[Cite as State v. Johnson, 2019-Ohio-2913.]

COURT OF APPEALS OF OHIO 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

STATE OF OHIO, : 

 

 Plaintiff-Appellee, : 

 No. 107427 

 v. : 

 

MERLIN T. JOHNSON, : 

 

 Defendant-Appellant. : 

 

JOURNAL ENTRY AND OPINION 

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART, 

AND REMANDED

RELEASED AND JOURNALIZED: July 18, 2019 

 

Criminal Appeal from the Cuyahoga County Court of Common Pleas 

Case No. CR-17-622972-A 

 

Appearances: 

Michael C. O’Malley, Cuyahoga County Prosecuting 

Attorney, and Maxwell Martin and Lindsay Raskin, 

Assistant Prosecuting Attorneys, for appellee. 

Paul W. Flowers Co., L.P.A., Louis E. Grube, for appellant. 

PATRICIA ANN BLACKMON, J.: 
Merlin T. Johnson (“Johnson”) appeals from his convictions for 

aggravated murder, aggravated robbery, and other offenses. He assigns the 

following errors for our review: 

I. The trial court erred by failing to grant the motion for judgment 

of acquittal because the state of Ohio elicited insufficient 

evidence to sustain a guilty verdict. 

II. The trial court’s verdict is against the manifest weight of the 

evidence. 

III. The trial court committed plain error by failing to merge all 

convictions at sentencing. 

IV. [Johnson’s] counsel was ineffective by stipulating that only 

counts one and two were allied offenses and by failing to argue 

that [Johnson’s] convictions for complicity should have merged. 

Having reviewed the record and pertinent law, we affirm Johnson’s 

convictions, but we conclude that Johnson’s conviction for felonious assault must 

merge with his conviction for aggravated murder. We reverse this portion of the 

sentence and remand for resentencing, solely as to these offenses after the state 

elects upon which count to proceed. The apposite facts follow. 

In November 2017, Johnson, Eric Wilson (“Wilson”), and Latifah 

Stewart (“Stewart”) were indicted in a nine-count indictment in connection with the 

shooting death of Jonathan Singletary. As is relevant, Johnson was charged with 

aggravated murder, murder, deadly weapon, felonious assault, aggravated robbery, 

discharging a firearm near prohibited premises, tampering with evidence, and 

having a weapon while under disability. The indictment also included various 

specifications including one-year, three-year, and 54-month firearm specifications 
stemming from prior convictions for robbery with one-year firearm specifications 

(one of which involved Wilson). The case proceeded to a bench trial on April 30, 

2018. 

Isis Dalton (“Dalton”) testified that in 2017, she was living with 

Johnson, Wilson, and Stewart. Johnson did not have a car or cell phone. He would 

generally drive her to her job at Superior Academy, then use her car throughout the 

day. On October 25, 2017, Johnson picked Dalton up after work around 7:00 p.m. 

with Wilson and Stewart in the car, and the group returned to Dalton’s apartment. 

The group ordered pizza, and around 8:00 p.m., Johnson borrowed Dalton’s car and 

phone before leaving with Wilson to buy marijuana. Johnson returned without 

Wilson after midnight. He woke Dalton and Stewart and instructed them to falsely 

tell anyone asking about his whereabouts that he had been there with them all 

evening. According to Dalton, Johnson stated that he and Wilson were “going to get 

some weed, and I guess that [Wilson] decided to rob the guy, but the guy had a gun, 

so [Wilson] shot the guy and ran.” Johnson told Dalton that he used her phone to 

set up the drug purchase then “tossed” it after the shooting. He instructed Dalton 

to falsely state that she lost the phone at Talica Green’s (“Green”) house on a street 

near the shooting. 

The next morning, Dalton’s sister told her that the police were at their 

mother’s house and wanted to talk to Dalton about a murder. Dalton testified that 

she did not want to include Green in the false statement to police so she decided to 

tell the investigating officers that she lost her phone at a store. Dalton decided to 
cooperate with police after they placed her in a holding cell. However, she testified 

that she provided the police with a truthful statement. On cross-examination, 

Dalton stated that she never knew Johnson to have a weapon. 

Green testified that she works with Dalton at Superior Academy, and 

they are best friends. She stated that Johnson picked Dalton up after work on 

October 25, 2017. Later that night, Green telephoned Dalton about her evaluation 

for her child development certification that was to take place the next day. Dalton 

did not appear for work that day, however, and did not answer her phone. Dalton’s 

mother called Green’s phone several times, but did not answer when Green called 

back. 

Green further testified that Johnson called her and asked to meet. He 

was jittery and gave her “a rundown of a story — if anybody asks you.” Johnson 

directed Green to falsely say that she, Dalton, Johnson, Wilson, and Stewart left 

Superior Academy at 7:40 p.m. on October 25, 2017, and went to Dalton’s house. 

Then they “were smoking weed and * * * drinking. After that, [they] went and got 

pizza, * * * went to the gas station [and] back to [Dalton’s] house.” Later that night, 

Johnson called Green and asked if she had spoken with Dalton yet. Green indicated 

that she had not, but she conveyed Dalton’s mother’s instructions that Johnson 

returned Dalton’s car. By the time Green met up with Johnson later to obtain the 

vehicle, she had become suspicious and asked him if he had killed or robbed 

someone. He responded that she would have to ask Dalton about that. 
The police contacted Green after obtaining her phone number from 

Dalton’s phone. She stated that she was not initially truthful during her interview 

with the police, but decided to tell the truth about her discussions with Johnson after 

learning that a homicide had occurred. 

East Cleveland Police Officers John Hartman (“Officer Hartman”) 

and John Portis (“Officer Portis”) testified that they responded to a call regarding a 

male slumped behind the steering wheel of a vehicle at Manhattan and Orinoco 

Avenues. The vehicle was still in gear and the engine was running. The front driver’s 

side window was rolled down. An unresponsive male, later identified as Singletary, 

was in the driver’s seat and appeared to have been shot in the chest. The officers 

called an ambulance for the male and set up a perimeter around the vehicle. They 

observed a bullet hole in the driver’s side door, and a grocery store bag containing 

marijuana and a loaded black .40 caliber Ruger firearm on the floor of the vehicle. 

One street over, the officers found a spent shell casing from a 9 mm weapon, a live 

round from a .40 mm weapon and a cell phone. Two more shell casings were also 

found nearby. 

East Cleveland Police Detective Kenneth Lundy (“Det. Lundy”) 

testified that he obtained records from Singletary’s phone and learned that he 

received a call from Dalton’s phone at 12:02 a.m., on October 26, 2017, and another 

about a minute later. Two minutes after that, Singletary called Dalton’s phone, and 

he called it again about a minute later. At 12:08 a.m., Dalton’s phone called 
Singletary two more times with the final call lasting for about six minutes. The call 

for assistance came in at 12:15 a.m. 

Det. Lundy interviewed Johnson twice. During the first recorded 

interview, Johnson stated that he was at Dalton’s apartment with Wilson and 

Stewart on the evening of the shooting. At around 11:00 p.m., he and Wilson drove 

to a location off Euclid to meet two other women, but the women were not home. 

They drove to “DJ’s house” in East Cleveland. After that, Wilson left alone in 

Dalton’s car and with Dalton’s phone. Johnson did not provide a last name or phone 

number for DJ. Johnson stated that Wilson returned with marijuana and cigars. 

Later, Wilson asked to use the car and phone for a second time to purchase more 

marijuana. According to Johnson’s statement, Wilson was sweating profusely when 

he returned for the second time, and told Johnson that men shot at him during the 

drug deal so they had to leave the area. They drove back to Dalton’s apartment, and 

Johnson told Dalton he lost her phone. He denied seeing Wilson with a gun that 

day. 

Later during this statement, Johnson indicated that after attempting 

to meet the two women, he drove to his sister’s house. On the way, he learned that 

a man had been shot. Johnson also explained that as Wilson was about to rob the 

drug dealer, “two men came out of the cut” with guns and began firing. The drug 

dealer was armed too, and Wilson shot at the dealer as he fled. Wilson dropped the 

phone and returned to Dalton’s house. 
During a second statement, Johnson maintained that after he and 

Wilson went to his sister’s house, Wilson left alone to meet the drug dealer. Johnson 

stayed behind, but he heard gunshots and ran outside. Wilson said someone shot at 

him and told Johnson that they had to leave the area. Johnson’s sister said they 

could not stay there. At that point, Wilson left alone. 

Johnson eventually told Det. Lundy that he and Wilson met 

Singletary earlier in the day at a gas station in East Cleveland. They bought 

marijuana from him and exchanged phone numbers. Later that night, they drove to 

Johnson’s sister’s house and called Singletary again about buying more marijuana. 

Johnson admitted that he and Wilson left Johnson’s sister’s house together to meet 

up with Singletary who was nearby around midnight. Johnson exited his sister’s 

house and was on the sidewalk, while Wilson walked to Singletary’s location. 

Johnson stated that he heard a gunshot, and a flash seemed to come from inside 

Singletary’s car. He saw Wilson turn around and shoot back at Singletary, then he 

dropped Dalton’s phone. Johnson and Wilson were together the following day, but 

Johnson fled on foot when Wilson was arrested. Johnson denied telling Dalton or 

Green to lie about his whereabouts. 

Deputy Medical Examiner Dr. Erica Armstrong testified that 

Singletary died from a gunshot wound to the chest that perforated his intestines and 

spleen. The wound had stippling but no fouling as is indicative of a distance of two 

to three feet away from the weapon during firing. 
Johnson did not present testimony but his defense was that he did 

not plan the attack on Singletary and was not present at the scene of the shooting. 

The trial court convicted Johnson of all charges. The court merged the aggravated 

murder conviction (Count 1) and the murder conviction (Count 2), and the state 

elected sentencing on aggravated murder. The court imposed a sentence of 25 years 

to life, with concurrent prison terms for the remaining offenses, and consecutive gun 

specifications, for a total term of 34 years to life. 

Denial of Motion for Acquittal 

In the first assigned error, Johnson argues that the trial court 

erroneously convicted him of aggravated murder, felonious assault, aggravated 

robbery, discharge of a weapon near prohibited premises, and having a weapon 

while under disability (Counts 1-4, 6 and 7) applying an accomplice liability theory 

that was entirely based upon the use of Dalton’s phone and his mere presence 

“during a shooting at a planned drug deal.” 

Crim.R. 29(A), which governs motions for acquittal, states: 

The court on motion of a defendant or on its own motion, after the 

evidence on either side is closed, shall order the entry of a judgment of 

acquittal of one or more offenses charged in the indictment, 

information, or complaint, if the evidence is insufficient to sustain a 

conviction of such offense or offenses. 

Pursuant to Crim.R 29(A), a court shall not order an entry of 

judgment of acquittal if the evidence is such that reasonable minds can reach 

different conclusions as to whether each material element of a crime has been 
proved beyond a reasonable doubt. State v. Bridgeman, 55 Ohio St.2d 261, 381 

N.E.2d 184 (1978), syllabus. 

In State v. Johnson, 93 Ohio St.3d 240, 2001-Ohio-1336, 754 N.E.2d 

796, syllabus, the Ohio Supreme Court held: 

To support a conviction for complicity by aiding and abetting pursuant 

to R.C. 2923.03(A)(2), the evidence must show that the defendant 

supported, assisted, encouraged, cooperated with, advised, or incited 

the principal in the commission of the crime, and that the defendant 

shared the criminal intent of the principal. Such intent may be inferred 

from the circumstances surrounding the crime. 

The state may demonstrate that an accused is guilty of aiding and 

abetting by direct or circumstantial evidence. State v. Mendoza, 137 Ohio App.3d 

336, 342, 2000-Ohio-1689, 738 N.E.2d 822 (3d Dist.). The “mere presence of an 

accused at the scene of a crime is not sufficient to prove, in and of itself, that the 

accused was an aider and abettor.” State v. Widner, 69 Ohio St.2d 267, 269, 431 

N.E.2d 1025 (1982). However, “‘[p]articipation in criminal intent may be inferred 

from presence, companionship, and conduct before and after the offense is 

committed.’” State v. Cartellone, 3 Ohio App.3d 145, 150, 444 N.E.2d 68 (8th 

Dist.1981), quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th 

Dist.1971). See also State v. Copeland, 8th Dist. Cuyahoga No. 106988, 2019-Ohio1370, ¶ 42. 

In State v. Capp, 8th Dist. Cuyahoga No. 102919, 2016-Ohio-295, this 

court stated: 
The complicity statute requires that an accomplice be treated as though 

he was the person who committed every act of the underlying principal 

offense. State v. Kimble, 7th Dist. Mahoning No. 06 MA 190, 2008-

Ohio-1539, ¶ 27. “‘In other words, the court can impute the elements 

of the principal offense, committed by the principal, to the aider and 

abettor.’” Id., quoting State v. Jackson, 90 Ohio App.3d 702, 705, 630 

N.E.2d 414 (6th Dist.1993); State v. Hurse, 10th Dist. Franklin No. 

14AP-687, 2015-Ohio-2656, ¶ 11. 

 * * * 

If complicity is proven, a defendant is subject to a sentencing 

enhancement on a firearm specification regardless of whether he was 

the principal offender or an unarmed accomplice. State v. Chapman, 

21 Ohio St.3d 41, 42-43, 487 N.E.2d 566 (1986); [State v.] Howard[, 

8th Dist. Cuyahoga No. 97695, 2012-Ohio-3459] at ¶ 24 (“It is well 

settled that an unarmed accomplice can be convicted of an underlying 

felony, together with a firearm specification, based on an aider and 

abettor status.”), quoting State v. Porch, 8th Dist. Cuyahoga No. 65348, 

1994 Ohio App. LEXIS 1936, *11 (May 5,1994). “In such a case, the 

actions of the principal are imputed to the accomplice, and the 

accomplice may be found to have committed every element of the 

offense committed by the principal, including possession of the 

weapon.” State v. Humphries, 8th Dist. Cuyahoga No. 99924, 2014-

Ohio-1230, ¶ 18, citing State v. Frost, 164 Ohio App.3d 61, 2005-Ohio5510, 841 N.E.2d 336 (2d Dist.), and State v. Alexander, 8th Dist. 

Cuyahoga No. 98941, 2013-Ohio-2533; State v. Noor, 10th Dist. 

Franklin No. 13AP-165, 2014-Ohio-3397, ¶ 51, fn. 2 (“A firearm 

specification is not a separate offense but, rather, a sentencing 

provision that enhances the penalty for the associated predicate 

offense.”). 

Id. at ¶ 24, 27. Accord Howard (although there was no evidence that Howard was 

an actual shooter, conviction for felonious assault and other offenses was affirmed 

in light of Howard’s conduct before and after the offenses, including evidence that 

he was the “instigator of the shooting” and gave a false alibi to police). 

Here, although the trial court could not conclude beyond a reasonable 

doubt that “Johnson himself used the gun to facilitate” the offenses, the court did 
find him guilty as an aider and abettor. The court cogently explained the “essence 

of the evidence” as follows: 

Johnson had the cell phone used to communicate with Singletary and 

get him to come to the area of Savannah and Orinoco, near Johnson’s 

sister’s house; Johnson fled from the crime scene; he admitted the 

robbery to Dalton; he made great efforts to manufacture cover story; he 

evaded arrest and, once arrested, gave divergent explanations for what 

happened. These all suggest his active participation and consciousness 

of guilt, either as principal or an accomplice. 

The state’s evidence in this matter demonstrates that Johnson was 

more than merely present. He admitted to meeting Singletary earlier on the date of 

the shooting. The record also indicates that Johnson borrowed Dalton’s car and 

phone, and that numerous calls were placed to Singletary from that phone. The last 

call was placed from Dalton’s phone to Singletary at 12:08 a.m., and police received 

the 911 call related to the shooting at 12:15 a.m. Johnson initially denied being 

present then repeatedly provided shifting information to police. He initially claimed 

that he was with a person named D.J., and that Wilson left with Dalton’s car and 

phone. Eventually, however, he stated that he and Wilson went to the sister’s house 

and called Singletary to purchase drugs. He admitted that he went with Wilson to 

meet Singletary on the street. He stated that he observed the shooting, and he 

admitted that he and Wilson fled to the sister’s house. Johnson told Dalton that he 

“tossed” the phone after the shooting and he fabricated a false alibi for her to relay 

to anyone who asked. He also instructed Green to give false information regarding 

his whereabouts on the night of the shooting. The day after the shooting, Johnson 

still had Dalton’s car and spent the day with Wilson. Green found Johnson’s 
behavior so suspicious that she asked him if he had killed someone. He responded 

by telling her to ask Dalton. Johnson fled as Wilson was stopped by police. Based 

on the foregoing, the evidence established that Johnson was more than a mere 

bystander, and that he supported, assisted, and cooperated with Wilson and there is 

strong circumstantial evidence that he shared Wilson’s intent. 

Accordingly, the state presented sufficient evidence to show 

Johnson’s guilt. The first assigned error is without merit. 

Manifest Weight of the Evidence 

In the second assigned error, Johnson argues that his convictions are 

against the manifest weight of the evidence. He maintains that the evidence strongly 

suggests that he did not make the phone calls for the drug purchase, he was not 

present at the shooting, had no advance knowledge of the robbery, and did not 

dispose of the phone. 

In determining whether a conviction is against the manifest weight of 

the evidence, a reviewing court reviews “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. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 

N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st 

Dist.1983). Reversing a conviction as being against the manifest weight of the 
evidence and ordering a new trial is reserved for only those “exceptional cases in 

which the evidence weighs heavily against the conviction.” Id. 

Moreover, circumstantial evidence carries the same weight as direct 

evidence. State v. Seals, 8th Dist. Cuyahoga No. 101081, 2015-Ohio-517, ¶ 32, citing 

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

In this matter, despite Johnson’s claims, the manifest weight of the 

evidence indicates that Johnson borrowed Dalton’s phone on the night of the 

shooting. After giving shifting accounts of what happened, he admitted to going 

with Wilson to the area of the shooting. The phone Johnson borrowed from Dalton 

was used to repeatedly communicate with Singletary in the final minutes before the 

shooting. Johnson told Dalton that he tossed the phone after Wilson shot 

Singletary. Johnson then contacted Dalton and Green about falsely stating that he 

was with them at the time of the shooting. He spent the day after the shooting with 

Wilson, and fled when police arrested Wilson. The state’s case, though 

demonstrated through both circumstantial and direct evidence, was not against the 

manifest weight of the evidence. When considering the credibility of the witnesses 

and resolving the conflicts in the evidence, we cannot conclude that this case is one 

of the “exceptional cases in which the evidence weighs heavily against the 

conviction.” 

 Accordingly, the second assignment of error is without merit. 

Allied Offenses 
Johnson next argues that his convictions under Counts 1-4, 6, and 7 

are allied offenses because they are all premised upon the same conduct, i.e. the 

telephone call from Dalton’s phone to Singletary for the purported purpose of luring 

him to the scene where he was shot. 

Because this issue was not raised below, we review for plain error 

affecting Johnson’s substantial rights. Crim.R. 52(B); State v. Rogers, 143 Ohio 

St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. 

Pursuant to R.C. 2941.25(A), “[w]here the same conduct by defendant 

can be construed to constitute two or more allied offenses of similar import, * * * the 

defendant may be convicted of only one.” 

In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 

892, ¶ 30-31, the Ohio Supreme Court detailed the allied offenses analysis: 

A trial court and the reviewing court on appeal when considering 

whether there are allied offenses that merge into a single conviction 

under R.C. 2941.25(A) must first take into account the conduct of the 

defendant. In other words, how were the offenses committed? If any 

of the following is true, the offenses cannot merge and the defendant 

may be convicted and sentenced for multiple offenses (1) the offenses 

are dissimilar in import or significance — in other words, each offense 

caused separate, identifiable harm; (2) the offenses were committed 

separately, and (3) the offenses were committed with separate animus 

or motivation. 

At its heart, the allied offense analysis is dependent upon the facts of a 

case because R.C. 2941.25 focuses on the defendant’s conduct. The 

evidence at trial or during a plea or sentencing hearing will reveal 

whether the offenses have similar import. When a defendant’s conduct 

victimizes more than one person, the harm for each person is separate 

and distinct, and therefore, the defendant can be convicted of multiple 

counts. Also, a defendant’s conduct that constitutes two or more 

offenses against a single victim can support multiple convictions if the 
harm that results from each offense is separate and identifiable from 

the harm of the other offense. We therefore hold that two or more 

offenses of dissimilar import exist within the meaning of R.C. 

2941.25(B) when the defendant’s conduct constitutes offenses 

involving separate victims or if the harm that results from each offense 

is separate and identifiable. 

Id. at ¶ 25-26. 

On the issue of whether offenses were committed with the same 

animus, this court has explained that “animus” means “purpose or, more properly, 

immediate motive.” State v. Bailey, 8th Dist. Cuyahoga No. 100993, 2014-Ohio4684, ¶ 34, quoting State v. Logan, 60 Ohio St.2d 126, 131, 397 N.E.2d 1345 (1979). 

Animus may be inferred from the surrounding circumstances. Id. When “an 

individual’s immediate motive involves the commission of one offense, but in the 

course of committing that crime he must, a priori, commit another, then he may well 

possess but a single animus, and in that event may be convicted of only one crime.” 

Id., quoting Logan. Therefore, in determining whether the offenses share the same 

animus, the court must consider: 

(1) whether the first offense was merely incidental to the second 

offense or whether the defendant’s conduct in the first offense 

demonstrated a significance independent of the second, and (2) 

whether the defendant’s conduct in the first offense subjected the 

victim to a substantial increase in the risk of harm apart from that 

involved in the second offense. 

Id. at 35, citing State v. Shields, 1st Dist. Hamilton No. C-100362, 2011-Ohio-1912. 

We note that under R.C. 2923.03(F), an accomplice to a crime shall 

be prosecuted and punished as if she were a principal offender. In determining the 

issue of merger in connection with accomplice liability, the court must consider 
whether the defendant aided and abetted each offense with separate and distinct 

acts resulting in separate and identifiable harms. State v. Harless, 5th Dist. Ashland 

No. 14-COA-034, 2015-Ohio-4753. Moreover, aggravated robbery and murder do 

not merge when the force used to effectuate an aggravated robbery is far in excess 

of that required to complete the robbery, or where the circumstances suggest that a 

separate intent to kill existed. See State v. Stinson, 2d Dist. Montgomery No. 26449, 

2015-Ohio-4405, ¶ 77. 

Here, Johnson argues that the state relied upon the same conduct in 

order to establish aggravated murder, felonious assault, aggravated robbery, 

discharge of a firearm near prohibited premises, and having a weapon under 

disability, i.e., the telephone call from Dalton’s phone to Singletary for the purported 

purpose of luring him to the scene where he was shot. However, the state’s evidence 

in this matter demonstrates that Johnson did not simply make a phone call. Rather, 

the evidence demonstrated that he aided and abetted from the beginning to end in 

conduct that resulted in commission of distinct offenses with a separate animus to 

each. State v. Burt, 8th Dist. Cuyahoga No. 99097, 2013-Ohio-3525, ¶ 32. However, 

we hasten to add that immediately finding Johnson guilty of aggravated murder and 

murder, the trial court also found Johnson guilty of felonious assault, noting that 

“the elements of felonious assault were complete once the gun was fired and before 

the bullet struck Singletary, and Singletary’s death was a result of the same conduct.” 

State v. Johnson, Cuyahoga C.P. No. CR-17-622972 (May 30, 2018). With that 

finding in mind, we conclude that the offenses were committed with the same 
conduct and same animus so they are allied offenses of similar import. Although 

the trial court merged the aggravated murder and murder convictions, further 

merger is required on the aggravated murder and felonious assault convictions. 

This assigned error is well taken in part. 

Ineffective Assistance of Counsel 

Johnson next claims that his trial attorney was ineffective for 

stipulating that only Counts 1 (aggravated murder) and 2 (murder) were allied. 

The Sixth Amendment to the United States Constitution guarantees a 

criminal defendant the effective assistance of counsel. Courts employ a two-step 

process to determine whether the right to effective assistance of counsel has been 

violated. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 

674 (1984). First, the defendant must show that counsel’s performance was 

deficient. This requires showing that counsel made errors so serious that counsel 

was not functioning as the “counsel” guaranteed the defendant by the Sixth 

Amendment. Second, the defendant must show that the deficient performance 

prejudiced the defense. This requires showing that counsel’s errors were as serious 

as to deprive the defendant of a fair trial, a trial whose result is reliable. Id. 

In this matter, we have determined that the felonious assault 

conviction must be merged with the aggravated murder conviction, so this aspect of 

the assigned error is moot. We have further determined that the remaining offenses 

are not allied. Accordingly, this assigned error is without merit. 
Convictions are affirmed, the sentences imposed for the aggravated 

murder and felonious assault counts are reversed, and the matter is remanded for 

resentencing on whichever of those two counts survives the state’s election. 

It is ordered that appellee and appellant share the costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue of this court directing the common 

pleas court to carry this judgment into execution. The defendant’s conviction having 

been affirmed, any bail pending is terminated. Case remanded to the trial court for 

execution of sentence. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 

of the Rules of Appellate Procedure. 

______________________________ 

PATRICIA ANN BLACKMON, JUDGE 

EILEEN T. GALLAGHER, P.J., CONCURS WITH SEPARATE OPINION; 

MARY J. BOYLE, J., CONCURS IN JUDGMENT ONLY 

EILEEN T. GALLAGHER, P.J., CONCURRING: 

I concur with the lead opinion and its determination that the state 

presented sufficient and credible evidence to support appellant’s convictions. I write 

separately only to reference the circumstances of this case that give me pause. 

In this case, the state argued that appellant’s complicity was 

established by evidence that he (1) set up the drug deal, (2) admitted he was present 
at the scene of the drug deal, then subsequently (3) fled the scene, (4) threw Dalton’s 

phone in the street, (5) fabricated an alibi, and (6) lied to the police. 

Unquestionably, the state presented sufficient evidence that 

appellant made the phone call to set up an apparent drug deal with the victim and 

that he was present at the scene of the shooting. However, in my view, all this 

evidence established is that appellant attempted to purchase drugs and was present 

at the scene when an altercation occurred between his codefendant and the victim. 

In order to establish the criminality of appellant’s conduct, the state was forced to 

rely on certain actions appellant took after the shooting. 

For these reasons, I do not believe appellant’s presence at the scene 

and evidence that he contacted the victim to schedule a drug deal, standing alone, 

constituted sufficient evidence of complicity to commit the aggravated robbery 

underlying the aggravated murder offense. However, upon consideration of 

appellant’s conduct before and during the incident in light of the actions he took 

after the incident, I must concede that, collectively, there was circumstantial 

evidence to support appellant’s convictions. Regarding this issue, this court has 

routinely held that: 

Aiding and abetting may be shown by both direct and circumstantial 

evidence and participation may be inferred from presence, 

companionship, and conduct before and after the offense is 

committed. Aiding and abetting may also be established by overt acts 

of assistance such as driving a getaway car or serving as a lookout. Id. 

at 150, 444 N.E.2d 68. 
State v. Langford, 8th Dist. Cuyahoga No. 83301, 2004-Ohio-3733, ¶ 21. Applying 

this standard, a reasonable trier of fact could conclude that appellant’s 

participation in the criminal acts could be inferred from his presence at the scene 

and the actions he took after the offenses were committed. Based on the 

unambiguous precedent of this court, I find there was sufficient and credible 

circumstantial evidence of appellant’s guilt. 

However, I find it necessary to express my belief that the reliance on 

circumstantial evidence that involves actions a defendant took after an incident in 

order to prove the criminality of his conduct during the incident, is a slippery slope 

that could result in the over prosecution of alleged aiders and abettors. As stated, 

the evidence of appellant’s actions after the incident in this case could be reasonably 

construed as creating an inference that appellant participated in the criminal 

scheme and contacted the victim with the intent to complete the underlying 

aggravated robbery. With that said, I equally believe that a reasonable person could 

also conclude that appellant was merely present at a planned drug deal that 

suddenly turned wrong, and that the actions he took after the incident could equally 

reflect the actions of a person who was scared, leery of the police, and unwilling to 

“snitch” on his friend. Thus, a 24 year old man is now required to spend 34 yearsto-life in prison based upon judicial precedent that infers an individual’s criminal 

intent based on lies and actions he or she made after a shooting.