[Cite as State v. Walton, 2012-Ohio-2597.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsCORTNEY L. WALTON 

 Defendant-Appellant 

JUDGES: 

Hon. Patricia A. Delaney, P. J. 

Hon. John W. Wise, J. 

Hon. Julie A. Edwards, J. 

Case No. 2011 CA 00214 

O P I N I O N 

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common 

Pleas, Case No. 2011 CR 00918 

JUDGMENT: Affirmed in Part; Reversed in Part and 

Remanded 

DATE OF JUDGMENT ENTRY: June 11, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN D. FERRERO DEREK LOWRY 

PROSECUTING ATTORNEY 116 Cleveland Avenue NW 

KATHLEEN O. TATARSKY 800 Courtyard Centre 

ASSISTANT PROSECUTOR Canton, Ohio 44702 

110 Central Plaza South, Suite 510 

Canton, Ohio 44702-1413 
Stark County, Case No. 2011 CA 00214 2

Wise, J. 

{¶1} Appellant Cortney L. Walton appeals his convictions, in the Court of 

Common Pleas, Stark County, for murder and improper discharge of a firearm into a 

habitation. Appellee is the State of Ohio. The relevant facts leading to this appeal are as 

follows. 

{¶2} On the night of April 26, 2011, Diamond Singleton, age sixteen, was 

visiting the apartment of Brittany Nickol at 818 Shorb Avenue NW in Canton. Kasey 

Stone and her preschool-age son were also visiting. At the time, Nickol, the lessee of 

the apartment, was dating Appellant Walton. As Singleton sat in the apartment eating 

her dinner, several bullets flew through the living room. One of them struck Singleton in 

the chest. 

{¶3} Canton Police Officer Gary Premier and his partner, Officer Rastetter, who 

were proceeding to another incident about five blocks north of 818 Shorb, immediately 

responded to a “shots fired” call. Sergeant Scott Prince also responded to the scene. 

The apparent shooter was gone. The officers tried to keep Singleton calm until 

paramedics arrived. Singleton was thereupon transported to Aultman Hospital, but she 

subsequently died as a result of her gunshot wound. 

{¶4} Law enforcement investigators determined that at least five spent bullets 

had entered the Nickol apartment. The five that were analyzed were determined to have 

come from a 9 millimeter High Point pistol. Police were unable to find any shell casings 

near the house, and thus theorized that the incident had been a drive-by shooting. 

Investigators also found out that Nickol and appellant had argued earlier on the day of 

the shooting. Appellant had followed Nickol down the street, calling her names. Shortly 
Stark County, Case No. 2011 CA 00214 3

thereafter, some men sitting on a porch near Ninth and Shorb had intervened and 

“jumped” appellant. Appellant had subsequently gone to see his friend Carlos Jackson, 

at which time appellant threatened in Jackson’s presence to “wet the block up.” Later 

that day, shortly before dusk, appellant, in reference to Nickol, had also told a neighbor, 

Larry Blair: “I should shake this bitch up.” 

{¶5} Following further investigation, appellant was indicted on one count of 

murder, R.C. 2903.02(B) and one count of improperly discharging a weapon into a 

habitation R.C. 2923.161(A)(1). The matter proceeded to a three-day jury trial held on 

September 6, 7, and 8, 2011. Following the presentation of evidence, appellant was 

found guilty on both counts, as well as corresponding firearm specifications. Appellant 

was sentenced to fifteen years to life in prison on the count of murder, eight years on 

the count of discharging a firearm into a habitation,1 and an additional three years on 

the firearm specifications, which were merged for sentencing. Appellant's total sentence 

was thus twenty-six years to life in prison. 

{¶6} Appellant filed a notice of appeal on September 26, 2011. He herein 

raises the following four Assignments of Error: 

{¶7} “I. THE TRIAL COURT ERRED BY ADMITTING HEARSAY 

STATEMENTS IN VIOLATION OF THE APPELLANT'S SIXTH AMENDMENT RIGHT 

TO CONFRONT WITNESSES. 

{¶8} “II. THE TRIAL COURT ABUSED ITS DISCRETION BY GIVING AN 

INADEQUATE AND MISLEADING JURY INSTRUCTION. 

 

1

 A nunc pro tunc entry was filed on October 11, 2011, to correct the sentence for the 

count of discharging a firearm into a habitation to eight years rather than “eight years to 

life” as originally written. 
Stark County, Case No. 2011 CA 00214 4

{¶9} “III. THE TRIAL COURT ERRED IN NOT FINDING THE CHARGES OF 

MURDER AND DISCHARGING A FIREARM INTO A HABITATION TO BE ALLIED 

OFFENSES AND MERGING THESE COUNTS FOR SENTENCING. 

{¶10} “IV. THE TRIAL COURT'S FINDING OF GUILTY WAS AGAINST THE 

MANIFEST WEIGHT OF THE EVIDENCE AND WAS NOT SUPPORTED BY 

SUFFICIENT EVIDENCE.” 

I. 

{¶11} In his First Assignment of Error, appellant argues the trial court erred in 

admitting statements which were hearsay and/or in violation of his right to confront 

witnesses under the Sixth Amendment to the United States Constitution. We disagree. 

{¶12} Hearsay is “a statement, other than one made by the declarant while 

testifying at the trial or hearing, offered in evidence to prove the truth of the matter 

asserted.” Evid.R. 801(C). The admission or exclusion of evidence rests in the sound 

discretion of the trial court. State v. Sage (1987), 31 Ohio St.3d 173, 180. As a general 

rule, all relevant evidence is admissible. Evid.R. 402; cf. Evid.R. 802. Our task is to look 

at the totality of the circumstances in the case sub judice, and determine whether the 

trial court acted unreasonably, arbitrarily or unconscionably. State v. Oman (Feb. 14, 

2000), Stark App.No. 1999CA00027. 

{¶13} In regard to appellant’s claim of a confrontation violation, in Crawford v. 

Washington (2004), 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177, the United States 

Supreme Court held that under the Confrontation Clause, “testimonial” statements of a 

witness who does not appear at trial may not be admitted or used against a criminal 
Stark County, Case No. 2011 CA 00214 5

defendant unless the declarant is unavailable to testify and the defendant has had a 

prior opportunity for cross-examination. 

{¶14} Issues concerning the Confrontation Clause and established hearsay 

exceptions are separate and distinct considerations. State v. Love, Gallia App.No. 

10CA7, 2011-Ohio-4147, ¶23. “Although we have recognized that hearsay rules and the 

Confrontation Clause are generally designed to protect similar values, we have also 

been careful not to equate the Confrontation Clause's prohibitions with the general rule 

prohibiting the admission of hearsay statements. The Confrontation Clause, in other 

words, bars the admission of some evidence that would otherwise be admissible under 

an exception to the hearsay rule.” (Internal citations omitted.) Id., quoting Idaho v. 

Wright (1990), 497 U.S. 805, 814, 110 S.Ct. 3139, 111 L.Ed.2d 638. 

{¶15} In the case sub judice, appellant challenges the introduction, over defense 

objection and motion in limine, of a hearsay statement made by the now-deceased 

victim, Diamond Singleton, which Brittany Nickol repeated in a taped telephone 

conversation between Nickol and appellant after the shooting, which was played for the 

jury. In the taped phone call, Nickol tells appellant that Singleton told her about 

appellant’s threats made in another call earlier: “You got 10 minutes or I’m wettin’ your 

house up. You told Diamond that. She told me.” 

{¶16} Diamond Singleton’s repeated comment indeed appears to be hearsay, 

and even though she falls under the category of an unavailable declarant, we are 

unable to find that any of the hearsay exceptions under Evid.R. 803 or 804 would apply 

to her statement. However, even where we conclude the challenged comment was 

hearsay, the issue on appeal becomes whether appellant was prejudiced by the 
Stark County, Case No. 2011 CA 00214 6

testimony, as error in admitting hearsay does not justify reversal where it is harmless. 

See, e.g., State v. Loch, Franklin App.No. 02-AP-1065, 2003-Ohio-4701, ¶ 13, citing 

State v. Carter (1995), 72 Ohio St.3d 545, 550, 651 N.E.2d 965. See, also, 

Westinghouse Elect. Corp. v. Dolly Madison Leasing & Furniture Corp. (1975), 42 Ohio 

St.2d 122, 326 N.E.2d 651. In the case sub judice, the trial court gave the jury a limiting 

instruction that the call could only be considered for purposes of showing how appellant 

reacted to Nickol’s accusation (see our discussion as to appellant’s second assigned 

error, infra.) Furthermore, the record reveals that Singleton’s statement about appellant 

threatening to shoot the house was properly admitted later in the trial by the testimony 

of Carlos Jackson, who heard appellant say it over the phone in his presence. Tr. at 

379. As such, we find Singleton’s hearsay statement to be cumulative evidence and 

therefore harmless under the facts and circumstances of this case. 

{¶17} Finally, in regard to the issue of the Confrontation Clause, Crawford only 

applies if the out-of-court statements are “testimonial,” which have been generally 

defined as “statements made during a police investigation or court proceedings” or 

statements that were “made under circumstances that would lead a reasonable person 

to conclude that such statements would later be available for use at trial ***.” State v. 

Douglas, Marion App.No. 9-05-24, 2005-Ohio-6304, ¶44. The record does not support 

the conclusion that Singleton’s statement to Nickol meet this definition. Accordingly, we 

find appellant’s claim of a Confrontation Clause violation to be without merit. 

{¶18} Accordingly, appellant's First Assignment of Error is overruled. 

 
Stark County, Case No. 2011 CA 00214 7

II. 

{¶19} In his Second Assignment of Error, appellant contends the trial court 

committed reversible error in giving a jury instruction concerning the contents of a taped 

telephone call heard by the jury. We disagree. 

{¶20} As noted previously, the State introduced a recorded telephone call, 

arranged with the assistance of a detective with the Canton Police Department, 

between appellant and Brittany Nickol. In the recorded call, Nickol repeated statements 

she said she had heard from the victim, Diamond Singleton, concerning threats made 

by appellant. Part of the conversation between appellant and Nickol was recorded as 

follows: 

{¶21} “Nickol: Bitch you called me talkin’ crazy. You called and talked to 

Diamond and told Diamond I had 10 minutes to be in the alley or you was wettin’ my 

house up. And then the next thing I know a couple hours later I’m across the street... 

{¶22} “Walton: It wasn’t me. 

{¶23} “”*** 

{¶24} “Nickol: It wasn’t you but you called me. You called me and told me 

that. 

{¶25} “Walton: It wasn’t me. 

{¶26} “Nickol: You got 10 minutes or I’m wettin’ your house up. You told 

Diamond that. She told me. 

{¶27} “*** 

{¶28} “Nickol: So explain to me how somebody shoot up my house but 

coincidentally the same night, not even a few hours later, you tell me, right? You tell my 
Stark County, Case No. 2011 CA 00214 8

sister, you ain’t even tell me. You told Diamond like I, she got 10 minutes to be in the 

alley or I’m wetting’ that bitch up. 

{¶29} “Walton: I don’t know nothin’ about that. 

{¶30} “***”. 

{¶31} State’s Exhibit 14. 

{¶32} Appellant presently challenges the following instructions, which were given 

after the jury heard the recorded call: 

{¶33} “As part of this phone call, the Court by way of the pretrial discovery where 

the parties exchanged the various pieces of evidence, I have had the opportunity to 

review the phone call that you’re going to hear. 

{¶34} “And on part of that conversation there are some statements made by the 

witness who’s on the stand now, by Ms. Nickol, to an individual who she identifies as 

Mr. Walton about a previous phone call that had been made to Diamond Singleton on 

the evening in question. 

{¶35} “And it’s my finding that these are her allegations to him that you made 

this phone call and you said certain things, his response is back to that. 

{¶36} “The fact as to whether a phone call was made or not is relevant to this 

case. That may be a relevant piece of evidence, and his responses back to that may be 

relevant to the facts of this case. 

{¶37} “However, the fact that anyone claims that Diamond Singleton actually 

received the call and what was actually said on that call is not relevant because that’s 

hearsay, and therefore, you cannot accept this for the fact or to prove that Diamond 
Stark County, Case No. 2011 CA 00214 9

Singleton actually received such a call or that Diamond Singleton may have stated to 

someone afterwards what was said on that call. Those facts you may not accept. 

{¶38} “So you’re getting it for the limited purpose as to basically someone is 

saying to someone else you said this, you did this. That is relevant. Their response to 

that is relevant, but the fact is whether it actually occurred or not, that’s not why this is 

being provided to you and you may not accept it for that purpose. 

{¶39} “I know you need to think that through in your mind a little bit, but I think it 

will be apparent when you hear the call.” 

{¶40} Tr. at 292-293. 

{¶41} We note defense counsel did not object to the pertinent jury instructions 

as required by Crim.R. 30(A). However, under Crim.R. 52(B), “[p]lain errors or defects 

affecting substantial rights may be noticed although they were not brought to the 

attention of the court.” In State v. Cooperrider (1983), 4 Ohio St.3d 226, 448 N.E.2d 

452, the Ohio Supreme Court discussed the application of the plain error doctrine in the 

context of an allegedly erroneous jury instruction. The Court stated: “ * * * [A]n 

erroneous jury instruction ‘does not constitute a plain error or defect under Crim.R. 

52(B) unless, but for the error, the outcome of the trial clearly would have been 

otherwise.’ State v. Long (1978), 53 Ohio St.2d 91, 97, 372 N.E.2d 804. Additionally, 

the plain error rule is to be applied with utmost caution and invoked only under 

exceptional circumstances, in order to prevent a manifest miscarriage of justice.” Id. at 

227, 372 N.E.2d 804. 

{¶42} In the telephone call at issue, it is noteworthy that the jurors were able to 

hear appellant repeatedly deny any participation in the shooting. Appellant nonetheless 
Stark County, Case No. 2011 CA 00214 10

maintains that the court’s instruction was inconsistent with the details of the telephone 

call and actually misled the jury into thinking that appellant had admitted wrongdoing. 

See Appellant’s Brief at 10. However, upon review, we find that appellant has failed to 

demonstrate that the outcome of the trial clearly would have been otherwise, but for the 

alleged jury instruction error. As such, we find no demonstration of plain error under the 

circumstances presented. 

{¶43} Accordingly, appellant's Second Assignment of Error is overruled. 

III. 

{¶44} In his Third Assignment of Error, appellant argues the trial court erred in 

failing to find the charges of murder and improperly discharging a firearm at or into a 

habitation to be allied offenses of similar import. We agree. 

{¶45} R.C. 2941.25 reads as follows: 

{¶46} “(A) Where the same conduct by defendant can be construed to constitute 

two or more allied offenses of similar import, the indictment or information may contain 

counts for all such offenses, but the defendant may be convicted of only one. 

{¶47} “(B) Where the defendant's conduct constitutes two or more offenses of 

dissimilar import, or where his conduct results in two or more offenses of the same or 

similar kind committed separately or with a separate animus as to each, the indictment 

or information may contain counts for all such offenses, and the defendant may be 

convicted of all of them.” 

{¶48} For the first decade of the millennium, law interpreting R.C. 2941.25 was 

based on State v. Rance, 85 Ohio St.3d 632, 636, 710 N.E.2d 699, 1999–Ohio–291, 

wherein the Ohio Supreme Court had held that offenses are of similar import if the 
Stark County, Case No. 2011 CA 00214 11

offenses “correspond to such a degree that the commission of one crime will result in 

the commission of the other.” Id. The Rance court further held that courts should 

compare the statutory elements in the abstract. Id.

{¶49} However, the Ohio Supreme Court, in State v. Johnson, 128 Ohio St.3d 

153, 942 N.E.2d 1061, 2010–Ohio–6314, specifically overruled the 1999 Rance

decision. The Court held: “When determining whether two offenses are allied offenses 

of similar import subject to merger under R.C. 2941.25, the conduct of the accused 

must be considered.” Id., at the syllabus. As recited in State v. Nickel, Ottawa App.No. 

OT–10–004, 2011–Ohio–1550, ¶ 5, the new test in Johnson for determining whether 

offenses are subject to merger under R.C. 2921.25 is two-fold: “First, the court must 

determine whether the offenses are allied and of similar import. In so doing, the 

pertinent question is ‘whether it is possible to commit one offense and commit the other 

offense with the same conduct, not whether it is possible to commit one without

committing the other.’ (Emphasis sic.) Id. at ¶ 48. Second, ‘the court must determine 

whether the offenses were committed by the same conduct, i.e., “a single act, 

committed with a single state of mind.” ’ Id. at ¶ 49, quoting State v. Brown, 119 Ohio 

St.3d 447, 2008–Ohio–4569, ¶ 50 (Lanzinger, J., concurring in judgment). If both 

questions are answered in the affirmative, then the offenses are allied offenses of 

similar import and will be merged. Johnson, at ¶ 50.” 

{¶50} As an initial matter, we note the State herein maintains that appellant has 

waived any allied offense argument on appeal by failing to raise the issue when given 

opportunities to address the trial court both before and after the sentence was 

pronounced. However, it is generally recognized in Ohio that even where defense 
Stark County, Case No. 2011 CA 00214 12

counsel fails to challenge the trial court for its failure to merge, the imposition of multiple 

sentences for allied offenses of similar import constitutes plain error. See, e.g, State v. 

May, Lake App.No. 2010–L–131, 2011-Ohio-5233, ¶ 31, citing State v. Underwood, 124 

Ohio St.3d 365, 922 N.E.2d 923, 2010–Ohio–1, ¶ 31. 

{¶51} Appellant herein was convicted of murder under R.C. 2903.02(B), which 

reads as follows: 

{¶52} “(B) No person shall cause the death of another as a proximate result of 

the offender's committing or attempting to commit an offense of violence that is a felony 

of the first or second degree and that is not a violation of section 2903.03 or 2903.04 of 

the Revised Code.” 

{¶53} Appellant's murder charge was predicated on the underlying offense of 

improperly discharging a firearm at or into a habitation under R.C. 2923.161(A)(1), 

which charge was also the basis for Count II. Said statute states as follows: 

{¶54} “No person, without privilege to do so, shall knowingly *** [d]ischarge a 

firearm at or into an occupied structure that is a permanent or temporary habitation of 

any individual.” 

{¶55} In the case sub judice, the State does not dispute that the first question 

under Johnson, i.e., whether it is possible to commit one offense and commit the other 

offense with the same conduct, would be answered in the affirmative under the 

circumstances. See Appellee’s Brief at 21. 

{¶56} We thus proceed to an examination of the second question under 

Johnson. The State responds that the firing of the five rounds into the front door area of 

Nickol’s occupied apartment, and the resultant killing of Singleton by the impact of one 
Stark County, Case No. 2011 CA 00214 13

of those rounds, constituted two separate acts. However, we note that the State indicted 

appellant on a total of two counts in this instance, along with firearm specifications. The 

count of murder was expressly based on the theory that Singleton’s death was the 

proximate result of appellant’s underlying unlawful act of firing a gun into a habitation. 

While our conclusions would not necessarily apply to every conceivable scenario of a 

killing from a drive-by shooting into a house, under the circumstances of the case sub 

judice, we are persuaded that the act and animus of murder as charged herein under 

R.C. 2903.02(B) are inextricably part of the same conduct as the count of improper 

discharge of a weapon into a habitation under R.C. 2923.161(A)(1). 

{¶57} We therefore find the trial court committed reversible error in convicting 

and sentencing appellant on both of the aforesaid counts. 

{¶58} Accordingly, appellant's Third Assignment of Error is sustained. 

IV. 

{¶59} In his Fourth Assignment of Error, appellant contends his conviction for 

murder, based on the improper discharge of a firearm into a habitation, was not 

supported by sufficient evidence and was against the manifest weight of the evidence. 

We disagree.2

 

{¶60} In reviewing a claim of insufficient evidence, “[t]he relevant inquiry is 

whether, after viewing the evidence in a light most favorable to the prosecution, any 

rational trier of fact could have found the essential elements of the crime proven beyond 

a reasonable doubt.” State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d 492, 

paragraph two of the syllabus. 

 

2

 Based on our holding in regard to appellant’s third assigned error, we will herein focus 

on the more serious charge of murder. 
Stark County, Case No. 2011 CA 00214 14

{¶61} In the case sub judice, appellant does not dispute that a fatal shooting 

took place at 818 Shorb Avenue. Appellant further does not dispute he had been 

outside Brittany Nickol’s apartment earlier in the evening on the night of the shooting, 

and that the two of them frequently argued. He emphasizes, however, that no 

eyewitnesses as to the actual shooter or a getaway vehicle were presented at trial. He 

also points out that no search warrant was ever pursued as to appellant and his 

residence or belongings. 

{¶62} However, it is well-established in Ohio that circumstantial evidence has 

the same probative value as direct evidence. See, e.g., State v. Pryor, Stark App.No. 

2007CA00166, 2008–Ohio–1249, ¶ 34, citing State v. Jenks (1991), 61 Ohio St.3d 259, 

574 N.E .2d 492. The jury in this case was presented with evidence from three 

individuals, as further discussed infra, that appellant had either admitted to or 

threatened to shoot up Nickol’s residence as a means of retaliation for an earlier 

altercation and for appellant being “jumped” by some men in the neighborhood. 

Appellant’s friend Carlos Jackson saw appellant change into some darker clothing on 

the night of the shooting, and when Jackson later talked to him about the shooting, 

appellant said “it was an accident.” Tr. at 386. When first interviewed by law 

enforcement, appellant denied even knowing the victim, Singleton. After the shooting, 

appellant fled to Alabama, later turning himself in after a traffic stop. 

{¶63} Upon review of the aforesaid and the additional record before us, we find 

sufficient evidence, both circumstantial and in the form of appellant’s own admissions, 

existed for reasonable fact finders to convict on the charge of murder under R.C. 

2903.02(B). The conviction was thus supported by the sufficiency of the evidence. 
Stark County, Case No. 2011 CA 00214 15

{¶64} Our standard of review on a manifest weight challenge to a criminal 

conviction is stated as follows: “The court, reviewing 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 jury 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. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 

717. See also, State v. Thompkins (1997), 78 Ohio St.3d 380, 678 N.E.2d 541. The 

granting of a new trial “should be exercised only in the exceptional case in which the 

evidence weighs heavily against the conviction.” Martin at 175, 485 N.E.2d 717. 

{¶65} Appellant commences his manifest weight argument by pointing out 

certain discrepancies in the various witnesses’ testimony. He notes, for example, that 

Brittany Nickol and Kasey Stone portrayed different versions of the background of 

appellant’s relationship with Nickol. Stone recalled that Nickol was trying to end the 

relationship; Nickol denied that this was the case. Additionally, Stone described 

appellant as Nickol's boyfriend; Nickol stated it was only a sexual relationship. 

Additional evidence was adduced that Nickol was actually seeing another man, 

Riccardo Hunt, who lived nearby. Stone also stated that appellant “smacked” Nickol 

during the argument that preceded the shooting; Nickol instead recalled that appellant 

pushed her face away. Appellant also notes that Officer Premier, who was nearby when 

he heard the dispatch for shots fired, recalled hearing just two bursts of gunfire. See Tr. 

at 197. 

{¶66} Appellant also maintains that the State, in order to establish appellant as 

the shooter, relied upon the testimony of three witnesses with felony records – Larry 
Stark County, Case No. 2011 CA 00214 16

Blair, Carlos Jackson, and Eric Edwards - two of whom were expecting some benefit in 

their own criminal cases by testifying in the case sub judice. 

{¶67} Blair, who lived at 808 Shorb Avenue, told the jury he had seen appellant 

on Shorb earlier on the day of the shooting, observing that appellant was upset about 

being jumped earlier. Blair recalled hearing appellant state “I should shake this bitch 

up." Tr. at 355. Blair, however, did not know to whom appellant was referring, until after 

the shooting. See Tr. at 356. 

{¶68} Appellant also points out that Carlos Jackson, appellant’s friend who lived 

at 1105 Shorb, was awaiting sentencing on a felony case, with sex offender 

classification potential, at the time of trial. Appellant maintains that the first time Jackson 

spoke to detectives, he stated that he had seen appellant shoot at four males, a few 

blocks from Nickol’s address, and that in a conversation with him appellant had denied 

shooting at Nickol’s apartment. Tr. at 391-393. During his second interview with 

detectives and at trial, Jackson stated that he did not see the shooting, but that he had 

seen appellant with a gun and had heard appellant threaten to shoot up the block 

shortly before the shooting. Jackson also claimed appellant had confessed to him that 

he shot at Nickol’s apartment but that it was an accident. Tr. at 386. 

{¶69} Finally, the State presented Eric Edwards, who testified that appellant 

admitted to him to shooting up the apartment, but claimed “the State didn’t have shit on 

him.” Tr. at 408. Appellant notes that Edwards disclosed this information after major 

facts of the case were in the newspaper. He also notes Edwards has previous 

convictions for robbery, domestic violence, theft and escape, and that he once pled not 

guilty by reason of insanity to a criminal charge. 
Stark County, Case No. 2011 CA 00214 17

{¶70} In sum, appellant proposes the possibility that he was falsely accused of 

being the shooter, rather than one of those appellant had fought with in the street earlier 

that night or the drug dealers in the area from whom Nickol had allegedly purchased 

marijuana. 

{¶71} Nonetheless, upon review, we hold the jury did not clearly lose its way and 

create a manifest miscarriage of justice requiring that appellant's murder conviction be 

reversed and a new trial ordered. The conviction was not against the manifest weight of 

the evidence. 

{¶72} Appellant's Fourth Assignment of Error is overruled. 

{¶73} For the reasons stated in the foregoing opinion, the judgment of the Court 

of Common Pleas, Stark County, Ohio, is hereby affirmed in part, reversed in part, and 

remanded for the trial court to review the issue of merger. 

By: Wise, J. 

Delaney, P. J., concurs. 

Edwards, J., dissents. 

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 JUDGES 

JWW/d 0423 

 
Stark County, Case No. 2011 CA 00214 18

EDWARDS, J., DISSENTING OPINION 

{¶74} I respectfully dissent from the majority’s disposition of the third assignment 

of error. 

{¶75} R.C. 2941.25(B) states that where the defendant’s conduct results in two 

or more offenses of the same or similar kind committed separately or with a separate 

animus as to each, he may be convicted of all of them. In the instant case, appellant 

fired five rounds into the front door of the apartment, killing one person by the impact of 

one of those rounds. While the predicate offense for the felony murder charge was 

improperly discharging a firearm at or into a habitation in violation of R.C. 

2923.161(A)(1), appellant fired four additional rounds at the occupied apartment, any 

one of which would support a conviction of R.C. 2923.161(A)(1). While the State chose 

not to charge appellant with five separate counts of improperly discharging a firearm at 

or into a habitation, I would find that firing four rounds which did not result in the death 

of Singleton constituted a separate act from the felony murder of Singleton. 

{¶76} Accordingly, I would find the offenses are not allied offenses of similar 

import and should not merge for sentencing. I would overruled the third assignment of 

error and affirm the judgment of the trial court. 

_________________________________________ 

Judge Julie A. Edwards 

JAE/rad/rmn 
Stark County, Case No. 2011 CA 00214 19

IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

CORTNEY L. WALTON : 

 : 

 Defendant-Appellant : Case No. 2011 CA 00214 

 For the reasons stated in our accompanying Memorandum-Opinion, the 

judgment of the Court of Common Pleas of Stark County, Ohio, is affirmed in part, 

reversed in part, and remanded for further proceedings consistent with this opinion. 

 Costs to be split equally between the parties. 

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 JUDGES