[Cite as State v. Tyus, 2020-Ohio-4455.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

STATE OF OHIO 

 Appellee 

 v. 

ORLANDO PEDRO TYUS 

 Appellant 

C.A. No. 29520 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CR-2018-09-3067(A) 

DECISION AND JOURNAL ENTRY 

Dated: September 16, 2020 

 

CALLAHAN, Presiding Judge. 

{¶1} Appellant, Orlando Tyus, appeals his convictions in the Summit County Court of 

Common Pleas. 

I. 

{¶2} At 3:39 a.m. on July 7, 2018, Akron police officers were dispatched in response to 

a 911 call reporting a shooting on Schiller Avenue on the north side of Akron. When they arrived, 

they discovered the body of B.R., who appeared to have been shot in the back of the head. B.R.’s 

brother, C.R., reported that two individuals had approached them from behind as they neared their 

parked car. One brandished a gun and demanded money from C.R., who then heard several 

gunshots as B.R. was shot by the other individual. C.R. fled on foot, then called 911. Police 

recovered three spent shell casings and one live round from the scene. Officers detained three men 

who were in the area near the time of the shooting—including one man who stopped to render aid 

to B.R.—but they determined that those individuals were not involved. 
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{¶3} Later that morning, at approximately 5:51 a.m., another individual placed a 911 call 

to report the discovery of a shooting victim in the area of 5th Avenue and Arlington Street on the 

south side of Akron. When the caller met with officers at her location, she led them to a parking 

lot where she had found the body of a man she identified as “Shorty,” a homeless individual who 

did odd jobs in the neighborhood. “Shorty,” later identified as R.M., had suffered a gunshot wound 

to the head. 

{¶4} When officers canvassed the area where R.M.’s body was discovered, they 

encountered a woman named C.H. C.H. reported that earlier that morning, she had been lured into 

an alley known as Minordy Place at its intersection with 6th Avenue by an individual who led her 

to believe that he had drugs for her. She informed the officers that once in the alley, a woman 

aimed a gun at her head. A man then did the same, but when he pulled the trigger, the gun did not 

fire. C.H. told the officers that she managed to flee, and she took them to the location of the 

incident, where they recovered two live rounds of ammunition. 

{¶5} The three incidents did not appear to be connected, and police did not obtain 

information leading to any suspects until mid-August. At that time, a woman who had been taken 

into custody on drug charges and who was being recruited to serve as a confidential informant 

disclosed that she had information about a homicide. The woman, B.H., informed police that a 

younger acquaintance, C.J., had disclosed to her that she had participated in a series of shootings 

that occurred the weekend after the Fourth of July holiday. B.H. identified the two men who also 

participated in the shootings as “Bishop” and “Orka,” who she described as half-brothers. B.H. 

told officers that she had originally heard that two men and one woman had been killed, but she 

later learned that the woman had escaped because a gun malfunctioned. As a result of their 

interview with B.H., the investigators obtained the names of Donyea Tyus, known as “Bishop,” 
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and Orlando Tyus, known as “Orka.” They also interviewed C.J., who was in custody after a drugrelated arrest at the time. 

{¶6} Orlando Tyus and his brother, Donyea Tyus, were each charged with two counts of 

aggravated murder in violation of R.C. 2903.01(A), two counts of murder in violation of R.C. 

2903.02(A), two counts of felonious assault in violation of R.C. 2903.11(A)(2), and one count of 

having a weapon while under disability in violation of R.C. 2923.13(A)(2). The aggravated 

murder and murder charges were accompanied by firearm specifications pursuant to R.C. 

2941.145(A). Prior to trial, Orlando moved to sever their trials. The trial court denied the motion, 

and Orlando and Donyea were tried together to a jury. The jury found Orlando guilty of each 

charge. After merging the murder counts and related firearm specifications into the aggravated 

murder counts and related specifications, the trial court sentenced Orlando to life in prison without 

the possibility of parole as punishment for each count of aggravated murder. The trial court also 

sentenced Orlando to consecutive prison terms for each gun specification and each of the 

remaining counts. 

{¶7} Orlando appealed, raising six assignments of error. Several of his assignments of 

error are rearranged for purposes of discussion. 

II. 

ASSIGNMENT OF ERROR NO. 1 

THE TRIAL COURT ERRED BY DENYING ORLANDO TYUS’ MOTION TO 

SEVER HIS TRIAL, IN VIOLATION OF THE 5TH, 6TH, AND 14TH 

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ART. 1, § 

10, OF THE OHIO CONSTITUTION. 

{¶8} In his first assignment of error, Orlando Tyus argues that the trial court erred by 

denying his motion to sever his trial from that of his brother because one of the State’s witnesses 

testified with respect to out-of-court statements made by Donyea. This Court does not agree. 
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{¶9} Crim.R. 8(B), which permits joinder of multiple defendants, provides that “[t]wo 

or more defendants may be charged in the same indictment * * * if they are alleged to have 

participated in the same act or transaction or in the same series of acts or transactions constituting 

an offense or offenses, or in the same course of criminal conduct.” The law favors joinder because 

it promotes the conservation of judicial resources and mitigates the possibility of inconsistent 

results. State v. Boone, 10th Dist. Franklin No. 14AP–87, 2015-Ohio-2648, ¶ 25. Nevertheless, 

when it appears that joinder of multiple defendants for trial prejudices a defendant, a trial court 

must sever the defendants and conduct separate trials. See Crim.R. 14. 

{¶10} The Sixth Amendment to the United States Constitution guarantees an accused the 

right to confront witnesses against him. Crawford v. Washington, 541 U.S. 36, 54 (2004). The 

Confrontation Clause is implicated by the admission of out-of-court statements that are testimonial 

in nature when the declarant does not testify in the proceeding. See Melendez–Diaz v. 

Massachusetts, 557 U.S. 305, 309–310 (2009). Only testimonial statements make a declarant a 

“witness” for purposes of the Confrontation Clause, and “[i]t is the testimonial character of the 

statement that separates it from other hearsay that, while subject to traditional limitations upon 

hearsay evidence, is not subject to the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 

821 (2006). 

{¶11} In Bruton v. U.S., 391 U.S. 123 (1968), the United States Supreme Court recognized 

that when multiple defendants are tried together, the admission of an out-of-court confession by a 

co-defendant that incriminates the defendant violates the Confrontation Clause, and the violation 

cannot be cured by means of a limiting instruction. Id. at 126, 137. The same constitutional 

infirmity may be present when the out-of-court statements were made to a prosecution witness 

other than a police officer. See State v. Moritz, 63 Ohio St.2d 150, 154 (1980). Similarly, an out-
5 

 

of-court statement by a co-defendant may incriminate a defendant even if the defendant is not 

mentioned by name. Id. at 155, quoting Fox v. State, 384 N.E.2d 1159, 1170 (Ind.App.1979). 

{¶12} Because Bruton violations are grounded in the Confrontation Clause, however, the 

out-of-court statements at issue must be testimonial for the protections of the Confrontation Clause 

to attach. U.S. v. Johnson, 581 F.3d 320, 326 (6th Cir.2009). “‘Bruton is simply irrelevant in the 

context of nontestimonial statements * * * Statements that do not implicate the Confrontation 

Clause, a fortiori, do not implicate Bruton.’” (Alterations in original.) State v. Luckie, 5th Dist. 

Richland Nos. 16CA91, 16CA92, 16CA93, 2018-Ohio-594, ¶ 44, quoting U.S. v. Dargan, 738 

F.3d 643, 651 (4th Cir.2013). See also State v. Fannon, 4th Dist. Athens Nos. 17CA24, 17CA26, 

2018-Ohio-5242, ¶ 28-29; State v. Carter, 7th Dist. Mahoning No. 15 MA 0225, 2017-Ohio-7501, 

¶ 39; State v. Chaffin, 2d Dist. Montgomery No. 25220, 2014-Ohio-2671, ¶ 41; State v. Newsome, 

3d Dist. Putnam No. 12-12-03, 2012-Ohio-6119, ¶ 27-31. 

{¶13} Statements given to police officers are testimonial when “the primary purpose of 

the interrogation is to establish or prove past events potentially relevant to later criminal 

prosecution.” Davis, 547 U.S. at 822. Because some statements made to persons other than police 

officers may be testimonial in nature, they are not categorically excluded from the scope of the 

Confrontation Clause, but that fact is “highly relevant.” Ohio v. Clark, 576 U.S. 237, 249 (2015). 

“Statements made to someone who is not principally charged with uncovering and prosecuting 

criminal behavior are significantly less likely to be testimonial than statements given to law 

enforcement officers.” Id. As with statements given to law enforcement, the primary purpose test 

controls. See id. at 245-246. The primary purpose test is an objective inquiry that takes into 

account the totality of the surrounding circumstances. See State v. Jones, 135 Ohio St.3d 10, 2012-

Ohio-5677, ¶ 156. Relevant circumstances that bear on the primary purpose inquiry are the identity 
6 

 

of the questioner, the existence of an ongoing emergency, the relative informality of the setting, 

and application of traditional rules regarding hearsay to the statements at issue. See Clark at 244-

245, 249. 

{¶14} Orlando argues that the trial court erred by denying his motion to sever because the 

anticipated testimony of B.H., a fact witness called by the State, included statements made to her 

by Donyea that were circumstantial evidence tending to prove that he participated in the crimes 

charged against him. Specifically, B.H., who did testify at trial, explained that several weeks after 

the events in question, Orlando and Donyea were present in her home, where they sat on either 

side of her on a sectional sofa during a conversation. According to B.H.’s testimony, Donyea 

expressed concern about C.J.’s recent arrest and asked B.H. “if [C.J.]’s going to keep it silent, keep 

it 100.” B.H. explained that by asking this question, Donyea inquired whether C.J. would disclose 

what she knew about the crimes, although he did not specifically reference murder. B.H. also 

explained that although Donyea did the talking, Orlando “always kind of nodded and said yes.” 

{¶15} Donyea’s statements were made in an informal setting to an acquaintance with no 

connection to law enforcement. Like statements made to a friend while incarcerated or to a fellow 

inmate, these statements were not testimonial in character. State v. Henderson, 7th Dist. Mahoning 

No. 16 MA 0057, 2018-Ohio-5124, ¶ 38; Carter, 2017-Ohio-7501, at ¶ 36-39; Newsome, 2012-

Ohio-6119, at ¶ 31. Consequently, the Confrontation Clause was not implicated, and Bruton did 

not require the trial court to sever Orlando’s trial based upon them. See Carter at ¶ 39; Newsome

at ¶ 31, 33. Orlando Tyus’ first assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 2 

THE TRIAL COURT ERRED IN ADMITTING OVERLY GRUESOME 

PHOTOGRAPHS OF VICTIM [R.M.], IN VIOLATION OF THE 5TH, 6TH, 

AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION 

AND ART. 1, §10, OF THE OHIO CONSTITUTION. 
7 

 

{¶16} Orlando Tyus’ second assignment of error is that the trial court erred by admitting 

autopsy photographs that showed the path of the bullet that caused the death of R.M. This Court 

does not agree. 

{¶17} The admissibility of gruesome photographs in a noncapital case is considered with 

reference to Evid.R. 403. See State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, ¶ 95-96, 

quoting State v. Morales, 32 Ohio St.3d 252, 257-258 (1987) (observing that such photographs are 

generally considered subject to Evid.R. 403, but that “a stricter evidentiary standard” applies in 

capital cases). Under Evid.R. 403(A), otherwise relevant evidence “is not admissible if its 

probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the 

issues, or of misleading the jury.” The exclusion of relevant evidence under Evid.R. 403(A) rests 

within the discretion of the trial court. State v Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, ¶ 

107, citing State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus. When 

considering a trial court’s decision to exclude evidence under Evid.R. 403(A), this Court is 

“mindful that ‘the exclusion of evidence under Evid.R. 403(A) is even more of a judgment call 

than determining whether the evidence has logical relevance in the first place.’” State v. 

Thompson, 9th Dist. Wayne No. 15AP0016, 2016-Ohio-4689, ¶ 25, quoting State v. Yarbrough, 

95 Ohio St.3d 227, 2002-Ohio-2126, ¶ 40. See also State v. Maurer, 15 Ohio St.3d 239, 264-265 

(1984) (describing a trial court’s broad discretion under Evid.R. 403 in the admission of 

photographs). 

{¶18} “‘Autopsy photographs are generally admissible to help the jury appreciate the 

nature of the crimes, to illustrate the coroner’s or other witnesses’ testimony by portraying the 

wounds, to help prove the defendant’s intent, and to show the lack of accident or mistake.’” State 

v. Buck, 9th Dist. Summit No. 27597, 2017-Ohio-273, ¶ 22, quoting State v. Costell, 3d Dist. Union 
8 

 

No. 14-15-11, 2016-Ohio-3386, ¶ 142. Consequently, autopsy photographs—even if gruesome—

are not per se inadmissible. Maurer at 265. See also State v. Baskerville, 9th Dist. Summit No. 

28148, 2017-Ohio-4050, ¶ 33. 

{¶19} Orlando objected to the admission of State’s Exhibits 48B and 48C. State’s Exhibit 

48B depicts the interior of R.M.’s skull with the brain removed. State’s Exhibit 48C is similar 

except that in that photograph, a portion of the base of the skull bone has been removed to locate 

where the bullet lodged. State’s Exhibit 48C also depicts a metal rod that was inserted to 

demonstrate the path of the bullet. The trial court acknowledged the gruesome nature of the 

photographs, but admitted them because they were relevant to demonstrating the cause of R.M.’s 

death. 

{¶20} Although gruesome, State’s Exhibits 48B and 48C served to illustrate the testimony 

of Dr. Lisa Kohler, the Chief Medical Examiner who testified about the autopsy of R.M.’s body. 

Dr. Kohler testified that R.M. was killed by a single gunshot wound to the head. She noted that 

the bullet entered “just on the inside angle of the right eye” and travelled through the sinus and the 

base of skull to where it lodged. Dr. Kohler explained that the bullet never entered the brain cavity, 

but that R.M.’s death was caused by a combination of blood loss and injury to the brain caused by 

“concussive forces” that resulted from the trajectory of the bullet. As Dr. Kohler explained, 

As the bullet passes through anything, it releases energy so there’s a big expanse of 

energy around it and that is shown in that he had some bruising to the brain near 

where the wound trac[k] was although the bullet never actually got into the cavity 

where the brain is housed. 

Dr. Kohler further distinguished a gunshot wound that results in a bullet that enters the brain and 

results in a “fairly quick” death from R.M.’s wound, which may have caused death within “a series 

of minutes[]” during which “[h]e may have been able to have some function for a short period of 

time.” 
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{¶21} This testimony could, understandably, cause confusion in the minds of jurors with 

respect to the possibility that a bullet could enter near the eye socket, travel through the sinuses, 

and lodge near the base of the skull without penetrating the brain itself. State’s Exhibits 48B and 

48C depict the physical pathway that the bullet took, and therefore serve to illustrate Dr. Kohler’s 

testimony and to eliminate any such confusion on the part of the jurors. The probative value of 

these photographs was not substantially outweighed by the danger of unfair prejudice under 

Evid.R. 403(A), and the trial court did not abuse its discretion by admitting the photographs. 

{¶22} Orlando Tyus’ second assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 4 

THE TRIAL COURT COMMITTED PLAIN ERROR BY ADMITTING 

PHOTOGRAPHS OF DONYEA TYUS WITH A GUN, IN VIOLATION OF THE 

5TH, 6TH, AND 14TH AMENDMENTS TO THE UNITED STATES 

CONSTITUTION AND ART. 1, §10, OF THE OHIO CONSTITUTION. 

{¶23} In his fourth assignment of error, Orlando Tyus argues that the trial court erred by 

admitting two photographs of Donyea in possession of a firearm despite the fact that they had no 

probative value. Orlando acknowledges that trial counsel did not object to the admission of the 

photographs, so he has forfeited all but plain error. See Crim.R. 52(B). 

{¶24} Crim.R. 52(B) permits this Court to notice plain errors or defects that affected a 

substantial right in the absence of an objection in the trial court. This Court can only notice plain 

error when there has been a deviation from a legal rule that constitutes an obvious defect in the 

trial proceedings that affected the outcome of the trial. State v. Barnes, 94 Ohio St.3d 21, 27

(2002). This Court notices plain error only in exceptional circumstances to prevent a manifest 

miscarriage of justice. State v. Long, 53 Ohio St.2d 91 (1978), paragraph three of the syllabus. 

{¶25} Orlando argues that the trial court committed plain error by admitting State’s 

Exhibits 8K and 8L, which are two photographs extracted from a cellular phone collected when 
10 

 

Donyea was arrested. The photographs depict Donyea holding a firearm with the muzzle pointed 

toward the camera. They were introduced during the testimony of Dylan Matt, an employee of the 

Ohio Bureau of Criminal Investigation who examined the bullets and bullet fragments collected in 

the course of the investigation and prepared several reports explaining his findings. 

{¶26} Under Evid.R. 401, evidence is relevant as long as it has “any tendency to make the 

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

less probable than it would be without the evidence.” Evid.R. 401. Relevance is, therefore, 

broadly defined. State v. McGuire, 80 Ohio St.3d 390, 400 (1997). Mr. Matt testified that based

on his examination, three bullets were likely to have been fired from the same weapon: the first 

two were spent shell casings collected from the scene where B.R. was shot, and the third was a 

bullet recovered from B.R.’s body. Mr. Matt further explained that the only firearm known to 

produce the distinctive combination of markings on those bullets was manufactured by Hi-Point. 

With respect to the photographs—and, in particular, State’s Exhibit 8L—Mr. Matt testified that 

the photograph “appears to show the muzzle end of a firearm that has the general profile of a HiPoint firearm * * *.” He also, however, qualified his testimony by explaining that he did not 

examine any firearms submitted in this case and that he could not see the make, model, caliber, or 

any other information from the side of the weapon depicted in the photograph. The testimony of 

other witnesses connected both Orlando and Donyea to the entire sequence of events and, in 

particular, identified Orlando as the individual who shot B.R. 

{¶27} Thus, this Court cannot agree with Orlando’s broad assertion that State’s Exhibits 

8K and 8L had no probative value. Our inquiry does not end at that point, however, because under 

Evid.R. 403(A), otherwise relevant evidence “is not admissible if its probative value is 

substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of 
11 

 

misleading the jury.” In this respect, the admission of these photographs is more troubling. Given 

the balance of the testimony at trial, however, including the testimony of an eyewitness to the 

events, we cannot conclude that the admission of State’s Exhibits 8K and 8L affected the outcome 

of Orlando’s trial. See Barnes, 94 Ohio St.3d at 27. 

{¶28} The trial court did not commit plain error in the admission of these exhibits, and 

Orlando Tyus’ fourth assignment of error is overruled. 

ASSIGNMENT OF ERROR NO. 3 

ORLANDO TYUS WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE 

OF COUNSEL UNDER THE 6TH AMENDMENT TO THE U.S. 

CONSTITUTION AND ARTICLE I, §§ 1, 10 & 16 OF THE OHIO 

CONSTITUTION WHEN COUNSEL DID NOT OBJECT TO UNDULY 

PREJUDICIAL PHOTOGRAPHS OF THE CO-DEFENDANT. 

{¶29} Orlando Tyus’ third assignment of error argues that he was denied the effective 

assistance of counsel because trial counsel failed to object to the admission of State’s Exhibits 8K 

and 8L. 

{¶30} In order to demonstrate ineffective assistance of counsel, a defendant must show 

(1) deficiency in the performance of counsel “so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that the errors made by 

counsel were “so serious as to deprive the defendant of a fair trial[.]” Strickland v. Washington, 

466 U.S. 668, 687 (1984). A defendant must demonstrate prejudice by showing that, but for 

counsel’s errors, there is a reasonable possibility that the outcome of the trial would have been 

different. Id. at 694. “A defendant’s failure to satisfy one prong of the Strickland test negates a 

court’s need to consider the other.” State v. Madrigal, 87 Ohio St.3d 378, 389 (2000), citing 

Strickland at 697. 
12 

 

{¶31} This Court has determined that the admission of State’s Exhibits 8K and 8L, even 

if erroneous, did not affect the outcome of Orlando’s trial. As such, Orlando cannot demonstrate 

that the outcome of his trial would have been different had counsel objected to their admission. 

His third assignment of error is overruled on that basis. 

ASSIGNMENT OF ERROR NO. 5 

THE TRIAL COURT ERRED IN THE HAVING WEAPON WHILE UNDER 

DISABILITY JURY INSTRUCTION, IN VIOLATION OF THE 5TH, 6TH, AND 

14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND 

ART. 1, §10, OF THE OHIO CONSTITUTION. 

{¶32} In his fifth assignment of error, Orlando Tyus has argued that the trial court erred 

by instructing the jury using language that tracked the wording of R.C. 2923.13(A)(2). 

Specifically, Orlando has argued that the trial court abused its discretion by instructing the jury 

that he had previously been convicted of a crime of violence instead of merely reiterating the 

parties’ stipulation that he was under a disability. This Court does not agree. 

{¶33} “[A] trial court 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. Comen, 50 Ohio St.3d 206 (1990), paragraph two of the syllabus; R.C. 2945.11 (“In 

charging the jury, the court must state to it all matters of law necessary for the information of the 

jury in giving its verdict.”). Although trial courts enjoy broad discretion in fashioning jury 

instructions, they must “present a correct, pertinent statement of the law that is appropriate to the 

facts.” State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, ¶ 46, citing State v. Griffin, 141 Ohio 

St.3d 392, 2014-Ohio-4767, ¶ 5, and State v. Lessin, 67 Ohio St.3d 487, 493 (1993). This Court 

reviews a trial court’s decision to provide a requested jury instruction for an abuse of discretion. 

State v. Simin, 9th Dist. Summit No. 26016, 2012-Ohio-4389, ¶ 40, quoting State v. Evans, 9th 

Dist. Medina No. 07CA0057-M, 2008-Ohio-4772, ¶ 12. An abuse of discretion is present when a 
13 

 

trial court’s decision “‘is contrary to law, unreasonable, not supported by evidence, or grossly 

unsound.’” Menke v. Menke, 9th Dist. Summit No. 27330, 2015-Ohio-2507, ¶ 8, quoting Tretola 

v. Tretola, 3d Dist. Logan No. 8-14-24, 2015-Ohio-1999, ¶ 25. 

{¶34} Applying federal law, the United State Supreme Court has determined that a trial 

court errs by refusing to accept a defendant’s stipulation of a prior conviction for purposes of 

possessing a weapon under disability and, instead, permitting proof of the fact by means of the 

conviction itself. Old Chief v. U.S., 519 U.S. 172, 174 (1997). In State v. Creech, 150 Ohio St.3d 

540, 2016-Ohio-8440, the Ohio Supreme Court reached a similar conclusion applying Ohio law: 

Pursuant to Evid.R. 403, in a case alleging a violation of R.C. 2923.13, when the 

name or nature of a prior conviction or indictment raises the risk of a jury verdict 

influenced by improper considerations, a trial court abuses its discretion when it 

refuses a defendant’s offer to stipulate to the fact of the prior conviction or 

indictment and instead admits into evidence the full record of the prior judgment or 

indictment when the sole purpose of the evidence is to prove the element of the 

defendant’s prior conviction or indictment. 

Id. at ¶ 40. In this case, the trial court did not refuse to accept Orlando’s stipulation regarding his 

prior conviction in favor of admitting the complete record of his conviction, so the Ohio Supreme 

Court’s analysis in Creech does not apply directly to the matter at hand. Nonetheless, Orlando 

suggests that Creech should inform this Court’s analysis because “the concerns raised in Creech

are applicable to this circumstance[].” Specifically, he maintains that just as admission of a 

conviction could violate Evid.R. 403(A) because of unfair prejudice, a jury instruction that 

provides details beyond the fact that the defendant has stipulated that he committed a crime that 

disabled him from possessing a weapon may also result in unwarranted prejudice that demonstrates 

an abuse of discretion. 

{¶35} In Creech, the Ohio Supreme Court adopted the reasoning of Old Chief, but 

emphasized that R.C. 2923.13 is distinguishable from its federal counterpart: 
14 

 

What mattered for purposes of the federal statute is that the defendant had been 

sentenced to a crime punishable with a sentence of more than a year in prison. The 

General Assembly in R.C. 2923.13 made some distinctions in determining the 

classes of crimes that should bar a convict from possessing a gun, but the classes 

are still broad. What matters to the General Assembly—and an element that the 

state must prove—is that the crime the defendant was convicted of was either a 

“felony offense of violence” or a “felony offense involving the illegal possession, 

use, sale, administration, distribution, or trafficking in any drug of abuse.” R.C. 

2923.13(A)(2) and (3). In regard to R.C. 2923.13, a stipulation or admission 

concerning the status element would necessarily include the fact that the defendant 

was under indictment or had previously been convicted of a crime falling within 

those broad categories. 

(Emphasis added.) Creech at ¶ 35. Consequently, a jury instruction that recites that the defendant 

has been convicted of a “felony offense of violence” under R.C. 2923.13(A)(2), as the trial court 

provided in this case, includes precisely the information required for a “correct, pertinent statement 

of the law.” See White, 142 Ohio St.3d 277, 2015-Ohio-492, at ¶ 46, citing Griffin, 141 Ohio St.3d 

392, 2014-Ohio-4767, at ¶ 5, and Lessin, 67 Ohio St.3d at 493. 

{¶36} The trial court did not abuse its discretion by instructing the jury that Orlando had 

been “previously convicted of a felony offense of violence[.]” Orlando Tyus’ fifth assignment of 

error is overruled. 

ASSIGNMENT OF ERROR NO 6. 

ORLANDO TYUS’ CONVICTIONS WERE AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE IN VIOLATION OF THE 5TH AND 14TH 

AMENDMENTS TO THE U.S. CONSTITUTION AND ARTICLE I, §§ 1, 10 & 

16 OF THE OHIO CONSTITUTION. 

{¶37} Orlando Tyus’ final assignment of error argues that his convictions were against 

the manifest weight of the evidence. This Court does not agree. 

{¶38} When considering whether a conviction is against the manifest weight of the 

evidence, this Court must: 

review the entire record, weigh the evidence and all reasonable inferences, consider 

the credibility of witnesses and determine whether, in resolving conflicts in the 
15 

 

evidence, the trier of fact clearly lost its way and created such a manifest 

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

State v. Otten, 33 Ohio App.3d 339, 340 (9th Dist.1986). A reversal on this basis is reserved for 

the exceptional case in which the evidence weighs heavily against the conviction. Id., citing State 

v. Martin, 20 Ohio App.3d 172, 175 (1st Dist.1983). The identity of a perpetrator must be proved 

by the State beyond a reasonable doubt. State v. Flynn, 9th Dist. Medina No. 06CA0096-M, 2007-

Ohio-6210, ¶ 12. As with any element of an offense, identity may be proved by direct or 

circumstantial evidence, which do not differ with respect to probative value. Id. See also State v. 

Treesh, 90 Ohio St.3d 460, 485 (2001), citing State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph 

one of the syllabus. 

{¶39} Orlando’s only argument regarding manifest weight is that the State’s evidence that 

identified him as one of the perpetrators was unreliable and unverified by any scientific evidence. 

Specifically, Orlando has argued that the witnesses who identified him as one of the shooters were 

known drug users whose testimony was influenced by favorable treatment by the State. 

{¶40} Officer Timothy White testified that he arrived at a scene on Schiller Avenue in 

response to a 911 call that was placed at 3:39 a.m., where officers found that B.R. had been shot 

in the back of the head. It appeared that B.R.’s brother, C.R., was the only witness to the shooting, 

but C.R. offered limited information and appeared to be “[v]ery erratic; very shocked; scared, 

traumatic.” It was also apparent that C.R. had been consuming alcohol. According to Officer 

White, C.R. suspected that the individuals had fled on foot towards Tallmadge Avenue. C.R. also 

mentioned that one of the individuals was wearing an army-style fabric hat. Officer White located 

and detained three individuals in the vicinity, one of whom was wearing a hat and one of whom 

was covered in blood. Officer White later recognized that individual as a man who had been near 
16 

 

B.R.’s body attempting to render assistance. The three individuals were ultimately released 

without charges. 

{¶41} C.R. also testified at trial. He acknowledged that he had consumed alcohol on the 

evening of the events, but nonetheless offered a basic description of what transpired. C.R. 

explained that he and B.R. drove to a cousin’s house on the evening of July 6, 2018, and B.R. 

parked his car along the street. He testified that when they decided to leave, they walked together 

to B.R.’s parked car. C.R. made it to the passenger door, but a person approached him from the 

rear and demanded his money. He recalled that the individual was a black male wearing an army 

hat, but could offer no further description. C.R. saw another person on the driver’s side of the 

vehicle and heard four shots as he saw that person shoot his brother. 

{¶42} Officers recovered three spent shell casings from the scene of B.R.’s death, as well 

as one live round of ammunition. According to Sergeant Robert Miller, those findings were 

consistent with at least three shots being fired and one “jam or * * * misfire.” The live bullet had 

markings consistent with being struck by a firing pin. Mr. Matt, who described his ballistics 

analysis, testified that two of the spent cartridges and a bullet recovered from B.R.’s body were 

fired by the same weapon. He also explained that a live round can be marked by a firing pin when 

the firing pin fails to strike the primer with enough force to detonate it, but leaves an indentation 

nonetheless. 

{¶43} The body of R.M. was found in a parking lot near the intersection of 5th Avenue 

and Arlington Street. The person who reported the body to police did not witness the shooting, 

but she reported to police that she may have seen the victim alive between 3:20 a.m. and 4:00 a.m. 

A single bullet was recovered from R.M.’s body; according to Mr. Matt, that bullet was not fired 

from the same weapon that fired the bullets recovered from the scene of B.R.’s shooting. 
17 

 

{¶44} While canvassing the neighborhood where R.M.’s body was found, police 

encountered C.H., who reported that someone offered her drugs; lured her into Minordy Place, an 

alley that intersects with 6th Avenue in the vicinity of 5th Avenue and Arlington; and attempted 

to shoot her. The officers testified that C.H. took them to the location of the attempted shooting 

because she believed they would find bullets that had fallen from the gun. They recovered two 

live rounds of ammunition from the alley. Mr. Matt, who examined the bullets, determined that 

one bore marks consistent with a light firing pin strike, while the other did not. 

{¶45} C.H. testified during the trial. She acknowledged that she has an extensive criminal 

record consisting of drug and prostitution-related charges and testified that she was working as a 

prostitute on the evening in question. C.H. recalled that she was working near the corner of 6th 

Avenue and Arlington at approximately an hour before sunrise when a black male called out to 

her, referring to her as “Auntie,” summoning her to the other side of the street while holding up a 

baggie that she believed to hold crack cocaine. She testified that she resisted his invitation to step 

into a darker location, but acknowledged that she was hoping to obtain some drugs. C.H. recalled 

that the man grabbed her arm and pulled her into the alley, knocking her to the ground. She 

testified that after she stood up, she saw a white woman with blond hair and another black man. 

{¶46} C.H. testified that the woman turned around, pulled a gun from her waistband, and 

pointed it at her. C.H. indicated that the woman appeared to be acting on her own volition. One 

of the men grabbed the gun from the woman, held it to C.H.’s head, and said, “Are you ready to 

die?” C.H. testified that she pleaded with the man not to shoot her because she has children, but 

she recalled that the man responded, “So what, Bitch. I have kids, too.” She recalled that the man 

pulled the trigger two times: the first time, the clip fell out and the second time, bullets were 

expelled. When the man stooped to pick up the bullets, C.H. attempted to flee, but one of the men 
18 

 

tripped her and the woman jumped on top of her. C.H. testified that she fought the woman off, 

then fled. She recalled that she saw the men fleeing down the alley as well. 

{¶47} Lieutenant Scott Lietke investigated the three incidents. Although three 

individuals were originally taken into custody at the scene of B.R.’s shooting, Lieutenant Lietke 

explained that he was less confident in their involvement after he spoke with them. Lieutenant 

Lietke testified that he did not make solid progress with the investigation until members of the 

Summit County Drug Task Force told him that a potential confidential informant had disclosed 

that she had information related to a homicide. Lieutenant Lietke interviewed that individual, a 

woman named B.H., at the Akron Police Department. He emphasized that although he was aware 

that she had a deal with the drug task force, he communicated clearly to her that she could expect 

nothing from him. According to Lieutenant Lietke, B.H. disclosed that her acquaintance, C.J., was 

involved with the shootings along with brothers identified as “Orka” and “Bishop.” At that time, 

B.H. described a conversation that she had with the men and provided information from her 

cellular phone that enabled the identification of “Orka” as Orlando and “Bishop” as Donyea. 

Lieutenant Lietke testified that shortly thereafter, he arranged for an interview with C.J., who was 

in jail at the time. He explained that he showed C.J. pictures of the victims—then pictures of 

Orlando and Donyea —and that she expressed concern for her safety, but proved to be cooperative. 

Lieutenant Lietke testified that police followed up with C.H. after his interviews with B.H. and 

C.J. She identified C.J. from a photo array as the woman who pulled a gun on her in the alley, but 

failed to identify either Orlando or Donyea. 

{¶48} Both B.H. and C.J. ultimately testified at trial. Like C.J., B.H. acknowledged that 

she is a drug user. She identified “Orka” as Orlando and “Bishop” as Donyea and testified that 

they are drug users as well. B.H. testified that she had conversations with C.J. after July 7, 2018, 
19 

 

that led her to believe that C.J. feared the two men and that her safety was at risk. Specifically, 

B.H. testified that C.J. disclosed to her that she had participated in a series of shootings with 

Orlando and Donyea as a gang initiation. C.J. specifically told her that both men had killed their 

intended victim, but the gun had later malfunctioned. Consequently, according to B.H., she 

attempted to protect C.J. by shielding her in her own home. B.H. explained that she had multiple 

conversations with C.J. about the murders between July 7, 2018, and August 9, 2018, when B.H. 

was arrested on drug charges. She also testified that, as described in our discussion of Orlando’s 

first assignment of error, several weeks after the shootings, Orlando and Donyea were present in 

her home, where they sat on either side of her on a sectional sofa during a conversation. According 

to B.H.’s testimony, Donyea expressed concern about C.J.’s recent arrest and asked B.H. “if 

[C.J.]’s going to keep it silent, keep it 100.” B.H. explained that by asking this question, Donyea 

inquired whether C.J. would disclose what she knew about the crimes, although he did not 

specifically reference murder. B.H. also explained that although Donyea did the talking, Orlando 

“always kind of nodded and said yes.” 

{¶49} C.J., like other witnesses, acknowledged that she suffered from a drug addiction; at 

the time of these events, she was regularly using methamphetamine and fentanyl. She testified 

that in the early hours of July 7, 2018, she agreed to go out with Donyea and Orlando after doing 

a shot of fentanyl to avoid getting sick. She testified that both men had guns on their person, but 

that she was accustomed to seeing them with weapons. She also explained that she and the men 

each carried a cellular phone. C.J. testified that both men wore dark clothes and that Donyea wore 

a hat that she described as a “drill sergeant hat.” According to C.J., Orlando drove the car, Donyea 

rode in the passenger seat, and she rode in the back seat. 
20 

 

{¶50} C.J. testified that Orlando drove north from her place of residence at Hammel and 

Crosier in Akron to the north side of Akron. As they drove, Orlando and Donyea discussed 

targeting random people “so it [wouldn’t] be tracked back to them.” C.J. explained that they 

parked on a side street and then, when Orlando and Donyea saw two Asian men walking to a car 

parked in front of them, the men got their weapons and told her to stay in the car. According to 

C.J.’s testimony, Orlando approached the man on the driver’s side of the car, and Donyea 

approached the man on the passenger side. She testified that when Donyea approached the 

passenger, he demanded money, but Orlando did not say anything. Donyea raised his gun and 

pulled the trigger, but the gun did not fire. Orlando, on the other hand, fired his weapon three or 

four times, and the man by the driver’s side of the car dropped to the ground. When the men 

returned to the car, Donyea asked for Orlando’s gun, but Orlando said, “[N]o, just get in the car. 

We got to go.” 

{¶51} C.J. testified that they drove from the scene in a direction that took them away from 

Tallmadge Avenue. She explained that they got back onto the highway and drove to Arlington 

and 5th Avenue on the east side of Akron. As they drove, both Orlando and Donyea referenced 

rap lyrics—“‘body for body.’” C.J. testified that when they parked, Orlando and Donyea cleaned 

their guns, then the three left the car and walked toward Arlington. She explained that “Donyea 

was stating how he was mad because he didn’t get his body so the next guy that he seen he was 

going to get him.” C.J. testified that as she and Orlando waited behind a fence, Donyea approached 

a man, shook his hand, then raised his gun to the man’s head and pulled the trigger. When Donyea 

returned, he informed Orlando and C.J. that he knew the individual from prison. 

{¶52} C.J. testified that after Donyea shot the man, “they told me that since I just 

witnessed them kill two people, that if I didn’t do the same thing, then that’s what would happen 
21 

 

to me.” She explained that they framed the events in terms of an initiation. After this conversation, 

C.J. testified, the three crossed Arlington onto a side street, where they saw a woman walking 

down the street. C.J. testified that the men called her “[A]untie” and tried to lure her closer. She 

recalled that Orlando had pulled baggies out, and that the woman had her back to her and Donyea 

when she approached. C.J. testified that Donyea handed her a gun, “[a]nd at that point I put the 

gun to her head and I pull[ed] the trigger and it doesn’t go off.” C.J. explained what happened 

next: 

And at that point, she turns around and she sees the gun and she starts, you know, 

begging for her life. And she’s like please, don’t. I have kids. And at this point I 

passed the gun to Donyea and he cocked it back and he said, “Bitch, I have kids, 

too.” And he tried to fire the gun and it still didn’t go off.

And she tried to run. And Orlando tripped her and they told me to grab her and so 

I grabbed her and at that point she kicked me and she was able to get away. 

C.J. testified that it was her intention to fire the gun at C.H.’s head when she pulled the trigger, 

although she acknowledged prior statements to the contrary. She also testified that Orlando and 

Donyea sent her back to the alley to retrieve the baggies that had been left behind and that she tried 

to avoid them as she walked back. Again, however, C.J. acknowledged that previous statements 

omitted this detail. She also acknowledged that she had been charged with felonious assault in 

connection with the attempted shooting of C.H. and had entered into a plea agreement that required 

her to testify “truthfully, completely and accurately[.]”. 

{¶53} Chris Miller, the Public Information Officer for Lorain Correctional Institution, 

testified regarding prison records for Donyea and R.M. According to those records, Donyea and 

R.M. had common locations within the Ohio Department of Corrections and Rehabilitations on 

several occasions, including a period of time from December 8, 2015, to January 19, 2016, when 
22 

 

they were bunked only two beds apart at the Richland Correctional Institution, a dormitory-style 

facility. 

{¶54} Special Agent Jacob Kunkle, who works with the Cellular Analysis Survey Team 

in the Cleveland office of the Federal Bureau of Investigation, testified that he conducted an 

analysis of cellular phone records in connection with this case. Agent Kunkle explained that when 

a cellular phone receives or initiates a call, the signal is picked up by a nearby tower chosen by the 

phone to optimize signal clarity and strength. He acknowledged that it is not possible to trace the 

precise path that a phone takes using this analysis, but he also explained that by examining 

historical cellular records, it is possible to estimate the location of a cellular phone relative to 

available towers if the phone was in use. 

{¶55} Agent Kunkle testified that according to his analysis, a cellular phone taken from 

Orlando after his arrest and a cellular phone connected to Donyea were located in the general area 

of East Crosier and Hammel on the south side of Akron shortly after 3:00 a.m. on July 7, 2018. 

Agent Kunkle explained that his analysis indicated that both cellular phones moved north 

sometime between 3:08 a.m. and 3:38 a.m., when towers located in the vicinity of Schiller Avenue 

picked up activity from the phones. The phone associated with Orlando then traveled south again, 

sometime between 3:38 a.m. and 4:53 a.m., where it was picked up by a tower near the intersection 

of Route 8 and Interstates 76 and 77. 

{¶56} As Orlando argues, three of the State’s witnesses acknowledged frequent drug use; 

the same three witnesses acknowledged their criminal records. Both B.H. and C.J., as Orlando 

also argues, had some incentive to cooperate with the police in their investigation of this case. 

Although these facts do bear on the credibility of a witness, they do not stand in isolation. In this 

case, B.H.’s testimony, although of less detail, was mostly consistent with the testimony provided 
23 

 

by C.H., the victim of the final shooting attempt. C.J.’s testimony was also notable for the details 

that were consistent with details that C.R. and C.H. provided and with the physical evidence. As 

Lieutenant Lietke explained during trial, C.J. provided details that “you could only have known if 

you were there.” Orlando also maintains that the State’s case was not persuasive because it lacked 

the support of scientific or forensic evidence. Such evidence, however, is not required to obtain a 

conviction. Compare State v. Finley, 2d Dist. Montgomery No. 19654, 2004-Ohio-661, ¶ 31-36. 

{¶57} This Court must “‘consider[] the credibility of witnesses’” as part of our manifest 

weight review. State v. Thompkins, 78 Ohio St.3d 380, 387 (1997), quoting Martin, 20 Ohio 

App.3d at 175. Nonetheless, this Court is mindful of the well-established principle that a trier of 

fact enjoys the best position to assess the credibility of witnesses. State v. Rivera, 9th Dist. Lorain 

No. 18CA011263, 2019-Ohio-62, ¶ 39, quoting State v. Johnson, 9th Dist. Summit No. 25161, 

2010-Ohio-3296, ¶ 15. Given the evidence in this case, this Court cannot conclude that this is the 

exceptional case in which the evidence weighs heavily against the convictions. 

{¶58} Orlando Tyus’ sixth assignment of error is overruled. 

III. 

{¶59} Orlando Tyus’ assignments of error are overruled. The judgment of the Summit 

County Court of Common Pleas is affirmed. 

Judgment affirmed. 

 

 There were reasonable grounds for this appeal. 
24 

 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period 

for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to 

mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the 

docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 LYNNE S. CALLAHAN 

 FOR THE COURT 

SCHAFER, J. 

TEODOSIO, J. 

CONCUR. 

APPEARANCES: 

JEREMY A. VEILLETTE, Attorney at Law, for Appellant. 

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant 

Prosecuting Attorney, for Appellee.