[Cite as State v. Roberts , 2023
- Ohio
- 142.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICTW LUCAS COUNTY

State of Ohio Court of Appeals No. L

- 2 0

- 1 1 71 Appellee Trial Court No. CR0201902202

v. Dominique Roberts DECIS ION AND JUDGMENT Appellant Decided: January 18, 2023
* * * * * Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett , Assistant Prosecuting Attorney, for appellee. Michael H. Stahl , for appellant.
* * * * *

OSOWIK , J. {¶ 1} This is an appeal from a judgment of the Lucas County Court of Common Pleas, which sentenced defendant

- appellant , Dominique Antonio Roberts, after a jury convicted him of three of four felony offenses with firearm specifi cations . For the reasons2

set forth below, t his court affirm s , in part, and reverses, in part, the judgment of the trial
court. {¶ 2} Appellant set s forth 14 assignments of error in this appeal : 1. The trial court erred when it denied Mr. Roberts’ motion to suppres s the overly suggestive and improperly admi nistered identif ication of Mr. Roberts in violation of the statute and due process under the Ohio and United States constitutions

. 2. The trial court erred when it, over objection, permitted State to recall Dewey Edw ards (who was uncharged owner of the murder weapon and the vehicle alleged to be used in the acts) after his testimony concluded so that Mr. Edwards could change his testimony and identify Mr. Roberts after a conversation in the hall with the prosecutor

. 3. T he trial court erred in admitting evidence over objection a nd in instructing the jury, over objection, that it could infer guilt from Mr. Roberts allegedly refusing to open his mouth for a DNA swab

. 4. The trial court erred and violated due process under the Ohio and United States Constitutions, when [it] prevented M r. Roberts from fully impeaching the testimony of an alleged co

- conspirator based upon inapplicable Evid.R. 404(B)

. 5. The trial court erred when it permitted the State, over objection, to admit an al leged

co - conspirator’s alleged prior consis tent statements as nonhearsay under Evid.R. 801(D)(1)(b) when the prior statement was NOT made before the motive to fabricate came about. (Emphasis sic.)3

6. The trial court erred in admitting, over objection, hearsay statements of an alleged

co - conspirator wi thout a prima fa cie case of the underlying conspiracy being demonstrated by independent evidence.
7. The trial court erred in not instructing the jury on lesser included offenses

. 8. The cumulative effect of the trial court’s errors deprived Mr. Roberts of a fai r trial.
9. The Sta te produced insufficient evidence to sustain a conviction on any charge, the Constitutions of the United States and Ohio require that Mr. Roberts be discharged. 10. The jury’s verdict was contrary to the manifest weight of the evidence.
11. Mr. Rob erts’ right to a speedy trial under Ohio statute law and the Constitutions of Ohio and the United States was violated when he was held in custody for over a year prior to trial.
12. Mr. Roberts was denied the equal p rotection of law guaranteed by the Ohio Cons titution and the Fourteenth Amendment to the U.S. Constitution due to the selection process and the prosecution’s use of pe r emptory and for

- cause challenges to jurors and the selection process violated his rights to due process and an impartial jury. 13. The t rial court commi tted plain error when it incorrectly imposed an indeterminate sentence as purportedly required by the “Reagan Tokes” law as the statutory scheme violates the separation of powers established in th e Ohio Constitution.
14. The trial court erred w hen it imposed c onsecutive sentences when all three counts should have merged for purposes of sentencing.4 I. Background

{¶ 3} This appeal originated from four felony indictments issued on July 11, 2019, by a Lucas Coun ty Grand Jury against defendant

- appellant an d co

- defendants Adrian Eaton, Darion Martin, and Justin Wright : one count of aggravated murder , a violation of R.C. 2903.01(B) and (F) and an unspecified felony under R.C. 29 29

. 0 2 ; one count of murder, a violatio n of R.C. 2903.02(B) and an unspecified felo ny under R.C. 29 29.02 ; one count of aggravated robbery, a violation of R.C. 2911.01(A)(1) and a first

- degree felony under R.C. 2911.01(C); and one count of aggravated burglary, a violation of R.C. 2911.11(A)(2) a nd a first

- degree felony under R.C. 2911.11( B). Each of the foregoing counts include d a firearm specification under R.C. 2941.145 (A), (B), (C) and (F)

. {¶ 4} The jury trial commenced on August 3 , 20 20. T he jury heard testimony from 25 witnesses , and the trial co urt admitted 229 exhibits into evidence. The following is a summary of events. O n July 6, 2019, at around 3:00 a.m., the armed appellant , with two armed co - defendants , Mr. Wright and Mr. Eaton, and while co

- defendant Mr. Martin waited with the getaway car, planned and executed a robbery on their sec ond visit to Apa rtment B of 1324 Ironwood Avenue, East Toledo, Lucas County, Ohio

. On the first visit earlier that evening, Mr. Wright and Mr. Eaton purchase d marijuana from a victim, Tyler Carr , and hung out at the apartment with a few people playing vide o games, drinkin g, and smoking while appellant and Mr. Martin remained with the car . Eventually all four co

defendants drove off to find more drugs and to stop at a gas station, though not to purchase5

gas for the car, during which the plan to rob with guns drawn was forme d, and they all returned to the apartment. Mr. Martin again remained with the getaway car. {¶ 5} Within minutes of , but separately from, Mr. Wright and Mr. Eaton , with guns drawn, entering the apartment from the front , appellant entered the apart ment from the re ar, loudly announced the robbery while pacing with his gun to complete the theft of money , wallets, guns and drugs from those victims present, including David Zeller , Shayne Jackson, and Mr. Carr

. The gun used by Mr. Wright discharged five bullets at the c rime

scene , which were matched with bullets recovered from peoples’ bodies and with the recovered shell casings : three hit Mr. Carr , killing him ; one hit another visitor, Joshua Taylor, who surviv ed but did not testify at trial ; and the fif th bullet hit ap pellant in the groin , who also survived. The gun used by appellant discharged at least two bullets at the crime scene. {¶ 6} The three co

- defendants burst from the apartment and entered the getaway car driven by Mr. Martin. Mr. Wright had acciden tally shot appel lant in the groin and helped him to the car, where appellant bled while in the backseat. Soon after, the getaway car ran out of gas and stalled on the Craig Street Bridge. The co

- defendants decide d to abandon the car and walk away, but appe llant was too in jured to walk. To receive medical attention, he developed a story to tell 9

- 1

- 1 that while he was walking at that hour, he was the victim of a drive

- by shooting. Police arrived and then an ambulan ce transported appellant to a nearby hospita l, St. Vincent’s

. The police investigation was already underway at 13246

Ironwood Avenue , and now it expanded to the abandoned car and the area where they found appellant

. Appellant was arrested on July 6, 2019. {¶ 7} F ollowing an eight

- day trial and deliberation s, on August 13, 2020, the jury found appellant not guilty of aggravated murder, and guilty of murder with firearm specification, guilty of aggravated robbery with firearm specification, and guilty of aggravated burglary with firearm specification

. Sentenc ing occurred on September 4, 2020. Appellant timely appealed. {¶ 8} We will address appellant’s assignments of error out of order. II. Speedy Trial {¶ 9} Appellant’s eleventh assignment of error argues his prima facie case f or the violation of his constitutional right to a speedy tri al is evident because, citing State v. Adams , 144 Ohio St.3d 429, 2015

- Ohio

- 3954, 45 N.E.3d 127, ¶ 88, “it would appear from the face of the charges that the 3 for 1 provision in the speedy trial statute would apply here and that the 90 [da ys] would have e xpired but for the improper allocation of the continuances of the Sept. 13, 2019 trial date in August of 2019, as well as the attribution of the February 12, 2020 to April continuance to Mr. Rober ts.” We disagree. {¶ 10} Appellant does not provid e us with a clea r calculation with which to evaluate his speedy trial claim, and merely points to the two c ontinuances , which we review for an abuse of discretion. State v. Drain , Slip Opinion No. 2022

- Ohio

- 3697, ¶ 54. Trial judges have the authority to gr ant or deny cont inuances , which is entrusted in the judge’s broad, sound discretion, on a case - by

- case basis

. Id. , citing In re Disqualification of Fleegle , 1617

Ohio St .3d 1263, 2020

- Ohio

- 5636, 163 N.E.3d 609 , ¶ 7, and State v. Unger , 67 Ohio St.2d 65, 423 N.E.2d 1078 (19 81) , syllabus

. A buse of discretion “‘connotes more than an error of law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or unconscionable.’” Blakemore v. Blakemore , 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v . Adams , 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). {¶ 11} Both the Ohio and United States Constitutions guarantee the right to a speedy trial. State v. W

right , 6th Dist. Lucas No. L

- 20

- 1206, 2022

- O hio

- 1537, ¶ 82

. “ The General Assembly has en acted R.C. 2945. 71 through 2945.73 in a legislative attempt to quantify a defendant’ s right to a speedy trial as guaranteed by the Sixth and Fourteenth Amendments to th e United States Constitution. ” State v. Mon t gomery , 61 Ohio St.2d 78, 79

- 80, 399 N.E.2d 552 (1980). W her e appellant was charged with felonies , he must be brought to trial within 270 days after his July 6, 2019 arrest. R .C. 2947.71(C)(2). The speedy trial

c alculation begins the day after arrest. Sta t e v. Williams , 6th Dist. Lucas No. L

- 21

- 1111 , 2022

- Ohio

- 2439 , ¶ 40. However, for the duration appellant was held in custody in lieu of bail, each day counted as three days pursuant to R.C. 2945.71(E), so long as he was held in custody solely on the pendin g felony charges. Id. That was the case with appellant, and
h is speedy trial calculation adjusted from 270 to 90 days, subject to applicable tolling
events. See id. at ¶ 41. Pursuant to R.C. 2945.72, there are nin e instances in which appellant’s trial date may be extended , and we find R.C. 2945.72(E) , (G), and (H) a re

r elevant to appellant’s claim

. A. September 23 , 2019 Trial Date8 {¶ 12} The September 23, 2019 trial date is the first alleged speedy

- trial violation.

The re cord shows that appellant first challenged h is speedy trial calculation on February 19, 2020, when he ma de oral motions for nunc pro tunc entries to trial court orders journalized on August 26, 2019, and on February 13, 2020, for hearings held on August
21 , 2019, and February 12, 2020, respectively , arguing each trial date continuance should not be attribute d to appel lant for speedy trial purposes. {¶ 13} Appellant argued that on August 21, 2019, he did not request a continuance, but merely confirmed the September 23, 2019 trial date previously set on July 31, 2019. However, at the hearing appellant also made an or al motion “to sever [the four] defendants and * * * that the [September] 23rd [trial] date be assigned solely to my client, Dominique Roberts.” A ppellee opposed the motion, arguing that the issue of severing the co

defendants’ cases require s an assessment of Bruton v. United States , 391 U.S. 123, 20 L.Ed.2d 476, 88 S.Ct. 1620 (1968)

. After a dditional discussion with the parties regarding the ongoing disco very and appellant’s insistence of confirmi n g September 23 for trial, the trial court co ncluded, “We’ll keep it as to 9/23 then with a great likelihood , rather , that it will be converted to a pretrial.” {¶ 14} Appellant’s motion to sever the trials of the co

- defe ndants raises R.C. 2945.72(E)

. W e find no a b use of discretion by the trial court’s attri bution of confir ming the September 23, 2019 trial date to defendant in its August 26 journalized entry stating, “Matter called for trial. Pursuant to the request of def endant trial date of September 23,9

2019 is c onfirmed.” Ultimately , the trial court ackno wledges the attr ibution to appellant did not toll appellants’ speedy

- trial calculation , and we will not disturb that finding

. 1
B . April 6, 2020 Trial Date {¶ 15} The April 6, 2020 trial date is the second alleged speed y - trial violation. Appellant argued that at t he February 12, 2020 hearing, he did not request a further continuance, but agreed to the April 6, 2020 trial date set that day as the first available date after announ cing appellant was not available for trial o n March 30. The hearing transcript shows the following excha nge with the trial court:

COURT: * * * Give you March 30th. DEFENSE COUNSEL: I am unable on the 30th. I have State versus Brown, three defendants with J udge Mandros which is only about the fourth trial date. COURT: April 6 would be the next Monday availabl e on the court’s calendar. DEFENSE COUNSEL: I just have to move one thing with Judge Winters and I’ll start doing that immediately. PROSECUTION: The Sta te can make itself available.

1 In its August 7, 2020 journalized entry, the t rial court stated, “On February 19, 2020, Defendant * * * sugg ested that his speedy trial rights were infringed. Counsel br iefed the matter

. This briefing correctly points out that the August 21, 2019 pretrial, at which the September 23, 2019 trial da te wa s simply confirmed, does not act as a tolling event.”10 DEFENSE COUNS E L: I ask if we could start about 9:15. I hav e a

federal matt er. COURT: We have a couple matters that we’re continuing so, practically, that would not be a problem. Trial date set with counsel April 6th, 2020 at 9 :15 a.m. Thank you. We’ll continue bond and see you then. {¶ 16} Appellant’s unavailability for trial until Apr il 6, 2020 , raises R.C. 2945.72( H )

. We find no abuse of discretion by the trial court’s attribution of the April 6 trial date to defendant in its Februar y 13 journalized entry stating, “Matter cal led for pre

trial. Pursuant to the request o f defendant matt er rescheduled for trial on April 6, 2020 [ , ] at 9:00 a.m. Bond is continued.” 2
C. August 3 , 2020 Trial Date {¶ 17} Appellant’s trial did not commence on April 6, 2020, because the unprecedented Covid

- 19 pa ndemic occurred

. The record shows that , r etroactive to Ma rch 9, 2020, the Ohio legislature passed Am. Sub. H.B. 197, specifically tolling the statutory speedy

- trial time calculations until July 30, 2020. Drain , Sl ip Opinion No. 2022

- Ohio

3697, at ¶ 48; Wri ght , 6th Dist. Lucas No. L

- 20

- 1206, 2022

- Ohio

- 1537, at ¶ 93, citing 2020

2 The Ap ril 6 trial date was subsequently vacated by trial court orde r journalized on M arch 9 reflecting that at a March 6 hearing the parties set March 16 for trial. However, o n March 10, appellan t fil ed a motion to vacate the March 16 trial date with the underst anding “that any and all time from the filing of this motion until the new tr ia l date will be tolled from any speedy trial calculation and that time will be charged to the defendant. The co ntinu ance is necessary to achieve the interests of justice.” The tr ial court granted the motion by journalized judgment entry on March 17 and, o nc e again, set the trial date for April 6. Appellant does not appeal the trial court’s March 17 order.11

Am.Sub.H.B. No. 197, Sections 22(A)(3), (B), and (C) (“ the expiration date for tolling under the emergency act was July 30, 2020” )

. Appellan t mistaken ly argues the state of
emergen cy ended on May 29 . “ Because the period of e mergency was sti ll in effect as of July 30, 2020, July 30 is the date on which the tolling period ended.” Chapman Enterprises,
Inc. v. McClain , 165 Ohio St.3d 428, 2021

- Ohi o - 2386, 179 N.E.3d 1201, ¶ 11

. {¶ 18} On April 2, the trial court sua sponte and optimistic ally, given the benefit of hindsight regarding the pandemic, reset the April 6 trial date for June 1. R.C. 2945.72(G) and (H). Then on May 19, the trial court held “an off

- the

- record attorney only pre

- trial” dis cus sing the logistics of conducting a jury t rial during the Covid

- 19 pandemic after the tolling period expires, followed by a May 22 on

- record status pretrial hearing via Zoom during which the parties affirmed that o n May 19 they agreed to vacate the June 1 d ate and
reset it for August 3 a s the firs t available tria l date after the emergency order was anticipated to expire on July 30

. Continuing a trial beyond the end of July 30 tolling period because of the pandemic s tate of emergency is reasonable under R. C. 2945.72(H) without violating speedy

- trial requirements. W right at ¶ 94

- 95 , citing Fleegle , 161 Ohio St.3d 1263, 2020

- Ohio

- 5636, 163 N.E.3d 609 , at ¶ 7. {¶ 19} T he n the record shows that at 2:12 p.m. o n Friday, July 31, 2 020, pursuant to R.C. 2945.73(B), appell ant filed a motion , on speedy

- trial grounds, to dismiss all charges against him at his trial scheduled to begin on Monday morning, August 3. T he trial court denied appellant’s motion to dismiss , and its decision was journalized on August 7

. We12

review de no vo the trial court’s denial of a motion to d ismiss based on appellant’s right to a speedy trial. Wright at ¶ 82

. {¶ 20} Upon de novo review we agree with the trial court’s speedy trial calculations from its journalized entr y as follows :

Defendant filed a motion t o s uppress on September 10, 2019. On the dat e of trial, Sept ember 23, 2019, Defendant requested that the trial date be vacated and tha t his motion be heard first. The motion w as set for hearing October 18, 2019. On t hat date, Defendant again requested a co nti nuance of his motion hearing. The motion hearing was rese t to November 1, 2019. However, in the interim, the court had a conflict due to a jury trial in an older case. So on November 1, 2019, while the court was o ccupied with trial matters, Judge Jennin gs assisted by continuing the motion hearing at the court’s request to November 19, 2019. Before that date arrived, Defendant filed a motion for relief from prejudicial joinder on November 13, 2019. The court set a h earing date on December 9, 2019. On that da y, Defendant requested a continuance to D ecember 20, 2019 [,] of the motion hearing. The hearing went forward on that date. At the conclusion of the hearing, counsel was provided time to file post

- hearing briefs. (Als o at the conclusion of the hearing, D efenda nt’s motion for relief from joinder wa s granted.) Brie fs were submitted, and the court made its decision denying the motion to suppress on February 4, 2020.13 The order memorializing same was journalized the next da y. The order also

set the matter for schedu ling pretrial [on] February 12, 2020. It was on this d ate the April 6, 2020 trial date was set. Moreover, the court finds persuasive the holding of State v. Phillips , 2009

- Ohio

- 7069, cited by the state in the inst ant case: “ * * * where a trial court must r eschedule a trial because of a motion of the accused, whether styled as a motion for a continuance or not, the entire time between the motion and the rescheduled trial date is a delay attributable to a motion file d by the accused under R.C. 2945.72(E ).” Id

. at para. 25. Thus, speedy trial time was tolled from September 10, 2019 to April 6, 2020, and only 39 days of the speedy trial clock had been consumed. But assume, only for argument’s sake, that the clock starte d running February 4, 2020, when the decisi on on the motion to [suppress] was fil e stamped. That would mean another 34 days of speedy trial time was consumed between February 4, 2020 and March 9, 2020, when the pandemic

- related tolling, described below, be gan. (In any event, Defendant request ed tha t the March 16, 2020 trial date be vac ated by his Marc h 10, 2020 motion, which stated as follows: “Defendant understands that any and all time from the filing of this motion until the new trial date will be tolled from any speedy trial calculation an d that time will be charged to the defendant .” ) As of the pa ndemic

- related tolling event, 73 days would have expired. As of Defendant’s March 10, 2020 motion 74 days would have expired. Four14 additional days elapsed betw een the end of the pandemic

- related t olling to

the August 3, 2020 trial date. Thu s, even under De fendant’s argument (an ignoring Defendant’s own March 10, 2020 motion), only 77 days out of 90 have elapsed. No matter how you slice it, this case is being tri ed within time. {¶ 21} Appellant’s eleventh assign ment of error is not well

- taken. III. Jury Selection {¶ 22} A ppellant’s twelfth assignment of error argues his constitutional right s to due process and equal protection were violated by appellee’s use of pe r emptory and f or causes challenges to prospective j urors. We disagree. A. Due Process {¶ 23} Appellant , who self

- ident ifies as an African

- American, argue s his due process rights were violated when he was tried by a predominantly white jury for three reasons: (1) the jury was “ called into court in batches rather t han in a single group, which resulted in an initial venire b atch which was of such a nature that one of the potential jurors stated, ‘I would like to see a more diverse jury’”; (2) the “early morning batch of jurors

con tained an inordinate number of potent ial ju rors who were either retired or disabl ed”; and (3) “ju rors were liberally excused for any issues related to the pandemic, and it appears from the court’s commentary that there was at least some self

- selection by j urors simply not showing up * * * and does not represent a cross section of the c ommunity and tha t t he current rule does not adequately address the situation

. ” Appellant concluded, “ The concern15

here is real, and, although it is hoped to never be repeated, a n analysis of the pandemic related s electio n process is important.” {¶ 24} Generally, a ppellate review of a trial court’s determination of the conduct and scope of voir dire is for an abuse of discretion. State v. Worley , 164 Ohio St.3d 589,
2021

- Ohio

- 2207, 174 N .E.3d 754, ¶ 90; State v. Ford , 158 Ohio St .3d 139, 2019

- Ohio

4539, 140 N.E.3d 6 16 , ¶ 144. “ More over, we will not find pre judicial error in a trial court’ s qualification of venirepersons as fair and impartial jurors unless the defendant can show a clear ab use of discretion. ” Id.

In order to establi sh a violation of the fair representa tive cross

- secti on of the community requirement for a petit jury array under the Sixth and Fourteenth Amendments to the United States Constitution, a defendant must prove: (1) that the group alleged to be exclude d is a “distinctive” group in the community; (2) that the re presentation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that the representation is due t o syste matic exclusion of the group in the j ury - selection pr ocess. State v. Fulton , 57 Ohio St.3d 120, 566 N.E.2d 1195 (1991) , paragraph two of the syllabus, applying and following Duren v. Missouri , 439 U.S. 357, 364, 58 L.Ed.2d 579, 99 S.Ct. 664 (1979)

. {¶ 25} Appellant argues the morning and afternoon batches of juro rs generally reflected a lack of diversity for race, age, employment, physical abilities, and sensitivity16

towards the pandemic. We cannot say, based on th e lack of evidence provided by appellant,
t hat nonmorning people who are “inordinately ” retired and di sabled , and that pandemic

sensitive people , are each distinctive groups for purposes of fair cross

- section juror analysis. {¶ 26} Specifically, appellant’s requ est for “an analysis of the pandemic relat e d selection process” is not persuasive. “[I ]n its instructi ons for holding trials during the COVID

- 19 pandemic , the Supreme Court left to ‘“the sound discretion of the local judiciary how to best manage the daily challenges that the Covid

- 19 pandemic ha[d ] foisted on local courts.”’ (Citations omit ted.) State v. B lenman , 11th Dist. Ashtabula No. 2020

- A

0046, 2021

- Ohio

- 3076, 177 N.E.3d 1039, ¶ 46. 3 We concur and find no error when a trial court takes “the recommended and comm only practiced precautions to pr otect all
i ndividuals involved, while adheri ng to the rules and abiding by the rights of [appellant], albeit in a manner different from pre

- pandemic procedure.” Id. In fact, prior to the commencement of trial, the trial cour t specifically described in the record the jury selection

3 The Ohi o Sup reme Court’s Chief Justice provided numerous guidance bulletin s to courts maintaining operations during the pandemic that r epeatedly emphas iz ed if a person called for jury duty fails to appear because of the fear of COVID

- 19, the trial court should tr eat t hat as a legitimate excuse. To ease juror concerns between com plying with a court order and risking their health or that of their families, t rial courts should, among other measures, ensure social distancing and sanitation supplies, summon the smalles t num ber of jurors possible, conduct voir dire in small groups, est ablish a liberal policy to excuse jurors with health concerns , and grant cont in uances. See also State ex rel. McArtor v. Kovack , 158 Ohio St.3d 1472, 2020

- Ohio

- 1489, 143 N.E.3d 508, ¶ 14 (K enned y , J. dissent).17

process, including five coronaviru s questions, 4 to which appellant did not object as required by Crim.R. 24(F). State v. Williams , 6th Dist. Lucas No. L

- 95

- 076, 1996 WL 367364, *3 (May 17, 1996), ci ting former Crim.R. 24(E), now C rim.R. 24(F ). {¶ 27} Appellant misrepresents the re cord by alleging the jury selection allowed “at
least some self

- selection by jurors simply not showing up [on Wednesday] .” Again, the fluid jury selection process, to which appella nt did not object, was reviewed prior to th e commencement of trial on August 3

. Because appe llant did not object to the jury selection process, he waived all but plain error, and we do not find any plain error in the record. State

v. Davis , 3d Dist. Seneca No. 13

- 16

- 30, 2017

- Ohio

- 2916, ¶ 23; s ee St ate v. Lundgren , 73 Ohio St.3d 47 4, 480, 653 N.E. 2d 304 (1995); see also State v. Moore , 81 Ohio St.3d 22, 26, 689 N.E.2d 1 (1998); see also Adams , 144 Ohio St.3d 429, 2015

- Ohio

- 3954, 45 N.E.3d 127, at ¶ 120. The trial court specifically reviewe d how each juror would be individually quest ioned for qualif

ications , and then once the qualified jurors were identified from the morning and afternoon batches , then the voir dire process would proceed until 12 jurors

4 The questions were described by the trial co urt as “ standard ” : (1) Has the person or any member of the ho usehold been dia gn osed with COVID

- 19? (2) Has the person or any member of the household been advised to get tested for COVID

- 19 and/o r to quarantine in the last 14 days? (3) Has the person or any member of the household been in close contact with any perso n known to have CO VID

- 19 in the last 14 days? (4) Does the person currently have symptoms, including fever or chills, chronic co ugh, difficulty breathing, unusual fatigue, persistent headache, ne w loss of taste or smell or persistent sore throat? And (5) w ill COVID

- 19 con ce rns prohibit you from concentrating on the evidence presented at trial and rendering a fair and impartial verd ict?18

and fo ur alternate jurors were seated for trial

. All of this was accomplished by t he actual
start of testimony on Wednesday morning, August 5. {¶ 28} However, w e recognize that African

- Americans are a distinctive group. State

v. Jackson , 107 Ohio St.3d 53, 2005

- Ohio

- 5 981, 836 N.E.2d 1173, ¶ 66

. Neve rtheless ,

s imilar to Jackson , appellant prov ides no evidence that African

- Americans in Lucas County are unfairly represented in venires , or jury pools, relative to their numbers in the community

. Id. Also similar to Jackson , appellant provides no evidence of systemat ic exclusion of African

- Americans in the administ ration of the Lucas County jury

- selection
process . Id. at ¶ 67. Appellant’s mere allegation that African

- Americans were not adequately represented on his particular venire and jury fail s a Duren a nalysis. St ate v. Jones , 91 Ohio St.3d 335, 340, 744 N.E.2d 1163 (2001) ; State v. McNeill , 83 Ohio St.3d 438, 444, 700 N.E.2d 596 (1998) ( underrepresentation on a single venire is not systemic exclusion under Duren )

. {¶ 29} We revi ewed the record and do not find any clear a buse of discretion for the trial court ’s oversigh t of the jury selection process and the resulting representative cross section of the community. Appellant’s due process claim fails.
B . Equal Protection {¶ 30} Appellant also argues his equal protection rights wer e violated when the trial
court g ranted appellee’ s preemptory dismissal of the only African

- American juror, juror No. 30, in violation of Batson v. Kentucky , 476 U.S. 79, 90 L.Ed.2d 69, 106 S.Ct. 1712 (1986)

.19 {¶ 31} The Ohio Supreme Court recognizes th at to estab lish a rebuttable

presumption to a n equal protect ion challenge due to the selection and composition of African

- Americans to the petit jury, appellant must provide statistical evidence which shows a significant dis crepancy between the percentage of African

- Americans in Lucas County and the percentage of A frican

- Americans on jury venires. State v. Jones , 91 Ohio St.3d 335, 340

- 41, 744 N.E.2d 1163 (2001) . Appellant fails to provide any such evidence, and his equal pro tection claim fails for that rea son alone

. {¶ 32} Nevertheless, i n a Batson challen ge, appellant ha s the initial burden to make a prima facie case of racial discrimination. State v. Thompson , 141 Ohio St.3d 254, 2014

- Ohio

- 4751, 23 N.E.3d 1096, ¶ 50. Because the t rial court accepted as the first step appel lant’s mere allegation of racial di scrimination , based on juror No. 3 0 ’s identification

as African

- American, the burden shifted to appellee to provide race

- neutral reason for the peremptory challenge of juror No. 3 0. Id. at ¶ 51. {¶ 33} The proffered r eason need not rise to a for

- cause challenge , and the reason will be deemed race

- neutral unless discriminatory intent is inherent in appellee’s explanation. Id. Appellee’s race

- neutral reason is that juror No. 30 would be u nable to evaluate the totality of the eviden ce presented when deciding this c ase because of h is dramatic changes and extreme contradictions in response to questioning. Juror No. 30 expressed a tendency to consider sentencing issues, which they are instruct ed is solely the judge’s responsi bility, and mixing them with the facts. Appe llee pointed out , “In this case, the State has struck or has stricken with peremptory challenges two jurors who were white20

who expressed similar sentencing concerns, [juror No. 32 ] and [juror No. 33].” Appellant did not opp ose those peremptory challenges. Appellee further argued juror No. 30 rapidly moved from extreme aversion, including “exhibiting physical signs of great discomfort,” to “autopsy photos, things that would involve testimony as to dead bodies, gun violence

an d blood” to being “moved by the s pirit and felt t hat he would be able to look at those pictures.” As appellee explained, “The State’s concerned that this urge, this feeling that overcame [juror No. 30] and caused him to sit on this case might si milarly ove rcome him in the jury room and ca use him to make his decision based on what he feels the spirit is inspiring him to do as opposed to the evidence in the case.” {¶ 34} The final step is for the trial court to determine w hether appellant has proved
purpo seful discr imination. Id. at ¶ 5 2

. The trial court may expre ss its opinion of the race

neutral justification by clearly rejecting the Batson challenge without offering detailed
fin d ings. Adams , 144 Ohio St.3d 429, 2015

- Ohio

- 3954, 45 N.E.3d 127, at ¶ 160 . T he trial

co urt’s determination will not be r eversed on appea l unless clearly erroneous. Thompson
at ¶ 5 3

. {¶ 35} After hearing additional arguments by the parties , the trial court granted the peremptory challenge of juror No. 30 for the following reasons.

The ch allenge tha t [the prosecutor] raises I find is not [a] sham. * * * The questions that the State asked were , in fact , meaningful. About the autopsy, I mean that’s certainly going to be part of , apparently , what we’re going t o see today. And he was

– his rea ctions both verbally and non

-21 verbally, his r evulsion, his ph ysically saying he was getting sick just thinking

about it , all of a sudden changing on a dime is of concern. He was not questioned or treated disparately. In fact , he was the one, [juror No. 30]; that is, w ho offered without prompting a lo t of the stateme nts that we’re talking about today. The State’s already exercised its preempts on a couple of the jurors who had sentencing issues. His own statements contradicted his own earlier statements. The court’s min dful of the fact that [juror No. 30] is the only African

American left on the venire. * * * Nonetheless, this is not a challenge for cause. It is a peremptory challenge. And given the standards applied by the

cou rt, all the way from [ Batson ] to [ State v. S inger , 6th Dist. Lucas No. L

17

- 1 309, 2019

- Ohio

- 1 922 ] , I find that the challenge is merited, * * * [ and juror No. 30’s] dismissal peremptorily is granted. {¶ 36} We reviewed the record and do not find the trial court’s grant of appellee’s peremptory ch allenge of juror No. 3 0 was clearly erroneou s. Appellant’s d ue process claim fails. {¶ 37} Appellant’s twelfth assignment of error is not well

- taken. IV . Sufficiency of Evidence {¶ 38} Appellant’s ninth assignment of error argues appelle e failed to meet its burden to pr oduce suffi cient evidence to convict him of murder, aggravat ed robbery, and aggravated burglary, each with firearm specifications. Specifically, appellant argues that22

circumstantial evidence does not carry the same weight a s direct evidence , and, alone, is insufficie nt to support his guilty verdicts . Appellant conc ludes the Ohio Supreme Court wrongly decided State v. Jenks , 61 Ohio St.3d 259, 574 N.E.2d 492 (1991) , which “does not ensure meaningful due process.” Appellant fu rther argues that “there is somet hing
wrong with the system” since Jenks and “humbly proposes that the Court consider a return to Ohio’s pre

- Jenks standard of review for circumstantial cases like this one,” citing State

v. Kulig , 37 Ohio St.2d 157, 309 N.E .2d 897 (1974), overruled by Jenk s at paragr aph one of the syllabus

. 5 We disa gree, as the Ohi o Supreme Court has determined no due process violation occurs where, “The legal change from Kulig to Jenks did not expose [a defendant] to criminal liability for conduct that was legal before the change or increase the potential for the sa me conduct.” (Ci tations omitted.) Adams , 144 Ohio St.3d 429, 2015

- Ohio

- 3954, 45 N.E.3d 127, at ¶ 256 (clarifying that Jenks represented a procedural change, not a substantive chan ge, to the elements of an offense ). {¶ 39} All evid ence admitted against the appella nt at trial may be considered on a claim of insufficient evidence. State v. Yarbrough , 95 Ohio St.3d 227, 2002

- Ohio

- 2126,

5 “ Circumstantial evidence and direct evidence inherently poss ess the same probative value and therefore should be subjecte d to the same st an dard of proof. When the state relies on circumstantial evidence to prove an essential element of the offense c harge d, there is no need for such evidence to be irreconcilable wit h any reasonable theory of innocence in order to support a co nviction. Theref or e, where the jury is properly and adequately instructed as to the standards for reasonable doubt a special ins truct ion as to circumstantial evidence is not required. ( Holland v. United States [1954], 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 1 50, followed; St at e v. Kulig [1974], 37 Ohio St.2d 157, 66 O.O.2d 351, 309 N.E.2d 897, overruled.)”23

767 N.E.2d 216, ¶ 80. “Appellee could meet its burden at trial using circumstantial eviden ce.” State v. Duke , 6th Dist. Wood No. WD

- 20

- 001, 2021

- Ohio

- 1552, ¶ 26. “‘While inferences cannot be built on inferences, several conclusions can be drawn from the same set of facts; and a series of facts and cir cumstances can be used as a basis for ultima te findings .’” Id. , quoting State v. Lott , 5 1 Ohio St.3d 160 , 168, 555 N.E.2d 293 (1990). Relevant circumstantial evidence may be used to infer criminal intent for appellant’s offenses, including to infer appella nt acted knowingly without intending the spe cific resul t. State v. Chears , 6th Dist. Woo d No. WD

- 21

- 026, 2022

- Ohio

- 861, ¶ 18. {¶ 40} For the following reasons, we further disagree with appellant

.

A. Test for Sufficiency of the Evidence {¶ 41} The test for sufficiency of the evidence is “whether, after viewing the evidence i n a light most favorable to the p rosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.”
State v. Jenks , 61 Ohio St.3d 259, 574 N. E.2d 492 (1991) , paragraph two of the syllab us, superse ded by constitutional amendment o n other grounds as stated in State v. Smith , 80 Ohio St.3d 89, 102, 684 N.E.2d 6 68 (1997), fn. 4, and following Jackson v. Virginia , 443 U.S. 307, 99 S.Ct. 2781, 61 L.E d.2d 560 (1979). “‘Proof beyond a reasonable doubt’ is proof of such characte r that an o rdinary person w ould be willing to rely and act upon it in the most importan t of the person’ s own affairs.” R.C. 2901.05(E). A sufficiency

- of

- the

- evidence challenge ask s whether the evidence adduced at trial “is legally suf ficient to support the ju ry verdi ct as a matter24

o f law.” State v. Lang , 129 Ohio St.3d 512, 2011

- Ohio

- 4215, 954 N.E.2d 596, ¶ 219. {¶ 42} Worley , 164 Ohio St.3d 589, 2021

- Ohio

- 2207, at ¶ 57. {¶ 43} “In essence, suff

iciency is a test of adequacy. Whether the e vidence is legally sufficient to sustain a v erdict is a ques tion of law.” State v. Thompkins , 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997)

. “ ‘ But the fact that a question of law involves a consideration of the f acts or the evidence does not turn it into a question o f fact. Nor does that considerati on involve the c ourt in weighing the evidence or passing upon its credibility.’ ”
State v. Williams , 134 Ohio St.3d 482, 2012

- Ohio

- 5699, 983 N.E.2d 1245, ¶ 25 , quoting
O ’Day v. Webb , 29 Ohio St.2d 215, 219, 280 N. E.2d 896 (1 972)

.

B. Murder , Aggravated Robbe ry , and Aggravat ed Burglary {¶ 44} The record repeatedly refers to appellant’s complicity with his c o - defendants for the events on July 6, 2019 , as appellant participated in the robbery and murder of Mr. Carr along with the robbery and wounding of others present in the apartment

. Appellee charged app ellant under the statutes of the principal offenses and was not required to explicitly allege complicity. R.C. 2923.03(F); State v. McFarland , 162 Ohio St.3d 36, 2020

- Ohio

- 33 43, 164 N.E.3d 316 , ¶ 28. {¶ 45} In order for the jury to find app ellant guilty of murde r in violation of R.C. 2903.02(B), appellee must prove beyond a reasonable doubt that on or about July 6, 2019, in Lucas County, Ohio, appellant caused the death of Mr. Carr as the proximate result of committing or att empting to commi t a violent first

- degr ee offense, in this case aggravated25

robbery, which must also be proven by appellee. Mr. Carr was shot and killed by Mr. Wright while appellant was present and complicit in th at death. {¶ 46} In order for the jury to find appe llant guilty of aggravated robbery in violation of R.C. 2911.01(A)(1), appellee must prove be yond a reasonable doubt that on or about July 6, 2019, in Lucas County, Ohio, appellant in attempting or committing a t heft offense, as defined in R.C. 2913.01(K), or in fleeing i mmediately after the a ttempt or offense, shall have a deadly weapon on or abo ut him or under the his control and either display the weapon, brandish it, indicate that he possesses it, or use it. T he mens rea, or criminal intent, necessary f or aggravated ro bbery is found in the specific, underlying theft offense. State v. Wesson , 1 37 Ohio St.3d 309, 2013

- Ohio

- 4575, 999 N.E.2d 557, ¶ 29 (there is no mens rea element to elevate the theft offense to a ggravated robbery because possession or cont rol of a deadly weapon while committin g the offense is strict liability). Nor is there a mens rea element for the firearm specification itself, which is penalty enhancement. State v. Chears , 6th Dist. Wood No. WD

- 21

- 026, 2022

- Ohio

- 861, ¶ 15. Several witnes ses testified th at a ppellant brandishe d his gun to the people in the apartment, while pacing back and forth, ordered them to not move and “run pockets” (hand over wallets , money, drugs, phones, weapons, and anyth ing else), all of which were taken and
not r eturned. {¶ 47} In orde r to prove aggravated robbery, appellee must also prove a “theft offense.” A “theft offense” includes “theft,” defined by R.C. 2913.02(A), as, “No person, with purpose to deprive the owner of prop erty or services, shall knowingly obtain or exert26

control ov er either the property or services in any of the following ways: (1) Without the consent of the owner or person authorized to give consent; * * * (4) By threat; [or] (5) By intimidation.” The prop erty taken from the victims at gunpoint was not returned. {¶ 48} In order for the jury to find appellant guilty of aggravated burglary in violat ion of R.C. 2911.11(A)(2), appellee must prove beyond a reasonable doubt that on or about July 6, 2019, in Lucas County , Ohio, appellant by force, stealth, or dece ption, trespasse d in an occupied struc ture or in a separately secured or separately occupied portion of an occupied structure, when another person other than his accomplice is present, with purpose to commit in t he structure or in the separately secured or separately occu pied portion of the st ructure any criminal offense, in this case, theft, whic h must also be proven by appellee, if he has a deadly weapon or dangerous ordnance on or about his person or under his control. Appellant entered the apartment by stealth with a g un and the intent to

s teal property from those inside who were not his accomp lices. {¶ 49} In order for the jury to find appellant guilty of the firearm specifications in violation of R.C. 29 4 1.1 45 (A), t he indictment must specify, which it did for each underlying offense, that appella nt had a firearm on or about his person or under his co ntrol while committing the offense and either displaying, brandishing, using to facilitate, or indicating possession of , a firearm. {¶ 50} For reasons that follow, we fin d the record con tains legally sufficie nt evidence to sustain the verdicts for the foregoing o ffenses.27 1 . In - Court Identification

{¶ 51} Appellant specifically challenges for his ninth assignment of error the sufficiency of circumstantial evidence identifying him as the offender because “there is an

a bsence of any in

- court identification of Mr. Roberts as far as being inside of 1324 Ironwood participating in this crime.” However, we find the record contains direct and cir cumstantial evidence , when viewed in a ligh t most favorable to the prosecution, th at a rational trier of fact could have found beyond a r easonable doubt the essential elements of the foregoing crimes, including identif ying appellant as the offender. {¶ 52} First, appellant was identified through photo arr ay testimony by two separate witnesses , Mr. Zeller and Mr. Martin , who independently received separate blind

administered photo arrays within hours of t he incident . The Toledo police detectives , who blindly

- admini stered each photo array and who confirmed e ach time appella nt was identified, also testified at trial. All were subject to cross examinat ion. {¶ 53} Second, appellant was identified in court by witnesses , each of whom were subject to cross

- examination. Mr. Martin identified appellant, nicknamed Mickey. Mr

. Martin testifi ed that he and the co

- d efendants picked appellant up from his residence in the early hours of July 6, 2016, and together they drove to 1324 Ironwood . Mr. Martin and appellant stayed in the car and smoked while Mr. Wright and Mr. Eaton enter ed 1324 Ironwood to purchase marijuana. After that transaction, all four co

- defendants drove t o another location to purchase different drugs and stop ped at a gas station for snacks . While Mr. Wright was in the gas station, Mr. Martin heard appellant and Mr . Eaton discuss why28

Mr. Wright and Mr. Eaton did not rob the victims at 1324 Ironwood . Mr. Mar tin saw Mr. Wright enter the car from the gas station with a gun. {¶ 54} Soon after, they returned to 1324 Ironwood , and Mr. Wright and Mr. Eaton entered the apartment again. Appellant stayed with Mr. Martin in the car until appellant received a text message abou t the number of people in the apartment and abruptly exited the car. Mr. Martin saw appellant enter 1324 Ironwood as t he third intruder with a gun drawn. Within minutes, Mr. Mar tin heard gunshots, unkn own people ran out of the house and up the street on fo ot, and Mr. Martin started the car. Then the three co

- defendants ran out with Mr. Wright helping appellant get into th e back of the getaway car, and appellant

ex claimed that Mr. Wright shot him in the groin. Mr. Martin drove off quickly to enter the highwa y, was told by Mr. Wright to slow down to a normal speed, but the car ran out of gas on an exit ramp at the Craig Stre et Bridge. Appellant separated from the co

- defendants while Mr. Wright ordered Mr. Martin to call 9

- 1

- 1 and anonymously report that a pede strian had been randomly shot on the street. {¶ 55} Mr. Jackson testified he was in the apartment both times Mr. Wright and M r. Eaton entered. The first time was at aro und 2:00 a.m. wh en Mr. Wright and Mr. Ea ton purchased drugs and stayed to play video games, smo ke and drink; then they left. The second time, Mr. Wright and Mr. Eaton entered the apartment after 3:00 a.m. with gun s drawn, facing him, and within minutes of them a third per son entered behind him, also announcing the robbery and for nobody to move . Mr. Jackson , glanced back to see the
person wearing a hoodie with his face and some dreadlocks revealed, with a gun and29

o rdering the occupants to “run pockets” and hand over wallet s, money, d rugs, phones, weapons, and anything else. Mr. Jackson a lso has other opportunities to see appellant as appellant moved about. Mr. Jackson stated that Mr. Wright used his gun first, hitti ng the wall near where he was sitting, and then a rapid exc hange of gu nfire ensued by the three

co - defendants with guns becau se at that point Mr. Eaton had taken the victims ’ guns . Gun shots were aimed at Mr. Jackson as he and another victim , ran outside t o safety and down the block. Mr. Jackson wa s wounded in the hand. {¶ 56} In a ddition, Mr. Zeller testified , subject to cross examina tion, that he was in the apartment both times Mr. Wright and Mr. Eaton entered. The second time, he was seated opposite from Mr. Ja ckson and fac ed the kitchen , and was aware of two men behin d him with one or more guns, when he saw appellant enter as the third person with a gun drawn. Mr. Zeller described appellant’s physical characteristics, including clothing, hair and facial feature s. Mr. Zellar heard appellant call out, “‘R un your poc kets, wallets, phones, everything.’” Mr. Eaton took Mr. Zeller’s Taurus TH9 gun

. {¶ 57} In addition, Dewey Edwards testified that on July 5 , 2019, he lent Mr. Wright, his “god

- nephew” and house guest, the car that was eventually used for the getawa y . H e was later awak ened early on July 6 by an urgent call from Mr. Wright demanding Mr. Edwards report the car as stolen, which he did, knowing th at it was not stolen, although he did not yet know it was abandoned on the Craig Street Bridge with no
gas . H e la ter learned that Mr. Wright had stolen his gun, which Mr. Wright used in the30

apartment . He also identified appellant in court as the person Mr. Wright introduced to him more than once as “Mickey.” {¶ 58} Sergeant Kennedy identified appellant in court: “Well, I k new that the fam ily of the murder victim was [a t St. Vincent’s Hospital]. So I went to go speak with them and I knew that there was also anothe r victim of a gunshot wound was also there as well.” A fter Sergeant Kennedy identified appellant in the court room , he confirmed, “I can recognize [appellant’s] tattoos.” In addition , Detective Mooney identified appellant in court and by his nickname, “Mick ey.” {¶ 59} Third, appellant was identified at trial by the t otality of the evidence when considered together. It is und isputed appellan t was found by Officer Eckel with a gunshot wound to his groin near the Craig Street Bridge shortly after the getaway car ran o ut of gas

. A b allistics expert, David Cogan, testified that the bullet retrieved from appellant’s groin
at St . Vi ncent’s Hospital , matched Mr. Wright’s gun used to kill Mr. Carr inside the apartment , and matched the shell casings found inside from gun. Sta cy Violi of the state crime lab testified that the DNA blood evidence retrieved from the abandoned getaway ca r

ma tched appellant’ s DNA. Officer Eckel’s bodycam video when appellant was found near the Craig Street Bridge and needing medical attention for th e gunshot wound shows appellant’s clothing, hair and f acial features matching witness testimony during
contem pora neous police int erviews conducted far from the Craig Street Bridge area

. Sergeant Kennedy, Detective Kozlaker, retired Officer Cavanaugh, Detec tive Morford, and Richard Leal, the records custodian for Sprint/T

- Mobile, collectively testified regarding31

t he d ata extracted vi a search warrants from the cell phones of appellant, Mr. Wright, and Mr. Martin , including text messages between Mr. Wright and appellant , demonstrating the development of the plan to rob the occupants of the 1324 Ironwood apartment wit h gu ns , and kill two of the six occupants if necessary

. {¶ 60} 

### W e find there was legally sufficient evidence in the record for a rational trier of the fac ts to sustain appellant’s guilty v erdicts for murder , aggravated robbery, and aggravated burglary and their respe ctive firearm sp ecifications . Although it is undisputed that Mr. Wright used the gun that killed Mr. Carr, there is legally sufficient evidence to identify appellant and to infe r appellant’s shared criminal intent for the series
of criminal acts that ultim ately resulted i n Mr. Carr’s death. {¶ 61} A ppellant’s ninth assignment of error is not well

- taken.

2 . Lesser - Included Offenses {¶ 62} Appellant’s seventh as signment of error argues there is insufficient evidence because , “[t]here is an available inference that [appella nt] was not arme d, and as such an instruction on simple burglary and robbery, rather than the aggravated version ought to have been given. As b urglary * * * is not an offense of violence, had the jury elected to convict upon that ch arge, then there would h ave been no basi s for the felony murder conviction.” We disagree. {¶ 63} The jury instructions appellant now seeks were not previously sought , althoug h appellant belatedly requested co nsideration of lesser

- included offenses at sentencing

. Therefore, appel lant wai ved all but plai n error, and no plain error is found32

where we find appellant’s failure to object to the jury instructions reflect s a strategy t o seek a total acquittal rather th an to invite con viction of lesser offenses. State v. Cl ayton , 62 Ohio St.2d 45, 46

- 47 , 402 N.E. 2d 1189 (1980)

. “‘ Appellant cannot now claim the protection of Crim.R. 52(B) to negate the effect of this tactical decision. ’ ” Id. at 47, quoting State v. Wolery , 46 Ohio St.2d 316, 327, 348 N.E.2d 351 (1976). {¶ 64} Nor do we find any plain error for the trial c ourt’s failure to sua sponte provide jury instructions on alleged lesser

- included offenses. A “ j udge is to give instructions on lesser

- included and inferior

- degr ee offenses only when the evidence would allow a jury t o reasonably reject the greater offense and f ind the defendant guilty on the lesser

- included or inferior

- degree offenses

. ” State v. Lloyd , Slip Opinion No. 2022

- Ohio

4 259 , ¶ 26, affirming State v. Lloy d , 8th Dist. Cuyahoga No. 109128, 2021

- Ohio

- 1808, ¶ 25 (“ a court must find ther e is sufficient evidence to allow a jury to reasonably reject the greater offense and find the defendant guilty on the lesser

- included or infer ior offense ”)

. The “ available infe rence that [appellant] was not armed” is the only grasp of the record that appe llant offers , bu t that “available inference , ” alone, is not the applicable test to compel including lesser

- included offense instruction s . Rathe r, the test is if there is suffici ent evidence which allows a jury to reasonably reject t he greater offenses and only find appell ant guilty of the inferior offenses . Consequently, w e do not find there is sufficient evidence for the jury to acquit appellant of the aggravated robbery and
agg ravated burglary offenses and only convict on “simple” burglary and robbery , as appellant claim s.33 {¶ 65} Appellant’s seventh assignment of error is not well

- taken. V. Manifest Weight of the Evidence {¶ 66} In support of his tenth assig nment of error, appellant a rgues his convictions should be reversed with a “modern” appro ach where “in cases of c ircumstantial ev idence, the weight of the evidence should stand against a conviction if the appellate panel agrees that circumstantial evidence as to an element o f the crime also presents a You alone will determine what weight, if a ny, to give this evidenc e. ,” citing, aga in, the now overruled Kulig decision by the Ohio Supreme Court. Appellant further argues the circumstantial evide nce does not o utweigh the absence of testing on blood at the crime scene, allowing the inference that a ppellant was not at the crime scene. {¶ 67} In addition, t hrough his first, second, third, fourth, fifth, and sixth assignments of error, appellant challenges t he credibility of specific evidence either admitted or suppressed by the trial court arguing they lack the weight necessary to support his guil ty verdicts. {¶ 68} A challenge, based on the manifest weight of the evidence to a jury, questions its effect in induci ng belief of a ppellant’s guilt; it questions whether the jury could find the inclination of a greater a mount of credible eviden ce was admitted at trial to sustain that decision than not. Thompkins , 78 Ohio St.3d at 387, 678 N.E.2d 541

. The unanimous

concur rence of all t hree judges of a court of appeals panel is required to overturn , on the weight of evidenc e, a judgment that resul ts from a jury. Id. at 389.34 {¶ 69} The admission of evidence, as well as the regulation of the examination of

witnesses, rests within t he sound discr etion of the trial court, and we will not reverse those rulings without a clear demonstra tion of an abuse of that discretion resu lting in material prejudice to a party. Thompson , 141 Ohio St.3d 254, 2014

- Ohio

- 4751, 23 N.E.3d 1096, at ¶ 111. {¶ 70} F or the followi ng reasons, we find the greater amount of credible evidence was presented to the jury to induce belief of appella nt’s guilt , and a ppellant’s tenth assignment of error is not well

- taken. A . Stare Decisis {¶ 71} We previously discussed why appellant’s reliance on K ulig is misplace d under Jenks and its progeny for his self

- described “modern” standard to diminish the probative value of circums tantial evidence in order to support a conviction unless it is irreconcilable with any reasonable theory of innoc ence . {¶ 72} Again, “ [c] ircumstantial evidence and direct evidence inherently possess the same probative value and therefore should b e subjected to t he same standard of proof

. ” Jenks , 61 Ohio St.3d at 259, 574 N.E.2d 492 , paragraph one of the syllabus. We decline

a ppellant’s invitation to violate the doctrine of stare decisis and overturn Jenks and its
progeny iss ued by the Ohio Supreme Court, a higher authority to this court. State v. Szozda , 6th Dist. Lucas No. L

- 21

- 1026, 2022

- Ohio

- 2294, ¶ 36

- 37. {¶ 73} Thus, appellant ’s argument t o diminish the probative value of the circumstantial evidence placing him at the crime sce ne fails

. The absence o f direct evidenc e35

testing blood from the crime scene to his DNA is not fatal to the jury ’s verdicts in light of the totality of th e circumstant ial and direct evidence admitted at trial and t he jury ’s exclusive role to determine the w eight to give th e evide nce. As discusse d below for his first six assignments of error, appellant identifies various challenges to specific evidence
to u l timately argu e the jury could not have found enough credible evidence was admitted at trial to sustain that decision than not

.

B . Motion to Su ppress Photo Array Evidence {¶ 74} Appellant’s first assignment of error argues the trial court violated his due
process rights when i t denied his September 10, 2019 motion to suppress Mr. Zeller ’s identification of appellan t from an “overly sugge stive and improp erly administered” photo array. Appellant further argues four reasons why Mr. Zeller’s identification of appellan t is not credi ble : (1) at the subsequent suppression hearing Mr. Zeller testified that he knew and had p reviously seen appellan t, although he d id not know appellant’s name, and at one point told detectives he never saw appellant before; (2) yet Mr. Zeller failed to ment ion appellant had tattoos “all over [his] face” while testifying at trial about appellant’ s dreadlocks hair style , nose, mouth, a nd tattoos on his arms; (3) the photo array “included only black males with facial tattoos” simply because appell ant “was a sus pect and had facial tattoos”; and (4) Mr. Zeller had difficulty independently identifying appellant during the ph oto array and ne ver identified appellant or his facial tattoos at trial. {¶ 75} Our review of the trial court’s denial of appellant’s mo tion to suppre ss evidence presents a mixed question of fact and of law. Williams , 6th Dist. Lucas No. L

- 21

-36

1111, 2022

- Ohio

- 2439 , at ¶ 30. Regar ding the question of fact, “[w]e must accept the trial court’s factual findings, if they are supported by compete nt credible ev idence.” Id. Regarding the question of law, without deference to the trial court, we deter mine whether the facts satisfy the appl icable legal standard. Id. The movant has the burden of proof. Id. at ¶ 32. Specifically, photo array evidence is suppressed on ly if the trial court determines, from the totality of the circumstances, the identificati on procedure is both un duly suggestive and unreliable. Id. at ¶ 31

- 32. For example, in denying a motion to suppress, the trial court may determine the i dentification is reliable despite its suggestive character. Id. at ¶ 32 , 35 . A photo array of people sim ilar to , and not identi cal to, appellan t in a majority of physical characteristics, such as age, gender, hair, eye color, skin tone, and facial features , is not undul y suggestive. Id. at ¶ 33

- 34, 36. {¶ 76} The motion to suppress hearing was held on December 30 , 2019 . The trial court’s February 5, 202 0 journalized entry denied the motion , describing the photo array as follows , which we accept :

Photo 1 contains a background co lor different from the other five, with a man with dark skin and receding short hair, a be ard and mustache. Photo 2 shows a man w ith dark skin, hair apparently a bit longer than Photo 1, and some facial hair, but less than Photo 1. Photo 3 sh ows Defendant with a full head of dreadlocks and some facial hair and the suggestion of a facial
tattoo. Photo 4 shows a man wi th dark skin, a full head of dreadlocks, and the suggestion of facial hair. Photo 5 shows a man with dark skin (lighter in37 comple xion, however, than the other 5 pictures), facial hair, tattoos, and a

hairstyle of long and wiry type. Photo 6 shows a man of dark skin, short hair, and some facial hair. All photos are full

- color, not black

- and

- white, and all equally suffer from less tha n perfect reso lution. {¶ 77} The trial court , citing State v. Waddy , 63 Ohio St.3d 424, 439

- 440, 588 N.E.2d 819 (1992) , concluded that appellant’s pho tograph did not stand out, and the photo array was not unreliable under the totality of circumstances , because: ( 1) Mr. Zeller had opportunity to view the suspect’s face behind the drawn gun during the crime, (2) Mr. Zeller centered his att ention to the su spect’s face due to the drawn gun and to the statements made in furtherance of the crime , (3) the accuracy of the identificatio n, (4) Mr. Zeller’s level of certainty, (5) the short amount of time that had passed betwe en the crime and the id entification, an d (6) the lack of substantial likelihood of misidentification

. {¶ 78} We find competent credible evidence supporting the trial court’ s factual findings, and, as a matter of law, we do not find appellant met his burden to sho w the identification pr ocedure wa s both unduly suggestive and unreliable . We find no due
process error and no abuse of discretion from the trial court’s denial of app ellant’s motion to suppress

. {¶ 79} Appellant’s first assignment of error is not well

- taken.

C . R ecalling Mr. Edwards {¶ 80} Ap pellant argues f or his second assignment of error that the trial court abused its discretion when it violated Evid.R. 611 and al lowed Mr. Edwar ds , who walks with a38

cane , to be recalled to the stand. Appellant argues appellee interfer ed with Mr. Edwards’
te stimony to promp t the recall

. We disagree

. {¶ 81} “ The determination of whether the state may recall its witness for additional testimo ny is well with in the sound discretion of the trial court.” Bowling Green v. Pero , 6th Dist. Wood No. WD

- 86

- 26, 1986 WL 14273, * 4 (Dec. 12, 1986 )

. {¶ 82} Appellant does not identify which part of Evid.R. 611 was violated during appellee’s di rect exam ination of Mr. Edwards when asked “to stand and take a look around the courtroom and if you see somebody in the courtroom today who might be the person that you know as Mickey, could you point out where that person is sitting and describe what that person is wearing?” Mr. Edwards res ponded, “I don’t know * * * I can’t see nobody at this point, ” referring to t he pandemic

- required courtroom arran gement , with ple xiglass barriers, between the witness stand and the defense table

. This mirrors the issue raised by appellant during trial. For example, during Detective Mooney’s testimony, after Mr. Edw ards’, a ppellant was concerned that the glare off the plexiglass, and the general courtroom layout, obstructed his and the jury’s view of the witness and the physical

e vidence

. {¶ 83} A t the conclusion o f appellee’s direct examination of Mr. Edwards, appellee waived cross examina tion of the witness , who the judge t hen excused and released the jury for a lunch break at 11:53 a.m

. Just two minutes later, a t 11:55 a.m. , appellee m oved the trial court to reca ll Mr. Dewey after the lunch break, explaining:39 Your Honor, as the prosecutor s exited the courtroom, Mr. Dewey

Ed wards was waitin g in the hallway. He indicated to the State that as he left the courtroom, he passed by the defenda nt, Mr. Roberts, and was abl e to get a better look at him [ tha n] he had seated at the witness table. And that upon a closer look as he exited the courtroom, he recognized the defendant as the person he knew as Mickey. {¶ 84} After the lunch break, a ppellant objec ted to recalling Mr. E dwards “to give him a second bite at the apple.” After hearing additional arguments from the parties, the trial court d ecided, “I’ll al low Mr. Edwards to be recalled subject to, I’m sure, rigorous cross examination from the defense on the nature of his identific ation of the defendant upon his walking out of the courtroom and walking by d efense counsel’s table. * * * So thi s will also give * * * defense the opportunity to pursue that line of questioning [arising from the Mr. Edwards’ id entification of the appellan t].” {¶ 85} Mr. Edwards was sworn in again and replied, “Yes. * * * That’s Mickey,

w hich is known as Dominique Roberts,” after appellant stood up without a face mask and appellee asked, “From where you’re seated with the ability to see the defendant’s unmasked fa ce, do you recognize him?” Appellant then cross examined Mr. Edwards, and the witness responded, “When I walked b y [the counsel t able when leaving the courtroom], I had a good look at him. I knew it. Coming in I wasn’t looking. I was looking at the floor

a nd all the stuff, trying to make sure I did not trip. * * * That’s why I did not recognize40

him.” Mr. Edwards furt her explained he knew appellant’s face, braids, tattoos, and eyes: “That’s why I asked to speak to [the prosecutor] outside when I went to leav e.” {¶ 86} We find no abuse of discretion by the trial court when it allowed appelle e to recall Mr. Edwards, subject to cross examinatio n, for an in

- court identification of appellant

. {¶ 87} Appellant’s second assignment of error is not well

- taken.
D . Refusing DNA Swab {¶ 88} Appellant’s third assignment of error challenges the trial court’s admission of DNA evidence over his Evid.R. 40 3 objection. App ellant also challenges the trial court’s inclusion of a jury instruction on awareness of guilt for testimony of appellant’s rep eated refusal to deny a search warrant to provide a DNA buccal swab. {¶ 89} Detectiv e Kozlaker , the lead investigator, t estified at tria l that a search warrant for appellant’s buccal swab DNA was necessary to test against the blood fo und in the abandoned getaway car. This was significant to the investigation because appellant insisted to the police that he was merely a pede strian at 3:00 a

. m . in a residential area near the Craig Street Bridge when he was robbed and shot by a passing ca r . Sergeant Kennedy testified this story was unusual because it was not corroborated by any phone calls of shots fired by the area residents. Detective Kozlak er provided appellant with a copy of the search warrant, but appellant refused three times to open his mouth and cooperate. On the third attempt, appellant “had to be held down by several deputies, and th e nurse at the Lucas County Jail had to extract the swab from his mouth.”41 {¶ 90} Appellant fails to argue on appeal how, other than the mere fact of

mentioni ng Evid.R. 403, the DNA evide nce itself lacked probative value in light of any the danger of unfair prejud ice, confusion of the issues, or of misleading the j ury. Schwochow

v. Chung , 102 Ohio App.3d 348, 353, 657 N.E.2d 312, 316 (6th Dist.1995) ; State v. C epec , 149 Ohio St.3d 438, 201 6

- Ohio

- 8076, 75 N.E.3d 1185, ¶ 116 ( no error for failure to describe how the probative value of the conduct was o utweighed by the danger of unfair prejudice). {¶ 91} Rather, appellant’s argument focuses on the ju ry instruction itself , modeled on Ohio Jury Instru ction 409.13: 6

Testimony has been admitted indicating that the defendant refu sed to provide a DNA sample as requi red by a search warrant. You are instructed that refusal to provide a DNA sample as required by a search warrant a lone does not raise a presump tion of guilty, but it may tend to indicate the

6 Testimony has been admitte d ind icating that the defendant (fled the [scene] [ describe jurisdi ction ]) (escaped from custody) (resisted arrest) (falsified h is/her identity) ( changed appearance) (intimidated a witness) (attempted to conceal a crime) ( describe other conduct ). You are i nstru cted that ( describe defendant’ s conduct ) alone does not raise a presumption of guilt, but it may tend to indicate the defen dant ’ s (consciou sn ess) (awareness) of guilt. If you find that the facts do not support that the defendant ( describe defendant’ s condu ct ), or if you find that some other motive prompted the defend ant's conduct, or if you are unab le to decide what the defend ant’ s motivation w as, then you should not consider this evidence for any purpose. However, if you find that the facts support th at th e defendant engaged in such conduct and if you decide that the defendant was motivated by (a consciousness) (an awareness) of guilt, you ma y, but are not required to, consider that evidence in deciding whether the defendant is guilty of the crime(s) c harge d. You alone will determine what weight, if any, to give to th is evidence. (Emphasis sic.)42 defendant’s awareness of guil t. If you find that the facts do not support that

th e defendant refused to provide a DNA sample as required by a search warrant or if you find that so me other motive prompted the defendant’s conduct or if you are unable to decide what the defendant’s motiv ation was, then you should not consi der this evidenc e for any purpose. However, if you find that the facts support that the defendant engaged in such conduct and if you decide tha t the defendant was motivated by an awareness of guilt, you may, but are not required to, consider that evidence in deciding whet her the defendant is guilty of the crimes charged. You alone will determine what weight, if any, t o give this evidence. {¶ 92} In maki ng its determination, the trial court heard the parties’ arguments and
found the Tenth District Court of Appeals directly address ed this issue.

Testimony that appellant refused to provide a DNA sample was admissible as evidenc e of consciousness of guilt. The refusal suggests that appellant was attempting to conceal his involvement in the crime. The testimony describ ing the steps ta ken by the police to obtain the sample from appellant was relevant to show just how far appellant would go to conceal his invol vement. (Citations omitted.)
State v. Wade , 10th Dist. Franklin No. 06AP

- 644, 2008

- Ohio

- 1797, ¶ 17 ; Williams , 79 Ohio St.3d at 11 , 679 N.E.2d 646 (e vidence of conduct showing consciousness of guilt, and, thus, of guilt itself, is universally conceded as ad missible). We agree.43 {¶ 93} “ After arguments are completed, a trial court must fully and completely give

the jury all in structions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder. (Crim.R. 30[A], const rued.)” State v. Comen , 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph t wo of the syllabus. The decis ion whe ther to give a r equested jury instruction is within the sound discretion of the trial court. Adams , 144 Ohio St.3d 429, 2015

- Ohio

- 3954, 45 N.E. 3d 127, at ¶ 240, citing State v. Wolons , 44 Ohio St.3d 64, 68, 541 N.E.2d 44 3 (1989)

. A jury instruction on awar eness of guilt t hat “was neither arbitrary nor unreasonable, and did not create an improper mandatory presumption” is appropriate. State v. Tay lor , 78 Ohio St.3d 15, 27, 676 N.E.2d 82 (1997)

. {¶ 94} Appellant is mistaken that the only appropriate interpretation of the

awareness of guilt instruction is for fleeing from a crime scene. “[B] ehaviors indicating a defe ndant’ s con sciousness of guilt are among the surrounding facts or circumstances that the trier of fact can use to inf er the defendant’ s purpose. ” State v . Wrasman , 3 d Di st. Auglaize No. 2

- 20

- 03, 2020

- Ohio

- 6887, ¶ 27 . In fact , all “other conduct following the completi on of a crime may be relevant evidence of consciousness of guilt.” State v. Johnson , 144 Ohio St.3d 518, 2 015

- Ohio

- 4903, 45 N.E.3d 208, ¶ 72. {¶ 95} We find the inst ruction given neither require d the jury to make an inference of guilt from appellant’s DNA refusal , nor require d the jury to gi ve any weight to appellant’s refusal

. In addition, there is no error for a ju ry instruction on the u se of inferen ces in consideri ng circumstantial evidence

. See State v. Were , 118 Ohio St.3d 448,44

2008

- Ohio

- 2762, 890 N.E.2d 263, ¶ 162 . A ppellant did not obj ect to the general jury instruction on inferences:

To infer, or to make an in ference, is to reach a reasonable co nclusion of fact that you may, but are not required to, make from other facts that you find have been established by direct evidence. You may r each a reasonable conclusion about a fact or facts only from other facts or c ircumstances that have been proved b y the greater we ight of the evidence. Whether an inference is made rests entirely with you. {¶ 96} We do not find any abu se of discretion by the trial court for the jury instruction on appellant’s awareness of guilt

. {¶ 97} Appellant’ s third assignment of error is not w ell

- taken.

E . Im peaching Mr. Martin {¶ 98} Appellant’s fourth assignment of error challenges the trial court’s reliance on Evid.R. 404(B) to grant app ellee’s objection to appellant’s cross

- examination of Mr. Martin that prevent ed “ fully i mpeaching” him

. Appellant “sought to delv e more deeply into an alleged co

- conspirator’s prior convictions in order to both discredit him a nd demonstrate that the co

- con spirator was familiar with the system, and how to manipulate it to his benefi t * * * .” Appellant , citing State v. Sepeda , 6th Dis t. No. L

- 19

- 1125, 2020

- Ohio

- 4167, 157 N.E.3d 889, ¶ 22 , argues “[Evid.R.] 404(B) simply does not apply to impeachment, or put a nother way, it is acceptable to infer a propensity for lying from prior lies * * * in the required analysis for ‘ reverse 404(B)

. ’ ” Appellant further argues Evid.R.45

608(B) permits the foregoing line of questions on cross examin ation to inquire about Mr.
Mar tin’s character for truthfulness or untruthfulness. We disagree. {¶ 99} Evid.R. 404( B)(1) states, “ Evidence of any other crime, wrong or act is n ot admissible to prove a person’ s character in order to show that on a particular occasi on the person acted in accorda nce with the character. ” As explained by the Ohio Supreme Court,

“ Evidence of other acts may not be used to prove by inference th at the accused acted in conformity with those other acts or that he has a propensity to act in th at way.” Worley , 164 Ohio St.3 d 589, 2021

- Ohio

- 2207, at ¶ 118

.

The admissibility of other

- acts evidence und er Evid.R. 404(B) is a question of l aw that we revie w de novo. But the trial court’ s weighing of the probative value of admissible evidence against t he danger of unfair prejudice to the defendant pursuant to Evid.R. 403(A) involves an exercise of judgment and will be revie wed for an abuse of discretion. (Ci tation omitted.) Id

. at ¶ 117

. {¶ 100} Mr. Martin was subject to appellant’s cross examination. However, “ f ully impeaching” a witness i s not defined in the rules of evidence . I t i s undisputed Mr. Martin was ident ified to the jury as appellant’s acc omplice who was testifying in exchange for a plea deal

. Pursuant to R.C. 2923.03(D), 7 the jury was instructed to weigh with great caution

7 “ ‘ The testimony of an accompli ce does not beco me inadmissible because of his complicity, moral turpitude, or self

- interest, but the admitted or claimed compli city of a witness may affect his credibility and make his testimony subject to grave suspicion, and require that it be weighed w ith great cautio n. It is for you, as jurors, in the light of all the46

the t estimony of appellant’s accomplice s . The trial court granted appellee’s objec tion because appellant could not art iculate the purp ose of the line of impeachment questions for Mr. Martin other than by “suggesting that the witnes s has done it before and there fore he must be doing the same thing now [which] is explicitly forbidden by 4 04(B).” As proffered by appellant, “ The comparison i s that when [Mr. Martin] is trying to avoid the consequences of what happens when he’s with the p olice, that he does what he do es to avoid that. He did it by driving away [in 2015] and now he is doing it by talking

. ” The trial court stated, “I think that’s getting too close to the 404(B) line, especially given recent [decision] from the Sixth District taking a very hard line or st rict line [on] 404(B) evidence. I’ll sustain the objection.” {¶ 101} Appellant’s reli ance on Sepeda is misplaced, as the “‘reverse 404(B) ’ evidence” doctrine discussed in that case applies to a defendant seeking “to introduce other

ac ts evidence of a third party i n order to exonerate himself.” State v. Sepeda , 6th Dist. No.
L

- 19

- 1125, 2020

- Ohio

- 4167, 157 N.E.3d 889, ¶ 22. He re, appellant is not seeking to exonerate himself through “reverse 404(B)” evidence, but instead seeks to discred it Mr. Martin

. {¶ 102} W e do not find the trial court abused its discretion when it sustained

a ppellee’s objection to a portion of appellant’s cross

- ex amination of Mr. Martin pursuant

facts presented to you from the witness stand, to evaluate such testimony and to determine its quality and worth or its lack o f quality and worth. ’ ” R.C. 2923.03(D)

.47

to Evid.R. 404(B). 8 Additionally, appellant failed to argue the application of Evid.R. 403(A) and 608(B) to th e trial court, and has forfeit ed all but plain error , whi ch we do not find

. Thompson , 141 Ohio St.3d 254, 2014

- Oh io

- 4751, 23 N.E. 3d 1096, at ¶ 115

. {¶ 103} Appellant’s fourth assignment of error is not well

- taken.

F . Mr. Martin’s Admitted Statements {¶ 104} Appellant’s fi fth and sixth assignments of error challenge alleged he ar say statements by Mr. Martin at trial. {¶ 105} We review de nov o a trial court’ s admission of a hearsay statement. State

v. Richcreek , 196 Ohio App.3d 505, 2011

- Ohio

- 4686, 964 N.E.2d 442, ¶ 31

- 32 (6th Dist. ). ( “ On appeal, challenged hearsay is subject to de novo review under the applicable hearsay rule, rather than th e more deferenti al review employed for discretionary rulings. ” )

. Evid.R. 801(C) defines hear say as “a statement, other than one made by the dec larant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” “ Hearsay is inad missible under Evid.R. 802, unless a particular statement fails to meet the two

- part definition in Evid.R. 801(C), or fully sat isfies the conditions for nonhearsay prior statements und er Evid.R. 801(D)(1) or (2), or falls within one of

reco gnized exception s under Evid.R. 803 or 804. ” Richcreek at ¶ 22

.

8 We decline appellee ’s invitation to “ clarify Sepeda’s hol d ing to account for the Supreme Court of Ohio’s explicit statement that Evid.R. 404(B) app lies to all witnesses” and not just to persons accused of crimes, c iting State v. Mason , 82 Ohio St.3d 144, 160, 694 N.E.2d 932 (1998) , as that is sue is not in the record before us. App.R. 9(A)(1).48 {¶ 106} Appellant , citing Richcreek at ¶ 59 , argues for his fifth assignment of error

the trial erred when it admitted four statements as nonhe arsay by Mr. Martin pursuant to Evid.R. 801(D)(1)(b)

. 9 T he trial court s ummarized them as follows: “ The four issues from the July 6, 2019 interview with Detectives Kozlaker and Mooney will be allowed , specifically the identification of Mickey [appellant], ATL [Mr. Eaton] dropping something, Mickey receiving a t ext about six pe ople being in the apartment and the photo array with the comment about where Mickey was shot under 801(D)(1)(b).” Appellant arg ues Evid.R. 801(D)(1)(b) does not apply because Mr. Marti n’s motive to fabricate his story commenced upon his vid eotaped police i nterview on July 6, 2019, and was not delayed until December 20, 2019, when a fo rmal plea offer and negotiation began

. {¶ 107} Appellan t then argues for his sixth assignment of error the trial cou rt erred when it admitted a hearsay statement by Mr. Martin that Mr. Wright told Mr. Edwards to report as stolen the getaway car. Citing State v. Ro bb , 88 Ohio St.3d 59, 69

- 70, 723 N.E.2d 1019 (2 000) , a ppellant further argues Mr. Martin ’s hearsay “really d oes not make a case for conspiracy, at least not inv olving Roberts

. ” Appellant concludes, “While this issue may not present extreme prejudice in and of itself, it is important to be considered in the context of cumulative error.”

9 “ A statement is not hearsay if: (1) Prior Statement by Witne ss. The declarant testifies at trial or hearing and is subject to examination concerning the statement, and the statement i s * * * (b) cons is tent with declarant’ s testimony and is offered to rebut an express or implied charge against declarant of rece nt fa brication or improper influence or motive, or (c) one of ident ification of a person soon after perceiving the person, if th e circumstances de monstrate the reliability of the prior identification. ” Evid. R. 801 (D)(1)(b).49 {¶ 108} We are not persuaded by ap pellant’s arguments

. As this court has

explained, “ o nly prior consis tent statements made before the alleged motive to fabricate arose are admissible . The issue is not when the charge was made, bu t when the improper motive arose.” (Emphasis sic.) Richcreek at ¶ 59, citing Motorists Mut. Ins. Co. v. Vance , 21 Ohio App.3d 205 , 207, 486 N.E.2d 1206 (10th Dist.1985) (“ What the rule permits is the rehabilit ation of a witness whose credibility has been a ttacked by means of a charge that he recently fabricated his story or falsified his testimony in response to impr oper motivation or influence, by admitting into evidence a consistent statement made by the witn ess prior to the time of the suggested inventio n or of the emergence of the motive or influence to invent or falsify, as tending to rebut the charge

. ”)

. {¶ 109} First, Mr. Edwards inde pendently testified at trial that he reported the car stolen at Mr. Wright’s requ est, who called him directly, so Mr. Martin’s testimony overhearing that precise discussion is harmless erro r at most. Crim.R. 52(A) ; Richcreek at ¶ 43 (even i f improper hears ay, the other admissible evidence for the same issue renders harmless any imprope r hearsay)

. The same harmless error applies to the four issues admitted by the trial court in light of other admitted testimony and physical evidence. {¶ 110} Mr. Edw ards, Mr. Zeller , Mr. Jackson and law enforcement witnesses testified that appellant’s street nam e was Mickey. {¶ 111} Officer Mohler testified findin g and retrieving Mr. Zeller’s Taurus TH9 gun in the location w here Mr. Eaton dropped an object

. Detective Eycke t estified testing the gun Officer Mohler found

.50 {¶ 112} Detective s Morford , Detective Kozlaker , and Mr. L eal collectively testified

about extracting ce ll phone data from appellant’s and Mr. Wright’s cell phone s , i ncluding the texts exchanged about s ix people in th e apartment

. Mr. Jackson and Mr

. Zeller testified describing the scene and how six people were in and about the apartment at the time appellant entered through the kitchen in the rear , gun drawn, telling a ll the victims not to move and to “run pockets

. ” {¶ 113} Of

ficer Eckel test ified arriving near the Craig Street Bridge and finding appellant bleeding from t he groin area and taken to St. Vincent’s Hospi tal

. Sergeant Kennedy testified interviewing appellant at St. Vincent’s Hospital

. Officer Sterling testified pick ing up from St V incent’s Hospital the bullet retrieved from appellant’s body

. David Cogan testifi ed about forensics lab test results match ing M r. Wright’s gun and the bullet retrieved from appellant’s body

. {¶ 114} Second, appellant’s focus on appellee’s failure t o establish a pr ima facie

case of conspiracy involving Mr. Martin is misplaced , given the totalit y of the evidence

.

“ There is no requirement th at each participant to a conspiracy communicate directly with each other or even know that additional participant s would be recru ited to commit the crime.” State v. Swain , 6th Dist. Erie No. E

- 12

- 079, 2014

- Ohio

- 1308, ¶ 34

. “ Statements made to conceal the c rime and to avoid arrest, apprehension, and implication may al so be in furtherance of the conspiracy .” Id. at ¶ 3 5. {¶ 115} Third, Mr. M artin’s transaction with the police to exchange his testimony for a plea deal did not arise until six months later , on December 20, at which time the51

alleged motive to fabricate would be re asonably expected. A ppellant concedes that in the

v ideo evidence of Mr. Martin’s July 6, 2019 police interview “we did hear Detective Kozlaker indic ate to Mr. Martin that he’s not in trouble a t that time , ” although he insists any detained person would feel compelled to fabri cate his story “from the get

- go. ” Appellee respo nded that “extolling the defendant to tell the truth is distinguishable from a pl ea offer and plea negotiation in exchange for turning State’s witness.” T he police told Mr. Martin they want ed his story while it was fresh , and Mr. Martin vol untarily spoke w ith the m at a time when neither a plea , nor charges, were contemplated

. Mr. Marti n signed a Miranda waiver understanding the st atements he would give could be used against him. As explained by appellee , and adopted by trial court, “If he be lieves he’s not in trouble, then he would have no reason, no improper motive to fabricate, to get out of the trouble he’s not even in.” {¶ 116} Th e tri al court further explained the basis for its decision followin g its review of a portion of the six

- hour police in terview of Mr. M artin on July 6, 2019:

What I was looking at were the July statements that were made before the motive to avoid charges a rose. Again, Mr. Martin was told on the video I just watched or the portion of the video I just watched that he was no t in trouble, th at he was brought down there on an aggravated menacing warrant, apparently. And he was then asked questions about somethin g tha t happened earlier that night. He begins telling his story, wh ich was not apparently true. That will be for the j ury to decide.52 {¶ 117} U pon de novo review, we find no trial court error admitting statements as

either hearsay or nonhearsay

. Appellant’s fifth a nd si xth assignment s of error are not well

taken. V I . Felony Senten cing {¶ 118} Appellant’s thirteenth and fourteenth assignme nts of error cha llenge the sentences he received for his three felony offenses with firearm specifications

. We review a challenge to felon y sen tencing pursuant to R.C. 2953.08(G)(2), which states:

T he appe llate court’s standard for review is not whether th e sentencing cou rt abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincing ly fi nds either of the following: (a) That the record does not supp ort the sentencing court’s findings under [R.C. 292 9.13 (B) or (D) ] , [R.C. 2929.14 (B)(2)(e) or (C)(4) 10 ] , or [R.C. 2929.20 (I) ] , whichever, if any, is relevant;

10 “ (4) If multiple prison terms are i mposed on an offender for convictions of multiple offenses, th e court may require the offender to serve the prison terms co nsecutively if t he court finds that the consecutive service is necessary to protect the public from future crime or to punish th e off

ender and that consecutive sentences are not disproportionate to the seriousness of the offender’ s conduct and to the dange r the offender p os es to the public, and if the court also finds any of the following: (a) The offender committed one or more of the m ultiple offenses while the offender was awaiting trial or sent encing, was under a sanction imposed pursuant to [R.C. 2929.1 6, 2929.17, or 2 92 9.18] , or was under post

release control for a prior offense. (b) At least two of the multiple offenses were c ommit ted as part of one or more courses of conduct, and the harm ca used by two or more of the multiple offenses so committed was so great or unu su al that no single prison term for any of the offenses committed as part of any of the courses of conduct adequ ately reflects the53 (b) That the sentence is otherw ise c ontrary to law. A. Consecutive Sentences {¶ 119} Appellant, citing Sta te v. Ruff , 143 Ohio St.3d 114, 2015

- Ohio

- 995, 34
N .E.3d 892, ¶ 13, argues for his fourteenth assignment of error the trial court erred when it failed to merge his three felony offenses and fire arm specifications for an aggregate total of life with parole after 21 years served

. Appellant concedes that whil e two of the thr ee firearm specifications do not merge pursuant to R.C. 2929.14(B)(1)(g) 11 , the trial court should exercise its discretion to me rge the third firearm specification with the others

. Appellant further argues that the three felonies should merg e as offenses of similar import occurring from the same conduct, animus, and harm, which is “to enter the Ironwood apartment, armed with a fire arm, to steal from the occupants.” We disagree. {¶ 120} First, t he par ties submitted sentencing memoranda, and t he trial court heard addi tional arguments before denying appellant’s merger request s at the September 4, 2020 sentencing hearing :

seriousness of the offender’ s conduct. (c) The o ffender’ s history of criminal conduct demonstrates that conse cutive sentences a re necessary to protect the public from future crime by the offender. ” R.C. 2929.14(C)(4).

11 “ If an offender i s con victed of * * * two or more felonies, if one or more of those felonies are * * * murder, * * * [or] aggravated robbery, * * *, and if the o ff ender is convicted of * * * to a specification of the type described under [R.C. 2929.14(B)(1)(a)] in connecti on wi th two or more of the felonies, the sentencing court shall imp ose on the offender the prison term specified under [R.C. 292 9.14(B)(1)(a)] f or each of the two most serious specifications of which the offender is convicted * * * and, in its discretion, also may impose on the offender the prison term specified under tha t division for any or all of the remaining specifications. ” R .C. 2929.14(B)(1 )( g)54 The Aggravated Bu rglar y involved multiple victims. Mr. Jackson and

Mr. Zeller each h ad property stolen from them at gunpoint. Tyler Car r was shot and k illed by Justin Wright while defendant was complicit in that death. Thus, the Aggravated Robbery and the Murder do not mer ge. T he Aggravated Burglary was complete once entry was made into t he apartment with a gun and the intent to commit a crime. The evide nce at trial demonstrated that the defendant was armed and intended to enter the apartment in order to take part in steali ng th e property from those who were inside the apartment. That comp leted the offense of Aggravated Burglary. The Aggr avated Robbery w as then attempted and completed by defendant’s participation in the running of the pockets of the individuals, the pacing back and forth while brandishing his gun and running pockets and th e
st e aling of the property. These offenses do not m erge. The Aggrav ated Burglary and Murder also do not merge under the same reasoning and involve several distinct victims. * * * There is n o rea son for Tyler Carr to be shot after the pockets were run and t he Aggravated Robbery was complete. There is no rea son for defendan t to shoot from the kitchen after the Aggravated Robbery was complete as well. None of the offenses thus merge, and as to the f irearm specifications, the court must impose at least two of t he three specifications found by the55 jury. The cour t has discretion to impose the third specification pursuant to

2929.14(B) of the Revised Code. {¶ 121} We agree with the trial court’s merger anal ysis. Merger is a sentencing question, and the defendant bears the burden to establish that R.C. 2941.25 prohibits mul tiple punishment s for a “single” criminal act in light of multiple victims

. State v. Washington , 137 Ohio St.3d 427, 2013

- Ohio

- 4982, 999 N .E.2d 661, ¶ 18. We review a trial court’s R.C. 2941.25 determinati on de novo as a question of law. Williams , 134 Ohio St.3d 482, 2012

- Ohio

- 5699, 983 N.E.2d 1245, at ¶ 1, 12, and 25 (a question of law that involves a consideration of the facts does not tur n it into a question of fact)

. {¶ 122} The trial court was required to onl y find one of the following three

- part test to deny merger under R. C. 2941.25(B) : “ (1) the conduct constitutes offenses of dissimilar import, (2) the conduct shows that the offenses were co mmitt ed separately, or (3) the conduct shows that the offenses were committed with separate animus.” Ruff , 143 Ohio St .3d 114, 2015

- Oh io

- 995, 34 N.E.3d 892, at p aragraph three of the syllabus. The trial court articulated all three. The distinct harms of ro bbery and death to Mr. Carr further support rejecting merger. “‘[A] defendant’s conduct that constitutes two or more o ffenses against a single victim can support multiple convictions if the harm that results from each offense is separate and identifiable f rom t he harm of the other offense.’” State v. Jackson , 149 Ohio St. 3d 55, 2016

- Ohio

- 5488, 73 N.E.3d 414, ¶ 128, quotin g Ruff at ¶ 26. {¶ 123} In addition, f

irearm specifications are sentence enhancements , not separate criminal offenses , and do not merge with the under lying felony

. State v. Ford , 128 Ohio56

St.3d 398, 2011

- Ohio

- 765 , 945 N.E.2d 498, ¶ 19. We find that R.C. 2929.14(B )(1)(g) applies in this matter and mandated sentencing enhancements for the murder and aggravated robbery firearm specifications along wit h the trial court’s discretion to impose a prison term for the rema ining specification for aggravated burglary. {¶ 124} Second , at sentencing the trial court engaged in the required R.C. 2929.14(C)(4) analysis , both at the sentencing hearing and in the September 8 , 202 0 journalized sentencing entry, to “ find that consecutive sent ences are necessary to protect the public from futu re crime or to p unish the defendant and not disproportionate to the seriousness of your conduct and the danger you pose. And the court fur ther finds that both the harm caused was great or unusual such that no single prison term is adequate and that
your cr iminal history r equires consecutive sentences. ” The trial court continued:

[T]his crime scene was pre

- planned and orchestrated to rob Mr. Carr and Mr. Zeller. Upon the defendants’ return * * * to the home, they found additional persons present and rather t han call off the ir plan they went forward full steam ahead. The killing of Mr. Carr appears to have been either gratuitous or part of that plan . You and your cohorts didn’t just rob people. You shot at the m and you killed one. The loss of life and the trau ma inflicted

on the victims was great and your criminal history as noted before here is chock full of violence, danger and disregard for l aw an d order. At age 29, you now have sixteen lifetime felonies on your record. Our community needs to be protected fr om you for a lon g time.57 {¶ 125} Upon de novo review, we find the record of the sentencing hearing

transcript and the subsequent judgment entry sup port s the trial court’s findings under R.C. 2941.25 to deny merger of the three felonies, under R.C. 2929.14(B)(1)(g) to deny merger

o f the third firearm specification, and under R.C

. 2929

. 14 (C)(4)(c) to determine consecutive sentences

. {¶ 126} Appellant’s fourtee nth a ssignment of error is not well

- taken.
B . Reagan Tokes Law {¶ 127} Appe llant’s thirteenth assignment of error challenges t he constitutiona lity of R.C. 2967.271, a part of the Reagan Tokes Law. Appellant argues the statutory scheme violates the separation of po wers established in the Ohio Constitution because it “permits the e xecutive branch to impose additional punishment upo n him

. ” We disag ree. The

“ Reagan Tokes Law does not violate the separation

- of

- powers doctrine .” State v. Eaton , 2022

- Ohio

- 2432, 192 N.E.3d 1236 , ¶ 60 (6th Dist.). {¶ 128} Appellant also vaguely “suggests that inef fective assistance of counsel would apply to the fa ilure to object” on the foregoing grounds. A ssuming appellant properly argued ineffective assistance of counsel before us, which he has no t, we do not find appellant’s defense counsel was ineffective for f ailing to raise a futile objection. Lott , 51 Ohio S t.3d at 175, 555 N.E.2d 293. {¶ 129} Appellant then argues that a nunc pro tunc entry is necessary to correct the trial court’s error when it “imp roper ly imposed the indefinite sentences to the consecutive
sentenc e.” Appellant concedes his sentenc e calculation was accurately calc ulated by the58

“B ureau of S entence C omputation ,” but that specific calculation is not in the record before

us . App.R. 9(A). Ther efore, w e first look to the transcript of the September 4, 202 0 sentencing hearing:

COURT: The court finds that y ou were found gu ilty by a jury on August 13 th , 2020 of Murder, count two, in violation of Revised Code 2903.02(B) and 2929.02. And you are ther efore sentenced to an indefinite term of fifteen years to life

. In addition, you are sentenced to the accompanyin g firearm specif ication, to a term of three years, which is both mandatory and consecutive to the sentence imposed on the underlying

m urde r cha rge. You are also found guilty by that jury of Aggravated Robb ery, count three, in violation of Revised Code 2911 .01(A)(1) & (C), a felony of the first degree. And you are sentenced to a minimum term of eight years and a maximum indefinite term of twe lve y ears on that charge. In addition, you are sentenced to the acc ompanying firearm specification to a term of three years, which is both mandatory and consecutive to the sentence imposed on the underlying Aggravated Robbery charge. Finally, you were foun d gui lty by the jury of Aggravated Burglary, count four, in violati on of Revised Code 2911.11(A)(2) & (B), a felony of the first degre e and you are sentenced to a minimum term of eight years and a maximum indefinite term of twelve years. In addition, you a re se ntenced to59 the accompanying firearm specification to a term of three years, which is

both mandatory and consecuti ve to the senten ce imposed on the underlying Aggravated Burglary charge.
* * * The sentences are thus as follows: fifteen years to life co nsecu tive to an aggregate minimum term of sixteen years and a maxim um term of twenty years in prison; and additional a ggregate mandato ry term of nine years, three for each gun specification, is imposed and ordered to be served prior to and consecutive to t he se ntences for the underlying felonies.
* * * PROSECUTOR: Your Ho nor, in the court’s additional sentencing descripti on, the court ar ticulated eight to twelve years on each of the Aggravated Robbery and the Aggravated Burglary. However, later in its
sente ncing colloquy, indicated [a] time period of sixteen to twenty, whi ch would indicate only a single indefinite term of four years. I be lieve the latter articulation was correct, that one of those two felonies of the first degree would have the indefinite te rm an d the State would ask that be reflected as to the Aggravated B urglary, eight to twelve years.
COURT : So noted and the record will so reflect. Next we look to t he trial court’s sentencing entry journalized on September 8, 2020, which states the followi ng :60 I t is ORDERED that defendant serve 15 years to Life as to [murd er],

the stated minimum prison term of 8 years as t o [aggravated ro bbery] and a maximum indefinite prison term of 12 years, and the stated minimum prison term of 8 years as to [aggravated b urgla ry] and a maximum indefinite prison term of 12 years. * * * An additional term is imposed as a mandatory and

cons ecutive term pur suant to R.C. 2929.14(C)(1)(a) of 3 years as to [murder], 3 years as to [aggravated robbery], and 3 years as to [aggravate d bur glary]. This aggregate nine year sentence is ordered to be ser ved prior to the sentences imposed on the underlyin g felonies. {¶ 130} We f

ind the trial court’s journalized sentencing entry is incomplete and did not include the required aggregate minimum and ma ximum sentencing range for his consecutive sentences as required by R.C. 2929.144. While we find no merit to appellant ’s other argumen ts in this assignment of error, we find limited merit to remand to the trial court for the limited purpose of a nunc pro t unc e ntry calculating and imposing the mandated R.C. 2929.144 aggre gate sentence range that had already been reviewed at the sentencin g hearing

. Wright , 6th Dist. Lucas No. L

- 20

- 1206, 2022

- Ohio

- 1537, at ¶ 132

- 134. {¶ 131} Appellant’s thirteenth assignment of error is w ell

- taken, in part. VII . Cumulative Error {¶ 132} Appellant argues for his eighth assignment of error that he was deprive d due process fo r a fair trial because, when the entire trial is viewed as a whole, he was prejudiced, citing State v. Madrigal , 87 Ohio S t.3d 378, 397, 721 N.E.2d 52 (2000)

. W e61

disagree. In order to begin considering this issue, we must first have found t hat multiple,

no n - harmless errors occurred in this case. Id. at 398. We have not found any such error s . {¶ 133} Appellant’s eighth assignment of e rror is well

- taken, in part, and not well

taken , in part

. VI I I. Con clusion {¶ 134} On consideration whereof, t he judgment of t he Lucas County Court of Common Pleas is affirmed , in part, and reversed, in part . T his matter is remanded to the trial court for the limi ted p urpose of a nunc pro tunc entry calculating and imposing the
R .C. 2929.144 mandated aggregate sentenc e range . App ellant and appel lee are ordered to equally pay the costs of this appeal pursuant to App.R. 24. Judgment affirmed in part, reversed in part and remanded

.

State of Ohio v. Dominique Roberts C.A. No. L

- 20

- 1171

A certified copy of this entry shall c onstitute the ma ndate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L . Pietrykowski , J.

____________________________ JUDGE Thomas J. Osowik , J.

____________________________62

Christine E. M ayle , J. JUDGE CONCUR.

____________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visi t the Ohio Supre me Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.