, the r ecord contains sufficient evidence that some instrumentality was util ized by the assailant as a deadly weapon. {¶ 43} Moreover, the evidence in this record demonstrated that Portis used a deadly weapon to attack Coleman and Smith and that he removed m oney from Smith’s pocket. Based upon the evidence, we cannot say the jury clearl y lost its way in convicting Portis. The first assignment of error is overruled.

III. Complicity Instruction {¶ 44} Portis’s second assignment of error is as follows:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT INSTRUCTED

THE JURY AS TO AIDING AND ABETTING ABSENT A COMPLICITY

CHARGE AND ABSENT SUFFICIENT EVIDENCE TO WARRANT THE-17- INSTRUCTION. {¶ 45} Portis argues the trial court should not have instructed the ju ry on complicity to commit felonious assault and aggravated robbery because the indictment failed to explicitly indict on complicity and because the record did not support the instruction. {¶ 46} Jury instructions “must be given when they are correct, pertine nt, and timely presented.” State v. Joy , 74 Ohio St.3d 178, 181, 657 N.E.2d 503 (1995). A trial court must fully and completely give jury instructions which are rele vant and necessary for the jury to weigh the evidence and discharge its duty as the fact-f inder. State v. Comen , 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syl labus. {¶ 47} We review a trial court's jury instructions for an abuse of dis cretion. State

v. Jones , 2015-Ohio-5029, 52 N.E.3d 263, ¶ 13 (12th Dist.). An appella te court may not reverse a conviction in a criminal case based upon jury instruc tions unless “it is clear that the jury instructions constituted prejudicial error.” Id . An appellate court's duty is to review the instructions as a whole, and, if taken in their enti rety, the instructions fairly and correctly state the law applicable to the evidence presented at trial, reversible error will not be found premised upon the possibility that the jury may ha ve been misled. Id. {¶ 48} Turning first to Portis’s contention that a jury may not be ins tructed on complicity if the charging instrument does not contain such a c harge, we note that this argument was rejected in State v. Young , 2d Dist. Greene No. 2019-CA-18, 2020-Ohio1044, wherein we stated: The complicity statute, codified at R.C. 2923.03(F), provides: “[w]hoever violates this section is guilty of complicity in the commission of an offense, and shall be prosecuted and punished as if he were a principal-18- offender.” In State v. Hand , 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, the Ohio Supreme Court held that R.C. 2923.03(F) al lows the State to charge complicity in terms of the complicity statute o r in terms of the principal offense. Id. at ¶ 181. The court further held that R.C. 2923.03(F) “adequately notifies defendants that the jury may be instructed on complicity, even when the charge is drawn in terms of the pr incipal

offense.” Id. at ¶ 178-184, citing State v. Keenan , 81 Ohio St.3d 133, 151, 689 N.E.2d 929 (1998), citing Hill v. Perini , 788 F.2d 406, 407-408 (6th Cir.1986). “Thus, a defendant charged with an offense may be c onvicted of that offense upon proof that he was complicit in its commiss ion, even though the indictment is ‘stated * * * in terms of the principa l offense’ and does not mention complicity.” State v. Herring , 94 Ohio St.3d 246, 251, 752 N.E.2d 940 (2002).

Id. at ¶ 8. {¶ 49} We next address Portis’s assertion that the State failed to pre sent evidence to support its request for a complicity instruction. Portis ar gues “the State did not provide any evidence of what, if any, part that Portis had in the commi ssion of the offenses, nor how he assisted or facilitated, or promoted its accomplishment. The State could not prove that there was another person involved to prove that Port is assisted that person. Without a principal offender, there is no complicity.” {¶ 50} During Smith’s testimony on direct examination, the following c olloquy took place: Q: Was it you or [Coleman] was [sic] struck first?-19- A: I don’t know, I – we both was [sic] struck. It was – it wa s – it was as if it was two of them instead of one, instead of just one. Q: So you think there were two people doing it? A: I’m – I’m thinking it was, but I didn’t see but one; and th at was [Portis]. The other person; I didn’t see the other person. By that time, it was so dark

in there. Tr. p. 181. {¶ 51} During his cross-examination of Smith, defense counsel elicited the following: Q: Now, once you’re down in the basement, you said you only sa w the Defendant, right: You didn’t see anyone else; is that right? A: No, I didn’t see no one else. Q: Okay. But you said you felt like there could’ve been a sec ond person? A: Yeah. It could’ve been somebody else with him. Q: Okay. And why do you think that? A: Because I was being, you know, chopped in the head so much. * * * Q: So you were being hit a lot of times? A: Yeah, a lot of times. Q: And you thought there could’ve been more than one person do ing it? A: Yeah, I thought it could’ve been more than one. Q: Okay. But you did see the Defendant down in the basement, right? [Portis]? A: Oh, yes.-20- Tr. p. 184-185. {¶ 52} The testimony elicited from Smith indicated the following: (1) he observed Portis turn off the string light in the basement just seconds b efore the attack commenced; (2) he was not able to confirm that Portis was the person who w as hitting him; (3) he was being hit so many times he thought there might be a second pers on involved in the attack; but (4) he did not observe a second person. {¶ 53} In our view, Smith’s testimony allowed for the possibility that a second person was involved in the attack. Thus, we cannot say the tri al court abused its discretion in instructing the jury on complicity. {¶ 54} The second assignment of error is overruled.

IV. Prosecutorial Misconduct {¶ 55} The third assignment of error states as follows:

THE RECORD DEMONSTRATES PROSECUTORIAL MISCONDUCT

OCCURRED DURING THE TRIAL. {¶ 56} Portis asserts the prosecutor acted improperly during trial. S pecifically, he claims the prosecutor improperly changed the theory of the case and requested a jury instruction on complicity. He further claims the prosecutor as ked leading questions in order to establish the identity of the assailant. Finally, Por tis faults the prosecutor for “having Portis acknowledge the existence of a warrant [to] just ify [sic] an illegal stop, arguing that [Portis’s] absence and flight from the police mean t he was guilty[.]” {¶ 57} At the outset, we note Portis did not object to any of the alle ged misconduct except for the State’s request for the complicity jury instruct ion. Therefore, he must-21- demonstrate plain error regarding the remaining alleged errors. State v. Pickens , 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 109. To cons titute plain error, an error must be an obvious defect that would clearly, but for the error, have resulted in a

different outcome at trial. State v. Neyland , 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 177, quoting State v. Long , 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). {¶ 58} Given our resolution of Portis’s assignment of error regarding the requested complicity instruction, we conclude that he has failed to demon strate prosecutorial

misconduct on this basis. {¶ 59} We next note that Portis has failed to direct our attention to the portions of

the record which demonstrate his claim that the State asked lea ding questions in order to establish his identity as the assailant. See App.R. 16(A)(3). Regardless, we have reviewed the entire trial transcript and cannot discern any imp roper or leading questions asked by the State concerning Portis’s identification as the as sailant. {¶ 60} Next, Portis posits the prosecutor improperly caused him to ack nowledge the existence of a prior warrant for his arrest. We find this assertion lacks merit, as this information was elicited during Portis’s direct examination by defense counsel in order to suggest that he was fleeing the police because of the warrant, as opposed to the attacks upon Smith and Coleman. {¶ 61} Finally, Portis contends the prosecutor improperly argued that the jury could infer guilt from the fact that Portis left the scene of the att ack and later fled from the police. {¶ 62} “[I]t has been ‘universally conceded that the fact of [an] accu sed's flight, escape from custody, resistance to arrest, concealment, assumpt ion of a false name, and

related conduct are admissible as evidence of consciousness of guilt, and thus of guilt-22- itself.’ ” State v. Wood , 2d Dist. Clark No. 2010-CA-42, 2011-Ohio-2314, ¶ 30 quoting

State v. Stevens , 2d Dist. Montgomery No. 16509, 1998 WL 151107, *7 (Apr. 3, 19 98). {¶ 63} Here, the evidence demonstrated that Portis left the residence immediately after the commission of the offenses, and approximately 12 hour s later, he attempted to elude the police. Although Portis claimed he fled because he h ad an outstanding warrant and knew he would go to jail on that warrant if he were caught, the jury was free to disregard this testimony and, instead, conclude he fled because of the attack on Smith

and Coleman. {¶ 64} From our review of the record, we conclude that Portis has fail ed to demonstrate prosecutorial misconduct. Therefore, the third ass ignment of error is

overruled.

V. Cumulative Error {¶ 65} Portis’s fourth assignment of error states:

PORTIS WAS DENIED HIS RIGHT TO A FAIR TRIAL DUE TO

CUMULATIVE ERROR. {¶ 66} Portis claims he was deprived of a fair trial due to cumulative error. {¶ 67} The Supreme Court of Ohio has recognized that multiple errors, when aggregated, may violate a defendant's right to a fair trial, ev en when those errors are determined to be harmless when separately considered. State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabu s. “To find cumulative error, we first must find multiple errors committed at trial, a nd secondly, we must conclude that a reasonable probability exists that the outcome of the tr ial would have been different-23- but for the combination of the harmless errors.” State v. Hartman , 2016-Ohio-2883, 64 N.E.3d 519, ¶ 61 (2d Dist.), citing State v. Madrigal , 87 Ohio St.3d 378, 398, 721 N.E.2d 52 (2000). {¶ 68} Because we have found no error, we obviously cannot make a find ing of

cumulative error. {¶ 69} Portis’s fourth assignment of error is overruled.

VI. Conclusion {¶ 70} All of Portis’s assignments of error having been overruled, the judgment of

the trial court is affirmed.

. . . . . . . . . . . . .

HALL, J. and WELBAUM, J., concur.

Copies sent to: Mathias H. Heck, Jr. Lisa M. Light Johnna M. Shia Hon. Susan D. Solle