[Cite as State v. Newby, 2024-Ohio-1391.]

IN THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

CLARK COUNTY

STATE OF OHIO 

 Appellee

v. 

KITANA NEWBY

 Appellant

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C.A. No. 2023-CA-30

Trial Court Case No. 23-CR-109(B)

(Criminal Appeal from Common Pleas 

Court)

. . . . . . . . . . .

O P I N I O N

Rendered on April 12, 2024

. . . . . . . . . . . 

REGINA R. RICHARDS, Attorney for Appellant

 

ROBERT C. LOGSDON, Attorney for Appellee

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

HUFFMAN, J.

{¶ 1} Kitana Newby appeals from her conviction on one count of complicity to 

attempted murder, with a firearm specification. For the reasons that follow, the judgment 

of the trial court is affirmed.

Procedural History
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{¶ 2} Newby and her co-defendant, Jeffrey Dyer, were indicted on February 22, 

2023. Newby was indicted for complicity to attempted murder and complicity to felonious 

assault, with a firearm specification as to each offense; Dyer was indicted for attempted 

murder and felonious assault, with firearm specifications. The events giving rise to the 

indictments occurred on January 29, 2022, when Newby and Dyer got into an altercation 

with Jason Ware. Newby and Dyer were traveling together in a Honda Accord driven by 

Newby, and Ware was driving alone in his truck; their altercation began at a stop light and 

culminated at a Speedway gas station in Springfield, where Dyer shot Ware in the neck. 

{¶ 3} Newby pled not guilty to the charges on March 9, 2023. She and Dyer were 

tried together by a jury in June 2023. Newby and Dyer were represented jointly by 

retained counsel, and they executed waivers of potential conflicts of interest due to the 

dual representation. 

{¶ 4} At the conclusion of the State’s case, defense counsel moved for a judgment 

of acquittal as to Newby on both counts and a judgment of acquittal as to Dyer for 

attempted murder. The court overruled the motions. The court provided a self-defense 

jury instruction as to Dyer only. The jury rendered guilty verdicts on all counts. In 

Newby’s case, the trial court merged the offenses and sentenced Newby to an indefinite 

term of four to six years for complicity to attempted murder, plus three years on the firearm 

specification. 

{¶ 5} Newby appeals, raising four assignments of error. In December 2023, she 

filed a brief that exceeded the page limits set forth in Loc. App.R. 2.2. On March 18, 

2024, after the State filed its brief, Newby filed a motion for leave to file a brief in excess 
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of the page limit (referencing her December brief) and to reform the table of contents. 

That motion is granted.

Evidence Presented at Trial

{¶ 6} For ease of analysis, we will begin by reviewing the evidence presented 

through the testimony of multiple witnesses at trial. Surveillance videos from the 

Speedway and a nearby McDonald’s were also admitted into evidence.

Rebecca Taylor

{¶ 7} Rebecca Taylor testified that on January 29, 2022, she was parked at the 

Speedway gas station at the corner of Derr and Villa Roads in Springfield listening to 

music while her daughters went inside the store. Taylor observed Newby’s car and 

Ware’s truck parked by the pumps, and she was aware of an argument, although she 

could not hear what was being said. She observed Ware pull his truck forward near the 

Villa Road entrance, stop, and get out of the truck; Newby also exited her vehicle. Taylor 

also observed Dyer exit Newby’s car, grab Newby around the waist, and turn her around. 

According to Taylor, Newby went back to her car, Ware turned toward his truck, and Dyer 

reached into his white hoodie pocket, pulled out a gun, and shot Ware four or five feet 

from the back of his truck. At the time, the “bickering was still going on,” but Taylor 

thought the incident was over. She did not observe any actions or threats from Ware, 

and she described Newby as “more loud and boisterous” than the others. She testified 

that Ware was dressed in dark clothing.

Melissa Mitchem
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{¶ 8} The same evening, Melissa Mitchem, a home health nurse, was in the 

parking lot at Rose’s Discount Store near Speedway. She heard arguing and yelling, 

and she “knew it wasn’t gonna be good by the tone.” Mitchem could not make out what 

was being said, and she then heard a gunshot. She observed Ware fall toward the back 

end of his truck, which was near an exit from the Speedway parking lot and not in a 

parking space; Ware fell “like a noodle.” Mitchem saw “figures in a car” about 20 feet 

from Ware but did not see who had shot him. Mitchem’s husband drove her over to 

Ware, and she held pressure on his neck until medics arrived. 

Raven Anderson

{¶ 9} Raven Anderson testified that she was working inside the Speedway on the 

night of the shooting. While waiting on customers, she heard arguing in the “pump lot” 

that went on for a couple of minutes. Anderson went to a window to see what was 

happening. She observed interaction between three people, one of whom was on the 

side of the pump near Anderson and two of whom were on the other side of the pump; 

Anderson assumed it was a “road rage” incident. As she prepared to call 911, the door 

to the parking lot opened, and Anderson heard someone say, “I am going to shoot.” She 

stated that it was “definitely a female’s voice.” After hearing the gunshot, Anderson 

called 911. 

{¶ 10} Surveillance video from the Speedway was played during Anderson’s 

testimony; she identified Newby’s vehicle circling around to park at Pump 5 and Ware’s 

truck stopped at Pump 6 on the opposite side of Pump 5. She stated that, when Ware 

started to leave, Newby and Dyer started to follow his truck. According to Anderson, 
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when Ware started to drive away, “the people started walking towards the [truck] like they 

were going to try to continue the confrontation.” Anderson did not see anything else until 

she heard the gunshot. She identified Ware as wearing a dark blue or black coat at the 

scene and Dyer as wearing a white hoody.

{¶ 11} On cross-examination, Anderson testified that the surveillance video 

depicted Newby’s vehicle approaching the pump “at a reasonable pace,” whereas Ware 

had entered the Speedway “very fast,” but she had not actually observed their arrival. 

On redirect, Anderson read the written statement she gave to police the night of the 

incident, over objection. It said:

I heard an argument going on in my parking lot next to Pump 5 and Pump 

6. A man and woman were yelling at a man in truck. The man in the truck 

went to drive away, but the female kept yelling and said she would shoot 

him. The man in the truck stopped his truck and got out and started to yell 

back at her and the man. The man and the woman walked towards the 

man and started to scream and shout. When I walked to the doors, we 

heard a pop. The man and woman got in the car, a gold Honda Accord, 

heading north on Derr Road. The man was white, black hair, wearing a 

white shirt. The * * * female * * * was light skinned to black with a red head 

wrap. The female was yelling about the man in the truck being on her car 

and damages being done.

John Eldridge

{¶ 12} John Eldridge testified that he was at the Speedway on the night of the 
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shooting, and he observed a truck sitting not quite at the exit to the station in “an odd 

spot.” After exiting his vehicle, Eldridge heard “a bunch of arguing” and a gunshot, and 

then he observed a “young man” walking briskly from the oddly-parked truck to a gold 

Honda Accord that was on the “outside pump.” As he walked, the man put a pistol into 

his pocket. The man with the gun was wearing a white T-shirt and tan pants. Eldridge 

also observed a woman between the truck and the Honda “still rattling on about 

something” in an angry and aggressive manner.

Damian Gibson

{¶ 13} Damian Gibson was at the Speedway on the night of the shooting, and he 

heard arguing from inside his vehicle. Gibson testified that the arguing escalated, and 

he saw a man pull up in his truck “very fast,” slam on his brakes, and get out of the truck. 

Gibson observed people later identified as Dyer and Newby approach the man from the 

truck, but the woman (Newby) was the only one he heard yelling and arguing with the guy 

in the truck. According to Gibson, the woman’s boyfriend was trying to bring her back to 

a gold Honda Accord. At one point, Newby and the man from the truck were “close 

enough to be face to face” but not close enough to touch each other. Gibson did not 

hear anything from Dyer, and he saw the man from the truck “flinch” at Newby, but there 

was no touching, fighting, or hitting Gibson then heard a gunshot and saw Ware instantly 

fall; the other man and woman ran back to their car and left. According to Gibson, Ware 

had walked less than six feet from the bed of his truck before he was shot; Dyer was 

behind Newby the entire time, trying to bring her back to the car, but “[i]t didn’t work.” 

{¶ 14} When asked about the “flinch” on cross-examination, Gibson stated that the 
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man from the truck may have “just jerked a little bit” but did not lunge at anyone. Gibson 

reiterated that the victim had been arguing with the woman from the car, but there had 

been “no threats or anything,” and Gibson did not believe the “flinch” by Ware had been 

an “aggressive approach.”

Brooklyn Miller

{¶ 15} Brooklyn Miller was at the Speedway on the night of the shooting with her 

boyfriend, Damian Gibson. While in Gibson’s vehicle, she observed Ware in his truck 

arguing with Newby, who was standing outside her vehicle, while Dyer remained quiet. 

She heard the words “shooting” or “shoot you” in a female voice. According to Miller, 

Ware got out of his truck and continued to argue, and “there was a little bit of physical 

flinching towards each other,” but nothing touched. Miller stated that the man who had 

the gun “grabbed his girlfriend,” swung her around, and then ran up and shot the man

from the truck. According to Miller, Ware “did not go forward or nothing but he was kind 

of like going to turn around and go back to his truck and then that’s when he got shot.” 

Dyer was wearing white and gray, and Newby was wearing something red. 

Officer Beau Ray

{¶ 16} Officer Beau Ray of the Springfield Police Department responded with his 

partner to the Speedway. Ray observed Ware “laying on the ground on his back” to the 

rear driver’s side of the truck on the north side of the parking lot. 

Officer Allison Craig

{¶ 17} Officer Allison Craig, an evidence technician with the Springfield Police 

Department, responded to the Speedway after the shooting; when she arrived, Ware had 
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already been taken from the scene. She placed yellow placards to mark evidence 

pertinent to the investigation and took photographs of the scene. Using the placards, 

Craig identified the location of a 9-millimeter spent shell casing and places where blood 

was found near Ware’s truck. She testified that no weapons were found in the truck. 

Craig testified that she did not measure the distance between the gas pumps and the 

back of Ware’s truck.

Sergeant James Byron

{¶ 18} Sergeant James Byron of the Springfield Police Department Investigation 

Unit, Crimes Against Persons Division, administered two photo arrays of six photos each 

to Ware on February 7, 2022, at the request of Detective Daniel DeWine. Ware selected 

a photo of Newby in the first array, stating that she had been wearing red the day of the 

shooting. In the second array, Ware selected Dyer, stating, “He looks familiar. 

Something in my heart says that’s him.” Byron served as a blind administrator; he had no 

knowledge of the shooting prior to administering the arrays.

Jason Ware

{¶ 19} Jason Ware was 38 years old at the time of trial and lived in Springfield. 

He testified that, on the day of the shooting, he pulled behind the Honda driven by Newby 

while driving north on Limestone Street at a stoplight at Home Road. Dyer was in the 

passenger seat of the Honda. The Honda’s right turn signal was on, and as Ware pulled 

behind it, the car “scooted forward,” and then Ware also “scooted closer” to the car. He 

noted that the Honda did not turn until the light turned green. Ware stated that the Honda 

turned into the outside lane closest to oncoming traffic, and he turned into the inside lane. 
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While turning, Ware observed Newby “pointing and yelling and giving the finger,” which 

he believed was directed to Dyer. Ware testified that, as he started to speed up, the

Honda sped up next to him like “they were trying to keep up” with him. According to 

Ware, he was a “pretty fast” driver, even through town, and when he noticed the Honda’s 

speed increasing, he “gunned it” to “close to a hundred miles an hour” down Home Road 

toward the light at Derr Road, until he believed the Honda was no longer behind him. 

{¶ 20} Ware got into the left lane on Home Road, then turned into the right-hand 

lane on Derr Road, because he was planning to make a right-hand turn onto Vester 

Avenue. Upon reaching Vester Avenue, Ware heard honking and saw the Honda again 

driving next to him; the woman in the car “was pointing and yelling and giving [him] the 

bird.” According to Ware, he then turned around and followed the car into the Speedway,

with no “malicious intent,” only to “find out what was going on.” When Ware pulled in, 

the Honda was pulling into the opposite side of the gas pumps. Ware did not get out of 

his truck, but Dyer got out of the Honda, and Newby “instantly” jumped out the car and 

was yelling about Ware’s “tailing” her. Newby threatened to “whoop [Ware’s] ass” and 

said Ware did not know who he was dealing with. Ware yelled back, saying “you really 

don’t want no problems. I want no problems.” When Ware started to drive away, Newby 

yelled, “I’ll f******* kill you.” 

{¶ 21} Ware then stopped his truck and got out. He walked toward the back of 

his truck and yelled, “Do you know who I am?” According to Ware, “it wasn’t a question 

of me personally. It was a question of do you know who God is.” Ware was on a 

“spiritual journey” at the time, having just finished writing a book entitled “Finding God 
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Through Looking into Self”; he said “do you know who I am?” was a rhetorical question.

Ware had also been fasting to prepare for Ramadan. Newby replied, “I don’t give a f*** 

who you are,” and she spit in Ware’s face. According to Ware, Dyer was standing behind 

Newby, “grabbing her and pulling her back” when she spit in his face. Ware turned 

around to walk away and, as he did so, he “heard the bang.” Ware was walking back to 

his truck when Dyer shot him on the left side of his neck. 

{¶ 22} Ware testified that he had not been carrying any weapons, had made no 

threats, and “had no ill will about fighting at all.” Ware stated that Newby had said she 

was going to kill him, and he “was waiting to see if it was gonna happen, really. Like, 

prove it.” He estimated that he was two or three feet from the back of his truck when he 

was shot, and he was next to his truck when he fell. Ware testified that when he had 

initially pulled his truck forward, he “was almost at the exit,” whereas Newby and Dyer 

were at the pump, “so they literally had to walk up on - - me, ran up on me,” and it 

happened so fast he did not have time to react. Ware did not see Dyer draw a weapon 

and he did not know which of them shot him. He indicated that Dyer had been wearing 

a beige or off-white hoodie at the time of the incident. Ware was paralyzed from the 

chest down as a result of the shooting. 

{¶ 23} Ware testified that he had identified Newby and Dyer in the photo arrays, 

and he identified each of them in court. Ware further identified Newby as the person he 

had argued with, who had spit in his face, and who had driven the Honda. Ware 

identified himself and Dyer in the Speedway and McDonald’s surveillance videos, as well 

as the Honda “speeding off” after the shooting.
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{¶ 24} On cross-examination, Ware stated that Dyer had been a foot or two from 

him when he was shot, and Ware himself had been next to his truck. Regarding Newby’s 

location, Ware stated that she had been “two feet in front of me, if that,” such that he could 

have reached out and touched her. Ware testified that he was “turning away as [Dyer] 

was pulling [Newby] back,” and that the gunshot wound had been in the back side of his

neck. Ware estimated that, previously, when Ware had been next to the exit and Dyer 

and Newby had been next to the pump, they had been 30 to 60 feet apart; he testified 

that when he exited his truck, Dyer and Newby approached him, and he did not make any

movement toward them. Ware stated that, if Newby had not approached him, Dyer 

would not have approached him, because Dyer was following and trying to restrain 

Newby. 

Detective Daniel DeWine

{¶ 25} Detective Daniel DeWine, who retired from the Springfield Police 

Department after 31 years, was the lead detective on Ware’s shooting. He testified that 

a handgun ejects a spent casing to the right side and that, based upon the location of the 

casing found at the scene, Dyer was close to Ware when the weapon was fired, although 

DeWine acknowledged that casings may be kicked or moved out of place. DeWine 

testified that the Speedway surveillance video showed two figures approach the truck and 

then come back; one was the “young man with the white sweatshirt.” In the McDonald’s 

video, DeWine also identified a person in a white sweatshirt who went up toward the truck 

for “just a second or so” and then walked back over to the car before the car headed north 

on Derr Road. DeWine testified:
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On the video that you can see that he [Ware] first stops, as it was said that 

there were words from witnesses and him that were exchanged. As he 

went to pull away, there were more words. He stops, gets out of his truck, 

walks to the back of the truck, and Ms. Newby approaches him. Then Mr. 

Dyer comes towards him. He never leaves the area of his truck, and then 

within seconds, as you can see on the video, within seconds there’s a shot 

fired which disables Mr. Ware.

{¶ 26} DeWine obtained a partial license plate number at the scene and learned 

that the Honda was associated with Newby. He put the photo arrays together for Sgt. 

Byron to administer to Ware, and DeWine was not in the room when Byron did so. 

Newby and Dyer did not contact law enforcement about the incident prior to their 

indictment. DeWine stated that the distance between the Honda and the truck after 

Ware pulled forward was “at least 25 feet,” and he estimated that the shot was fired from 

a distance of at least six feet from Ware.

Jeffrey Dyer

{¶ 27} Jeffrey Dyer was the only witness to testify for the defense. He was 18 

years old on the day of the shooting and in a relationship with Newby. He was in Newby’s 

vehicle on his way to do laundry at his mother’s home when he was awakened by Newby’s

yelling and screaming. He observed Ware “staring down” at them from his truck “with 

really wide eyes” before Ware sped away. When he and Newby reached Derr Road, 

they turned left and noticed Dyer’s truck ahead of them about to turn onto Vester Avenue. 

Ware then slammed on his brakes, which almost caused them to hit his truck; Newby and 
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Dyer “had to swerve into the opposite lane and honked [the] horn to go around him” before 

pulling into Speedway. Dyer’s gun was in the center console of Newby’s vehicle. 

{¶ 28} Dyer saw Ware turn onto Vester after he “brake checked” them, and Dyer 

believed that Ware “went on with his business.” Based on one of the videos, Dyer stated 

that when Ware arrived at the Speedway, the initial exchange of words lasted about 30 

seconds. According to Dyer, Ware rolled his window down and screamed at them, called 

them names, asked if they knew who he was, and “kept waving something up.” Dyer 

remained quiet, but Newby called Ware “the B word” as Ware started to speed off, and 

then Ware slammed on his brakes. Dyer denied that Newby had threatened Ware. 

Dyer believed that Ware wanted to “start trouble.”

{¶ 29} Dyer testified that Ware walked toward him and Newby at Speedway; he 

denied that they ever approached Ware. According to Dyer, Newby and Ware “met in 

the middle” area between the Honda and the truck, but Dyer never stepped toward the

truck and stayed next to the pumps “almost the whole time.” Dyer approached Newby 

to “deescalate the situation,” but she would not come with him: then Dyer stepped back 

because he was fearful. Newby spit at Ware; Ware walked to his truck, touched the door 

handle, then “turned around and made a full sprint towards [Dyer] with his hands up in 

the air.” Dyer stated that he fired only one shot at Ware because he was trying to scare 

Ware away rather than hurt him. Dyer stated that he “shouldn’t have done it” but that he 

was in fear for his life and didn’t know what else to do. According to Dyer, he felt that 

Ware had grabbed something when he went back to his truck, and Ware said “that he 

had something for me.” Dyer testified that Newby did not encourage him to shoot Ware, 
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did not give him the gun to shoot Ware, and did not drive him to kill Ware.

{¶ 30} With respect to Newby’s role, Dyer testified as follows on crossexamination:

Q. If [Newby] wasn’t yelling like she was and acting like she was, do you 

think that you would have shot him?

A. No, sir. I wasn’t trying to shoot him in the first place.

Q. * * * Do you think it’s fair to say she influenced you or incited you to do 

what you did?

A. No, sir. She did not influence me.

* * *

Q. And you were in fear for your life when you were back at the car.

A. And he was charging at me, yes.

Q. And he had his hands up, you said, right?

A. He had his hands like this (indicating), waving them crazy.

Q. So you didn’t see any guns in his hands, any knives in his hands, right?

A. I didn’t know what he had. * * * For all in know, he had a knife and I 

didn’t know. * * *

* * * 

Q. She [Newby] wasn’t scared of him, right?

A. No, sir.

{¶ 31} Dyer testified that he was wearing a dark gray sweatshirt at the time of the 

shooting. 
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{¶ 32} Newby did not testify at trial.

Trial Counsel’s Alleged Ineffectiveness

{¶ 33} As noted above, Newby asserts four assignments of error on appeal. Her

first assignment of error is:

APPELLANT WAS DENIED HER RIGHT TO EFFECTIVE 

ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT TO THE 

U.S. CONSTITUTION AND ARTICLE I, SECTION 10, OF THE OHIO 

CONSTITUTION WHERE TRIAL COUNSEL’S CUMULATIVE 

DEFICIENCIES PREJUDICED HER RIGHT TO A FAIR TRIAL.

{¶ 34} In this lengthy assignment of error, Newby asserts that trial counsel did not

obtain her waiver of the conflict inherent in his dual representation of her and Dyer until 

the day of trial, which was nearly three months after the dual representation began. She 

contends that “antagonistic defenses were foreseeable” and that she was prejudiced by 

Dyer’s testimony as to acting in self-defense and by counsel’s failure to assert selfdefense on her behalf. Newby also argues that defense counsel’s “improper comments 

and unprofessional conduct” fell below an objective standard of reasonableness, as 

evidenced by the trial court’s repeated admonishments of counsel in front of the jury, 

which prejudiced her right to a fair trial.

{¶ 35} The State responds that Newby waived her right to her own counsel 

“throughout the trial process.” According to the State, her written waiver occurred prior 

to trial and after Newby would have known of defense counsel’s filing of a notice of self-
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defense on behalf of Dyer only. The State further argues that defense counsel’s attempt 

to frame Dyer’s conduct as self-defense could have benefitted Newby, because if Dyer 

had been found to have acted in self-defense “for the actual shooting of the victim, then 

[Newby] would have been acquitted by extension” because Dyer also acted in defense of 

Newby. According to the State, the fact that the jury was unpersuaded by the selfdefense argument did not negate it as a reasonable trial strategy and did not mean that 

trial counsel was ineffective for having chosen that strategy. Finally, the State asserts 

that the trial court’s admonishments of defense counsel “were made during defense 

counsel’s attempt to get evidence helpful to Newby into the record” and that she has not 

demonstrated prejudice. 

{¶ 36} In reply, Newby argues that her “waiver of dual representation” did not waive 

her right to adequate and effective representation as guaranteed by the Sixth 

Amendment. She again argues that trial counsel’s failure to assert self-defense on her 

behalf establishes ineffective assistance, because she “had the requisite state of mind to 

use force to repel Ware for following her and confronting her.” She also claims that the 

surveillance videos were of poor quality and lacked evidentiary value.

{¶ 37} We review alleged instances of ineffective assistance of trial counsel under

the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. 

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). See also State v. Blanton, 2023-

Ohio-89, 206 N.E.3d 14, ¶ 56 (2d Dist.). To prevail on a claim of ineffective assistance, 

Newby must show that trial counsel rendered deficient performance and that counsel's 
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deficient performance prejudiced her. Strickland at paragraph two of the syllabus; 

Bradley at paragraph two of the syllabus. In the absence of a showing of either deficient 

performance or prejudice, a claim of ineffective assistance of counsel fails. Blanton at 

¶ 56, citing Strickland at 697. 

{¶ 38} To establish deficient performance, a defendant must show that trial 

counsel's performance fell below an objective standard of reasonable representation. 

Strickland at 688. In evaluating counsel's performance, a reviewing court “must indulge 

in a strong presumption that counsel's conduct falls within the wide range of reasonable 

professional assistance.” Id. at 689. “The adequacy of counsel's performance must be 

viewed in light of all of the circumstances surrounding the trial court proceedings.” State 

v. Jackson, 2d Dist. Champaign No. 2004-CA-24, 2005-Ohio-6143, ¶ 29, citing Strickland.

{¶ 39} To establish prejudice, a defendant must show that there is “a reasonable 

probability that, but for counsel's errors, the proceeding's result would have been 

different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, 

citing Strickland at 687-688 and Bradley at paragraph two of the syllabus. “ ‘A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.’ ” Bradley at 142, quoting Strickland at 694.

{¶ 40} In reviewing ineffective assistance claims, we must not second-guess trial 

strategy decisions. State v. Mason, 82 Ohio St.3d 144, 157, 694 N.E.2d 932 (1998); 

Strickland at 689. Therefore, “ ‘trial counsel is allowed wide latitude in formulating trial 

strategy[.]’ ” State v. Collins, 2d Dist. Miami No. 2010-CA-22, 2011-Ohio-4475, ¶ 15, 

quoting State v. Olsen, 2d Dist. Clark No. 2009-CA-110, 2011-Ohio-3420, ¶ 121. 
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“Debatable strategic and tactical decisions may not form the basis of a claim for ineffective 

assistance of counsel, even if, in hindsight, it looks as if a better strategy had been 

available.” State v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 56 (2d Dist.), citing State 

v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992).

Conflict of Interest

{¶ 41} An element of the constitutional right to counsel is the right of a defendant 

who does not require appointed counsel to choose who will represent him (or her). 

United States v. Gonzalez-Lopez, 548 U.S. 140, 144, 126 S.Ct. 2557, 165 L.Ed.2d 409 

(2006). “Defense counsel has a duty to provide effective, conflict free assistance of 

counsel under the Sixth Amendment and its supporting caselaw * * * and pursuant to the 

Ohio Rules of Professional Conduct.” State v. Williams, 166 Ohio St.3d 159, 2021-Ohio3152, 184 N.E.3d 29, ¶ 6, citing Cuyler v. Sullivan, 446 U.S. 335, 345, 100 S.Ct. 1708, 

64 L.Ed.2d 333 (1980). “An attorney representing multiple defendants in criminal 

proceedings is in the best position professionally and ethically to determine when a 

conflict of interest exists or will probably develop during the course of the trial.” State v. 

Seals, 2d Dist. Clark No. 2004-CA-63, 2005-Ohio-4837, ¶ 14, citing State v. Manross, 40 

Ohio St.3d 180, 532 N.E.2d 735 (1988). “Unless the trial court knows or reasonably 

should know that a particular conflict of interest exists, or unless the defendant objects to 

multiple representation, the trial court need not initiate an inquiry into the propriety of such 

representation.” Id., citing Cuyler at 347; Manross at syllabus.

{¶ 42} “[I]n order to establish a violation of the Sixth Amendment right to effective 

assistance of counsel, a defendant who fails to object to joint representation at trial must 
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demonstrate that an actual conflict of interest adversely affected his lawyer's 

performance.” Id. at ¶ 15, citing Cuyler and Manross. “The term ‘conflict of interest’

involves circumstances in which regard for one duty tends to lead to disregard of another 

duty, such as when there is representation of multiple clients with incompatible interests.” 

Id. at ¶ 16, citing Manross. “A possible conflict of interest exists where the interests of 

the defendants may diverge at some point, so as to place the attorney under inconsistent 

duties, but an actual conflict of interest is shown where during the course of the 

representation the defendants' interests do diverge with respect to a material factual or 

legal issue or to a course of action.” (Emphasis sic.) Id., citing State v. Gillard, 78 Ohio 

St.3d 548, 679 N.E.2d 276 (1997). “A lawyer represents conflicting interests when, on 

behalf of one client, it is his duty to contend for that which duty to another client requires 

him to oppose.” Id., citing Columbus Bar Assn. v. Grelle, 14 Ohio St.2d 208, 237 N.E.2d 

298 (1968); Manross. “In order to demonstrate an actual conflict of interest based upon 

what an attorney has failed to do, a defendant must demonstrate that [some] plausible 

alternative defense strategy or tactic that has sufficient substance to be at least viable 

might have been pursued but was not undertaken due to the attorney's conflicting loyalties 

or interests.” Id. at ¶ 16, citing Gillard.

{¶ 43} “Raising the possibility of a conflict of interest is insufficient.” Williams at 

¶ 8, citing Manross at 182. In Manross, as here, “neither of the codefendants objected 

to the dual representation, and thus, it was their burden on appeal to demonstrate that an 

actual conflict existed and that the conflict adversely affected their lawyer’s performance.” 

Id. at ¶ 11, citing Manross. The Ohio Supreme Court found no actual conflict in Manross, 
-20-

which involved mother and son defendants; it found that their respective defenses did not 

result in one assigning blame to the other and they had a common interest in attacking 

the credibility of the State’s witnesses. Manross at 182.

{¶ 44} On the first day of trial, the trial court asked Dyer and Newby individually if 

defense counsel had discussed a waiver of potential conflict with them. It addressed 

Newby as follows:

THE COURT: I * * * want to read to you the same waiver that I just 

read to your Codefendant Mr. Dyer in this matter: I understand that I have 

a constitutional right to representation in this matter. I further understand 

that if I cannot afford an attorney, an attorney would be appointed to me to 

represent me in all matters before this Court.

I am aware of potential conflicts of interest that may arise with my 

attorney also representing my Codefendant at a joint trial. I believe that my 

attorney of choice will be able to provide competent and diligent 

representation to each affected client. I hereby give consent to my attorney 

to continue his representation of my Codefendant and myself in all 

proceedings in this matter. I have consulted with my attorney and have 

had adequate time to make this decision. In no way am I being forced or 

coerced to make this decision; and I am making this decision knowingly, 

intelligently, and voluntarily.

Do you understand all that, ma’am?

[NEWBY]: Yes, Your Honor.
-21-

THE COURT: And is it your desire here today to waive any potential 

conflicts and have [Defense Counsel] represent both you and Mr. Dyer at 

this trial today?

DEFENDANT NEWBY: Yes, Your Honor.

THE COURT: Again, has she executed that document, [Defense 

Counsel]?

[DEFENSE COUNSEL]: She has, Your Honor.

THE COURT: I then am going to find that the Defendant has 

knowingly, intelligently, and voluntarily executed this document and has 

waived her right to having her own separate counsel at this time.

{¶ 45} Newby and Dyer had jointly retained defense counsel to represent them and 

expressed no objection to that arrangement as trial began. Defense counsel was in the 

best position to know of the existence of any conflict. Although Newby questions the 

timing of the execution of the waiver of conflict on the first day of trial, she also

acknowledges that her and Dyer’s alleged “antagonistic defenses were foreseeable,” and 

she chose nonetheless to execute the waiver. We conclude that Newby executed a valid 

waiver of the conflict of interest, and the court was under no duty to further inquire.

{¶ 46} Newby suggests that an actual conflict nevertheless existed in defense 

counsel’s dual representation based upon his failure to file a notice of self-defense for 

her. Newby cites store clerk Anderson’s testimony that she assumed the argument she 

overheard was related to a “road rage incident,” and Newby suggests that she (Newby) 

could have been a victim of the incident; she also cites witness Gibson’s description of 
-22-

Ware allegedly “flinching” at Newby. She asserts that Dyer contradicted defense 

counsel’s theory that Dyer acted in self-defense when Dyer testified that Newby was not 

afraid of Ware and that, but for her conduct, Dyer would not have shot Ware. 

{¶ 47} R.C. 2901.05(B)(1) governs self-defense and states:

(A) Every person accused of an offense is presumed innocent until proven 

guilty beyond a reasonable doubt, and the burden of proof for all elements 

of the offense is upon the prosecution. The burden of going forward with 

the evidence of an affirmative defense, and the burden of proof, by a 

preponderance of the evidence, for an affirmative defense other than selfdefense, defense of another, or defense of the accused's residence 

presented as described in division (B)(1) of this section, is upon the 

accused.

(B)(1) A person is allowed to act in self-defense, defense of another, or 

defense of that person's residence. If, at the trial of a person who is 

accused of an offense that involved the person's use of force against 

another, there is evidence presented that tends to support that the accused 

person used the force in self-defense, defense of another, or defense of 

that person's residence, the prosecution must prove beyond a reasonable 

doubt that the accused person did not use the force in self-defense, defense 

of another, or defense of that person's residence, as the case may be.

{¶ 48} Newby’s arguments about self-defense ignore the testimonial and video 

evidence. Newby mischaracterizes the record to suggest that Dyer blamed Newby in 
-23-

testifying that she was unafraid and that, but for her conduct, he would not have shot 

Ware. As reflected above, Dyer testified that he acted to shield Newby from Ware, who 

ran at them in a manner Dyer perceived to be threatening. The evidence showed that 

Dyer intended to shoot Ware and acted aggressively to do so by approaching him at his 

truck to bridge the gap between them, while also trying to bring Newby back to her car

and turning her away from the affray in a defensive manner. Whether Newby was afraid 

of Ware or not, she did not use force. She was charged with complicity, and the focus 

of her and Dyer’s defense was necessarily on Dyer’s conduct, not Newby’s. Newby did 

not testify. Dyer, as the armed principal, received the self-defense instruction for them 

both. In other words, defense counsel had no inconsistent or divergent duties as to Dyer 

and Newby, who had no incompatible interests, and an actual conflict of interest is not 

demonstrated. In our view, it was a matter of trial strategy to argue self-defense on 

behalf of Dyer only, and ineffective assistance is not demonstrated in counsel’s failure to 

argue self-defense on Newby’s behalf. 

 Egregious Conduct by Defense Counsel

{¶ 49} Newby asserts that defense counsel’s multiple “improper comments” 

prejudiced her and denied her a fair trial. Specifically, she asserts that defense counsel 

1) called Raven Anderson a liar on cross-examination; 2) improperly conceded his clients’

identities during the State’s direct examination of Sergeant Byron; 3) argued with Ware in 

the presence of the jury; and 4) that the cross-examination of Sergeant DeWine and other 

general statements made during closing arguments regarding DeWine were improper and 

prejudicial. According to Newby, defense counsel “knew his conduct was unprofessional,”
-24-

and “his egregious conduct backfired” as evidenced by the fact that he asked the jurors 

not to hold their dislike of him against Newby and Dyer. She argues that defense 

counsel’s repeated inappropriate comments and abusive tactics are a sufficient basis for 

a new trial. We will first describe each instance cited by Newby.

1.

{¶ 50} During Anderson’s cross-examination regarding a prior meeting with the 

prosecutor, defense counsel asked her if the prosecutor said, “Hey Raven, we have court 

on Tuesday; or did they say: Hey, Raven, let’s talk about your testimony.” Defense 

counsel advised Anderson, “It’s not a trick question. It’s okay to admit that you cooperated 

with the prosecutor.” Anderson admitted meeting with the prosecutor and, before she 

could finish her response, defense counsel accused her of lying, which she denied. The 

court admonished defense counsel not to call a witness a liar or to treat a witness like 

that in front of the jury. Defense counsel responded that he “should be able to ask a 

witness if she’s lying. That’s why we have cross examination.” The court then advised 

defense counsel to proceed with questioning Anderson. 

{¶ 51} Further, while viewing the McDonald’s video with Anderson and suggesting 

that Ware behaved in a threatening manner toward Dyer, defense counsel inquired of 

her, “Please tell me you see that. Come on. We’re at the 1:49 mark. You see that 

individual there, right?” Anderson responded, “I see something there, yes, sir.” When 

Anderson denied knowing the identity of the person in the video, defense counsel 

responded, “Because it wouldn’t help your case if you told the truth - -”. The court again 

admonished defense counsel saying: “[Defense Counsel], heaven forbid, all I’m asking 
-25-

you to do is ask questions and not editorialize during this period. She’s your witness at 

this point. Ask questions.” 

2.

{¶ 52} During Sgt. Byron’s direct testimony regarding the process of 

administering the photo array to Ware, defense counsel stated, “Your Honor, again, we’d 

stipulate. We aren’t disputing identity. My guys were there.” On cross-examination of 

Byron by defense counsel, the State objected to questioning about Byron’s involvement 

in the investigation, noting that Byron testified that he had been a blind administrator and 

his only involvement had been to show the photo array to Ware. The State asserted, “I 

don’t understand why he keeps asking questions digging further and further into his 

involvement. [Byron] stated his involvement.” The court advised defense counsel, “the 

Sergeant has already stated what his involvement was here, what information he has as 

part of the investigation. He wasn’t the investigator in this matter.” 

3.

{¶ 53} Newby also cites multiple exchanges during defense counsel’s crossexamination of Ware related to a video Ware posted on Facebook about the shooting that 

he made while in the hospital. Defense counsel asked Ware if he tried to justify his 

behavior on the night of the incident in the Facebook video, and Ware said no. Then the

following exchange occurred:

Q. Would you agree now, to sum this up, that in your Facebook video, that 

you posted unsolicited to the public, to brag, you put in there it ain’t nobody’s 

fault; I’m not even mad at them; I forgive them from the bottom of my heart.
-26-

A. I do forgive them, * * *

* * * 

Q. You say it ain’t nobody’s fault. You accepted responsibility. It’s okay 

to accept responsibility, sir. Jesus would do it, right? Tell the truth. Book 

of Atonements. All you got to do to be righteous is tell the truth. Tell the 

truth.

A. I am telling the truth.

Q. And the truth is that you said it wasn’t nobody’s fault but now today [it] 

is. * * *

* * *

Q. My ego told me to follow them and that got me shot. You said that on 

your Facebook, correct?

A. Correct.

Q. I could have went on and continued on with my own path. You said 

that as well, didn’t you?

A. Yeah.

Q. I wasn’t about to do anything to her, none of that, nor him.

A. Yeah.

Q. Although we have three witnesses saying that you lunged or flinched 

at them. That didn’t happen?

A. Is that cause for me being shot?

Q. Sir, if you were chased, if you flinched at them and went after them 
-27-

absolutely. Quite frankly, you should have got shot the moment you 

stepped out of that truck.

* * *

THE COURT: I again am going to instruct the jury to disregard [Defense 

Counsel’s] editorializing comments to you. That is not evidence, should 

not be considered as evidence, and you are hereby to forget and to not 

consider [Defense Counsel’s statements.]

4.

{¶ 54} Finally, regarding Det. DeWine, Newby points to the following exchange on 

cross-examination:

Q. So basically, what you’re doing is you’re sitting here, you’re observing 

all the information, and getting prepared on how you can put it together for 

the jury, right? ‘Cause you’re the last guy.

A. I’m the last guy.

Q. And is it fair to say that your purpose of sitting there also is maybe you 

can get a weak lawyer and intimidate him?

A. No, no.

Q. Would you agree you gave me a nice hard stare down a few minutes 

ago before our break?

A. I would say yes.

Q. And you called me a f****** a**hole, right?

A. I believe so.
-28-

{¶ 55} Newby also directs our attention to a portion of defense counsel’s closing 

argument:

Undisputed, Ms. Newby did not shoot. Undisputed, it’s not her gun. 

Undisputed, she never handed him the gun. No inference or no evidence 

whatsoever, let’s kill the guy, shoot the guy, nothing like that. That’s why 

these State’s witnesses are loosey-goosey. That’s why they stick with the 

word “shoot.” That’s why you compare the week before, just threw it in 

there. Don’t forget to say “shoot.” We got to get Newby; we got to get 

Newby. Whatever.

Ladies and gentlemen, I don’t even have a word. Usually I use the 

word “overcharge.” I don’t even have a word for what they did to Ms. 

Newby. I think it’s a tragedy. It’s shameful. It has to make you lose 

distrust [sic] in our system. And so you ask yourself, ew, they fled. They 

didn’t come back. Do you guys not see why? Look how the State treated 

my clients. Look at the evidence they had. Look at their lead detective. 

Cussing at me because I brought in evidence that he didn’t want us to see? 

How does that not scare you as a human being?

See you guys live - - there’s a thing called white privilege. I hate 

that word. It’s called elite privilege. People in power get away with stuff. 

Could you imagine if I cussed out that lead detective? * * * Nothing 

happens to them. Because that’s the DeWines for you. Who cares about 

evidence? We’re kings. We can do what we want; and if you don’t like it, 
-29-

we’ll knock you down. We have a narrative, and that’s what we’re gonna 

do. You saw it with the pandemic. You see it here. Well, no evidence. 

What happened to COVID? Well, the election, that’s it. Where’s COVID? 

I thought - - remember that one year everything got shut down? Well, one 

individual, DeWine, shut down this whole state.

[THE PROSECUTOR]: Objection, Your Honor.

THE COURT: [Defense Counsel.]

[DEFENSE COUNSEL]: Okay. I’ll move on.

* * *

[DEFENSE COUNSEL]: Ladies and gentlemen, let me make another thing 

clear to you. I will concede something. I agree that if you believe that the 

dispute was over and [Ware] is walking back to his car and he’s like, you 

know what, I’m done with these kids and he walks back to his car and he 

gets shot, I concede Mr. Dyer’s guilty. Ms. Newby definitely is not, but I will 

concede that. * * *

{¶ 56} Again, defense counsel’s theory of the case was that Dyer had acted in 

defense of himself and Newby after a road rage incident developed into a face-to-face 

altercation at the Speedway, where Ware charged at Dyer and caused Dyer to fear for 

his life and Newby’s, such that he justifiably shot Ware. The instances cited by Newby

above were matters of trial strategy that we will not second guess in hindsight. After 

Anderson testified that she heard Newby threaten to shoot someone and then appear to 

escalate the altercation, defense counsel attempted to impugn her credibility by
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suggesting that she was an agent of the State. Further, to contest the identity of Newby 

and Dyer would have run afoul of defense counsel’s theory that they were both present 

and acted in self-defense. 

{¶ 57} Regarding the Facebook video, again, during defense counsel’s crossexamination of Ware, he attempted to impugn Ware’s direct testimony that he was not at 

fault with the Facebook video by suggesting that Ware made the video to justify his 

alleged threatening conduct. The court instructed the jury to disregard defense counsel’s 

editorializing comments, and “[c]urative instructions are generally viewed as sufficient to 

remedy the risk of undue prejudice.” State v. Gray, 2d Dist. Darke No. 2019-CA-7, 2020-

Ohio-1402, ¶ 48, citing State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 

N.E.2d 1278, ¶ 24; State v. Wharton, 4th Dist. Ross No. 09CA3132, 2010-Ohio-4775, 

¶ 26-28. “Juries are presumed to follow instructions.” Gray at ¶ 48, citing State v.

Jones, 90 Ohio St.3d 403, 414, 739 N.E.2d 300 (2000). Regarding defense counsel’s 

comments during closing argument about Det. DeWine, we note that the jury was 

instructed that closing arguments are not evidence. Finally, we note that even if we were 

to conclude that defense counsel’s conduct fell below an objective standard of 

reasonableness, Newby has not established prejudice given the overwhelming evidence 

that she was complicit in the offenses against Ware. There was no ineffective assistance 

of counsel.

{¶ 58} Newby’s first assignment of error is overruled.

Evid.R. 404(B) and Inferior Offense Instruction 

{¶ 59} Newby’s second assignment of error is as follows:
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THE TRIAL COURT ABUSED ITS DISCRETION BY EXCLUDING 

EVIDENCE OF THE VICTIM’S PRIOR RECORD AND REFUSING TO 

INSTRUCT THE JURY ON INFERIOR OFFENSES, BOTH OF WHICH 

PREJUDICED APPELLANT’S RIGHT TO A FAIR TRIAL PURSUANT TO 

THE FIFTH AND SIXTH AND FOURTEENTH AMENDMENTS TO THE 

U.S. CONSTITUTION.

{¶ 60} Newby first argues that the trial court’s exclusion of evidence of the victim’s 

prior speeding record and the Facebook video he made was unreasonable. She asserts 

that the State opened the door to evidence of Ware’s habitual speeding and to his 

“spiritual journey,” which she contends was indicative of a “demi-god personality.” She 

also argues that the speeding record and Facebook video were relevant to Ware’s 

dangerousness and provocation. Finally, Newby argues that the trial court erred in 

failing to instruct the jury on the “inferior degree offense” of aggravated assault because 

there was evidence of the mitigating element of serious provocation. 

{¶ 61} The State responds that Ware’s prior driving record had no bearing on the 

circumstances in the case, that the use of prior bad acts is prohibited by Evid.R. 404(B), 

and that the Facebook video was hearsay evidence that did not fall within any exception. 

The State argues that Dyer’s alleged fear of Ware was not sufficient to establish a sudden 

fit of passion or rage.

{¶ 62} In reply, Newby asserts that Ware’s driving record was admissible under 

Evid.R. 404(A)(2) as “evidence of a pertinent trait of the victim’s character.” She argues 

that the Facebook video should not have been excluded because it was an admission by 
-32-

a party opponent, a present sense impression, and/or a recorded recollection, all of which 

are admissible under Evid.R. 801(D)(2) or Evid.R. 803(1) or (5). She asserts that she 

was entitled to the lesser included offense instruction because Ware tailed her, cut her 

off, and followed her to the Speedway to confront her.

 Admission of Speeding Record and Facebook video

{¶ 63} “A trial court has broad discretion to admit or exclude evidence, and its 

exercise of that discretion will not be disturbed on appeal absent an abuse of discretion.” 

State v. Hunt, 2d Dist. Darke No. 2018-CA-9, 2019-Ohio-2352, ¶ 27. A trial court abuses 

its discretion if it makes an unreasonable, unconscionable, or arbitrary decision. Id. 

{¶ 64} To be relevant, evidence must have a “tendency to make the existence of 

any fact that is of consequence to the determination of the action more or less probable 

than it would be without the evidence.” Evid.R. 401. In other words, there must be 

some probative value to the evidence. Generally, relevant evidence is admissible. 

Evid.R. 402.

{¶ 65} Defense counsel asked Ware if it was true that he had had seven speeding 

tickets, and the State objected; the trial court sustained the objection and determined that 

there was no relevancy to Ware’s speeding record. The trial court did not abuse its 

discretion in concluding that Ware’s history of speeding violations prior to the shooting 

was not relevant to any fact of consequence at trial.

{¶ 66} When Ware denied making certain alleged admissions in the Facebook 

video, defense counsel suggested excusing the jury so that counsel could play the video 

for Ware in an attempt the refresh his memory, and then if Ware’s memory was not 
-33-

refreshed, counsel would seek to impeach him with the video. The court excused the 

jury so defense counsel could refresh Ware’s memory with his prior statements in the 

Facebook video. Defense counsel played several sections from the video for Ware, 

during which the court advised defense counsel, “You have to give him an opportunity to 

answer the question before you can say, well, didn’t I just refresh your memory.” 

Defense counsel then advised the court that he did not plan to admit the video as an 

exhibit but “was just using it as I would a police report or a body cam video.” 

{¶ 67} Given that defense counsel acknowledged that he did not intend to admit 

the Facebook video into evidence, Newby’s argument that the court erred in failing to 

admit it is belied by the record. Further, defense counsel was able to adduce Ware’s 

alleged “admissions” in the video as set forth in Newby’s first assignment of error. 

Jury Instruction on Aggravated Assault

{¶ 68} “A trial court has broad discretion to decide how to fashion jury instructions, 

but it must ‘fully and completely give the jury all instructions which are relevant and 

necessary for the jury to weigh the evidence and discharge its duty as the fact finder.’ ” 

State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 46, quoting State 

v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. “A 

defendant is only entitled to have his proposed jury instructions given when they are 

correct statements of the law, pertinent to the evidence in the record or to material issues, 

and are timely presented and not already included in the substance of the jury charge.” 

State v. Elliott, 2d Dist. Montgomery No. 26104, 2014-Ohio-4958, ¶ 23, citing State v. 

Guster, 66 Ohio St.2d 266, 269, 421 N.E.2d 157 (1981). “When reviewing the trial court's 
-34-

jury instructions, the proper standard of review is whether the trial court's decision to give 

or exclude a particular jury instruction was an abuse of discretion under the facts and 

circumstances of the case.” (Citation omitted.) State v. Fair, 2d Dist. Montgomery No. 

24388, 2011-Ohio-4454, ¶ 65.

{¶ 69} In deciding whether to provide a lesser-included or inferior-offense 

instruction, a trial court must find sufficient evidence to allow a jury to reasonably reject 

the greater offense and to find a defendant guilty on a lesser-included or inferior-degree 

offense. State v. Ferrell, 2020-Ohio-6879, 165 N.E.3d 743, ¶ 35 (10th Dist.). When the 

evidence pertaining to a lesser-included offense or inferior-degree offense meets this test, 

a trial court must instruct the jury on the lesser-included or inferior-degree offense. State 

v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 32 (2d Dist.).

{¶ 70} In State v. Dixon, 2d Dist. Greene No. 2021-CA-29, 2022-Ohio-3157, the 

defendant sought to have the jury instructed on aggravated assault as an inferior-degree 

offense to felonious assault and on voluntary manslaughter as an inferior-degree offense 

to murder. On appeal, we noted “that aggravated assault is an inferior-degree offense 

to felonious assault and that voluntary manslaughter is an inferior-degree offense to 

murder,” because “aggravated assault and voluntary manslaughter both contain an 

additional mitigating element of ‘serious provocation.’ ” Id. at ¶ 21, citing State v. Rider, 

2d Dist. Champaign No. 2021-CA-12, 2022-Ohio-1964, ¶ 39-40. “In other words, the 

greater-degree and inferior-degree offenses [were] similar except aggravated assault and 

voluntary manslaughter require[d] proof that a defendant acted under the influence of 

sudden passion or in a fit of rage brought about by serious provocation.” Id., citing State 
-35-

v. Miller, 2d Dist. Montgomery No. 29099, 2022-Ohio-213, ¶ 16; State v. Robinson, 2d 

Dist. Clark No. 2021-CA-3, 2021-Ohio-3255, ¶ 11. Thus, Newby correctly asserts that 

aggravated assault is an inferior-degree offense of felonious assault.

{¶ 71} “The test for whether a serious provocation occurred and whether a 

defendant acted under the influence of sudden passion or in a fit of rage includes objective 

and subjective components.” Dixon at ¶ 21, citing Robinson at ¶ 12. “The provocation 

must be sufficient to arouse an ordinary person beyond the power of his control, and the 

defendant in fact must have acted under the influence of sudden passion or in a fit of 

rage.” Id. “Classic examples of serious provocation are assault and battery, mutual 

combat, illegal arrest and discovering a spouse in the act of adultery.” State v. Thornton, 

2d Dist. Montgomery No. 20652, 2005-Ohio-3744, citing State v. Shane, 63 Ohio St.3d 

630, 635, 590 N.E.2d 272 (1992). Fear “ ‘alone is insufficient to demonstrate the kind of 

emotional state necessary to constitute sudden passion or fit of rage.’ ” Dixon at ¶ 23, 

quoting Miller at ¶ 18, quoting State v. Mack, 82 Ohio St.3d 198, 201, 694 N.E.2d 1328 

(1998).

{¶ 72} “This court has recognized that a self-defense argument generally is 

inconsistent with a serious-provocation theory.” Dixon at ¶ 22, citing State v. Brown, 2d 

Dist. Montgomery No. 27738, 2018-Ohio-3068, ¶ 47. Accordingly, “self-defense and 

aggravated-assault or voluntary-manslaughter instructions are incompatible in most 

cases,” but we “recognized in Brown that the two theories conceivably might be 

compatible where a defendant is found to have exceeded the degree of force necessary 

to defend himself because he acted out of passion or rage.” Id.
-36-

{¶ 73} On this record, the trial court reasonably concluded that Ware had not 

engaged in any serious provocation and that neither Newby nor Dyer had acted under 

the influence of sudden passion or in a fit of rage so as to warrant the requested 

instruction on aggravated assault. Dyer’s alleged fear of Ware was insufficient. 

Further, Ware was unarmed and was shot while he was turning away after being pursued 

by Newby and Dyer. Finally, Newby’s reliance upon Gibson’s and Eldridge’s testimony 

is misplaced. Eldridge observed Newby “still rattling on about something” after Ware 

was shot, and Gibson denied that Ware had lunged at Dyer or made any threats towards 

him. Gibson did not believe the “flinch” by Ware was an “aggressive approach.” The 

trial court did not abuse its discretion in not giving an instruction on aggravated assault. 

{¶ 74} Newby’s second assignment of error is overruled. 

Manifest Weight and Sufficiency

{¶ 75} We will consider Newby’s third and fourth assignments of error together:

THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE VERDICT 

OF COMPLICITY WHERE THE VICTIM FAILED TO IDENTIFY 

APPELLANT IN OPEN COURT, SHE HAD NO WEAPON, DID NOT 

CAUSE HARM, AND WAS MERELY ‘STANDING HER GROUND’ UNDER 

SERIOUS PROVOCATION.

THE MANIFEST WEIGHT OF THE EVIDENCE INDICATED THAT 

APPELLANT WAS “STANDING HER GROUND” IN A FIGHT OR FLIGHT 

SITUATION UNDER SERIOUS PROVOCATION.

{¶ 76} In her third assignment, Newby argues that Ware “admitted that his ego was 
-37-

responsible for the shooting,” and he could have chosen not to confront Newby. As such, 

Newby asserts that she did not cause harm to Ware; rather, he caused harm to himself 

by pursuing and confronting her and Dyer. In her fourth assignment, Newby asserts that 

she was “ ‘standing her ground’ in a fight or flight situation under serious provocation,” 

and it was not her burden to introduce evidence that Dyer had acted in self-defense. 

{¶ 77} According to the State, Newby incited the situation, escalated it by spitting 

on Ware, and then aided in Dyer’s escape from the scene. The State argues that the 

“only thing that could weigh against the evidence” would have been proof of Dyer’s claim 

that he acted in self-defense, but the jury credited Ware’s testimony over Dyer’s. 

According to the State, Ware was “in the middle of a turn to go back to his truck” when he 

was shot, which was inconsistent with self-defense.

{¶ 78} In reply, Newby argues that she did not engage in conduct that, if 

successful, would have resulted in purposely causing Ware’s death. She asserts that “a 

greater amount of credible evidence” supported her acquittal when all of the evidence of 

Ware’s aggressive conduct toward her is considered.

{¶ 79} “ ‘Although sufficiency and manifest weight are different legal concepts, 

manifest weight may subsume sufficiency in conducting the analysis; that is, a finding that 

a conviction is supported by the manifest weight of the evidence necessarily includes a 

finding of sufficiency.’ ” State v. Curtis, 2020-Ohio-4152, 157 N.E.3d 879, ¶ 44 (2d Dist.), 

quoting State v. McCrary, 10th Dist. Franklin No. 10AP-881, 2011-Ohio-3161, ¶ 11, “ ‘[A]

determination that a conviction is supported by the weight of the evidence will also be 

dispositive of the issue of sufficiency.’ ” Id., quoting State v. Braxton, 10th Dist. Franklin 
-38-

No. 04AP-725, 2005-Ohio-2198, ¶ 15.

{¶ 80} “* * * [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. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio525, ¶ 12. “ ‘The court, reviewing the entire record, weighs the evidence and all 

reasonable inferences, considers the credibility of witnesses and determines whether in 

resolving conflicts in the evidence, the [factfinder] clearly lost its way and created such a 

manifest miscarriage of justice that the conviction must be reversed and a new trial 

ordered. The discretionary power to grant a new trial should be exercised only in the 

exceptional case in which the evidence weighs heavily against the conviction.’ ” State v. 

Thompkins, 78 Ohio St.3d 380, 678 N.E.2d 541 (1997), quoting State v. Martin, 20 Ohio 

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). See also Curtis at ¶ 19.

{¶ 81} The credibility of the witnesses and the weight to be given to their testimony 

are primarily matters for the trier of fact to resolve. State v. Griffith, 2d Dist. Montgomery 

No. 26451, 2015-Ohio-4112, ¶ 28, citing State v. DeHass, 10 Ohio St.2d 230, 231, 227 

N.E.2d 212 (1967). “Because the factfinder * * * has the opportunity to see and hear the 

witnesses, the cautious exercise of the discretionary power of a court of appeals to find 

that a judgment is against the manifest weight of the evidence requires that substantial 

deference be extended to the factfinder's determinations of credibility. The decision 

whether, and to what extent, to credit the testimony of particular witnesses is within the 

peculiar competence of the factfinder, who has seen and heard the witness.” State v. 

Lawson, 2d Dist. Montgomery No. 16288, 1997 WL 476684, *4 (Aug. 22, 1997). An 
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appellate court will not substitute its judgment for that of the trier of fact on the issue of 

witness credibility unless it is patently apparent that the trier of fact lost its way in arriving 

at its verdict. State v. Bradley, 2d Dist. Champaign No. 1997-CA-03, 1997 WL 691510, 

*4 (Oct. 24, 1997).

{¶ 82} R.C. 2903.11(A)(2) proscribes felonious assault: No person shall knowingly 

“(2) Cause or attempt to cause physical harm to another * * * by means of a deadly 

weapon or dangerous ordnance.” R.C. 2903.02(A) proscribes murder: “No person shall 

purposely cause the death of another * * *.” R.C. 2923.02(A) defines attempt it states: 

“No person, purposely or knowingly, and when purpose or knowledge is sufficient 

culpability for the commission of an offense, shall engage in conduct that, if successful, 

would constitute or result in the offense.” A person acts with “purpose” when he or she 

has the “specific intention to cause a certain result, or * * * to engage in conduct of [a 

certain] nature.” R.C. 2901.22(A).

{¶ 83} R.C. 2923.03(A)(2) extends criminal liability to those who “[a]id or abet 

another in committing the offense” while “acting with the kind of culpability required for 

the commission of an offense.” “Whoever violates this section is guilty of complicity in 

the commission of an offense, and shall be prosecuted and punished as if he were a 

principal offender.” R.C. 2923.03(F). “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.” State v. 
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Johnson, 93 Ohio St.3d 240, 754 N.E.2d 796 (2001). “ ‘[T]he 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.’ ” Id. at 243, quoting State v. Widner, 69 Ohio St.2d 267, 269, 

431 N.E.2d 1025 (1982). However, participation in criminal intent “ ‘may be inferred from 

presence, companionship and conduct before and after the offense is committed.’ ” Id. 

at 245, quoting State v. Pruett, 28 Ohio App.2d 29, 34, 273 N.E.2d 884 (4th Dist.1971). 

A “gun is considered a ‘deadly weapon,’ and therefore its discharge in another's direction 

supports an inference that the shooter harbored the specific intent to kill.” State v. 

McRae, 1st Dist. Hamilton No. C-180669, 2020-Ohio-773, ¶ 11.

{¶ 84} As a preliminary matter, we note that the record reflects that Ware identified 

Newby in open court. Newby mischaracterizes the record to argue otherwise. 

{¶ 85} That Newby did not have a weapon or cause harm to Ware herself were

irrelevant factors under a theory of complicity. Newby and Dyer were in a relationship at 

the time of the shooting and he was a passenger in her vehicle when the incident began. 

Newby acted angrily before the parties reached the Speedway, and multiple witnesses 

then observed and/or heard Newby aggressively arguing with Ware. Anderson and 

Miller heard a female voice, undoubtedly Newby, say she was going to shoot someone

during the argument. Ware testified that Newby had threatened to kill him. After Ware 

moved his truck forward and got out, Newby and Dyer moved toward him together until

Dyer acted to prevent Newby from continuing forward by grabbing her or spinning her 

around. Other than Dyer, none of the witnesses testified that Ware had threatened

Newby or Dyer. Ware was shot near his truck. The jury credited the testimony of the 
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State’s witnesses over Dyer’s, and we defer to their credibility assessment. After Dyer 

shot Ware, Newby drove him from the scene, further confirming her criminal intent in 

participating, aiding, and cooperating with him in the offenses against Ware. 

{¶ 86} Finally, the Speedway and McDonald’s surveillance videos did not lack

evidentiary quality, as Newby asserts. In the videos, Newby’s Honda and Ware’s truck 

were positioned at the pumps consistent with the witnesses’ testimony, and Ware’s truck 

could be seen moving forward and stopping in the parking lot a distance from the Honda. 

A figure in a white shirt (consistent with all the State’s witnesses’ descriptions of Dyer)

was depicted approaching the truck and then returning to the Honda before driving away. 

{¶ 87} Even without the videos, overwhelming evidence established Newby’s guilt. 

Beyond her mere presence at the Speedway, the jury reasonably concluded that Newby 

had shared Dyer’s criminal intent to commit the offenses and was complicit in Dyer’s 

conduct. Based upon the foregoing, we cannot conclude that the jury lost its way. 

Legally sufficient evidence supported Newby’s conviction, and the conviction was not 

against the manifest weight of the evidence. 

{¶ 88} Newby’s third and fourth assignments of error are overruled.

{¶ 89} The judgment of the trial court is affirmed.

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

EPLEY, P.J. and TUCKER, J., concur.