[Cite as State v. Howard, 2020-Ohio-3819.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT

MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee/CrossAppellant 

v. 

JAMICHAEL L. HOWARD 

Defendant-Appellant/CrossAppellee 

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Appellate Case No. 28314 

Trial Court Case No. 2018-CR-434 

(Criminal Appeal from 

 Common Pleas Court) 

. . . . . . . . . . . 

O P I N I O N 

Rendered on the 24th day of July, 2020. 

. . . . . . . . . . . 

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, 

Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts 

Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 

 Attorney for Plaintiff-Appellee/Cross-Appellant 

 

JON PAUL RION, Atty. Reg. No. 0067020 & CATHERINE H. BREAULT, Atty. Reg. No. 

0098433, 130 West Second Street, Suite 2150, P.O. Box 10126, Dayton, Ohio 45402 

 Attorneys for Defendant-Appellant/Cross-Appellee 

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

 

FROELICH, J. 
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{¶ 1} Following a six-day trial, a Montgomery County jury found Jamichael L. 

Howard (“Howard”) guilty of two unclassified felony counts of murder (proximate result) 

in violation of R.C. 2903.02(B); two second-degree felony counts of felonious assault 

(serious physical harm) in violation of R.C. 2903.11(A)(1); two second-degree felony 

counts of felonious assault (deadly weapon) in violation of R.C. 2903.11(A)(2); and two 

first-degree felony counts of discharge of a firearm on or near prohibited premises in 

violation of R.C. 2923.162(A)(3)(c)(4). Each of the murder and felonious assault offenses 

carried three- and five-year firearm specifications, and each of the remaining counts 

carried a three-year firearm specification. The charges stemmed from the fatal shooting 

of Darius Hall and the non-fatal shooting of David Coleman inside a vehicle traveling on 

Gettysburg Avenue. The trial court merged certain offenses and specifications, and it 

sentenced Howard to an aggregate prison term of 31 years to life. 

{¶ 2} Howard appeals from the judgment of conviction, and the State has filed a 

cross-appeal as to a sentencing issue involving the merger of firearm specifications. The 

judgment of the trial court will be affirmed in part and reversed in part, and this matter will 

be remanded for re-sentencing to impose an additional three-year firearm specification. 

Factual and Procedural Background

{¶ 3} On January 22, 2018, friends of Charles Rayme were celebrating his birthday 

through an extended party that began in the early afternoon at the Western Manor 

Apartments in Dayton, known familiarly as “the Coast.” Howard’s younger half-brother, 

Michael Howard (“Michael”), lived on the third floor of building 1812 at the Coast. 

According to the testimony presented at trial, at some point in the late afternoon on that 
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date, Howard, Michael, and some others in attendance left the Coast to continue partying 

with Rayme at other locations. While they were gone, Michael received a message 

informing him that his apartment door at the Coast had been kicked in. At about 8 p.m. 

on January 22, Michael called the property manager, Kelly Manson, to report the incident 

and that his door would not shut. He also asked Manson to review the surveillance video. 

Manson told Michael that someone would come by during business hours to secure his 

apartment door. Michael did not report the incident to the police. 

{¶ 4} Wanisha Smith lived in building 1812 at the Coast, directly across the hall 

from Michael’s apartment. Smith testified that on the evening of January 22, 2018, she 

answered a knock at her door to find a group of men with guns who were looking for 

Darius Hall, Smith’s boyfriend, who frequently stayed there. The men claimed that Hall 

had broken into Michael’s apartment. Smith knew Michael and Howard from her time 

living at the Coast and recognized them as two of the people at her door. Smith was 

particularly frightened by Howard because he was carrying “a big gun” and he sounded 

angry. (Trial Tr., p. 385-386.) 

{¶ 5} Howard directed Smith to call Hall, but due to the circumstances, Smith only 

pretended to do so, instead dialing a number that she knew Hall would not answer. After 

the group including Howard and Michael left, Smith actually, but unsuccessfully, 

attempted to reach Hall by telephone at 8:50 p.m., leaving him a message. Smith then 

called Dominque Parks and Pennie Williams, two friends who also lived at the Coast, to 

ask if they knew where Hall was. Minutes later, a group of women came to Smith’s door 

and accused her of knowing something about the break-in at Michael’s apartment. After 

the women departed, Smith left her apartment and went to an apartment below hers 
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because she was afraid. 

{¶ 6} Shortly thereafter, Smith saw David Coleman, a friend of Hall’s, pull into the 

Coast’s parking lot in his gray Dodge Charger and hurry toward Smith’s building; Smith 

said she assumed that Parks and Williams had relayed information about the incident to 

Coleman in attempting to reach Hall. Coleman stayed with Smith until Hall pulled up five 

to ten minutes later and directed them to go to Williams’s apartment. Williams, Parks, 

Smith, Hall, Coleman, another friend, and Williams’s young son then waited together 

inside Williams’s second-floor apartment in building 1808 at the Coast. After some time, 

Coleman went outside to leave, but soon returned, saying he had “a bad feeling.” (Id., p. 

395.) After another 30 minutes, Coleman again got up to leave, summoning Hall to 

accompany him; Hall did so, but told Smith to stay. 

{¶ 7} At alternating times, Smith, Williams, and Parks each looked out the back 

window of Williams’s apartment as Coleman and Hall walked down the sidewalk toward 

a group that Smith said she recognized as including Howard and Michael. Williams 

testified that she did not recognize anyone in the group outside, but she heard yelling and 

heard Hall say, “I didn’t do it.” (Trial Tr., p. 516.) Parks testified to seeing “a whole bunch 

of cars” in the parking lot at the Coast on the night of January 22 (id., p. 540), and to 

seeing Howard among the group of men gathered there, “standing in the doorway” to the 

driver’s side of a two-toned Dodge Magnum. (Id., p. 545.) Parks described the scene 

when Hall and Coleman went outside as a “standoff”; he said people were yelling and “it 

just looked like something [wa]s going to happen.” (Id., p. 546.) 

{¶ 8} Smith testified that she could not hear what was being said outside, but she 

could see gesturing, and “they all had guns, everybody,” including Hall and Coleman. (Id., 
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p. 398-399.) After the confrontation, Smith saw Coleman get into the driver’s seat and 

Hall into the passenger’s\] seat of Coleman’s Dodge Charger, and they drove off. 

Immediately thereafter, the others gathered in the parking lot entered their cars and also 

left. According to Smith, Howard’s two-toned Dodge Magnum was directly behind 

Coleman’s car, followed by other vehicles, but she could not see who was driving any of 

those cars. Soon after the vehicles left the parking lot, Smith heard gunfire. Hall failed to 

answer her subsequent successive phone calls, which Hall’s phone log showed as 

beginning at 2 a.m. on January 23, 2018. 

{¶ 9} Testifying remotely from Las Vegas, Coleman related a similar version of that 

night’s events. He said that he arrived at the Coast at about 10:40 p.m. on January 22, 

2018, after finishing his work shift. As he approached Smith’s building, Smith stopped him 

and told him that people had come to her apartment looking for Hall. When Hall arrived, 

they all gathered in Williams’s apartment, where they played video games and drank 

alcohol. Coleman said he stepped outside for a phone conversation with his fiancé and 

noticed “[a] lot of cars just started pulling in.” (Trial Tr., p. 599.) He recognized a gray and 

black Dodge Magnum as a car he had seen before at the Coast, with Howard (whom 

Coleman did not know by name at that time) inside. When Coleman heard one the men 

standing with the cars ask, “was that him[?],” he returned inside to tell Hall. (Id.) Hall told 

Coleman he (Hall) had learned the men outside wanted to talk to him, so Coleman 

accompanied Hall outside, because “I wasn’t going to leave him (Hall) hanging,” to 

possibly be harmed. (Id., p. 601.) 

{¶ 10} Coleman testified that he and Hall encountered a group of eight to ten men 

waiting outside. A man Coleman did not know was accusing Hall of breaking into his 
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apartment, and Hall denied doing so. Coleman recognized Howard in the group. Coleman 

described the situation as “tense,” with the accuser and Hall continuing to exchange 

words and many people displaying guns; Coleman said he had his own gun in his pocket. 

Coleman then got into the driver’s seat of his Dodge Charger, Hall got into the passenger 

seat, and they pulled out of the parking lot to head to a nearby gas station on Gettysburg 

Avenue to buy cigars. Coleman said Hall was insisting that the men from the parking lot 

were going to follow them, then said they were following. Coleman looked back and saw 

a line of cars from the Coast parking lot behind him, with the Dodge Magnum being the 

closest. Coleman said that the distraction caused him to miss the turn into the gas station. 

He testified that he told Hall to recline his seat and lower his window so that Coleman 

could fire his gun if necessary. 

{¶ 11} According to Coleman, the glass in his rear passenger window then 

shattered, after which he felt his body “tingling” and he lost control of his legs. (Id., p. 608.) 

Coleman noticed that Hall was unresponsive and that there was blood on the back of 

Hall’s seat. As the Dodge Magnum pulled along the passenger side of Coleman’s car, 

Coleman emptied his weapon – a Kahr 9mm – in that direction. After gradually steering 

the car to a stop due to his inability to apply the brakes, Coleman called 911. In the 

recording of that call played for the jury, Coleman said that he had been shot by a black 

male in a gray and black Magnum, and that he knew the man but could not recall his 

name. (State’s Exh. 21.) 

{¶ 12} Coleman testified that he was shot once in the upper back, that the bullet 

could not be removed, and that he permanently lost the use of his legs as a result of his 

injuries. The defense stipulated that Coleman sustained serious physical harm in the 
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shootings. 

{¶ 13} Forensic pathologist Dr. Russell Uptegrove testified that Hall died as the 

result of a bullet that entered his head “slightly above and slightly behind his left ear,” then 

passed through the left parietal lobe before coming to rest in the left lobe of the 

cerebellum. (Trial Tr., p. 246-247.) A tiny fragment of that bullet and the main projectile 

were admitted into evidence as State’s Exhibits 14B and 14A. Hall also sustained a 

gunshot wound through his left thumb and suffered some superficial facial wounds 

consistent with being hit by shattered glass. Dr. Uptegrove found no stippling of the entry 

wounds, suggesting that the bullet was fired from a distance of greater than 24 inches. 

The lack of medical intervention indicated to Dr. Uptegrove that Hall was pronounced 

dead at the scene. 

{¶ 14} Rayfield Lewis, a barber, testified that Michael called him on January 22, 

2018 and asked him to come to Michael’s apartment at the Coast to cut his hair. Lewis 

arrived there in his red Ford Taurus sometime between 1:00 and 3:00 p.m. that day. 

Michael was with a man who was celebrating his (the other man’s) birthday, and when 

Lewis finished cutting Michael’s hair, other people had arrived and Lewis decided to hang 

out with the group for an hour or so. Lewis said that he recognized the others from a 

“bootleg,” or “after hour joint,” that all of them frequented. (Trial Tr., p. 436.)1 He testified 

that he had someone else pick him up from the Coast at about 5:30 p.m. on January 22, 

but he again encountered Michael, Howard, and others from the Coast group as they 

were leaving the K-9 Club at about 11 p.m. that night. The group indicated that they were 

 

1 Detective Thomas Cope later explained that “boot joints” are unlicensed and illegal 

operations. (Trial Tr., p. 1066, 1104.) 
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headed to “the bootleg,” and Lewis decided to join them, riding along in a green Ford 

Explorer with his friend “Dez.”2 According to Lewis, however, on the way to the bootleg, 

Michael called Dez, and Lewis overheard Michael say that he was going back to the Coast 

because his apartment had been broken into. The entire group then headed to the Coast. 

{¶ 15} Lewis testified that as they arrived at the Coast from the K-9 Club, Michael 

was driving a silver Buick and Howard was driving a two-toned Dodge Magnum. Standing 

outside the Coast was a man wearing a black hoodie, whom Lewis did not recognize. 

Michael went up to his apartment and returned, wondering aloud whether security 

cameras had captured the break-in. As the group stood outside talking, the man in the 

black hoodie walked to the side of the apartment building and returned with a “[c]hubby 

guy,” also wearing a hoodie. (Id., p. 445.) Lewis indicated that a heated exchange began 

between Michael and the two men in hoodies, with one man denying that he broke into 

Michael’s apartment and all of the men carrying guns in holsters or in pockets. Lewis said 

that Howard was carrying an assault rifle. Per Lewis’s testimony, at that point the two men 

in hoodies left in a gray Dodge Charger, Michael said that the group was “going to the 

bootleg,” and Howard followed the Charger out of the lot, driving his Dodge Magnum, 

followed by a “parade” of other vehicles, including Lewis in the green Explorer driven by 

Dez. (Id., p. 447-448.) 

{¶ 16} After the car in which he was riding turned right, Lewis heard shots and 

witnessed gunfire coming from both the Charger and the Magnum. He said that the 

Magnum “[s]witched lanes” to pull alongside the passenger side of the Charger, but he 

 

2 On cross-examination, Lewis said that he did not know Dez’s last name. (Trial Tr., p. 

480.) Det. Cope said he believed a “Desmond” was among the individuals apprehended 

at the boot joint on the morning of January 23, 2018. (Trial Tr., p. 1102, 1109-1110.) 
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did not see which car fired first. (Id., p. 451.) Lewis said the other vehicles proceeded past 

the Charger on to the bootleg, where police arrived and the group scattered. According 

to Lewis, the Dodge Magnum “pulled up and pulled out” of the bootleg, and Howard did 

not appear inside the bootleg. Lewis stated he was “100 percent” certain during his police 

interview when he identified Howard as the driver of the Dodge Magnum that fired on the 

Dodge Charger. (Id., p. 456-457.) At trial, he also identified Howard as one of the 

individuals captured on the video from the parking lot of the Coast immediately before the 

shootings, and the Dodge Magnum on that video as the car that Howard was driving. A 

police detective also testified as to Lewis’s expression of complete certainty in his 

identification of Howard as the driver of the Dodge Magnum at the time of the shooting. 

{¶ 17} Detective Sean Copley of the Dayton Police Department testified that, as 

part of the investigation of the January 23, 2018 shootings, he retrieved surveillance video 

from security cameras located at the Coast and created copies of two different parking lot 

views from that morning. He also collected and created copies of surveillance video from 

cameras at a gas station on Gettysburg Avenue and from a beauty supply store, as well 

as a DVR from the group’s “boot joint” destination located near the beauty supply store. 

He explained the process by which he created a “clipped” version combining those videos 

into a single “movie” displaying the relevant portions in sequence. (Trial Tr., p. 289-291.) 

The resulting compilation (State’s Exh. 15) was played for the jury and admitted into 

evidence. Det. Copley identified State’s Exhibits 15A through 15QQQQQ as still shots of 

the same video images, and those exhibits also were admitted into evidence. 

{¶ 18} The State also presented the testimony of James Terrell, who identified 
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himself as the property manager at the Coast since April 2018,3 before which he worked 

in security there for eight years. Terrell testified that he knew Michael as a resident of 

various apartments at the Coast and also had come to know Howard through his visits to 

the property. He said that he knew Howard to drive a two-toned Dodge Magnum that he 

(Terrell) never had seen anyone else operating. Terrell said that when he previously 

worked security at the Whitney Young Apartments in Dayton, he also saw Howard in the 

same Dodge Magnum at that location. 

{¶ 19} After explaining the layout of the Coast complex, Terrell testified that he 

reviewed surveillance video from the complex for the morning of January 23, 2018 with 

detectives from the Dayton Police Department. Terrell further testified that he recognized 

both Howard and Michael on that video. Directed to State’s Exhibit 15, Terrell identified 

Howard’s Dodge Magnum, Howard, and Michael on the video; he also identified the car 

and Howard on still images taken from the video. 

{¶ 20} Officer Zachary Burns of the Dayton Police Department testified that he and 

his partner were the first to arrive at the scene on January 23, 2018, in response to a 

dispatch about the shootings. They found a man lying outside the driver’s side of a bulletriddled gray Dodge Charger and another man dead in the front passenger seat. The man 

on the ground outside was Coleman, who was conscious but unable to move. Coleman 

indicated to the officers who had shot him. Ofr. Burns saw a gun on the driver’s seat and 

a firearm magazine on the driver’s side floorboard, which he did not disturb. Coleman was 

transported to the hospital by medics, and Ofr. Burns and his partner cordoned off a large 

 

3 Terrell initially said his position changed in April 2017 (Trial Tr., p. 330), but later 

corrected that to April 2018. (Id., p. 359.) 
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area with crime scene tape. 

{¶ 21} Officer Stephen Cline of the Dayton Police Department testified that he was 

the evidence technician called to process the crime scene on January 23, 2018. Ofr. Cline 

described photographing a gray or silver Dodge with “a lot of bullet holes” and a dead 

body in the fully-reclined front passenger seat. (Trial Tr., p. 670, 672.) He identified 

photographs depicting bullet holes and blood on the driver’s side of the Dodge, along with 

bloody clothing that medics apparently had cut off an injured person. He also 

photographed and collected an empty Kahr 9mm semiautomatic firearm found on the 

edge of the driver’s seat and an empty magazine found on the floor in front of that seat. 

Photographs of the deceased depicted a bullet wound to his head and a gun in his right 

jacket pocket. The gun was a Ruger 9mm semiautomatic which Ofr. Cline also collected 

and sealed. When found, the Ruger had one round in the chamber and six bullets in the 

magazine. Additionally, Ofr. Cline gathered five spent casings from the backseat of the 

Dodge. 

{¶ 22} After the Dodge Charger was towed to the police evidence garage, 

evidence technician Ronald Christoffers of the Dayton Police Department further 

processed the vehicle. Ofr. Christoffers testified that after acquiring a search warrant, he 

took photographs throughout the vehicle and recorded a diagram of his work. He found 

five bullet strikes on the back of the Charger, some of which entered the vehicle. One 

photo depicted a hole where a bullet passed through the trunk then through the rear 

passenger seat. Others depicted bullets striking, and some passing through, the rear 

corner panel on the passenger side, the rear passenger door, the rear passenger window, 

the rubber molding, the passenger side mirror, the front passenger door, and the front 
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grill. Another bullet entered the engine compartment. Ofr. Christoffers determined that 

strikes to the driver’s door and window actually came from bullets that passed through 

the passenger side and across the vehicle’s interior. He estimated that a total of 13 to 18 

bullets struck the vehicle. He also found a bullet fragment in the driver’s seat, and two 

copper jackets and a single 9mm bullet casing elsewhere in the vehicle. Based on his 

experience, Ofr. Christoffers opined that the copper jackets were from a rifle. 

{¶ 23} Homicide Detective Melissa Schloss testified that she was assigned to 

return to the Gettysburg Avenue crime scene on January 26, 2018, to search the area for 

bullet casings. Det. Schloss said that she and another detective located 10 casings as 

they walked southbound along the west side of the street. They found one additional 

casing on the east side of the street. Det. Schloss testified that the casings including 

ammunition from different types of weapons. She said the detectives waited for an 

evidence technician to arrive to photograph and collect those casings. 

{¶ 24} Officer Jeffrey Downing was the evidence technician who responded for that 

purpose. Ofr. Downing said he initially placed each casing in an individual evidence bag 

before grouping them by caliber. He identified exhibits consisting of one 9mm Luger 1 

casing (State’s Exh. 115A); two Blaze .40 caliber Smith and Wesson casings (State’s 

Exh. 115B); four .223 REM (Remington) casings (State’s Exh. 115C); and four 7.62 by 

39 TulAmmo casings (State’s Exh. 115D.) Based on his experience, Ofr. Downing 

testified that the REM and TulAmmo casings likely came from an assault rifle. He also 

disclosed that when preparing his report, he mistakenly reversed east and west in 

recording where the casings were found; he confirmed Det. Schloss’s testimony that 10 

casings were found on the west side and one on the east side of the street. 
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{¶ 25} Ofr. Downing testified that on the same date, he also was involved in 

processing the two-toned Dodge Magnum at the police evidence garage. Testifying from 

photographs he identified as ones he took (State’s Exhs. 100-112), Ofr. Downing said he 

found no bullet strikes to the back, passenger side, or driver’s side of that vehicle. He did 

locate a bullet hole in the Magnum’s hood, and damage underneath from a bullet that had 

traveled through the hood. All windows were intact. Ofr. Downing found and collected an 

empty .40 caliber magazine from inside the Magnum’s console. (State’s Exh. 114.) He 

was unable to find the bullet that entered the engine compartment. Ofr. Downing testified 

that he also swabbed the magazine and areas of the interior of the Dodge Magnum for 

DNA evidence. (State’s Exhs. 113A-113E.) 

{¶ 26} Henry Bailey, who was the maintenance manager at the Bancroft 

Apartments in Dayton in January 2018, testified that on the morning of January 25, 2018, 

he noticed a silver and back Dodge Magnum parked in front of the dumpster in the alley 

at the apartments. Bailey said he and another employee there observed a bullet hole in 

the car’s hood and a bullet casing “on the very top of the car right above the back driver’s 

side wheel well.” (Trial Tr. p. 1011.) Bailey identified photos depicting the Magnum, the 

bullet hole, and the casing. (State’s Exhs. 94, 97, 98.) Bailey then called the police to 

report the car. He testified that because his employee said he believed the car may have 

“been there a couple days,” Bailey relayed that information to the police, even though 

Bailey himself did not see the car until January 25. (Trial Tr., p. 1014.) 

{¶ 27} Officer Christopher Savage of the Dayton Police Department testified that 

at about 10:45 a.m. on January 25, 2018, he responded to a dispatch about a black and 

silver Dodge Magnum with a bullet hole that had been abandoned in an alley. Ofr. Savage 
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was aware that Dayton homicide detectives were looking for a car matching that 

description in connection with a recent homicide. When he arrived at the alley by the 

Bancroft Apartments, he found the car parked next to a dumpster. Upon approaching the 

vehicle, he saw a bullet hole in the hood and two spent 9 mm shell casings, one in the 

door seam on each side of the car. Ofr. Savage testified that he called in the vehicle’s 

license plate and learned that Malin Campbell was the registered owner. Ofr. Savage 

contacted Det. Thomas Cope about the vehicle, and Det. Cope responded to handle the 

vehicle from there. 

{¶ 28} Malin Campbell testified as the registered owner of the 2005 Dodge 

Magnum involved in the shootings. She stated that she registered that car in her name 

as a favor to Howard, whom she had known for at least 11 years, but that Howard had 

actually purchased the car, and she had never driven it or sat in the driver’s seat. She 

said she had seen Howard drive the car, but also had seen others drive it. 

{¶ 29} Debra Moody, a Dayton resident living a few blocks from Gettysburg 

Avenue, testified that on April 17, 2018, she found a Smith & Wesson handgun on the 

ground in the alley behind her home while bringing in her trash can. Thinking the muddy 

object was a toy, she picked it up in her gloved hand, then immediately realized it was 

real. Although she was leaving to go somewhere, Moody said she called the police and 

told them that she was placing the gun in the recycling bin by her garage. When she 

returned home, the gun was gone. Only when a detective contacted Moody in October 

2018 did she learn that the gun was relevant to a criminal case. 

{¶ 30} Officer Daniel Hall of the Dayton Police Department testified that while on 

duty on April 17, 2018, he and his partner were dispatched to pick up a firearm from a 
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recycling bin at Moody’s address. Ofr. Hall said he removed the magazine to render the 

weapon safe, and noticed that there were live rounds of “corroded” ammunition inside the 

dirty weapon. (Trial Tr., p. 1024.) He transported the weapon to the police property room, 

placed it in an envelope, and tagged it for storage. He identified State’s Exh. 116 as that 

9 mm Smith & Wesson handgun, along with the magazine and cartridges recovered with 

it. Ofr. Hall said the weapon was capable of holding 16 rounds in the magazine plus one 

in the chamber, and actually held 11 rounds when found. 

{¶ 31} Detective Cope of the Dayton Police Department’s homicide unit was the 

lead detective assigned to investigate the January 23, 2018 shootings. Det. Cope 

identified the Smith & Wesson handgun recovered from Moody’s address. (State’s Exh. 

116.) He testified that ballistics testing performed on that weapon at the Miami Valley 

Regional Crime Lab revealed that gun to be connected to these shootings. He said he 

then requested that the weapon also be tested for DNA. 

{¶ 32} Det. Cope described personally retrieving surveillance equipment from the 

Dayton “boot joint” involved in this case. He said he learned that a nearby beauty supply 

store also had exterior surveillance cameras, and security recordings were obtained from 

there as well. Det. Cope testified that the compilation video presented at trial (State’s Exh. 

15) was created from “at least seven hours” of video recordings acquired from 10 different 

surveillance cameras in different locations. (Trial Tr., p. 1076-1077, 1103.) He narrated 

the action depicted on that compilation video, beginning with cars arriving in the parking 

lot outside Smith’s apartment at the Coast, the black and gray Dodge Magnum arriving 

last. The video continued, showing people congregating in front of those cars. Det. Cope 

identified photographs of Michael taken on the afternoon of January 23, 2018, wearing 
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the same “distinct” clothing in which a person appears on surveillance video recorded in 

the parking lot of the Coast that morning. (Id., p. 1083); (State’s Exhs. 128, 129.) Det. 

Cope said that Michael was wearing that clothing when he was taken into custody at the 

boot joint on the morning of January 23. 

{¶ 33} The video continued as individuals entered their vehicles, headlights came 

on, and cars exited the Coast’s parking lot. Det. Cope testified that the first vehicle 

departed at 1:42 a.m. on January 23, with the Dodge Magnum about 30 seconds behind. 

Video from the gas station on Gettysburg Avenue then showed a silver Charger followed 

by the two-toned Dodge Magnum and a series of SUVs and sedans. The recording from 

those cameras stopped when the cars reached a point on Gettysburg Avenue that Det. 

Cope said was “right before where the mass of * * * shell casings were found” on the 

street after the shooting. (Trial Tr., p. 1090.) The cars were signaling a right turn. 

{¶ 34} From there, the video turns to the vantage point of the beauty supply store 

cameras, showing the Magnum driving southbound on Gettysburg. When further video 

shows the other SUVs and sedans entering the alley where the rear entrance to the boot 

joint is located, the Magnum no longer can be seen. Det. Cope testified that the Magnum 

does not appear in any video recorded thereafter. As multiple police cruisers are seen 

arriving at the boot joint, people can be seen running, including running through a yard 

on the street where Moody lived. Det. Cope said five of those individuals were 

apprehended; Howard was not among them. 

{¶ 35} Det. Cope testified that on January 25, 2018, Ofr. Savage notified him that 

Savage had located the Dodge Magnum seen in the surveillance videos. Det. Cope and 

Det. Rod Roberts then went to the Bancroft Apartments to secure that vehicle. Det. Cope 
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collected one shell casing that was stuck upright in the “drip rail” or gutter on top of the 

driver’s side of the Magnum’s exterior, and another flush with the drip rail on the 

passenger side. (Trial Tr., p. 1069-1070); (State’s Exh. 99.) Det. Cope said he requested 

that DNA testing be performed on the shell casings, and that they also be compared to 

other ballistic evidence in the case. 

{¶ 36} Firearms examiner Dena Inempolidis of the Miami Valley Regional Crime 

Lab testified as a firearms expert. After explaining how the unique markings a firearm 

leaves on cartridge cases and bullets allow spent cartridges and bullets to be matched to 

a particular firearm, Inempolidis testified that the bullet recovered from Hall’s body (State’s 

Exh. 14A)4 was 9mm or .38 caliber, based on its size and markings. She said that she 

eliminated both Coleman’s Kahr 9mm semiautomatic (State’s Exh. 37) and the Ruger 

9mm semiautomatic recovered from Hall’s pocket (State’s Exh. 36) as the source of that 

bullet, due to “different class characteristics.” (Trial Tr., p. 897-898.) Inempolidis said 

comparisons were “inconclusive” as to whether the Smith & Wesson 9mm handgun found 

in the alley behind Debra Moody’s home in April 2018 (State’s Exh. 116) could have been 

the source of that bullet. (Trial Tr., p. 898.) 

{¶ 37} Inempolidis also testified that the bullet fragment (State’s Exh. 92A) and 

bullet jacket fragments (State’s Exhs. 92B, 92C) recovered from inside Coleman’s 

Charger were “consistent with being of a .22 class caliber.” (Trial Tr., p. 900.) Although 

she was not presented with a .22 caliber firearm to which to compare those exhibits, she 

concluded that Exhibits 92A and 92C had been fired from the same weapon; the result 

 

4 Inempolidis said that the smaller piece of shrapnel found on Hall’s body (State’s Exh. 

14B) contained no markings that could be used for purposes of comparison. 
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was inconclusive as to Exhibit 92B. As to the five casings recovered during the initial 

processing of Coleman’s Dodge Charger (State’s Exh. 39) and the additional casing 

located there during further processing at the police evidence garage (State’s Exh. 92D), 

Inempolidis testified that Coleman’s Kahr 9mm semiautomatic (State’s Exh. 37) was a 

match for all six. However, she said that the two 9mm casings recovered from the top of 

the Dodge Magnum (State’s Exh. 99A, 99B) as well as the 9mm Luger 1 casing found 

along Gettysburg Avenue on January 26, 2018 (State’s Exh. 115A) were not fired by the 

Kahr 9 mm. Instead, she said that State’s Exhibit 115A was determined to match the 

Smith & Wesson 9mm. (State’s Exh. 116.) 

{¶ 38} With regard to the remaining spent 9mm ammunition matched to neither 

the Kahr 9mm nor the Smith & Wesson 9mm (i.e., State’s Exhs. 99A, 99B), Inempolidis 

concluded that neither had been fired by the Ruger 9mm semiautomatic recovered from 

Hall’s body. (State’s Exh. 36.) She further concluded that those two casings had been 

fired from two different weapons. Inempolidis also concluded that the two Blaze .40 

caliber Smith and Wesson casings recovered along Gettysburg Avenue (State’s Exh. 

115B) were fired from the same firearm, as were the four 7.62 by 39 TulAmmo casings 

found there (State’s Exh. 115D), but she could reach no conclusion regarding whether 

the four .223 REM casings found along Gettysburg Avenue (State’s Exh. 115C) also were 

fired from a single gun. 

{¶ 39} Inempolidis testified that both 7.62 ammunition and .223 ammunition 

typically would be fired from a rifle or “long gun,” but she was aware of “firearms * * * that 

are legally considered a pistol that will fire a .223.” (Trial Tr., p. 918.) She also stated that 

.22 caliber ammunition such as that represented by the bullet fragments in State’s Exhibit 
-19-

92 could be associated with either a handgun or a long gun. According to Inempolidis, an 

assault rifle typically would use 7.62 ammunition. 

{¶ 40} Amy Dallaire, a forensic scientist in the serology/DNA section of the Miami 

Valley Crime Lab, also testified as an expert witness for the State. She testified that she 

tested swabs taken from various items of evidence and compared the results to known 

DNA standards for Howard and Michael. Dallaire stated that she was unable to obtain a 

DNA profile from the Smith & Wesson firearm recovered from behind Moody’s house. 

(State’s Exh. 116.) Her testing of the bullet casings recovered from the top of the Dodge 

Magnum (State’s Exh. 99) yielded “a partial mixed profile.” (Trial Tr., p. 977.) Both Howard 

and Michael were excluded as having contributed to that DNA profile. The tests Dallaire 

performed on swabs taken from a .40 caliber magazine (State’s Exh. 113E) and from the 

front passenger side of the Dodge Magnum (State’s Exh. 113B) also revealed mixed 

partial profiles to which neither Howard nor Michael contributed. Swabs from the rear 

passenger side of the Magnum’s interior (State’s Exh. 113D) contained “a single source 

male profile” (Trial Tr., p. 982), but again Howard and Michael were eliminated as the 

source of that DNA. Testing of swabs from the rear driver’s side interior (State’s Exh. 

113C) showed another mixed partial profile from which Michael could be excluded; the 

results were inconclusive as to Howard. Finally, Dallaire testified that she tested swabs 

taken from the front driver’s seat area of the Dodge Magnum (State’s Exh. 113A) and 

determined that Michael could, but Howard could not, be excluded as having contributed 

to the mixed partial DNA profile obtained from “at least three individuals.” (Trial Tr., p. 

992.) Dallaire opined that one in 81 people other than Howard “could also be another 

possible contributor to this mixed DNA profile.” (Id., p. 993.) 
-20-

{¶ 41} The trial court denied the defense motion for dismissal pursuant to Crim.R. 

29 made at the end of the State’s case. The defense then called a single witness, Ray 

Vaughn Chappel, who identified himself as Howard’s older brother through the same 

mother.5 Chappel testified that he was at the Coast beginning at midday on January 22, 

2018, to join in Rayme’s birthday celebration. He said that people moved between 

Michael’s apartment and the parking lot, and Chappel saw that his brother, Howard, was 

also there that day. At some point a group that included Chappel, Howard, and Michael 

left the Coast to go to the Whitney Young Apartments, then on to the K-9 Club. While they 

were out, Chappel overheard a call to Michael from a woman who said that Michael’s 

apartment had been broken into. The group immediately returned to the Coast, with 

Chappel driving “a red Impala or Malibu” that he had borrowed from his girlfriend’s brother. 

(Trial Tr., p. 1123.) 

{¶ 42} Chappel said Howard was with the group that returned to the Coast, but he 

denied knowing how Howard got there. He then said that “a female” was driving the 

Dodge Magnum and Howard “was riding with her that day. He never drove.” (Id., p. 1124.) 

Chappel identified a photograph of the Magnum and said that he had seen “[m]ultiple 

people driving it” in the past. (Id.) He said he last saw that car on January 22 at the K-9 

Club. 

{¶ 43} According to Chappel, after determining that Michael’s apartment had been 

“ransacked,” Chappel, Michael, and “a couple others” crossed the hall to Smith’s 

apartment to ask if she had heard anything. (Id., p. 1125-1126, 1128.) When Smith said 

 

5 Because Howard and Michael share the same father, Chappel is not related to Michael. 

(Trial Tr., p. 1135.) 
-21-

she had not, the group asked her where Hall was. Chappel said that after Smith gave 

them a wrong number for reaching Hall, a group of 10 to 15 that included Howard stood 

in the parking lot for 20 to 30 minutes. Chappel said the Dodge Magnum also was in the 

parking lot at that time. 

{¶ 44} Chappel said he and others then returned to the Whitney Young Apartments 

before going to the K-9 Club. Afterward, they returned to the Coast, where he saw Michael 

but not Howard. The group stood in the parking lot for about 30 minutes before Chappel 

saw two people in hoodies approach. Chappel testified that Michael and another man 

talked to the men in hoodies, but there “was no type of problems, no escalation of anger.” 

(Id., p. 1131.) Rather, he said the group just decided to “go to the boot leg.” (Id.) Chappel 

saw Hall leave in a silver Charger, and did not know the order of the nine or 10 cars that 

followed, but they included Michael in a silver Buick and Chappel at the end, driving the 

red Impala. Chappel said that Howard was not among them. Chappel testified that as 

they turned onto Gettysburg Avenue, he heard shooting, and “[e]verybody took off.” He 

continued to the boot leg, where he saw Michael. 

{¶ 45} On cross-examination, Chappel acknowledged that Howard was known to 

drive the two-toned Dodge Magnum, but he denied that Howard was among the group 

who confronted Smith about the break-in at Michael’s. He also denied that Michael 

confronted Hall, or that the two men had been yelling in the Coast’s parking lot. After 

watching the video of a police interview he gave on January 30, 2018, however, Chappel 

agreed that during that interview, he told police that Michael and Hall had yelled at each 

other before the shootings, and he also identified Howard as being in the Coast’s parking 

lot before the shooting, getting into the passenger seat of the Dodge Magnum. 
-22-

{¶ 46} On January 11, 2019, the jury returned a verdict of guilty as to all counts 

and specifications. Howard appeared for sentencing on February 13, 2019. (Trial Tr., p. 

1256-1266.) At the sentencing hearing, the trial court merged all of the three-year and all 

of the five-year firearm specifications. The court also merged the Count II murder offense 

into the Count I murder offense; merged the Count III and Count IV felonious assault 

offenses concerning Hall into the Count I murder offense; and merged the Count VI 

felonious assault offense into the Count V felonious assault offense, both of which 

concerned Coleman. The trial court found that the Count VII and Count VIII offenses of 

discharging a firearm over a roadway did not merge because they involved separate 

victims and separate animus. 

{¶ 47} The court then proceeded to sentence Howard to 15 years to life on the 

Count I murder offense, plus a three-year and a five-year firearm specification to run 

consecutively to each other and prior and consecutively to the murder sentence. As to 

the Count V felonious assault, the court sentenced Howard to eight years, to run 

consecutively to the Count I sentence. On each of the Count VII and Count VIII 

discharging a weapon offenses, the court imposed a sentence of eight years, to run 

concurrently with Counts I and V.6 On February 15, 2019, the trial court entered a written 

judgment consistent with the above and stating the additional terms governing Howard’s 

convictions and sentence. 

{¶ 48} In appealing from that judgment, Howard sets forth four assignments of 

 

6 In the same proceeding, the trial court also sentenced Howard on his guilty plea in 

Montgomery C.P. No. 13-CR-3861, and ordered that the 18-month sentence for that 

offense be served concurrently with the sentences in Howard’s 2018 case. This appeal 

does not implicate the sentence in the 2013 case. 
-23-

error: 

1) It was reversible error in violation of the Sixth Amendment’s Confrontation 

Clause to allow David Coleman to testify remotely. 

2) The evidence was insufficinent [sic] as a matter of law and/or against the 

manifest weight of the evidence to sustain [Howard’s] conviction. 

3) [Howard] was denied effective assistance of counsel in violation of his 

constitutional rights thus prejudicing his right to a fair trial. 

4) The cumulative effect of counsel’s errors denied [Howard] a fair trial and 

rendered trial counsel’s assistance ineffective. 

{¶ 49} The State’s cross-appeal raises this single assignment of error: “The trial 

court erred in merging all of the three-year firearm specifications.” 

Howard’s Assignment of Error #1 – Confrontation Clause Violation 

{¶ 50} Howard contends that his Sixth Amendment right to confront the witnesses 

against him was violated when the trial court permitted David Coleman, a key prosecution 

witness, to testify via a two-way closed-circuit television system rather than by personally 

appearing in the courtroom. Howard argues that the State demonstrated neither 

justification for nor the reliability of Coleman’s remote testimony. 

{¶ 51} The Sixth Amendment to the United States Constitution, made applicable 

to the states by the Fourteenth Amendment, affords criminal defendants the right “to be 

confronted with the witnesses against [the]m.” Maryland v. Craig, 497 U.S. 836, 844, 110 

S.Ct. 3157, 111 L.Ed.2d 666 (1990). While “face-to-face confrontation forms ‘the core of 

the values furthered by the Confrontation Clause,’ ” (citation omitted.) id. at 847, “the face-
-24-

to-face confrontation requirement is not absolute.” Id. at 850. 7 Rather, “ ‘the 

Confrontation Clause reflects a preference for face-to-face confrontation at trial[ ]’ * * * 

that ‘must occasionally give way to considerations of public policy and the necessities of 

the case[.]’ ” (Citations omitted.) (Emphasis sic.) Id. at 849. Accordingly, the Supreme 

Court held in Craig that “if the State makes an adequate showing of necessity, the state 

interest in protecting child witnesses from the trauma of testifying in a child abuse case is 

sufficiently important to justify the use of a special procedure that permits a child witness 

in such cases to testify at trial against a defendant in the absence of face-to-face 

confrontation with the defendant.” Id. at 855. “The requisite finding of necessity must of 

course be a case-specific one,” based on evidence presented to the trial court. Id.

{¶ 52} Appellate courts in Ohio have expanded on Craig, permitting the use of 

remote testimony from witnesses other than child victims of sexual abuse. See, e.g., State 

v. Johnson, 195 Ohio App.3d 59, 2011-Ohio-3143, 958 N.E.2d 977 (1st Dist.); State v. 

Marcinick, 8th Dist. Cuyahoga No. 89736, 2008-Ohio-3553. In Johnson, the trial court 

granted the State’s motion to permit three adult prosecution witnesses in a murder trial to 

testify by two-way closed-circuit television, based on evidence that the defendant’s family 

and friends had attempted to intimidate those witnesses to dissuade them from testifying. 

Id. at ¶ 18-33. The First District Court of Appeals observed that “multiple state and federal 

courts have read Craig’s references to ‘an important public policy’ and ‘an important state 

interest’ as suggesting a general rule that is not limited to protecting child victims of sexual 

 

7 Accord Ohio Assn. of Pub. School Emps. v. Lakewood City School Dist., 68 Ohio St.3d 

175, 179, 624 N.E.2d 1043 (1994) (“Even in criminal law, the right to confrontation is not 

absolute.”).
-25-

offenses from the trauma of testifying in a defendant’s presence.” Id. at ¶ 61. In Johnson, 

the appellate court determined that the trial court's use of two-way closed-circuit television 

to present the adult witnesses’ testimony was “necessary to further the public policy of 

justly resolving the criminal case, while at the same time protecting the well-being of the 

state’s witnesses,” and also “preserved the reliability of th[o]se witnesses’ testimony.” Id.

at ¶ 63-64. 

{¶ 53} In Marcinick, the appellate court determined that the use of a live video link 

to allow a key prosecution witness to testify from Belgium did not violate the defendant’s 

confrontation right. Marcinick at ¶ 22. The court set forth the following test for determining 

whether an alternative to face-to-face confrontation qualifies as an exception to the 

Confrontation Clause: 

the procedure must (1) be justified, on a case-specific finding, based on 

important state interests, public policies, or necessities of the case and (2) 

must satisfy the other three elements of confrontation – oath, crossexamination, and observation of the witness’s demeanor. 

Id. at ¶ 18, citing Craig. at 849-851. 

{¶ 54} The court in Marcinick reasoned that the State had “demonstrated the 

unavailability of the witness and the admissibility of the testimony,” and that “[t]he live twoway link preserved the reliability elements of confrontation: the witness testified under 

oath; was subject to cross-examination; and, the trial court and [the defendant] could 

observe the witness’ demeanor while testifying.” Id. The court thus determined that the 

trial court did not err by admitting the remote testimony. Id.

{¶ 55} We reach the same conclusion in this case. Prior to trial, the State 
-26-

presented evidence that Coleman, the surviving victim of the crimes with which Howard 

was charged, is confined to a wheelchair after being left paralyzed from the waist down 

by the bullet that struck him in the back. (See Tr. of 12/20/18 Status Conference.) 

Coleman’s appearance as a witness during Howard’s trial unquestionably would “further 

the public policy of justly resolving the criminal case,” satisfying that aspect of the 

“justified” analysis. See Johnson, 195 Ohio App.3d 59, 2011-Ohio-3143, 958 N.E.2d 977, 

at ¶ 63. His remote appearance also served the State’s interest in protecting Coleman’s 

well-being. See id. That same protective interest implicates the “necessity” element. 

{¶ 56} During the December 2018 status conference, Coleman testified via videoconference from Las Vegas, Nevada that he moved there from Dayton in February 2018. 

(Tr. of Status Conference., p. 11.) He stated that he suffered from multiple medical 

conditions that impeded his ability to travel – i.e., “chronic back pain, spasm, overactive 

bladder, cardiologist, * * * neurology, urology, wound care.” (Id., p. 12.) Coleman testified 

that “[t]oo many [times a day] to count,” he experienced muscle spasms that “make[ ] me 

feel like I’m suffocating.” (Id., p. 13.) He also had to catheterize himself every four hours 

to prevent kidney infections. (Id., p. 14.) Coleman said that a cardiologist recently 

diagnosed him with an irregular heartbeat that caused shortness of breath, dizziness, and 

rapid fatigue. (Id.) He also had open wounds on his leg and buttocks; despite surgery on 

the latter, the remaining wound there made it “unacceptable” for him “to even just sit in 

this chair like this right now.” (Id., p. 15.) He described his pain as “excruciating.” (Id., p. 

22.) 

{¶ 57} Coleman said that his direct flight from Cincinnati to Las Vegas when he 

moved there was the last time he had traveled by airplane, and that he did so against the 
-27-

advice of his doctors at that time. (Id., p. 18.) During that flight, “I was passing out on the 

airplane, had sweats and stuff” (id. p. 19), and he went “[s]traight to the hospital” for an 

extended stay upon landing. (Id., p. 20.) He said he acquired pneumonia and a urinary 

tract infection during that flight. (Id., p. 19.) According to Coleman, his physician at the 

time of the hearing had told him that he could not fly and had provided a letter to that 

effect. (Id., p. 11, 21, 31.) He also said that he would not have appropriate healthcare 

resources readily available to him in Dayton. (Id., p. 22-23.) Coleman testified that even 

his 35-minute trip by car to participate in the status conference was “painful” (id., p. 15), 

and he was trying to avoid taking pain medications in addition to all the other medications 

he had to take. (Id., p. 22.) 

{¶ 58} In addition, a representative of the prosecutor’s office testified that no 

nonstop commercial flights between Las Vegas and Dayton were available for the days 

prior to the scheduled trial date, and that Coleman would be required to fly into some 

more distant airport (e.g., Columbus or Cincinnati), requiring additional driving time of 60 

to 90 minutes, if he were to travel to Dayton for Howard’s trial. (Id., p. 6-10.) 

{¶ 59} The evidence presented to the trial court sufficed to establish the necessity 

that Coleman testify remotely from Las Vegas rather than being required to travel to 

Dayton to appear at trial in person. We are not dissuaded from that conclusion by 

Howard’s citation to State v. Oliver, 2018-Ohio-3667, 112 N.E.3d 573 (8th Dist.). In Oliver, 

the appellate court concluded that the trial court erred by allowing a witness residing in 

Florida to testify by Skype, because that witness “was not unavailable,” but merely would 

be “inconvenienced” if she were required to travel to Ohio to personally appear at trial. Id.

at ¶ 24. The facts here are readily distinguishable; Coleman’s circumstances presented 
-28-

a matter not of simple convenience, but of potentially serious health consequences. 

Furthermore, in Oliver, the same appellate court concluded that the trial court was justified 

in permitting a different witness to testify remotely from Kentucky, as that witness was 

caring for her husband who was undergoing dialysis following a liver transplant. Id. at 

¶ 22. The trial court did not err by concluding that permitting Coleman to testify remotely 

was justified. 

{¶ 60} We also do not find persuasive Howard’s contention that Coleman’s remote 

testimony did not satisfy the Confrontation Clause’s reliability requirement. Both the 

written transcript and the courtroom recording of Coleman’s testimony reflect that he was 

sworn prior to testifying at trial. (See Trial Tr. p. 587; CD Tr. of Jury Trial filed on 8/21/19, 

Disc 1.) Additionally, both forms of transcript show that Howard’s trial counsel was able 

to conduct a live cross-examination of Coleman before the jury. (Trial Tr. p. 623-646; CD 

Tr. of Jury Trial filed on 8/21/19, Disc 1.) The video transcript further suggests that the 

trial judge, jury, defense counsel, and Howard himself would have been able to observe 

Coleman’s demeanor while he testified. (See CD Tr. of Jury Trial filed on 8/21/19, Disc 

1.) 

{¶ 61} Although Howard now faults the trial court, his own trial attorney, and the 

prosecutor for allegedly not “ensur[ing] that [Howard] could visibly see Mr. Coleman while 

testifying or hear Mr. Coleman while testifying” (Brief of Defendant/Appellant, p. 9), 

nothing in the record substantiates Howard’s implication that he may not have been able 

to see or hear Coleman clearly. In a conference with the attorneys immediately prior to 

Coleman’s trial testimony, the trial court specifically noted that Coleman previously had 

testified via the same remote system for the status conference hearing “and his testimony 
-29-

was clear both visually and audibly.” (Trial Tr., p. 582.) The video transcript of Coleman’s 

trial testimony shows that Coleman’s image was projected onto a large screen in the 

courtroom, with a smaller inset image of each attorney’s turn at the podium and the 

courtroom behind the podium in the background. Coleman’s image and voice are clear 

and understandable and his demeanor is readily observable on the video recording. 

{¶ 62} Further, we do not accept Howard’s suggestion that Coleman did not 

identify Howard at trial because Howard and Coleman “likely * * * were not within each 

other’s line of vision.” (Brief of Defendant/Appellant, p. 10.) The record shows that the 

prosecutor never asked Coleman to identify Howard inside the courtroom, an omission 

that provides a far more reasonable explanation for the lack of an in-court identification 

by Coleman. While the video recording may not depict the precise vantage point Howard 

had for viewing and listening to Coleman’s testimony, neither Howard nor his attorney 

voiced any concern during the trial regarding Howard’s ability to see or hear that 

testimony. We can find no error where nothing in the record supports an inference that 

Howard actually experienced difficulty seeing or hearing Coleman’s testimony. 

{¶ 63} Howard’s first assignment of error is overruled. 

Howard’s Assignment of Error # 2 – Sufficiency/Manifest Weight of the Evidence 

{¶ 64} In his second assignment of error, Howard maintains that the evidence 

presented at trial was insufficient to support a guilty verdict as to the charges against him, 

and that his conviction also was against the manifest weight of the evidence. More 

specifically, Howard argues that the State failed to connect him through either ballistics 

or DNA evidence to the bullets that struck Hall and Coleman. He argues that the State 

thus failed to prove beyond a reasonable doubt the causation element of felonious 
-30-

assault, and thereby also failed to prove murder as the proximate result of felonious 

assault. 

{¶ 65} “A sufficiency of the evidence argument disputes whether the State has 

presented adequate evidence on each element of the offense to allow 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, 386, 678 

N.E.2d 541 (1997). The relevant inquiry is whether any rational finder of fact, after viewing 

the evidence in a light most favorable to the State, could have found the essential 

elements of the crime proven beyond a reasonable doubt. State v. Dennis, 79 Ohio St.3d 

421, 430, 683 N.E.2d 1096 (1997). A guilty verdict will not be disturbed on appeal unless 

“reasonable minds could not reach the conclusion reached by the trier-of-fact.” Id.

{¶ 66} In contrast, a weight-of-the-evidence argument “challenges the believability 

of the evidence and asks which of the competing inferences suggested by the evidence 

is more believable or persuasive.” State v. Jones, 2d Dist. Montgomery No. 28179, 2019-

Ohio-2940, ¶ 13, quoting Wilson at ¶ 12. When evaluating whether a conviction was 

against the manifest weight of the evidence, the appellate court must review the entire 

record, weigh the evidence and all reasonable inferences, consider witness credibility, 

and determine whether, in resolving conflicts in the evidence, the trier of fact “clearly lost 

its way and created such a manifest miscarriage of justice that the conviction must be 

reversed and a new trial ordered.” Thompkins at 387, quoting State v. Martin, 20 Ohio 

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). We generally defer to the credibility 

assessments of triers of fact able to observe the witnesses’ demeanor while testifying. 

See State v. Hagen, 2d Dist. Champaign No. 2018-CA-2, 2018-Ohio-4045, ¶ 21. 
-31-

a. Sufficiency of the evidence 

{¶ 67} Reviewing the evidence in a light most favorable to the prosecution, we 

conclude that the evidence presented at trial was sufficient to prove beyond a reasonable 

doubt that Howard was guilty of felonious assault on both Coleman and Hall, resulting in 

Hall’s death,8 and thus also was guilty of murder. The elements of felonious assault 

(serious physical harm) are that the defendant knowingly caused serious physical harm 

to the victim. R.C. 2903.11(A)(1). Similarly, felonious assault (deadly weapon) requires 

proof that the defendant knowingly caused or attempted to cause physical harm to the 

victim by means of a deadly weapon. R.C. 2903.11(A)(2). Both murder counts against 

Howard required proof that he caused Hall’s death as a proximate result of committing or 

attempting to commit felonious assault, whether by causing serious physical harm or by 

means of a deadly weapon. R.C. 2903.02(B). 

{¶ 68} The State’s forensic pathologist testified that Hall was killed by a single 

bullet to the head fired from a distance of two feet or more. Coleman testified that both he 

and Hall were struck by bullets fired from a two-toned Dodge Magnum. Rayfield Lewis 

testified that at the time of the shootings, Howard was driving the Dodge Magnum from 

which the shots on Coleman’s Dodge Charger were fired. In addition, multiple other 

witnesses, including the Dodge Magnum’s registered owner, testified that such car 

belonged to Howard and/or that he frequently was seen driving it. Some of those 

 

8 While Howard’s appellate brief does not directly challenge his convictions for 

discharging a firearm on or near prohibited premises, those offenses are established by 

proof that the defendant recklessly discharged a firearm upon or over a public road or 

highway. R.C. 2923.162(A)(3)(c)(4). For the reasons stated in our analysis that follows, 

we conclude that Howard’s convictions under R.C. 2923.162(A)(3)(c)(4) also were 

supported by sufficient evidence and were not against the manifest weight of the 

evidence. 
-32-

witnesses placed Howard with that vehicle in the parking lot at the Coast immediately 

before the shootings. Significantly, even Howard’s half-brother, Chappel, presented by 

the defense to refute Howard’s involvement, admitted on cross-examination that Howard 

was among the group that confronted Hall at the Coast in the early morning hours of 

January 23, 2018, and that his (Chappel’s) previous statements to the police placed 

Howard in the Magnum at the time of the shootings. Based on that evidence, the jury 

reasonably could have concluded beyond a reasonable doubt that Howard was driving or 

otherwise present in the Dodge Magnum at the time of the shootings. 

{¶ 69} Although the State’s ballistics expert was unable to tie the bullets that struck 

Coleman, Hall, and their vehicle to a particular gun, she did rule out the guns belonging 

to Coleman and Hall as the source of the fatal bullet. Extensive testimony as well as video 

recordings and other physical evidence also supported a conclusion that Howard’s Dodge 

Magnum was involved in the shootings. The trial court’s instructions advised the jury that 

Howard could be found guilty of the charges against him due to aiding and abetting 

another in committing those offenses, even if he were not the principal offender. (Trial Tr., 

p. 1235); see R.C. 2923.03(A)(2). Under a complicity theory, “participation in criminal 

intent may be inferred from presence, companionship, and conduct before and after the 

offense is committed.” (Citation omitted.) State v. Johnson, 93 Ohio St.3d 240, 245, 754 

N.E.2d 796 (2001). Accordingly, despite the State’s inability to present fingerprints, DNA, 

or ballistics evidence directly linking Howard to a gun or to the bullets fired at Coleman’s 

car, the evidence before the jury was sufficient to support a guilty verdict on all the 

charged offenses. 

{¶ 70} We are not dissuaded from that conclusion by Howard’s argument that the 
-33-

State’s ballistics expert failed to identify the specific distinguishing characteristics that led 

her to conclude that neither Coleman’s nor Hall’s gun was the source of the bullet that 

killed Hall or of other bullets and shell casings found on top of the Dodge Magnum and 

along Gettysburg Avenue. Inempolidis testified that she excluded the Kahr and the Ruger 

due to class characteristics differentiating the physical evidence found from test bullets 

fired from the victims’ weapons. While she indicated that she “would have to see my 

notes” to know the particular class characteristic on which her conclusion relied, she 

explained that “either the riffling [sic] was different” or “the number * * * or the widths [of 

the lands and grooves marking the bullets] were different.” (Trial Tr., p. 895-897.) Her 

prior testimony expanded on the meanings of those terms. Despite extensively crossexamining Inempolidis, defense counsel did not delve into the specifics recorded in her 

testing notes in an attempt to challenge her exclusion of the Kahr and the Ruger. Further, 

undisputed evidence that Coleman was shot in the back and Hall was shot through the 

head while fully reclined in the front passenger seat could have allowed the jury to deduce 

that such shots were not fired by Coleman or Hall. The evidence was sufficient to sustain 

the guilty verdicts. 

b. Manifest weight of the evidence 

{¶ 71} As noted above, the sole evidence presented by the defense was the 

testimony of Howard’s half-brother, Chappel, the impeachment of which actually served 

to inculpate Howard as to the charged offenses. Given the lack of exculpatory evidence, 

we cannot say that 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.” Thompkins, 78 

Ohio St.3d at 387, 678 N.E.2d 541. Howard’s challenge based on the manifest weight of 
-34-

the evidence is not well taken. 

{¶ 72} His second assignment of error is overruled. 

Howard’s Assignments of Error #3, #4 – Ineffective Assistance/Cumulative Effect 

{¶ 73} Howard’s third assignment of error contends that he was denied the 

effective assistance of counsel due to his trial attorney’s failure to impeach the trial 

testimony of David Coleman and Rayfield Lewis, as well as his attorney’s failure to argue 

that Howard was not in the vehicle from which the bullets that struck Hall and Coleman 

were fired. In his fourth assignment of error, Howard argues that the cumulative effect of 

his trial attorney’s identified omissions denied him a fair trial. We will analyze these two 

assignments together. 

a. Ineffective Assistance of Counsel

{¶ 74} To establish ineffective assistance of counsel, a defendant must 

demonstrate both that trial counsel’s conduct fell below an objective standard of 

reasonableness and that the errors were serious enough to create a reasonable 

probability that, but for the errors, the outcome of the case would have been different. 

See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); 

State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Hindsight is not 

permitted to distort the assessment of what was reasonable in light of counsel’s 

perspective at the time, and a debatable decision concerning trial strategy cannot form 

the basis for a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d 

516, 524-525, 605 N.E.2d 70 (1992); State v. Fields, 2017-Ohio-400, 84 N.E.3d 193, 

¶ 38 (2d Dist.). 

{¶ 75} Trial counsel also is entitled to a strong presumption that his or her conduct 
-35-

fell within the wide range of reasonable assistance. Strickland at 689. The reviewing 

court’s focus is not simply on “whether an isolated instance of counsel’s performance fell 

below the standard of professionally acceptable conduct,” but on “whether [the] defendant 

had access to a fair trial.” State v. Malone, 2d Dist. Montgomery No. 10564, 1989 WL 

150798, *3 (Dec. 13, 1989). 

{¶ 76} Howard first faults his trial attorney for not “impeach[ing] Mr. Coleman for 

his prior criminal convictions.” (Brief of Defendant/Appellant, p. 21.) The record contains 

the following information about Coleman’s prior convictions, related during a sidebar 

conference before his trial testimony was presented to the jury: 

[Prosecutor]: I wanted to bring up, Mr. Coleman does have felony 

prior convictions that fit under the rules of impeachment under Evidence 

Rule 609. 

He also has some felony possession of drug convictions. They’re

felony 5s, which the State asserts do not fall under the requirements of 609, 

because the prison sentence does not exceed one year, and a couple of 

them are too old I believe as well. 

The Court: Okay. The Court’s understanding of Rule 609 is that the 

penalty has to be excess of one year. F-5s, as everyone knows, is up to 

one year, and these offense are not a crime of dishonesty, or a theft; is that 

correct? 

[Prosecutor]: Right. That is correct. 

The Court: All right. Any response, [defense counsel, to] that?

[Defense counsel]: No, Your Honor. 
-36-

The Court: Therefore, I will order that any reference to his conviction 

for felonies of the fifth degree, so long as they’re drug related, they’re not 

related to dishonesty, or theft, would be I think be excluded under 609. 

(Trial Tr., p. 593.) 

{¶ 77} During Coleman’s direct examination, he acknowledged that he had prior 

felony convictions in Montgomery County for aggravated robbery (two counts), abduction, 

having weapons under disability (two convictions), and aggravated assault, and that he 

was not legally permitted to carry a firearm. (Id., p. 614.) Defense counsel did not delve 

further into those convictions on cross-examination, but his failure to do so did not 

constitute ineffective assistance of counsel. The jury had been made aware of Coleman’s 

prior convictions that were admissible under Evid.R. 609 and apparently found that such 

convictions did not undermine the credibility of his testimony regarding the pivotal issues 

in this case. Furthermore, while Howard asserts that Coleman’s prior record may have 

given him cause to misrepresent the order in which the shots were fired, to avoid being 

charged for having fired first, that motivation to lie would exist regardless of Coleman’s 

prior record. 

{¶ 78} Additionally, as illustrated by his closing argument, his trial attorney 

premised Howard’s defense on the theory that Howard was not even present in the Dodge 

Magnum from which the shots that struck Hall and Coleman were fired. That trial strategy 

rendered the order of shooting irrelevant, so counsel’s failure to draw the jury’s attention 

to Coleman’s alleged motive to lie about that issue will not give rise to an ineffective 

assistance of counsel claim. Finally, the decision to forego exploring the criminal history 
-37-

of a witness with paraplegia who was exhibiting physical discomfort9 while testifying may 

itself have been a matter of reasonable trial strategy. 

{¶ 79} Howard also criticizes his trial counsel for not challenging Coleman’s 

testimony that he fired at the two-toned Dodge Magnum in “[s]elf-defense” only after the 

occupants of that vehicle first shot at and struck him and Hall. (See Trial Tr., p. 608-611.) 

For the same reasons discussed above with regard to Coleman’s prior felony record, 

Howard’s counsel did not provide deficient representation by failing to more rigorously 

question Coleman about the order in which the two vehicles’ occupants discharged their 

weapons. Multiple witnesses testified that Howard, Michael, and their associates were 

armed and looking for Hall, and that the group aggressively confronted Hall in the parking 

lot at the Coast about their suspicion that Hall had broken into Michael’s apartment. 

Multiple witnesses also testified that Howard was known to drive the two-toned Dodge 

Magnum, and that Howard’s Magnum followed Coleman as he (Coleman) drove away 

from the Coast with Hall as his passenger. Video evidence also depicted the Dodge 

Magnum’s leaving the Coast’s parking lot behind Coleman’s vehicle. 

{¶ 80} In contrast, no evidence suggested that Coleman or Hall sought out or 

attempted to pursue the occupants of the Dodge Magnum, or that they had a motive to 

do so. Absent any evidence suggesting that Coleman or Hall fired first, we have no reason 

to believe that defense counsel’s further questioning of Coleman about his version of 

events likely would have led to a not-guilty verdict. Furthermore, for purposes of a defense 

based on the State’s purported failure to prove that Howard was in the Dodge Magnum 

 

9 Both the written and video transcript show that Coleman complained of experiencing 

muscle spasms during his testimony. (See Trial Tr., p. 647.) 
-38-

at the time of the shootings, the order in which shots were exchanged between the two 

cars was not significant, and defense counsel was not deficient for failing to press 

Coleman on that issue. Indeed, as observed above, the decision not to challenge a 

sympathetic witness about the details of the events that led to his disability may have 

been strategic, and cannot serve as the basis for an ineffective assistance of counsel 

claim. 

{¶ 81} Howard likewise faults his attorney for failing to impeach Lewis with his prior 

criminal record. With regard to the cross-examination of Lewis, the record reflects that 

after the prosecution introduced the matter of Lewis's previous felony conviction (see Trial 

Tr., p. 462), defense counsel did briefly question Lewis about his prior conviction for 

aggravated robbery. (Id., p. 463.) He also argued in closing that the jury should consider 

that conviction when determining whether to believe Lewis’s testimony. (Id., p. 1188.) The 

possible effect of that conviction on Lewis’s credibility was before the jury to consider. 

{¶ 82} Although Howard asserts that his trial attorney also “should have [but] failed 

to elicit testimony from Mr. Lewis that [Howard] was not driving or * * * in the [Dodge] 

Magnum at the actual time when the gunfire occurred” (Brief of Defendant/Appellant, p. 

22-23), he offers no guidance as to how defense counsel should have elicited such 

testimony from a witness who repeatedly and confidently maintained the opposite both 

on direct and in his initial statement to police. An attorney cannot be found constitutionally 

ineffective due to failing to produce exculpatory evidence only speculated to have been 

available. See, e.g., State v. Campbell, 4th Dist. Athens No. 08CA31, 2009-Ohio-4992, 

¶ 15; State v. Hammond, 8th Dist. Cuyahoga No. 100656, 2014-Ohio-4673, ¶ 26; In re 

C.P., 10th Dist. Franklin No. 08AP-1128, 2009-Ohio-2760, ¶ 64. Additionally, the 
-39-

acknowledgment of Howard’s older brother (Chappel) that his (Chappel’s) police interview 

placed Howard inside the Magnum when it followed Coleman’s vehicle out of the parking 

lot at the Coast (see Trial Tr., p. 1142-1144) lessens the likelihood that the jury could 

have been convinced Howard was not in the Magnum at the time of the shooting. 

{¶ 83} Finally, defense counsel did argue in closing that the State had failed to 

prove that Howard was inside the Dodge Magnum at the time of the shooting. (See Trial 

Tr., p. 1184-1199.) He noted that the registered owner of that car testified that Howard 

was not the only person to sometimes drive the Magnum. (Id., p. 1186; see also p. 320-

321.) He also reminded the jury that certain other prosecution witnesses had been unable 

to identify Howard as the Magnum’s driver at the time of the shootings (id., p. 1186-1187, 

1189), and he attempted to cast doubt on the credibility of the witnesses who did 

incriminate Howard. (Id., p. 1188-1189.) He reviewed the forensic evidence and urged 

that such evidence was insufficient to show that Howard was present during the 

shootings. (Id., p. 1189-1196.) Defense counsel also replayed the video compilation for 

the jury, arguing that it suggested an alternative perpetrator. (Id., p. 1196-1199.) Howard 

has not identified any additional evidence or argument that his attorney could or should 

have presented that would have made a different verdict reasonably probable. 

{¶ 84} Howard’s third assignment of error, alleging he was denied the effective 

assistance of counsel, is overruled. 

b. Cumulative Effect of Errors 

{¶ 85} Under the doctrine of cumulative error, a conviction will be reversed when 

the cumulative effect of errors in a trial deprives a defendant of a fair trial even though 

each of the numerous instances of error does not individually constitute cause for 
-40-

reversal. State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 223, 

citing State v. DeMarco, 31 Ohio St.3d 191,196-197, 509 N.E.2d 1256 (1987); State v. 

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 132; State v. Garner, 74 

Ohio St.3d 49, 64, 656 N.E.2d 623 (1995). A claim of cumulative error based on the 

ineffective assistance of counsel would require a determination that while no single act 

by trial counsel met the standard set forth in Strickland, 466 U.S. 668, 104 S.Ct. 2052, 80 

L.Ed.2d 674, the cumulative effect of counsel’s conduct satisfied the Strickland standard. 

State v. Jordan, 2d Dist. Montgomery No. 27208, 2017-Ohio-7342, ¶ 55. 

{¶ 86} The only alleged errors that Howard identifies in support of his cumulative 

error argument are the same examples of purportedly deficient performance by his trial 

attorney on which he based his ineffective assistance of counsel claim. Having concluded 

that Howard’s trial attorney did not fail to provide effective assistance for constitutional 

purposes, we likewise conclude that the cited examples of such attorney’s purported 

deficiencies did not in combination deny Howard a fair trial. 

{¶ 87} Howard’s fourth assignment of error is overruled. 

State’s Cross-Appeal – Sentencing Error as to Merger

{¶ 88} In its cross-appeal, the State urges that the trial court erred by merging all 

of the three-year firearm specifications to the offenses of which Howard was convicted, 

then sentencing Howard on a single three-year firearm specification plus a single fiveyear firearm specification. The State argues that the trial court was obligated by statute 

to impose sentences on at least two of the three-year specifications of which Howard was 

found guilty, in addition to sentencing him on a merged five-year specification. 

{¶ 89} In reviewing felony sentences, appellate courts must apply the standard of 
-41-

review set forth in R.C. 2953.08(G)(2), rather than an abuse of discretion standard. See 

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 

2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may 

vacate the sentence and remand for resentencing, only if it “clearly and convincingly” 

finds either (1) that the record does not support certain specified findings, or (2) that the 

sentence imposed is contrary to law. State v. Huffman, 2d Dist. Miami No. 2016-CA-16, 

2017-Ohio-4097, ¶ 6. 

{¶ 90} The offenses and specifications of which Howard was found guilty, and the 

trial court’s disposition of them, were as follows: 

As to Darius 

Hall 

Offense R.C. section Result 

Count I Murder 

(proximate 

result/ 

felonious 

assault 

(serious 

physical 

harm)) 

2903.02(B) Sentenced to 15 

years to life 

5-year firearm 

specification 

2929.146(A) Sentenced to 5 

years, to run 

prior/consecutive 

to sentence on 

Count I 

3-year firearm 

specification 

2941.145(A) Sentenced to 3 

years, to run 

prior/consecutive 

to sentences on 

Count I and 

5-year 

specification to 

Count I 
-42-

Count II Murder 

(proximate 

result/ 

felonious 

assault 

(deadly 

weapon)) 

2903.02(B) Merged with 

Count I 

5-year firearm 

specification 

2929.146(A) ---------- 

3-year firearm 

specification 

2941.145(A) ---------- 

Count III Felonious 

Assault 

(serious 

physical 

harm) 

2903.11(A)(1) Merged with 

Count I 

5-year firearm 

specification 

2929.146(A) ----------- 

3-year firearm 

specification 

2941.145(A) ----------- 

Count IV Felonious 

assault 

(deadly 

weapon) 

2903.11(A)(2) Merged with 

Count I 

5-year firearm 

specification 

2929.146(A) ---------- 

3-year firearm 

specification 

2941.145(A) ---------- 

Count VII Discharge of 

firearm on or 

near 

prohibited 

premises 

(public 

roadway) 

2923.162(A)(3)(C)(4) Sentenced to 8 

years, to run 

concurrent with 

other sentences 

3-year firearm 

specification 

2941.145(A) Merged with 

3-year 

specification to 

Count I 
-43-

As to David 

Coleman 

Offense R.C. section Result 

Count V Felonious 

assault 

(serious 

physical 

harm) 

2903.11(A)(1) Sentenced to 

8 years, to run 

consecutive to 

sentences on 

Count I & 

specifications 

thereto 

 5-year firearm 

specification 

2929.146(A) Merged with 

5-year 

specification 

to Count I 

 3-year firearm 

specification 

2941.145(A) Merged with 

3-year 

specification 

to Count I 

Count VI Felonious 

assault 

(deadly 

weapon) 

2903.11(A)(2) Merged with 

Count V 

 5-year firearm 

specification 

2929.146(A) ---------- 

 3-year firearm 

specification 

2941.145(A) ---------- 

Count VIII Discharge of 

firearm on or 

near 

prohibited 

premises 

(public 

roadway) 

2923.162(A)(3)(C)(4) Sentenced to 

8 years, to run 

concurrent 

with all other 

sentences 

 3-year firearm 

specification 

2941.145(A) Merged with 

3-year 

specification 

to Count I 
-44-

{¶ 91} Citing R.C. 2929.14(B)(1)(g), the State contends that the sentence imposed 

by the trial court is contrary to law because the circumstances of Howard’s convictions 

mandate that he be sentenced on at least two of the three-year firearm specifications of 

which he was found guilty. We have recognized that, while “[u]nder R.C. 2929.14(B)(1)(b), 

a trial court ordinarily may not impose more than one prison term for firearm specifications 

for felonies that were committed as part of the same act or transaction[,] * * * R.C. 

2929.14(B)(1)(g) creates an exception.” State v. Boyd, 2d Dist. Clark No. 2018-CA-68, 

2019-Ohio-1902, ¶ 31. That statutory exception, on which the State here relies, provides 

as follows: 

If an offender is convicted of or pleads guilty to two or more felonies, if one 

or more of those felonies are aggravated murder, murder, attempted 

aggravated murder, attempted murder, aggravated robbery, felonious 

assault, or rape, and if the offender is convicted of or pleads guilty to a 

specification of the type described under division (B)(1)(a) of this section in 

connection with two or more of the felonies, the sentencing court shall

impose on the offender the prison term specified under division (B)(1)(a) of 

this section for each of the two most serious specifications of which the 

offender is convicted or to which the offender pleads guilty and, in its 

discretion, also may impose on the offender the prison term specified under 

that division for any or all of the remaining specifications. 

(Emphasis added.) R.C. 2929.14(B)(1)(g). 

{¶ 92} Under the subsection referenced therein, “an offender who is convicted of 

* * * a felony [and] also is convicted of * * * a specification of the type described in [R.C.] 
-45-

* * * 2941.145” must be sentenced to: 

[a] prison term of three years if the specification * * * charges the offender 

with having a firearm on or about the offender’s person or under the 

offender’s control while committing the offense and displaying the firearm, 

brandishing the firearm, indicating that the offender possessed the firearm, 

or using it to facilitate the offense. 

R.C. 2929.14(B)(1)(a)(ii). 

{¶ 93} Consistent with R.C. 2929.14(B)(1)(g), Howard was convicted both of Hall’s 

murder and of felonious assault on Coleman. Consistent with R.C. 2929.14(B)(1)(a)(ii), 

he also was found guilty under R.C. 2941.145(A) of a three-year firearm specification in 

connection with each of those two felonies. Because those specifications fall among those 

explicitly excepted from sentencing on a single specification, “[p]ursuant to R.C. 

2929.14(B)(1)(g), the trial court was statutorily required to impose separate sentences for 

two of the most serious firearm specifications * * * related to * * * murder and felonious 

assault.” See State v. Rosales, 2d Dist. Montgomery No. 27117, 2018-Ohio-197, ¶ 28. 

{¶ 94} Although the trial court imposed sentences for both the five-year 

specification and the three-year specification related to Howard’s murder conviction, the 

State maintains that those sentences did not comply with the court’s obligation to 

sentence Howard on “each of the two most serious specifications” of which he was 

convicted under R.C. 2941.145(A). See R.C. 2929.14(B)(1)(g), (B)(1)(a)(ii). We agree. 

Imposition of a five-year sentence on a specification for discharging a firearm from a 

vehicle is mandatory under R.C. 2941.146, and thus does not fulfill R.C. 

2929.14(B)(1)(g)’s requirements as to convictions for specifications under R.C. 2929.145. 
-46-

{¶ 95} Further, pursuant to R.C. 2929.14(B)(1)(c)(iii), 

[i]f a court imposes an additional prison term on an offender under division 

(B)(1)(c) of this section relative to an offense, the court also shall impose a 

prison term under division (B)(1)(a) of this section relative to the same 

offense, provided the criteria specified in that division for imposing an 

additional prison term are satisfied relative to the offender and the offense. 

{¶ 96} In other words, as we previously have observed: 

When firearm specifications under both R.C. 2941.145 and 2941.146 

accompany the same offense and are both found true, a court must impose 

a 3-year term under R.C. 2929.14(D)(1)(a)(ii) and a 5-year term under R.C. 

2929.14(D)(1)(c). 

State v. Hudson, 2d Dist. Montgomery No. 23328, 2010-Ohio-1622, ¶ 8, fn. 8, citing State 

v. Gresham, 8th Dist. Cuyahoga No. 81250, 2003-Ohio-744, ¶ 14. 

{¶ 97} Because Howard was found guilty of firearm specifications under both R.C. 

2941.145 and 2941.146 for the same murder offense, the trial court was required to 

impose both a three-year and a five-year prison term for the two specifications to that 

offense. Further, R.C. 2929.14(B)(1)(g) required the court to impose at least one 

additional three-year term, in order to punish Howard for “each of the two most serious 

[R.C. 2941.145] specifications of which” he was found guilty – i.e., to sentence Howard 

on one three-year specification in relation to each of the murder and felonious assault 

offenses as to which the trial court entered a judgment of conviction. The trial court erred 

as a matter of law by merging the three-year firearm specification to Howard’s conviction 

for felonious assault on Coleman with the three-year firearm specification to his conviction 
-47-

for Hall’s murder, and thereby failing to impose a second three-year sentence on the 

three-year firearm specifications to Howard’s crimes. 

Conclusion

{¶ 98} For the foregoing reasons, the judgment of the trial court will be reversed 

as to the trial court’s merger of all three-year firearm specifications, and this matter will 

be remanded for the imposition of an additional three-year firearm specification as 

required by R.C. 2929.14(B)(1)(g). The judgment will be affirmed in all other respects. 

. . . . . . . . . . . 

TUCKER, P.J. and HALL, J., concur. 

Copies sent to: 

Mathias H. Heck Jr. 

Heather N. Ketter 

Jon Paul Rion 

Catherine H. Breault 

Hon. Dennis J. Adkins