[Cite as State v. Gibson, 2023-Ohio-1154.]

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO,

 Plaintiff-Appellee,

 VS.

MARIO GIBSON, 

 Defendant-Appellant.

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APPEAL NO. C-220176

TRIAL NO. B-1607179A

 O P I N I O N.

Criminal Appeal From: Hamilton County Court of Common Pleas

 

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause Remanded

Date of Judgment Entry on Appeal: April 7, 2023

Melissa A. Powers, Hamilton County Prosecuting Attorney, and Judith Anton Lapp, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista M. Gieske,

Assistant Public Defender, for Defendant-Appellant.
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BERGERON, Judge.

{¶1} Three years after the tragic shooting of innocent bystander Iesha 

Williams, the state charged defendant-appellant Mario Gibson with various counts of 

murder, felonious assault, and having weapons while under disability. Following a 

bench trial, the court found him guilty on all counts except for the aggravated murder 

charge, sentencing him to prison for 37 years to life. On appeal, Mr. Gibson presents

three assignments of error relating to certain witnesses’ grand jury testimonies, which 

the trial court refused to order the state to disclose, a fourth assignment of error 

challenging the weight and sufficiency of the evidence in his case, and a fifth 

assignment of error raising a sentencing issue. After reviewing the complete record 

and relevant case law, we must overrule his first four assignments of error. But 

because the trial court improperly employed an allied offenses analysis to justify 

ordering his firearm specifications to run consecutively (a point the state concedes), 

we sustain Mr. Gibson’s fifth assignment of error, reversing the trial court’s judgment

and remanding on this issue for the limited purpose of resentencing. 

I.

{¶2} Mr. Gibson and his codefendant, Akyame Daniels, were ultimately 

charged with and convicted of various offenses in connection with the murder of Ms. 

Williams. In order to properly understand the nuances of this case and the issues 

germane to Mr. Gibson’s appeal, we must first chronicle the complex web of facts, 

including two separate shootings and the roles of numerous witnesses and involved 

persons. 

{¶3} In January 2016, Mr. Daniels lived at the home of his grandmother on 

the first floor of a three-story duplex in Avondale. Several of Mr. Daniels’s family 
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members, including a cousin, Kenny Gunn, Sr., lived there as well. Mr. Gibson, who 

had known Mr. Daniels for years, resided on the third floor of the duplex. 

{¶4} A few days prior to January 14, 2016, Mr. Daniels asked Erron Jones for 

a ride to a nearby gun shop to purchase a weapon. Two other men, including victim 

Quentin Cooper, joined them on the excursion. After Mr. Daniels purchased a gun 

with cash, Mr. Jones drove them to an abandoned house. Mr. Cooper then struck Mr. 

Daniels in the head with a handgun and stole his remaining cash and new gun. Mr. 

Daniels leapt out of the car and confronted Mr. Jones, who then threatened Mr. 

Daniels to “watch out.” After Mr. Daniels exited from the car and made his escape, the 

other three men drove off. 

{¶5} Mr. Daniels then returned to his grandmother’s home and reported the 

robbery to Cincinnati Police Officer Richard Minella. Still seething, he engaged in a 

heated texting exchange with Mr. Jones regarding the incident.

{¶6} Back at the duplex, in the common area, Mr. Daniels announced to all 

who were present that he had just been robbed and that the perpetrators stole his gun. 

This, according to Mr. Daniels, angered Mr. Gibson and, after they stepped outside, he 

handed Mr. Daniels a gun (which Mr. Gibson denies).

{¶7} While Mr. Daniels continued to linger outside, Mr. Jones, driving the 

same car as earlier in the day, pulled around the corner and drove toward him. Mr. 

Jones began shooting from the driver’s side and Mr. Cooper shot from the passenger 

side while leaning over the car’s roof. Mr. Daniels shot back, apparently striking a 

back window of the car as it drove off. Luckily, no one was harmed during this shootout. Mr. Gunn also witnessed the drive-by shooting, but immediately left the scene to 

avoid police because he had drugs in his car. When Mr. Gunn returned to the duplex, 
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he overheard Mr. Gibson, Mr. Daniels, and others discussing the drive-by shooting. 

Monquantis Castille, who lived one street up from the duplex, also witnessed the driveby. And in 2017, during an interview with the police, Mr. Jones admitted to 

committing the initial drive-by shooting. 

{¶8} After the drive-by, Mr. Daniels allegedly asked Mr. Gibson if they should 

follow Mr. Jones and Mr. Cooper, to which he agreed. Mr. Gibson asked Mr. Daniels 

to drive his car, a gray Nissan Maxima, and both men jumped in the car, armed. Mr. 

Gunn and Mr. Castille both testified that they witnessed Mr. Daniels and Mr. Gibson 

driving off in the Maxima. Mr. Gibson, however, maintains that he went inside his 

home before the drive-by shooting, then later went to a nearby location to purchase 

marijuana, and returned to his home to spend the remainder of the evening inside his 

apartment, alone. 

{¶9} According to Mr. Daniels’s account, he and Mr. Gibson followed the car 

to an apartment in Winton Terrace and saw Mr. Cooper wander outside. Mr. Cooper 

hopped into the front passenger seat of a red Chevrolet Avalanche with another person 

and they drove off. Mr. Daniels followed them to Reading Road under the overpass of 

the Norwood Lateral. He pulled up alongside the car and Mr. Gibson, who had jumped 

in the backseat, opened fire. Mr. Daniels claimed that Mr. Gibson ordered him to fire 

as well. Mr. Daniels rolled down the window, and, holding his gun in his right hand, 

shot over his left hand that was on the steering wheel. Mr. Daniels estimated that he 

fired three shots at Mr. Cooper. But unbeknownst to Mr. Daniels, his cousin, 24-year 

old Iesha Williams (also the daughter of Mr. Gunn) was driving the Avalanche. She 

was shot in the right side of her back. 
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{¶10} The Avalanche continued for a short distance and then struck the back 

of a Metro Access bus. Mr. Cooper, unscathed, immediately fled from the scene on 

foot. Mr. Daniels drove back to his neighborhood. At the crime scene, investigators 

located shell casings from two guns. 

{¶11} When gathering information about suspects, police interviewed Terea 

Brown, who lived with Ms. Williams and her children. Ms. Brown knew that Ms. 

Williams was dating a man but did not know his name. On January 14, 2016, Ms. 

Brown lent her Chevrolet Avalanche to Ms. Williams so she could run some errands. 

Later that day, Ms. Brown received a call from Ms. Williams’s cell phone and learned 

that she had been in an accident. Ms. Brown rushed to the crash site, and later, to the 

hospital. While there, Ms. Brown learned that Ms. Williams’s boyfriend had been in 

the accident with her. When questioned by Detective Carl Blackwell, the initial 

investigator on the case, Ms. Brown identified Mr. Cooper as Ms. Williams’s boyfriend 

in a photo lineup. 

{¶12} Detective Blackwell zeroed in on Mr. Daniels as a suspect, and also 

spoke with Mr. Gunn, who identified Mr. Gibson as a potential suspect. When first 

questioned by the police, Mr. Daniels denied his involvement in the second shooting, 

but ultimately, he admitted his culpability.

{¶13} Ten days after the shooting, Ms. Williams died and Homicide Detective 

Keith Witherell took over the case. Detective Witherell spoke with Detective Blackwell 

about his investigation, and he also spoke with Ms. Brown and learned of the 

connection between Mr. Cooper and Mr. Jones. 

{¶14} From interviews with Mr. Gunn and Mr. Castille, Detective Witherell 

learned information that corroborated Mr. Gunn’s statements. However, the 
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investigation progressed slowly as many members of the community were unwilling 

to come forward and speak with police, nor were they forthcoming when questioned. 

Roughly a month after his first interview, Mr. Castille gave an abbreviated statement 

before a grand jury, memorializing his testimony under oath.

{¶15} About a year after the shooting (in February 2017), police arrested Mr. 

Gibson in connection with the murder. Detective Witherell interviewed Mr. Gibson 

and recorded the interview. Mr. Gibson denied any involvement in Ms. Williams’s

death but acknowledged his presence during the drive-by shooting that occurred after 

the robbery of Mr. Daniels. He stated that he saw a knot on Mr. Daniels’s forehead 

consistent with a pistol-whip injury. Mr. Gibson steadfastly maintained his innocence. 

{¶16} In March 2019, the state indicted Mr. Gibson and Mr. Daniels in 

connection with the 2016 death of Iesha Williams. Mr. Gibson was charged with 

aggravated murder, murder, and felony murder in the death of Ms. Williams and three 

counts of felonious assault against Ms. Williams and Mr. Cooper, all with firearm 

specifications, as well as two counts of having weapons while under disability. During 

his trial nearly three years later, Mr. Gibson waived a jury, and following a three-week 

bench trial, the trial court acquitted Mr. Gibson of aggravated murder but rendered 

guilty verdicts on the remaining charges. The court merged allied offenses and certain 

specifications for sentencing purposes, and imposed consecutive sentences for murder 

and felonious assault. The court ultimately imposed an aggregate prison term of 37 

years to life. 

{¶17} Mr. Gibson timely appealed, raising five assignments of error. 
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II.

{¶18} In his first assignment of error, Mr. Gibson asserts that the trial court 

erred in failing to order the state to relinquish the grand jury testimony of Mr. Castille, 

one of the witnesses who claimed to have seen Mr. Gibson and Mr. Daniels drive off 

together before the shooting of Ms. Williams. According to Mr. Gibson, Mr. Castille’s 

sworn statement before the grand jury was discoverable pursuant to Crim.R. 16(B)(7). 

The statement, Mr. Gibson posits, was made for investigative purposes and therefore 

should not be shrouded by the secrecy typically afforded to grand jury proceedings 

under R.C. Chapter 2939 and Crim.R. 6. 

{¶19} At the outset, the parties debate whether Mr. Gibson preserved his

Crim.R. 16(B)(7) argument because trial counsel did not expressly raise this argument 

at the trial level. But this court may consider any issue implicit in another issue that 

counsel raised below and features on direct appeal. See Snyder v. Lawrence, 7th Dist. 

Carroll No. 19 CA 0938, 2020-Ohio-3358, ¶ 28, quoting Belvedere Condominium Unit 

Owners’ Assn. v. R.C. Roark Cos., Inc., 67 Ohio St.3d 274, 279, 617 N.E.2d 1075 (1993) 

(“ ‘When an issue of law that was not argued below is implicit in another issue that was 

argued and is presented by an appeal, [the appellate court] may consider and resolve 

that implicit issue.’ ”). Trial counsel in this case did seek disclosure of Mr. Castille’s 

testimony at trial, and the argument on appeal is intertwined with the disclosure issues

raised at the trial level. Finding the matter sufficiently preserved, we proceed to 

review the merits of whether the trial court erred in refusing to order the state to turn 

over Mr. Castille’s grand jury statement pursuant to Crim.R. 16(B)(7). 

{¶20} In criminal cases, due process requires that the accused be afforded a 

meaningful opportunity to present a complete defense. See State v. Hale, 119 Ohio 
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St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 46; California v. Trombetta, 467 U.S. 

479, 485, 104 S.Ct. 2528, 81 L.E.2d 413 (1984). With respect to access to prior witness 

testimony specifically, the law draws a distinction between prior statements of a 

witness in general and prior statements of a witness before a grand jury. See State v. 

Greer, 66 Ohio St.2d 139, 149, 420 N.E.2d 982 (1981). Pursuant to Crim.R. 16, prior 

witness statements outside of the grand jury context are subject to discovery. Crim.R. 

16(B)(7) (“Upon receipt of a written demand for discovery by the defendant, * * * the 

prosecuting attorney shall provide * * * the following items[:] * * * Any written or 

recorded statement by a witness in the state’s case-in-chief[.]”). But, as discussed in 

greater detail in our review of the second and third assignments of error, Crim.R. 6 

generally governs witnesses’ statements before a grand jury, providing for much more 

limited discovery. In general, we review trial court decisions pertaining to discovery 

matters for an abuse of discretion. Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 

181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13.

{¶21} Here, Mr. Gibson insists that Mr. Castille’s testimony before the grand 

jury was a façade to “shield” his testimony from being turned over to the defense—and 

thus it should not be considered grand jury testimony. To reach this conclusion, Mr. 

Gibson refers us to a distinction drawn by the state at trial. The prosecutor explained 

that, in order for something to be “presented” to the grand jury, the grand jury must 

ultimately vote on whether to issue an indictment. This can be differentiated from 

situations—like Mr. Castille’s—in which witnesses testify in front of a grand jury to 

lock in their testimony under oath without an ensuing grand jury vote. Mr. Gibson 

maintains that, because Mr. Castille’s testimony before the grand jury falls within the 

latter category, it is not subject to traditional rules governing the discoverability of 
OHIO FIRST DISTRICT COURT OF APPEALS

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grand jury testimony (including Crim.R. 6). But Mr. Gibson does not point us toward 

any governing case law or other authority indicating that, when a witness testifies 

before a grand jury that does not directly lead to a vote for an indictment, it necessarily 

removes this testimony from the ambit of Crim.R. 6. Because Mr. Gibson fails to

establish that Mr. Castille’s testimony should be treated as a “written or recorded 

statement by a witness” pursuant to Crim.R. 16(B)(7), it falls within the scope of 

Crim.R. 6. See State v. O’Leary, 12th Dist. Butler No. CA2013-01-009, 2013-Ohio5670, ¶ 31 (“Crim.R. 16(J)(2) specifically enumerates that transcripts of grand jury 

testimony are * * * governed by Crim.R. 6.”). And we consider the discoverability of 

Mr. Castille’s grand jury testimony under Crim.R. 6 in our review of Mr. Gibson’s 

second assignment of error. 

{¶22} Even if Mr. Gibson could establish that Mr. Castille’s grand jury 

testimony was subject to disclosure pursuant to Crim.R. 16, as explained in further 

detail below, the trial court’s failure to order disclosure amounts to harmless error. 

Mr. Gibson sought Mr. Castille’s testimony to impeach his credibility. Specifically, he 

explained that he hoped to obtain Mr. Castille’s grand jury testimony in order to 

establish that Mr. Castille was released from River City (a mandated rehabilitation 

program) in exchange for his testimony. But Mr. Gibson had the opportunity to 

explore Mr. Castille’s potential motive to lie at trial, and he received access to the date 

of his release from River City in order to bolster this argument. Therefore, the trial 

court’s failure to order disclosure of the grand jury testimony did not prejudice Mr. 

Gibson and the error, if any, was harmless. 

{¶23} We accordingly overrule Mr. Gibson’s first assignment of error. 
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III.

{¶24} In his second assignment of error, Mr. Gibson claims that the trial court 

erred in refusing to conduct an in camera review and in refusing to order disclosure of 

the grand jury testimony of Mr. Castille and Mr. Gunn upon defense counsel’s showing 

of particularized need. The state responds that defense did not demonstrate a 

particularized need for either witness’s testimony.

{¶25} Crim.R. 6(E) provides, in pertinent part: 

Secrecy of proceedings and disclosure. Deliberations of the grand 

jury and the vote of any grand juror shall not be disclosed. * * * A grand 

juror, prosecuting attorney, interpreter, court reporter, or typist who 

transcribes recorded testimony, may disclose other matters occurring 

before the grand jury, only when so directed by the court preliminary to 

or in connection with a judicial proceeding, or when permitted by the 

court at the request of the defendant upon a showing that grounds may 

exist for a motion to dismiss the indictment because of matters 

occurring before the grand jury. 

Due to the secret nature of grand jury proceedings, “ ‘an accused is not entitled to 

inspect grand jury transcripts either before or during trial unless the ends of justice 

require it and there is a showing by the defense that a particularized need for 

disclosure exists which outweighs the need for secrecy.’ ” State v. Littlepage, 1st Dist. 

Hamilton Nos. C-170207 and C-170157, 2018-Ohio-2959, ¶ 15, quoting Greer, 66 Ohio 

St.2d 139, 420 N.E.2d 982, at paragraph two of the syllabus. “The showing of 

‘particularized need’ is a threshold requirement[.]” State v. Curran, 2d Dist. Clark No. 
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2005 CA 21, 2006-Ohio-774, ¶ 10. “A particularized need is established ‘when the 

circumstances reveal a probability that the failure to provide the grand jury testimony 

will deny the [movant] a fair trial.’ ” State v. Gillispie, 2021-Ohio-4157, 181 N.E.3d 

614, ¶ 6 (2d Dist.), quoting State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 

172 N.E.3d 841, ¶ 25, and State v. Sellards, 17 Ohio St.3d 169, 173, 478 N.E.2d 781 

(1985). 

{¶26} Following the showing of particularized need, the trial court “shall 

examine the grand jury transcript in camera and give to defense counsel those portions 

of the transcript relevant to the state’s witness’ testimony at trial, subject to the trial 

court’s deletion of extraneous matter[.]” State v. Horger, 170 Ohio App.3d 383, 2007-

Ohio-665, 867 N.E.2d 466, ¶ 11 (5th Dist.). And “[t]he decision whether to release 

grand jury testimony is within the discretion of the trial court and will not be reversed 

absent an abuse of discretion.” O’Leary, 12th Dist. Butler No. CA2013-01-009, 2013-

Ohio-5670, at ¶ 30, citing State v. Coley, 93 Ohio St.3d 253, 261, 754 N.E.2d 1129

(2001). 

{¶27} Mr. Gibson maintains that he demonstrated particularized need for Mr. 

Castille’s grand jury testimony because of evidence indicating that he had motive to 

fabricate Mr. Gibson’s involvement in the shooting to secure his own release from a 

mandated rehabilitation program. However, defense had—and took—the opportunity 

to question Mr. Castille about the alleged inconsistencies in his testimony and his 

potential motive to lie. Moreover, while the trial court did not find that the defense 

demonstrated sufficient particularized need for the grand jury transcript, it did 

conclude that the defense advanced sufficient particularized need to know the exact 

date of Mr. Castille’s testimony before the grand jury in order to advance the defense’s
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argument that this date may have coincided with his release from the mandated 

rehabilitation program. Armed with that knowledge, counsel utilized the opportunity 

to attack Mr. Castille’s credibility during closing argument. 

{¶28} The trial court was well aware of Mr. Castille’s potential motive to lie, so 

we cannot conclude that Mr. Gibson established particularized need by explaining that 

he needed the grand jury testimony to further poke holes in Mr. Castille’s credibility. 

On this record, Mr. Gibson was not denied a “fair trial” in the absence of this grand 

jury testimony, see Gillispie, 2021-Ohio-4157, 181 N.E.3d 614, at ¶ 6, so the trial court 

did not abuse its discretion in this instance when it refused to conduct an in camera 

review or order disclosure of the testimony. 

{¶29} In a similar vein, Mr. Gibson contends that he demonstrated 

particularized need for Mr. Gunn’s grand jury testimony because stricken testimony 

at trial hinted that he had relayed a story to the grand jury of a purported “apology” by 

Mr. Gibson for the murder. Because the disputed statement arose in a “situation that’s 

not discoverable,” according to the state, the trial court struck those portions of Mr. 

Gunn’s testimony relating to the alleged apology. Defense counsel (and now Mr. 

Gibson, on appeal) speculated that Mr. Gunn shared the “apology” story while 

testifying before the grand jury. According to Mr. Gibson, the record establishes that 

the “apology” could not have occurred given his incarceration at the time he 

purportedly delivered it—and thus, pulling that card out causes the whole house 

supporting the indictment to collapse. Also, Mr. Gibson notes, Mr. Gunn had a motive 

to lie in light of his arrest on a number of felony drug charges shortly after his 

daughter’s shooting. Again, Mr. Gibson maintains that, at minimum, these 

circumstances required the trial court to conduct an in camera review of the testimony.
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{¶30} Nevertheless, the trial court considered the potential weaknesses and 

inconsistences in Mr. Gunn’s testimony with respect to the purported apology. Trial 

counsel presented a certified copy of the record of Mr. Gibson’s incarceration during 

the time period in which Mr. Gunn claimed the apology occurred. And because all 

statements at trial regarding this alleged apology were stricken from the record, they 

did not bear on Mr. Gibson’s ultimate convictions. Moreover, defense counsel 

thoroughly cross-examined Mr. Gunn on his motive to lie due to his felony drug 

charges, and the trial court understood that Mr. Gunn was the victim’s father and a 

relative of Mr. Daniels. Because defense counsel fully explored Mr. Gunn’s potential 

biases, motive to lie at trial, and the inconsistencies in his testimony—and these were 

the exact reasons counsel sought Mr. Gunn’s grand jury testimony—the trial court did 

not abuse its discretion when it determined that Mr. Gibson failed to establish

sufficient particularized need for an in camera review or disclosure of said testimony. 

{¶31} Accordingly, we overrule Mr. Gibson’s second assignment of error. 

IV.

{¶32} In his third assignment of error, Mr. Gibson argues that the trial court 

erred in denying defense counsel’s request to admit the grand jury testimony of Mr. 

Castille and Mr. Gunn under seal as a court exhibit for purposes of appeal. 

{¶33} Under Evid.R. 103(A)(2), a party is entitled to make an offer of proof, or

a “proffer,” of evidence when a court excludes the evidence. “The purpose of a proffer 

is to assist the reviewing court in determining, pursuant to Evid.R. 103, whether the 

trial court’s exclusion of evidence affected a substantial right of the appellant.” In re 

Walker, 162 Ohio App.3d 303, 2005-Ohio-3773, 833 N.E.2d 362, ¶ 37. 
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{¶34} The trial court here ruled that a proffer of Mr. Gunn’s and Mr. Castille’s 

grand jury testimonies was not warranted because the defense had not met the 

standard for the court to conduct an in camera review. 

{¶35} While appellate courts recognize that it is generally error for a trial court 

to deny a defendant’s request to proffer evidence for purposes of appellate review, see 

State v. Williams, 4th Dist. Scioto No. 11CA3408, 2012-Ohio-4693, ¶ 65, fn. 6, and

State v. Lominack, 5th Dist. Stark No. 2012CA00213, 2013-Ohio-2678, ¶ 77-79, here, 

the stated purpose of the proffer was to help this court determine whether the trial 

court erred in refusing to order disclosure of the grand jury testimony. As explained 

in the foregoing assignments of error, based on the record at hand, we have sufficient 

information to conclude that the trial court did not err in this respect. Review of the 

grand jury testimony, on this record, would not inform our determination of whether 

the defendant established particularized need under Crim.R. 6(E), and therefore 

would not assist this court in “determining * * * whether the trial court’s exclusion of 

[the grand jury testimonies] affected a substantial right of the appellant.” See In re 

Walker at ¶ 37; see also State v. Brown, 6th Dist. Lucas No. L-82-297, 1983 Ohio App. 

LEXIS 11972 (Sept. 16, 1983) (determining that defendant did not demonstrate the 

requisite particularized need based on the information that defense counsel had access 

to at trial and not on the contents of the testimony itself). 

{¶36} Therefore, we overrule the third assignment of error.

V.

{¶37} In his fourth assignment of error, Mr. Gibson argues that his convictions 

for purposeful murder, felony murder, felonious assault, and having weapons while 

under disability were not supported by legally sufficient evidence and are therefore 
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contrary to law. He also argues that his convictions were against the manifest weight 

of the evidence. We address the two claims together for convenience’s sake.

{¶38} To determine the sufficiency of the evidence to support a criminal 

conviction, we consider whether, after viewing the evidence in the light most favorable 

to the state, any reasonable trier of fact could have found all the essential elements of 

the offense proven beyond a reasonable doubt. State v. MacDonald, 1st Dist. 

Hamilton No. C-180310, 2019-Ohio-3595, ¶ 12, quoting State v. Martin, 20 Ohio 

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). We review sufficiency determinations 

de novo, State v. Dent, 163 Ohio St.3d 390, 2020-Ohio-6670, 170 N.E.3d 816, ¶ 15, 

and we must not weigh the evidence. MacDonald at ¶ 12. When the evidence is 

subject to more than one possible interpretation, we must adopt the interpretation 

consistent with the trial court’s judgment. In re J.C., 1st Dist. Hamilton No. C-180493, 

2019-Ohio-4027, ¶ 20.

{¶39} With respect to a manifest weight of the evidence challenge, we must

consider whether the state “carried its burden of persuasion” before the trial 

court. State v. Messenger, Slip Opinion No. 2022-Ohio-4562, ¶ 26; see State v. 

Martin, Slip Opinion No. 2022-Ohio-4175, ¶ 26. Unlike the burden of production, 

which concerns a party’s duty to introduce enough evidence on an issue, the burden of 

persuasion represents a party’s duty to convince the factfinder to view the facts in his 

or her favor. Messenger at ¶ 17. Therefore, in order for us to conclude that the 

factfinder’s adjudication of conflicting evidence ran counter to the manifest weight of 

the evidence—which we reserve for only the most exceptional circumstances—we must 

find that the factfinder disregarded or overlooked compelling evidence that weighed 
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against conviction. State v. Thompkins, 78 Ohio St.3d 380, 387, 388, 678 N.E.2d 541 

(1997). We accordingly sit as a “thirteenth juror” in this respect. Id. 

{¶40} Mr. Gibson begins by attacking the credibility of Mr. Castille, who, 

according to Mr. Gibson, served as a “source of information” for the Cincinnati police

and secured release from his mandated treatment program in exchange for his 

cooperation and testimony. Mr. Gibson also draws connections between Mr. Castille 

and Mr. Daniels. However, as discussed earlier, Mr. Castille’s potential motive to lie

and bias toward Mr. Daniels was presented at trial in cross-examination on all of these 

topics, with defense counsel characterizing this testimony as dishonest. The trial court

had the opportunity to learn Mr. Castille’s potential bias and motive to lie, and it sat

in the best position to assess the credibility of Mr. Castille and the other witnesses with 

the benefit of this perspective. 

{¶41} Mr. Gibson proceeds to attempt to discredit Mr. Gunn—the father of 

victim Ms. Williams—also allegedly a “source of information” for police. He seizes on

various inconsistencies in Mr. Gunn’s testimony, as well as suspicious circumstances 

under which he stepped forward with his story implicating Mr. Gibson. Again, 

however, defense counsel peppered Mr. Gunn on cross-examined on these matters. 

And the trial court knew of his relationship to the victim and to Mr. Daniels. 

{¶42} Finally, Mr. Gibson calls into question the testimony of his codefendant, Mr. Daniels. Mr. Daniels’s testimony was the only evidence placing Mr. 

Gibson at the scene of the shooting of Ms. Williams in the Avalanche. And Mr. Daniels 

possessed a clear motive to shift the blame of killing his cousin to Mr. Gibson. Mr. 

Daniels was also told during a police interview that the charges against him might be 

lessened, and he acknowledged that, to some extent, he was under the impression that 
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it depended on how the state felt about his testimony. But just as trial counsel had the 

opportunity to ably cross-examine Mr. Gunn and Mr. Castille on their potential biases 

and motives to lie, so too did counsel highlight these considerations with respect to 

Mr. Daniels.

{¶43} While Mr. Castille, Mr. Gunn, and Mr. Daniels certainly possessed 

varying biases and motives to fabricate their testimonies, and do not appear to be 

model witnesses, we cannot say that no rational trier of fact would have found the 

essential elements of Mr. Gibson’s offenses beyond a reasonable doubt. Three 

witnesses, with somewhat consistent narratives, placed Mr. Gibson in the car before 

or during the shooting. And police found casings from two guns at the scene of the 

crime, suggesting the involvement of two perpetrators. While we appreciate that these

convictions stem from witnesses of varying credibility and without physical evidence

implicating Mr. Gibson, this is not the exceptional case in which the evidence weighs 

heavily against the convictions. Despite the unreliability of Mr. Castille, Mr. Gunn, 

and Mr. Daniels, Ohio law is clear that “ ‘[an adjudication] is not against the manifest 

weight of the evidence simply because the trier of fact believed the prosecution 

testimony.’ ” In re A.K., 1st Dist. Hamilton No. C-210178, 2021-Ohio-4199, ¶ 26, 

quoting State v. Robinson, 12th Dist. Butler No. CA2018-08-163, 2019-Ohio-3144, 

¶ 29. 

{¶44} Accordingly, we overrule Mr. Gibson’s fourth assignment of error. 

VI.

{¶45} In his fifth and final assignment of error, Mr. Gibson insists that the trial 

court erred in sentencing him. According to Mr. Gibson, the trial court imposed a 
OHIO FIRST DISTRICT COURT OF APPEALS

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sentence that was contrary to law when it ordered him to serve a consecutive term on 

the five-year firearm specification attached to count 12, the felonious assault charge 

pertaining to Mr. Cooper. The state agrees that Mr. Gibson’s sentence should be 

reduced by five years for an aggregate sentence of 32 years to life. 

{¶46} Counts 8 and 12 were accompanied by three firearm specifications each: 

a five-year drive-by specification under R.C. 2941.146(A); a one-year possession 

specification under R.C. 2941.141(A); and a three-year facilitation specification under 

R.C. 2941.145(A). For each count, the court merged the one-year possession 

specification with the three-year facilitation specification. The court then imposed 

consecutive terms on all the five-year drive-by and three-year facilitation 

specifications for a grand total of 16 additional years of imprisonment on 

specifications alone. Defense counsel objected to the sentences on the firearm 

specifications as contrary to law.

{¶47} R.C. 2953.08(G)(2) provides that an appellate court may increase, 

reduce, modify, or vacate and remand a challenged felony sentence if the sentence is 

“clearly and convincingly unsupported by the record or otherwise contrary to law.” 

State v. Freeman, 1st Dist. Hamilton No. C-190090, 2018-Ohio-4973, ¶ 6.

{¶48} Here, although both R.C. 2929.14(B)(1)(a) and (b) contain language 

stating that a trial court may only impose prison terms for one five-year specification 

and one three-year specification if there are multiple offenses committed in a single 

criminal transaction, R.C. 2929.14(B)(1)(g) provides an exception stating that if one of 

the offenses is a murder or felonious assault, the trial court is required to impose

prison terms for the two most serious specifications. See State v. Sheffey, 8th Dist. 
OHIO FIRST DISTRICT COURT OF APPEALS

19

Cuyahoga No. 98944, 2013-Ohio-2463, ¶ 28; State v. Howard, 2d Dist. Montgomery 

No. 28314, 2020-Ohio-3819, ¶ 91-97. 

{¶49} Therefore, for count 8, for purposeful murder, the trial court was correct 

to impose consecutive terms on both the five-year drive-by and three-year facilitation 

specifications. For count 12, however, for felonious assault pertaining to Mr. Cooper, 

the consecutive term on the three-year facilitation specification was proper whereas 

the consecutive term on the five-year drive-by specification was not. Mr. Gibson’s 

aggregate sentence of 37 years to life should be reduced by five years for an aggregate 

term of 32 years to life. 

{¶50} We therefore sustain Mr. Gibson’s fifth assignment of error.

* * *

{¶51} In light of the foregoing analysis, we overrule Mr. Gibson’s first four 

assignments of error. But we sustain his fifth assignment of error, reversing the trial 

court’s judgment in part and remanding the cause for the limited purpose of reducing 

Mr. Gibson’s aggregate sentence in compliance with R.C. 2929.14(B)(1)(a),(b), and (g). 

The trial court’s judgment is affirmed in all other respects. 

Judgment affirmed in part, reversed in part, and cause remanded.

ZAYAS, P.J., andWINKLER, J., concur.

Please note:

The court has recorded its entry on the date of the release of this opinion.