[Cite as State v. McLoyd , 2023
- Ohio
- 3971.]

COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
STATE OF OHIO , :

Plaintiff

- Appell ee , : No

. 11 2 107 v. : TAMARA MCLOYD , :

Defendant

- Appell ant

. :

JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: November 2, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas

Case No. CR

- 22
- 669261

- B
Appearances: Michael C. O’Malley, Cuyahoga County Prosecuting Attorney , and Brad Meyer , Assistant Prosecuting Attorney, for a

ppell ee . Valore & Gordill o LLP and Michael Gordillo , for appell ant

. MARY J. BOYLE, J.:

In this companion appeal, d efendant

- appellant, Tamara McLoyd (“ McLoyd ”), appeals her convictions and sentence for aggravated robbery,kidnapping, improperly handling firearms in a motor vehicle, and having a weapon

while under disability

. 1 For the reasons set forth below, we affirm. I. Facts and Procedural History

I n April 2022, McLoyd and codefendants Jermaine Hagwood (“Hagwood”) and Jada Hite (“Hite”) were charged in a 21
- count indictment stemming from a series of a ggravated r obberies, which occurred in the cities of Cleveland, Lakewood, and Cleveland Heights. 2 Count 1 charged each of them with the a ggravated r obbery of Natalie Pape (“Pape”)

. Counts 2

- 4 charged each of them with the aggravated robbery, kidnapping, and felonious assault of T a nika G h iv e n s (“G h iv e n s ”)

. 3 Counts 5

- 7 charged each of them with the aggravated robbery, kidnapping, and felonious assault of Sherri Gurka (“Gurka”) . Count 8 charged each of them with the aggravated robbery of Happy Pizza. Count 9 charged each of them with t he aggravated robbery of Peggy Lyons (“Lyons”) . Count 10 charged Hite with failure to comply and contained a furthermore specification stating that she operate d “ a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring the person ’ s motor vehicle to a stop .” Count s 11 and 21 charged McLoyd with having a weapon while under

1 This appeal is a companion case to State v. Hagwood , 8th Dist. Cuyahoga No. 112065 and State v. McLoyd , 8th Dist. Cuyahoga No. 112092.

2 As of the date of this opinion, codefendant Hite has not filed a notice of appeal.

3 In the indictment and jury instructions, this victim was also referred to as “Tinika L. Givhan.” For consistency, the victim will be referred to as “Ghivens” throughout, based on how the victim spelled her name during trial.disability (“HWWUD”). Each of Count s 12 , 15, 18, and 20 charged Hagwood with

HWWUD. Count 13 charged Hite and McLoyd with improperly handling firearms in a motor vehicle. Count 14 charged Hite and Hagwood with the aggravated robbery of Christina Wat t ers. Count 16 charged Hagwood with the aggravated robbery of Lindsay Sovchik. Count 17 charged Hagwood with the kidnapping of L.S. (d.o.b. 06/28/16)

. Count 19 charged McLoyd and Hagwood with the aggravated robbery of Madison MacArthur. 4

The matter proceeded to a jury trial in August 2022. 5 I n midst of trial,
Hite ple d guilty to C ounts 1, 2, and 10 , as amended , and Counts 9 and 14 , as charged , with Counts 3

- 8 and Count 13 nolled . The trial court sentenced Hite to a minimum of 17 years in prison . The trial then continued with McLoyd and Hagwood, the remaining codefendants. Relevant to this appeal, t he following evidence was adduced at trial

. Natalie Pape Robbery Pape testified that on November 2, 2021, she “was robbed at gunpoint” while walking home from her boyfriend’s house in Lakewood. (Tr. 558

. ) This happened somewhere between 9:00 p.m.

– 9 : 30 p.m. on Bunts Road . Pape testified that as she was walking, a man and a woman ran up to her from behind , placed an “object” that felt like a gun firmly at her back and chest, demanded her

4 Each of the counts, except Counts 11, 13, 21 contained various firearm specifications.

5 McLoyd elected to have Counts 11 and 21 tried before the bench.belongings, and took off with her purse in a car parked at Merl Avenu e , which

intersects with Bunts

. Pape testified that b oth assailants were average height, wearing dark clothing, medical masks, and hats. Pape testified that her phone, keys, debit card, ID, and jewelry, about $ 105 to $110 in cash , and other miscellaneous things were in her purse

. There was no video of the robbery, but v ideo from a nearby residence was played for the jury that depict ed Pape crossing the street and the assailants ’ vehicle pulling up to the corner of Merl. In two other videos played for the jury, the assailants can be observed walking at a rapid pace to catch up to Pape and running southbound after the incident.

After the robbery, Pape walked to a nearby gas station and asked the cashier to call the police. Pape gave a statement to Lakewood P olice Officer Jonathan Schmitz

. When Pape returned home, she posted a warning about her incident on Facebook. Someone then sent her a video that same night of a robbery at Happy’s Pizza , which was approximately three miles away from where her robbery occurred. Pape testified that she thought the same people could have carried out both incident s “[b]ecause two incidents in o ne night in a close area ma[d]e [her] worried

. ” (Tr. 572.) Pape further testified that a t 9:44 p.m. that night , she received an email alert that her d ebit card had been declined for a trans fer to Cash App due to a lack of funds in the account . Pape testified Hite’s name was a ssociated with the transfer , and she did not know Hite nor did she give Hite permission to use her card

.

Lakewood Police Detective Daniel Hilfiker (“Det. Hilfiker”) testified that he was assigned to investigate the Pape robbery. Pape contacted Det. Hilfikerthe day after the robbery informing him of a robbery at Happy’s Pizza because “she

felt that the people who had robbed her looked similar to the people who she saw in that video.” (Tr. 1455.) Det. Hilfiker then spoke with Cleveland Police, who advised th at a small four

- door , dark color ed Nissan Sentra was involved in the Happy’s Pizza robbery. Det. Hilfiker then reviewed the video footage from a resident’s house on Bunts, which showed that Pape’s assailants arrived in “a blue small four

- door Sedan” with silver and black rims. Det. Hilfiker testified he believed that the vehicle depicted in the Bunts Road surveillance video appeared to be the same vehicle seen in surveillance video from the Happy’s Pizza robbery. Det. Hilfiker further testified that he learned from Cleveland Police that the Cleveland Heights Police Department

w as investigating a third robbery that occurred the same night involving suspects fleeing in a small blue Nissan Sentra

.

Aliyah Nelson (“Nelson”) testified that she was in a relationship with Hite in November 2021. Nelson testified that Hite dr o ve a blue Nissan at that time and she drove a silver Chevy Cruz e . Nelson testified that she and Hite would often share their vehicles based on whichever keys were available. On November 4, 2021, Nelson was stopped by Cleveland police at the Rite Aid located at Clark and Fulton while she was driving the blue Nissan. At the time, Hite was driving Nelson’s Chevy
Cruz e . The police bro ught Nelson back to the station where her phone was confiscated. Nelson’s phone had a text conversation between her and Hite from around midnight on November 3, 2021 in which Hite texted Nelson, “I just got in a high

- speed chase. I need to come to your house or sum.” Nelson replied, “Okay,Mya [Nelson’s sister], there. I gotta make a run.” (Tr. 62 3 .) Later that evening,

Nelson left her home at 5:00 p.m. and returned home the next day at 3:00 a . m . to find Hite at her house. They switched cars at some point later in the day on November 4, 2021

. Nelson testified that Hite never returned her car and that she retrieved it f

rom the police after Hite was arrested. Nelson told Det

. Hilfiker that she took some items from the Chevy Cruz e and threw them in the trash. Det

. Hilfiker found a wine bottle and a pair of brown gloves in the trash . Nelson also told Detective Hilfiker the Instagram names “6.twin” and “_t.hefner , ” which were identified to be Mc L oyd’s and Hite’s respective Instagram accounts

. (Tr. 1499 , 1135
- 36 .) Jeffrey Oblock (“Oblock”) , a forensic scientist in the DNA department at the Cuyahoga County Regional Forensic Science L aboratory , testified that he tested the DNA swabs that were submitted from the mouth of the wine bottle and the brown gloves. Oblock testified that the DNA swab of the wine bottle matched Hagwood and Hite and the swab of the brown gloves matched both McLoyd and Hagwood. Matthew Seabold (“Seabold”) , a crime analyst with the Crime Strategies Unit of the Cuyahoga County Prosecutor’s Office testified that he review ed cell phone records provided by cell phone providers and detectives and “drop[ ped ] the records into a mapping program that puts the records on a map. ” (Tr. 1368.) With regard to McLoyd’s cell phone, her records failed to place her at any of the robbery locations from November 2, 2021. Rather, her cell phone records showedher phone connecting to towers in a neighborhood in Cleveland during the

Lakewood and Cleveland Heights robberies and it did not connect to any towers during the Happy’s Pizza robbery. The Happy’s Pizza Robbery Gurka testified that in November 2021 she was employed as a cook at Happy’s Pizza in Cleveland. On November 2, 2021 , Gurka was working with Ghivens, who was employed as a driver. At closing time, around 11:00 p.m. , the two of them were counting the money from one of the cash register draw ers. They were

on a FaceTime video call with their manager for assistance because they had never closed the store . While they were on the call, t hree people came into the store through the back door. The assailants dem anded that Gurka open the registers

. Gurka testified that she was unable to comply because she did not know how. As a result, one of the assailants struck her in the head twice with a pistol. Gurka testified that o ne of the assailants wore a camouflage jacket and a black hoodie. Gurka was unable to see any of their faces, which were covered with masks, and was unable to determine the gender of any individual. The assailants then asked for the safe and took the two of them to the back room to look for it . After realizing that there was

no safe , the assailants shoved Gurka and Ghivens into the back room, roughed them up, closed the door, and then ran out.

After the assailants left the scene , Gurka and Ghivens called the police. The manager, who had been on the FaceTime call, remained on the phone and also called the police. Gurka testified that the robbery was captured onsurveillance vide o, which was played for the jury. The video depict ed a blue Nissan

pulling up near the door of Happy’s Pizza, with three individuals exiting the vehicle.
Once i nside, Gurka can be observed getting hit in the head because she could not open the cash register. The assailants then walk ed them to the back. T he assailants

can also be observed running out the back of the restaurant and leaving in the same

car . Ghivens testified that at the time of the incident, she was employed as a driver for Happy’s Pizza. Like Gurka’s testimony, Ghivens testified that her and Gurka were closing the store with their manager on FaceTime when the assailants entered the store. The m ale assailant pointed a gun at her face. The assailants led them to the back in search of the safe. Ghivens testified that she had a gun in her possession that was inoperable . She testified that Happy’s Pizza provided it for the delivery drivers fo r protection during night deliveries

. While in the back room, the assailants pushed and punched Ghivens. The assailants found the gun and took it from Ghivens. Ghivens further testified that on e of the assailants struck her in the head with a gun

.

Cleveland Police Officer Jacob Mullins (“Officer Mullins”) testified that on November 2, 2021 , he and his partner responded to Happy’s Pizza for a robbery. His testimony corroborated Gurka ’s and Ghiven’s testimony. Officer Mullins testified that he spoke to Gurka and Ghivens on the scene and they informed them that two black males and one black female entered the restaurant through the rear door and approached them at the cash register. O ne of the black males held asmall black firearm and pointed it at both victims. Gurka reported she was struck

in the head two or three times for not being able to open the register. Ghivens then grabbed the keys and opened the cash register, where the other male and female grabbed roughly $300 and placed it in a to

- go bag. At that point , the male with the handgun asked if t here was a safe in the restaurant. Gurka and Ghivens both stated th at they did not know if there was a safe , so the male with the handgun st u ck the firearm in G urka ’ s back and forced her in to the rear office and the other black male and female forced Ghivens in to the same office. They were unable to locate the safe, so the black male with the handgun then s earched Gurka and took her keys

. T he other black male and female searched Ghivens and took her gun, and then proceeded to strike both Gurka and Ghivens with the gun before running out the back door of the restaurant.

Cleveland Police Det ective Zachary New (“Det . New ”) testified that he also responded to Happy’s Pizza on November 2, 2021. Det. New testified that he reviewed the surveillance footage that night. In reviewing the video , Det. New was able to determine that the suspect vehicle was a Nissan because of a “chrome

- like, almost a U

- shaped accent” on the front of the vehicl e , which is unique to Nissans. ( Tr. 1118

. ) From that, and other features of the vehicle, Det. New concluded the suspect vehicle was a 2018 or 2019 Nissan Sentra SR with a temporary plate.

Det. New testified that Hite was arrested on November 4, 2021 , when she returned the vehicle back to Nelson at her house. Instagram video from Hite’s cell phone depicted Hite and McLoyd wearing the same clothes as seen in thesurveillance video of the Happy’s Pizza robbery. McLoyd was “wearing the puffy

Columbia jacket, the vest with the gray hoodie underneath and the black face mask[.]” (Tr. 1140.) Instagram video also depicted Hite and Hagwood wearing the same clothes as depicted in the robbery video. Det. New further testified that in Hite’s Instagram videos, McLoyd is holding the black Smith & Wesson M&P Shield
9 mm hand gun, which is the same type of gun that Ghivens reported was stolen from her. Det. New testified that they were able to identify McLoyd through Nelson and through the photographs on Hite’s phone. Det. New stated, “ [O] ne of the pictures that we found was actually a picture that [Hite] had taken of [McLoyd’s] driver ’ s license that was stored on her own phone, so it gave all the information from there.” (Tr. 1150.) Det. New also found a pair of earrings and a wine bottle in the vehicle driven by Hite, which he testified belonged to the Lakewood victim.

Det. New further testified that Hagwood was identified as the third suspect. Police recovered a black Glock 17, 9 mm hand gun when he was arrested

. Det. New testified that the gun the police recovered has similar characteristics to the one used during the Happy’s Pizza robbery.

Det ective Robert Norman (“Det. Norman”) of the Cleveland Police Department also responded to Happy’s Pizza on November 2, 2021. Det. Norman testified that he learned that the Instagram handle

_ t.hefner was associated with McLoyd and maine_cedar _7103 was associated with Hagwood. Det. Norman testified that Instagram records from November 2, 2021, the date of the Happy’sPizza robbery, show McLoyd telling Hagwood that she “has a lick,” a common phrase

used to denote a potential robbery. Peggy Lyons Robbery Lyons testified she was staying at the Alcazar apartment/ hotel complex in Cleveland Heights at Cedar. On November 2, 20 2 1, she was walking home around 11:50 p.m. from the CVS located at Cedar and Lee Roads when she observed two people walking behind her. She stepped to the side to let them pass. Instead of passing her however, a female, later identified as McLoyd and a male, later identified as Hagwood, came up to her and said, “We are going to take your purse.” (Tr. 742.) One of the assailants put the ir hand across Lyon s ’s back, and then McLoyd said, “Give him your purse, or he’ll shoot you.” (Tr. 742

- 743.) Hagwood had a gun pointed at Lyon s ’s chest “and was like, ‘Give us your purse.’” (Tr. 743.) She described the gun as “Black. Had kind of a square at the barrel end of it.” (Tr. 748.) Lyon s testified that her purse contained her original birth certificate, cell phone, driver’s license, a ring, bank statements, debit cards, business cards, and her personal contacts

. She testified that b oth individuals were African

- American, wore black hoodies and face masks, and the female subject had short thick dreadlocks. Lyons further testified that right after the initial incident, she followed her assailants. She stepped out on the street and happened to observe a police car approaching. Lyons r eported to the officer that her purse was stolen. Lyons further reported that the assailants’ vehicle was located at the corner of Lamberton andCedar. She testified that it was a four

- door sedan with its flashers on and an

unknown exterior color. The officer then chased after the car

. Lyon s continued on her walk when she was reapproached by the officer, who advised that the chase was called off and asked for details about the event. ( Tr. 749, 760. )

After the robbery, Lyon s received a bank statement for her stolen debit card, which included a Dominion Energy transaction for $1,147.65. Cleveland Heights police detectives were able to deter mine that the Dominion Energy charge was connected to the utility bill for Jerrelle and B.H. , whom Lyon s did not know. The detectives learned that Jer r elle Harkness (“Jerrelle”) was in a relationship with Hagwood in November 2021

. Hagwood and Jerrelle lived together at that time. Jerrelle testified that the bill was paid over the phone and the account was under her daughter’s name, B.H . Jerrelle further testified that she did not know Lyons.

Cleveland Heights Police Officer Michael Dugan testified that while on patrol on November 2, 2021, he observed two people running across Cedar Road northbound towards Cedar Hill Baptist Church. As he approached that area, a female ran up to his car, yelling “‘They stole my purse,’ and pointed to a vehicle pulling out of the east parking lot of Cedar Hi ll Baptist Church.” (Tr. 994
. ) He attempted to stop the vehicle, which was a blue, Nissan four

- door sedan, with his lights and sirens. He continued t o pur sue the vehicle until it was terminated by his officer

- in

- charge

.

Cleveland Heights Police Detective William Robinson (“Det. Robinson”) testified that he was assigned to investigate the Lyons’s robbery. H eobtained video footage from surveillance cameras at a medical center near the

incident

. The video was played for the jury. In the video, Lyons and two individuals can be observed in the general area and time , but it does not capture the robbery. Det. Robinson also testified that he work ed with Cleveland and Lakewood police looking into any similarities in the robberies . He learned that a blue Nissan was involved in both the Cleveland and Lakewood incidents. He further learned that the car was located a nd that Nelson was driving it at the time. The text Nelson shared from Hite regarding Hite’s involve ment in a high speed chase confirmed their belief that this was the same car involved in the Lyons’s robbery.

Following the conclusion of trial, the jury found McLoyd guilty of aggravated robbery as charged in Counts 1, 2, 5, 8, and 9, with one

- and three

- year firearms specifications, guilty of kidnapping as charged in Counts 3 and 6, with one

and three

- year firearms specifications, and guilty of improperly handling f irearms
in a m otor v ehicle as charged in Count 13. The jury found McLoyd not guilty of felonious assault as charged in Counts 4 and 7, and not guilty of aggravated robbery as charged in Count 19. Th e trial c ourt found McLoyd guilty of H WWUD as charged
in Count 11 and not guilty of Count 21 , which also charged McLoyd of HWWUD

. 6

At sentencing, the court found t hat C ounts 2 and 3 and Counts 5 and
6 were allied offenses of similar import , and that C ount 8 was an allied offense of
C ounts 2 and 5. The s tate elected to proceed to sentencing on C ounts 2 and 5
. The

6 Hagwood was found guilty of Counts 1, 2, 5

- 9, 12, 14, 15, 16, 18, 19, and 20 with firearm specifications. The trial court sentenced Hagwood to 49 years in prison.trial court sentenced McLoyd to six years in prison on Count 1 , seven years in prison

on Count 2, eight years in prison on Count 5, eight years in prison on Count 9, and 12 months in prison on Count 13. The trial court also sentenced McLoyd to 3 years in prison for each of the accompanying firearm specifications , for a total of 12 years in prison. The trial court found Counts 1, 2, 5, and 9 to be qualifying felonies under the Reagan Tokes Law and imposed a term of 8 to 12 years in prison

. The court order ed that McLoyd was to serve all the firearms specifications consecutively and prior to concurrent prison terms on the underlying felonies

. McLoyd was also sentenced on her two other lower court cases , which were combined in an omnibus judgment entry of conviction and sentence resulting in “a net prison term of life without first parole eligibility until after 47 years.” (Oct. 7, 2022 Omnibus Judgment Entry of Conviction and Sentence in Case Numbers 666570, 669261 and 669473, as amended on Oct. 11, 2022.)

McLo yd now appeals, raising the following six assignments of error for review: Assignment of Error One: The trial court prejudiced [McLoyd] and committed reversible error by incorrectly advising the p etit [ ] j ury that the g rand j ury’s indictment meant that the g rand j ury found [McLoyd] was “more likely than not” guilty. Assignment of Error Two: Joinder of [McLoyd] ’s and co

defendant’s cases for trial was impermissibly prejudicial to [McLoyd] and constituted plain error. Assignment of Error T hree : [McLoyd] ’s convictions are not supported by sufficient evidence. Assignment of Error Four : [McLoyd] ’s convictions are against the manifest weight of the evidence.Assignment of Error Five : The trial court committed reversible

error prejudicing [McLoyd] by permitting the State’s use of expert testimony and exhibits given and produced by a witness with no expertise. Assignment of Error Six : The trial court committed reversible error prejudicing [McLoyd] when it imposed an unconstitutional sentence upon [McLoyd] pursuant to the “Reagan

- Tokes Law,” which is unconstitutional on its face.
II. Law and Analysis
A. Jury Advisement
I n the first assignment of error, McLoyd argues that the trial court prejudiced her and committed reversible error by incorrectly advising the p etit j ury that the g rand j ury’s indictment meant that the g rand j ury found that McLoyd was “more likely than not” guilty

.

In the instant case, a r e view of the records reveals that , prior to jury selection, the trial court explained to the prospective jurors the process of a criminal

case , starting with a defendant’s indictment and grand jury proceedings . The court stated : An indictment is returned when the prosecutor presents evidence to a grand jury. When the prosecutor presents evidence to a grand jury, that proceeding is almost always one

- sided. In other words, the Defendant or Defendants or their representatives are n ot present at the grand jury proceedings. Moreover, a grand jury, which is composed of people like yourselves who do this duty for several weeks at a time and hear a fair number of cases, it does not have to be unanimous, and a grand jury is only asked to determine whether there is probable cause to believe that a person suspected of committing a crime committed the crime.If the grand jury does find probable cause to believe that appears more

likely than not that the person did commit the crime, then that grand jury returns an indictment and it comes here for your consideration.
* * * At trial, though, the Defendants are presumed innocent. That presumption stays in place until you as a jury have found that the proof is such as to exclude every reasonable doubt of the guilt of any particular Defendant on a particular charge. Reasonable doubt is present when after the jurors have carefully considered a charge they cannot say that they are firmly convinced of the truth of a charge. Reasonable doubt is a doubt based upon reason and common sense. Reasonable doubt is not mere pos sible doubt, because everything related to human affairs or dependent upon moral evidence is open to some possible or imaginary doubt. Proof beyond a reasonable doubt is proof of such character that an ordinary person would be willing to rely and act upon it in the most important of his or her affairs. (Tr. 81

- 82.) McLoyd argues that “p robable cause” and “probably” do not have the same meaning because t he probable

- cause standard depends on the totality of the
circumstances and is incapable of precise definition or quantification into percentages. She further argues that criminal defendants are entitled to a presumption of innocence.

We note, however, that McLoyd did not object to the trial court’s

comments , and thus, has waived all but plain error on appeal. State v. Ahmed , 103 Ohio St.3d 27, 2004

- Ohio

- 4190, 813 N.E.2d 637, ¶ 80 , citing State v. Slagle , 65 Ohio St.3d 597, 604, 605 N.E.2d 916 (1992); Crim.R. 52(B)

. “Plain error occurs when, but for the error, the outcome of the trial clearly would have been otherwise.” Statev. Allen , 73 Ohio St.3d 626, 635, 653 N.E.2d 675 (1995), citing State v. Long , 53 Ohio

St.2d 91, 96

- 97, 372 N.E.2d 804 (1978).

As the above statements indicate , immediately after explaining the grand jury process, the court then explained that defendants are presumed innocent and the burden of proof at trial is beyond a reasonable doubt. W e cannot say that the se remarks rise to the level of plain error. Moreover, t he court reexplained the beyond

- a - reasonable

- doubt burden of proof during its charge to the jury at the end of trial. ( Tr. 1601

- 1602. ) The court clearly differentiated “probable cause” from

“ beyond a reasonable doubt, ” and did not lower the prosecution ’s burden of proof

. Therefore, we cannot say that but for the court’s comments during its introductory
instructions to prospective jurors , the outcome of the trial clearly would have been different

. Accordingly, the first assignment of error is overruled.
B. Joinder of Trial In the second assignment of error, McLoyd argues that she was prejudiced by the joinder of her trial with codefendants Hite and Hagwood. 7 McLoyd claims that she was found guilty by association with Hite and Hagwood because she was convicted of numerous robberies and attendant charges without a single witness identifying her, a single DNA match, or a single piece of stolen property found in her possession

.

7 We note that Hite pled guilty during trial and the trial continu ed only with McLoyd and Hagwood.Typically, we review the trial court’s ruling on joinder for an abuse of

discretion. State v. Quinn , 8th Dist. Cuyahoga No. 110692, 2022

- Ohio

- 2038, ¶ 12, citing State v. Lee , 8th Dist. Cuyahoga No. 104682, 2017

- Ohio

- 1449, ¶ 15. However, “‘to properly preserve the issue of a trial court’s joinder of indictments for appeal, the defendant must object to the joinder of indictments at the time of trial, and at the close of the st ate’s case or at the close of evidence.’” Quinn at ¶ 13, quoting State v. Frazier , 8th Dist. Cuyahoga Nos. 106772 and 106773, 2019

- Ohio

- 1433, ¶ 11.
B ecause McLoyd fail ed to object to joinder in the instant case , we review for plain

error. C rim.R. 13 provides that a trial court may order two or more indictments to be tried together “if the offenses or the defendants could have been joined in a single indictment or information.” Under Crim.R. 8(A), “ [t]wo or more offenses may be charged in the same indictment * * * if the offenses charged * * * are of the same or similar character, or are based on two or more acts or transactions connected together or constituting parts of a common scheme or plan, or are part of a course of criminal conduct. ”

The Ohio Supreme Court has stated that the “[j]oinder of defendants and the avoidance of multiple trials is favored in the law for many reasons. Joinder conserves judicial and prosecutorial time, lessens the not inconsiderable expenses of multiple trials, diminishes inconvenience to witnesses, and minimizes the possibility of incongruous results in successive trials before different juries.” State v. Thomas , 61 Ohio St.2d 223, 225, 400 N.E.2d 401 (1980). We recognize that “ a‘

joinder cannot result in prejudice if the evidence of the offenses joined at trial is simple and direct, so that a jury is capable of segregating the proof required for each offense. ’” State v. Harris , 8th Dist. Cuyahoga No. 104833, 2017

- Ohio

- 2985, ¶ 13, quoting State v. Lytle , 10th Dist. Franklin Nos. 15AP

- 748 and 15AP

- 754, 2016

- Ohio

3532, ¶ 65. We do not find that the joinder in the instant case prejudiced McLoyd. Our review of the record demonstrates that the charges against McLoyd and her codefendants were similar in character and were based on two or more acts constituting parts of a common scheme or plan under Crim.R. 8(A). Here, McLo y d was convicted for three aggravated robberies that occurred within hours of each other on the night of November 2, 2021. In each incident, the evidence at trial demonstrated that she acted together with Hite and Hagwood demanding items from the victims

.

Moreover, the jury was able to segregate the proof required for each offense and found McLoyd guilty of three out of the four robberies she was charged with. “Evidence is ‘simple and direct’ if the trier of fact is capable of segregating the proof required for each offense.” State v. Belle , 8th Dist. Cuyahoga Nos. 107046 and
107300, 2019
- Ohio

- 787, ¶ 25, citing State v. Gravely , 188 Ohio App.3d 825, 2010

- Ohio

- 3379, 937 N.E.2d 136, ¶ 39 (10th Dist.), citing State v. Barnes , 94 Ohio St.3d 21, 759 N.E.2d 1240 (2002). While there were multiple codefendants and numerous charges, the jury , in the instant case, was able to segregate the proof required foreach offense and found McLoyd not guilty of the charges stemming from the

November 19, 2021 robbery

.

B ecause the charges against McLoyd and her codefendants were similar in character and were based on two or more acts constituting parts of a common scheme or plan , and McLoyd was found guilty of some counts and not guilty on other counts, it is clear that any association with the codefendants did not prejudice McLoyd and did not result in plain error.

Therefore, the second assignment of error is overruled.
C. Sufficiency of the Evidence In the third assignment of error, McLoyd argues that while there was ample evidence to link her codefendants to the crimes, there was insufficient evidence to sustain her convictions because there was no testimony identifying her

as one of the perpetrator s . McLoyd claims that she was not identified by a single
witness , she was not identifiable on any of the video surveillance , she does not own either vehicle used in the robberies, her DNA was a minor contributor on a pair of gloves, which resemble, but wer e never proven to be the gloves observed on the surveillance footage, and her phone “pinged” off some towers in the general area of a few robberies.

The test for sufficiency requires a determination of whether the prosecution met its burden of production at trial. State v. Bowden , 8th Dist. Cuyahoga No. 92266, 2009

- Ohio

- 3598, ¶ 12. An appellate court ’s function w hen reviewing sufficiency is to determine “‘whether, after viewing the evidence in a lightmost favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime proven beyond a reasonable doubt.’” State v. Leonard , 104 Ohio St.3d 54, 2004

- Ohio

- 6235, 818 N.E.2d 229, ¶ 77, quoting State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.

With a sufficiency inquiry, an appellate court does not review whether the state’s evidence is to be believed but whether, if believed, the evidence admitted at trial supported the conviction. State v. Starks , 8th Dist. Cuyahoga No. 91682,
2009
- Ohio

- 3375, ¶ 25, citing State v. Thompkins , 78 Ohio St.3d 380, 387, 678 N.E.2d 541 (1997)

. A sufficiency of the evidence argument is not a factual determination, but a question of law. Thompkins at 386.

In State v. Jones , 166 Ohio St.3d 85, 2021

- Ohio

- 3311, 182 N.E.3d 1161, the Ohio Supreme Court cautioned: But it is worth remembering what is not part of the court’s role when conducting a sufficiency review. It falls to the trier of fact to ‘“resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ulti mate facts.’” [ State v. McFarland , 162 Ohio St.3d 36, 2020

- Ohio

- 3343, 164 N.E.3d 316, ¶ 24], quoting Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Thus, an appellate court’s role is limited. It does not ask whether the ev idence should be believed or assess the evidence’s “credibility or effect in inducing belief.” State v. Richardson , 150 Ohio St.3d 554, 2016

- Ohio

- 8448, 84 N.E.3d 993, ¶ 13, citing Thompkins , 78 Ohio St.3d at 386, 678 N.E.2d 541. Instead, it asks whether the evidence against a defendant, if believed, supports the conviction. Thompkins at 390 (Cook, J., concurring). Id. at ¶ 16.
B ecause none of the victims in the instant case could identify McLoyd as one of their assailants, the state relied on circumstantial evidence to convictMcLoyd

. We note that “‘[p] roof of guilt may be made by circumstantial evidence,

real evidence, and direct evidence, or any combination of the three, and all three have equal probative value. ’” Brook Park v. Gannon , 2019
- Ohio

- 2224, 137 N.E.3d 701, ¶ 24 (8th Dist.), quoting State v. Zadar , 8th Dist. Cuyahoga No. 94698, 2011

- Ohio

- 1060, ¶ 18 , citing State v. Nicely , 39 Ohio St.3d 147, 529 N.E.2d 1236 (1988) ; Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991 ). Direct evidence exists when “ a witness testifies abo ut a matter within the witness ’ s personal knowledge such that the trier of fact is not required to draw an inference from the evidence to the proposition that it is offered to establish. ” State v. Cassano , 8th Dist. Cuyahoga No. 97228, 2012

- Ohio

- 4047, ¶ 13.

In contrast, “ circumstantial evidence requires the drawing of inferences that are reasonably permitted by the evidence. ” Id. ; s ee also State v.
Hartman , 8th Dist. Cuyahoga No. 90284, 2008

- Ohio

- 3683 ( “C ircumstantial evidence is the proof of facts by direct evidence from which the trier of fact may infer or derive by reasoning other facts in accordance with the common experience of mankind .” Id. at ¶ 37, citing State v. Griesheimer , 10th Dist. No. 05AP

- 1039, 2007
- Ohio

- 837, citing State v. Bentz , 2 Ohio App. 3d 352 , 442 N.E.2d 90 ( 1st Dist. 1981)

. ) The Ohio Supreme Court has “long held that circumstantial evidence is sufficient to sustain a conviction if that evidence would convince the average mind of the defendant’s guilt beyond a reasonable doubt.” State v. Heinish , 50 Ohio St.3d 231, 238, 553 N.E.2d 1026 (1990), citing State v. Walker , 55 Ohio St.2d 208, 212, 378 N.E. 2d 1049 (1978); State v. Graven , 54 Ohio St.2d 114, 374 N.E. 2d 1370 (1978).T he state presented evidence that three individuals acted in concert

and participated in a crime spree on the night of November 2, 2021. Each of the three robberies had similar descriptions for the vehicle and the assailants involved

— three individuals and a blue Nissan. “In Ohio, when an individual acts to aid or abet a principal in the commission of an offense, the individual and princi pal are equally guilty and the individual is prosecuted and punished as if he were a principal offender.” State v. Wi ngfield , 8th Dist. Cuyahoga No. 107196, 2019

- Ohio

- 1644, ¶ 65, citing R.C. 2923.03(F). 8

Here, t he evidence against McLoyd came from her own conversations and Instagram records , which indicate she was with her codefendants when the robberies occurred and they were in possession of the clothing worn , firearms used, and vehicle used during the times of the robberies. During the day 0f the robberies, McLoyd told Hagwood that she had a “lick,” which is a robbery to hit. This message indicates both her relation to Hagwood as well as her intention to commit a robbery with him that day. Additionall y, the video and social media evidence produced at trial identifies McLoyd as one of the assailants involved in the three aggravated robberies. Surveillance video from Happy’s Pizza depicts three individuals enter from the rear of the restaurant, approach the front counter, brandish firearms,

8 The trial court instructed the jury on complicity, stating that “[f]or each count the defendants are not only charged as a principal offender, but they are also charged as a person who was complicit in the crimes charged by aiding and abetting another person in committing the crimes while ac ting with the same mental state required to commit the crimes.” (Tr. 1625.)empty the registers , and walk two victims to a small office in the back of the

restaurant before fleeing in a Nissan Sentra.

Instagram records depict Hite and McLoyd together in the Nissan Sentra, just after midnight on November 3, 2021, with cash and firearms and wearing the same clothes seen in the surveillance video from Happy’s Pizza. Instagram videos were recorded and posted minutes after the Cleveland Heights robbery occurred. In the video, Hite is wearing the same black pants and black
A didas hoodie and McLoyd is wearing the same hoodie under a black puffer vest that the assailants are wearing in the Happy’s Pizza footage. Furthermore, Hite had a photo of McLoyd’s driver’s li cense on her phone, which police used to confirm McLoyd’s identity. We find that t h e foregoing circumstantial evidence, when viewed in a light most favorable to the state, identif ies McLoyd as one of the assailants , who acted in concert with Hite and Hagwood , and supports McLoyd’s convictions.

Therefore, the third assignment of error is overruled.
D. Manifest Weight of the Evidence In the fourth assignment of error, McLoyd refers to events not charged , nor presented in the instant case. It is the appellant’s duty to properly cite the alleged error in the record. App.R. 16. App.R. 12 provides appellate courts with the discretion to disregard an assignment of error for the failure to comply with App.R. 16. Because McLoyd has failed t o properly cite the alleged error in the record , we decline to address her argument.How e ver, e ven if the manifest weight issue was properly raised in the

matter before us, we find that this is not the exceptional case in which the evidence weighs heavily against a conviction. Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541 (1997) , citing State v. Martin , 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). Therefore, the fourth assignment of error is overruled.
E. Mapping of Cell Phone Data Testimony and Exhibits In the fifth assignment of error, McLoyd , citing to Ev i d.R. 702, contends the trial court committed reversible error by permitting expert testimony and exhibits to be introduced into evidence from Seabold, who was a lay witness. 9 Specifically, McLoyd argues that by allowing this testimony, the s tate is abusing t he business records exception by getting expert testimony without relying upon an expert

. The admission or exclusion of evidence is a matter left to the trial

court ’ s sound discretion and will not be disturbed absent an abuse of discretion

. State v. Dunn , 8th Dist. Cuyahoga No. 101648, 2015

- Ohio

- 3138, ¶ 40, citing State v. Frazier , 8th Dist. Cuyahoga No. 97178, 2012

- Ohio

- 1198, ¶ 17

. An abuse of discretion occurs when a court exercises “its judgment, in an unwarranted way, in regard to a matter over which it has discretionary authority.” Johnson v. Abdullah , 166 Ohio St.3d 427, 2021

- Ohio

- 3304, 187 N.E.3d 463, ¶ 35.

9 Evid.R. 702 governs expert testimony.We initially note that McLoyd’s reliance on Evid.R. 702 is misplaced

because Seabold was not offered as an expert witness and the trial court did not recognize him as such. In fact, a review of the record reveals that Seabold repeatedly clarified that he was not an expert. Rather, Seabold explained that he takes the information from records provided by the cell phone providers and the detectives investigating the cases and generates a map of a defendant’s cell phone location.

Our court has repeatedly found this type of testimony admissible.
State v. Dunn , 8th Dist. Cuyahoga No. 101648, 2015

- Ohio

- 3138, ¶ 43

- 46 (a layperson could compare the locations depicted on the phone records to the corresponding location on the analyst’s site map.); State v. Daniel , 2016

- Ohio

- 5231, 57 N.E.3d 1203, ¶ 68

- 72 (8th Dist.) (testimony regarding a comparison of cell phone date records to locations where crimes occurred does not require “specialized knowledge, skill, experience, training, or educati on ” regarding cellular networks); State v. Bradford , 2018

- Ohio

- 1417, 101 N.E.3d 710, ¶ 86 (8th Dist.), citing State v. Wilson , 8th Dist. Cuyahoga No. 104333, 2017

- Ohio

- 2980 (cell phone tower mapping by a lay person permits an inference to be drawn by the factfinder that the cell phone owner was in the area at the listed time and to corroborate other evidence of the defendant’s p resence at a crime scene); State v. Lucus , 2020
- Ohio

- 1602, 154 N.E.3d 262, ¶ 98 (8th Dist.) ( testimony about the defendant’s cell phone records, the location of the cellular tower defendant’s phone connected to, or a map based on this information was admissible as lay testimony)

.In light of the foregoing, we find that Seabold’s testimony was

admissible as lay testimony. Furthermore, Seabold’s testimony regarding the McLoyd’s cell phone did not appear to have a prejudicial effect because her cell phone did not place her at any of the robbery locations for which she was convicted.

Therefore , the fifth assignment of error is overruled.
F. Sentence In the sixth assignment of error, McLoyd challenges the application of the Reagan Tokes Law to her sentence

.

1. Reagan Tokes Law McLoyd first argues that trial court committed reversible error when it imposed an unconstitutional sentence under the Reagan Tokes Law because the law vi olate s her c onstitutional r ight s to a jury trial, due process , and the s eparation

of

- p ower s doctrine

. 10

In State v. Hacker , Slip Opinion No. 2023
- Ohio

- 2535 , the Ohio Supreme Court recently addressed similar arguments and found the Reagan Tokes Law to be constitutional. The Hacker Court determined the law does not violate the separation

- of

- powers doctrine, the right to a jury trial, or the right to due process. Id. at ¶ 41. In light of this ruling, as well as the fact that McLoyd ’s arguments do not present novel issues or any new theor ies challenging the constitutional validity of

10 McLoyd argues in the alternative that the matter should be reviewed for plain error because “trial counsel failed to object[.]” A review of the record, however, reveals that trial counsel did object to the imposition of the Reagan Tokes La w. (Tr. 1840.) Therefore, we decline to review for plain error.any aspect of the Reagan Tokes Law left unaddressed by the Hacker Court, we find

these arguments unpersuasive

.

2. Prison Term McLoyd next argues that the trial court failed to comply with R.C.
292 9 .144(B)(3) when it imposed “ presumptive minimum terms and potential maximum terms on all qualifying felonies, not just one. ”

F or felony offenses sentenced under the Reagan Tokes Law, the trial court is required to impose an indefinite sentence with a stated minimum term selected by the court and a calculated maximum term determined in accordance with R.C. 2929.144, which provides the framework for the calculation of the
maximum term. R.C. 2929.14(A)(1)(a). R.C. 2929.144(B)(3) govern s the calculation of the maximum prison term when there are multiple counts that are to run concurrently. McLoyd argues that the court can only impose a single maximum term under R.C. 2929.144(B)(3) based on the use of “term” in the singular. This
section provides in relevant part:
I f the offender is being sentenced for more than one felony, if one or more of the felonies is a qualifying felony of the first or second degree, and if the court orders that all of the prison terms imposed are to run concurrently, the maximum term shall be equal to the longest of the minimum terms * * * plus fifty per cent of the longest minimum term for the most serious qualifying felony being sentenced. (Emphasis added.) R.C. 2929.144(B)(3).However, while R.C. 2929.144 governs the calculation of the

maximum term, R.C. 2929.14(A) governs the imposition of indefinite sentences. State v. Wilson , 8th Dist. Cuyahoga No. 111755, 2023

- Ohio

- 1042, ¶ 6 8. R.C. 2929.14(A)(1)(a) provides : For a felony of the first degree committed on or after the effective date of this amendment, the prison term shall be an indefinite prison term with a stated minimum term selected by the court of three, four, five, six, seven, eight, nine, ten, or 11 years and a maximum term that is determined pursuant to section 2929.144 of the Revised Code * * *. (Emphasis added.)

Both sections state that “‘the prison term shall be an indefinite prison term with a stated minimum term selected by the court * * * and a maximum term that is determined pursuant to section 2929.144 of the Revised Code * * *.”’ (Emphasis sic.) State v. Gutierrez

- Reynoso , 11th Dist. Lake No. 2022

- L

- 130, 2023
- Ohio

- 3122, ¶ 93. Thus, under these sections, the trial court is required to impose both a stated minimum term and a maximum term determined by the formula set forth in R.C. 2929.144. Wilson at ¶ 69 ; Gutierrez

- Reynoso at ¶ 93

. This is exactly what the trial court did in th e instant case .

The refore, based on the foregoing, the sixth assignment of error is overrul ed. III. Conclusion

The trial court’s advisement to prospective jurors regarding the g rand j ury’s indictment did not constitute plain error. Neither did McLoyd’s j oinder of trial with Hite and Hagwood. Based on the jury’s verdict, it is clear that McLoyd wasnot prejudice d by the joinder

. We also find that there was sufficient evidence i n the

record to identify McLoyd as one of the assailants who participated in this crime
spree. McLoyd’s manifest weight challenge was not properly raised . However, even if we were to consider it, we find that this is not the exceptional case in which the evidence weighs heavily against a conviction. We further find that Seabold’s testimony regarding the information he took from cell phone records and the map he generate d of the defendant’s cell phone location wa s admissible as lay testimony. Lastly, McLoyd ’s arguments regarding the constitutionality of the Reagan Tokes
Law do not present novel issues or new theor ies challenging the constitutional validity of any aspect of l aw left unaddressed by the Hacker Court . In addition, both
R.C. 2929.144 and R.C. 2929.14(A) require the trial court to impose both a stated minimum term and a maximum term determined by the formula set forth in R.C.
2929.144 , which is exactly what the trial court did in the instant case.

Accordingly, judgment is affirmed. It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mand ate issue out 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.

___________________ ____ ____ MARY J. BOYLE, JUDGE
ANITA LASTER MAYS , A

. J., and FRANK DANIEL CELEBREZZE, III , J., CONCU R