[Cite as State v. James , 2020-Ohio-4289.]



## IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT MAHONING COUNTY

STATE OF OHIO,
Plaintiff-Appellee,

v. GREGORY JAMES,
Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 18 MA 0064

Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 17 CR 1276

BEFORE: Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Jud g es.

JUDGMENT: Affirmed.

Atty. Paul Gains, Prosecutor, Atty. Ralph Rivera, Assistant Prosecutor , Mahoning County Prosecutor’s Office, 21 West Boardman Street, 6 th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee, and– 2 –

Case No. 18 MA 0064

Atty. Samuel Shamansky, Atty. Donald Regensburger, Atty. Colin Peters, Atty. Sarah Hill , Samuel H. Shamansky Co., L.P.A., 523 South Third Street, Colu mbus, Ohio 43215, for Defendant-Appellant.

Dated: Au g ust 19, 2020

DONOFRIO, J.
{¶1} Defendant-appellant, Gregory James, appeals his convictions in the Mahoning County Common Pleas Court following a jury trial for t wo counts of aggravated murder, one count of attempted murder, three counts of feloniou s assault, one count of aggravated burglary, one count of intimidation of a witness, an d seven firearm specifications. {¶2} On March 8, 2017, Javel Bates was at the Youngstown, Ohio home of his half-brother, Ronald Lewis. Javel eventually left Ronald’s hou se and returned later the same day. When Javel returned, Ronald noticed that Javel’s car had numerous bullet holes in it and Javel had been shot. Ronald called 911 to repo rt that Javel had been shot. {¶3} An ambulance arrived to transport Javel to the hospital. Afte r the ambulance left, Detectives David Sweeney and Ronald Barber of t he Youngstown Police Department arrived at Ronald’s house. Detective Sweeney inspec ted Javel’s car and observed numerous bullet holes and a large amount blood on the driver’s side floor. Detective Sweeney then questioned Ronald as to what happened to Javel. Ronald was initially hesitant to discuss what happened to Javel. Eventual ly, Ronald said that Javel told him that appellant was one of the people who shot him. {¶4} Ronald later went to the Youngstown Police Department to give an official statement about Javel’s shooting to Detectives Sweeney and Barb er. In this statement, Ronald again said that Javel told him appellant was one of the people who shot him. Detective Sweeney was never able to interview Javel because of the severity of his injuries. Javel died on March 22, 2017 as a result of his guns hot wound. At the time of appellant’s trial, Javel’s murder was unsolved. {¶5} On the same day Javel died, Ronald made a post on Facebook. W hile the specific content of the post is unknown, the post had a threate ning nature and indicated that Ronald was upset.– 3 –

Case No. 18 MA 0064 {¶6} On the morning of March 24, 2017, Ronald was asleep in bed wit h his wife, Tracey Lewis, at their home. Also present at the home was Rona ld’s sister, Sevalle Turner. Sevalle was sleeping downstairs while Ronald and Trace y were in their room upstairs. {¶7} At about 6:00 or 6:30 a.m., Tracey was awoken by Ronald. Trac ey turned over to look at the clock at the foot of the bed. When Tracey turned back towards the door, she saw two men standing in the bedroom doorway, each hol ding a gun. Tracey
started to scream. Ronald turned around and the two men fired numerous gunshots striking both Ronald and Tracey. Ronald sustained 17 gunshot w ounds while Tracey sustained 13. Ronald died as a result of the attack but Tracey survived. {¶8} Sevalle was in the downstairs bathroom when she heard the guns hots fired. She opened the bathroom door and saw an African-America n man dressed in black clothing wearing a mask and pointing a silver gun at her. That man moved away from the door and a second African-American man approached the bathroom doorway pointing a black gun at her. Neither man fired their gun or said anything to Sevalle. Once the two men left, Sevalle called 911. {¶9} Officers Colleen Villio and Jeff Kay from the Youngstown Polic e Department were the first to arrive at the house. They discove red Ronald and Tracey shot numerous times in the upstairs bedroom. They heard Traceyfaintly say that she was dying. They also discovered that the kitchen door to the o utside was propped open with a garbage can and the window by the kitchen sink was also open. Finally, they
discovered a ladder near the kitchen sink window. {¶10} Officers Villio and Kay were j oined by Detective Donald Scott and Officer Greg Miller from the Youngstown Police Department. Detective S cott took photographs and collected evidence, including shell casings and DNA swabs f rom the outside of the kitchen window. They found both .45 caliber and 9 mm shell cas ings. {¶11} The DNA samples and shell casings were sent to the Bureau of C riminal Identification and Investigation (BCI) for analysis. Samuel Tr oyer, a BCI forensic scientist, conducted the DNA analyses on the DNA samples and the shell cas ings. Troyer found DNA on one of the shell casings that belonged to a Jordan Kenne dy. Troyer also concluded that appellant’s DNA was on the outside of the kitche n window.– 4 –

Case No. 18 MA 0064 {¶12} During their investigation, Detectives Sweeney and Barber disc overed that Jordan Kennedy was housed in the Mahoning County Justice Center awaiting trial on an unrelated charge. At the time of the shooting, Jordan was inca rcerated at the Mahoning County Justice Center and had been in the Justice Center since December of 2016. Detectives Sweeney and Barber interviewed Jordan. According to Jordan, he borrowed two guns from appellant prior to being incarcerated: a .45 cali ber and a 9mm. Shortly before being incarcerated, Jordan returned one of the firearms to appellant. After being incarcerated, Jordan arranged for appellant to retrieve the sec ond firearm from his girlfriend, Hydeia Hardin. {¶13} Detectives Sweeney and Barber then interviewed Hydeia. She co nfirmed that appellant picked up a firearm from her along with some bul lets while Jordan was
incarcerated. {¶14} On November 30, 2017, a Mahoning County Grand Jury indicted ap pellant on nine counts: (1) aggravated murder in violation of R.C. 2903 .01(A)(F), an unspecified felony; (2) aggravated murder in violation of R.C. 2903.01(B), an unspecified felony; (3) murder in violation of R.C. 2903.02(A), an unspecified felony; (4) attempted murder in violation of R.C. 2923.02 and R.C. 2903.02(A), a first-degree f elony; (5) felonious assault in violation of R.C. 2903.11(A)(1)(D), a second-degree felony; (6) felonious assault in violation of R.C. 2903.11(A)(2)(D), a second-degree felony; (7) felonious assault in violation of R.C. 2903.11(A)(2)(D), a second-degree felony; (8) aggravated burglary in violation of R.C. 2911.11(A)(1)(B), a first-degree felony; and (9) intimidation of a witness in violation of R.C. 2921.04(B)(2)(D), a third-degree felony. Appellant also faced firearm specifications pursuant to R.C. 2941.145 on counts one through eight. {¶15} Appellant filed a motion in limine seeking to exclude testimon ial statements Ronald made to any officer of the Youngstown Police Department. Two weeks later he filed another motion in limine seeking to exclud e Jordan’s testimony about Hydeia returning a firearm to appellant and testimony about app ellant allegedly being involved in an armed robbery with Jordan. The trial court deni ed both motions. {¶16} The matter proceeded to a jury trial. The state dismissed the murder count and its accompanying firearm specification. The jury found app ellant guilty on all remaining counts.– 5 –

Case No. 18 MA 0064 {¶17} At the subsequent sentencing hearing, the trial court merged a ppellant’s convictions as follows: Count Two (aggravated murder plus a fir earm specification) merged with Count One (aggravated murder plus a firearm specifi cation); Counts Five and Six (felonious assault plus two firearm specifications) mer ged with Count Four (attempted murder plus a firearm specification); and Count Nine (witness intimidation) merged with Count Seven (felonious assault plus a firearm speci fication). {¶18} The trial court sentenced appellant on each count as follows: life imprisonment without parole plus three years for the firearm sp ecification on Count One, eleven years plus three years for the firearm specification on Count Four, eight years plus three years for the firearm specification on Count Seven, and e leven years plus three years for the firearm specification on Count Eight. The trial court ordered the sentences to run consecutively for a total of life imprisonment without p arole plus 30 years, plus an additional 12 years for the firearm specifications. {¶19} Appellant timely filed his notice of appeal on June 5, 2018. He now raises five assignments of error. {¶20} Appellant’s first assignment of error states:

THE INTRODUCTION OF UNFAIRLY PREJUDICIAL HEARSAY
STATEMENTS OF RONALD LEWIS AND JAVEL BATES DURING
APPELLANT’S TRIAL VIOLATED HIS RIGHT TO DUE PROCESS AND CONFRONTATION AS GUARANTEED BY THE FOURTH, FIFTH, SIXTH,
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND WAS CONTRARY TO THE OHIO RULES OF
EVIDENCE.

{¶21} Appellant argues that Detectives Sweeney’s and Barber’s testim ony about Ronald’s statements, which were about statements made by Javel to Ronald, violated his right to confront witnesses or otherwise constituted inadmissib le hearsay. {¶22} Javel made statements to Ronald on March 8, 2017 about who sho t him. Ronald relayed Javel’s statements to Detective Sweeney at his h ouse and later to Detectives Sweeny and Barber at the Youngstown Police Departmen t. Detective Sweeney testified tha t, at Ronald’s house, Ronald said that Javel said appellant was one– 6 –

Case No. 18 MA 0064 of the people who shot him. Ronald then went to the Youngstown Police Department for an interview with the detectives where Ronald again said that J avel told him appellant was one of the people who shot him. The detectives were not ab le to interview Javel because of Javel’s condition and the fact that he died approxim ately two weeks after he
was shot. {¶23} There are three sets of statements admitted at trial that appe llant argues violated his right under the Confrontation Clause or otherwise constituted inadmissible hearsay: Javel’s statements to Ronald; Ronald’s statements to D etectives Sweeney and Barber at Ronald’s house; and Ronald’s statements to Detectives Sweeney and Barber at the Youngstown Police Department. We will begin by analyzin g whether the three sets of statements violated appellant’s right under the Confrontatio n Clause. {¶24} The Confrontation Clause prohibits the introduction of testimo nial statements by a non-testifying witness (unless that witness is unavailable to testify and the defendant had a prior opportunity for cross-examination). State v. Grabe , 7th Dist. Mahoning No. 16 MA 0061, 2017-Ohio-1017, ¶ 20 citing Crawford v. Washington , 541 U.S. 36, 54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). {¶25} In determining if a statement is testimonial or not, courts ap ply the primary purpose test. See State v. Carter , 7th Dist. Mahoning No. 15 MA 0225, 2017-Ohio-7501. Prior to the United States Supreme Court decision in Ohio v. Clark , 576 U.S. 237, 135 S.Ct. 2173, 192 L.Ed.2d 306 (2015), Ohio used the primary-purpo se test for evaluating
whether statements made to law enforcement were testimonial and the objective-witness test for evaluating whether statements made to someone other th an law enforcement
were testimonial. But in Clark , the Court applied the primary-purpose test to a statement
made to someone other than law enforcement. Id . The Court pointed out that in evaluating such a statement they should consider the statement in context noting that a statement made to non-law enforcement individuals is significan tly less likely to be testimonial than a statement given to law enforcement. Id . at 2182. {¶26} A “statement is testimonial if the circumstances objectively i ndicate there is no ongoing emergency and the primary purpose of the interrogati on is to establish past events potentially relevant to later criminal prosecution.” State v. Craig , 7th Dist. Mahoning No. 18 MA 0102, 2020-Ohio-1102, ¶ 35, citing Hammon v. Indiana , 547 U.S.– 7 –

Case No. 18 MA 0064 813, 822, 26 S.Ct. 2266, 165 L.Ed.2d 224 (2006). But if the ci rcumstances objectively indicate the primary purpose of the interrogation was to aid po lice to assist in an ongoing emergency, then the statement is non-testimonial and does not f all within the scope of the Confrontation Clause. Id. at ¶ 36-37, citing Michigan v. Bryant , 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 93 (2011). {¶27} Beginning with Javel’s statements to Ronald, the testimony at trial indicated that Javel was at Ronald’s house on March 8, 2017 and then left. When Javel returned later the same day, Javel’s car had numerous bullet ho les and Javel was suffering from a gunshot wound. Javel informed Ronald that the re was an altercation and appellant was one of the people who shot him. {¶28} With this statement, Javel was not attempting to create an out -of-court substitute for trial testimony. Javel was informing Ronald abo ut the circumstances surrounding his gunshot wound. Statements about assaults to fa mily members or friends are generally non-testimonial statements. Craig , supra, at ¶ 63. Therefore, Javel’s
statement to Ronald was non-testimonial. {¶29} Next, there is Ronald’s statement to Detective Sweeney at Rona ld’s house. The testimony at trial indicates that Detectives Sweene y and Barber were dispatched to Ronald’s house to investigate a felonious assault . Upon arriving at Ronald’s house, Detective Sweeney inspected Javel’s car. He th en questioned Ronald about what happened to Javel in Detective Barber’s presence. R onald was initially hesitant to talk to Detective Sweeney but eventually told Detec tive Sweeney that Javel said appellant shot him. {¶30} Detectives Sweeney and Barber responded to a felonious assaultcall at Ronald’s house. Upon arriving, they observed bullet holes and a large amount of blood in Javel’s car. Javel had been critically injured and had been transported to the hospital by ambulance. Detective Sweeney then spoke to Ronald at the sc ene who told him that Javel said appellant was one of the people who shot him. The d etectives’ testimony at trial indicated that they were involved in an ongoing emergencybecause the man or men who shot Javel were still at large in the community. Detective Sweeney’s questioning of Ronald had the primary purpose of ascertaining what happened to Javel, which at the time was an on-going emergency. Therefore, Ronald’s statement to Detective Sweeney– 8 –

Case No. 18 MA 0064 at Ronald’s house was non-testimonial in nature. Because Ronal d’s statement was nontestimonial, its admission did not violate appellant’s confront ation rights. {¶31} Next, we turn to Ronald’s statement to Detectives Sweeney and Barber at the Youngstown Police Department. After Detectives Sweeney and Barber completed their investigation at the house, they asked Ronald to come to the Youngstown Police Department to give an official statement. {¶32} Ronald’s statement to the detectives at the Youngstown Police Department was testimonial in nature. Detectives Sweeney and Barber had a lready investigated at the house. They were aware of the details surrounding Javel’s shooting by the time Ronald gave this statement. They were not attempting to resolv e an ongoing emergency. Instead, they were attempting to establish or prove a past act. As such, the admission of this statement violated appellant’s confrontation rights. {¶33} But the admission of Ronald’s statement to detectives at the Y oungstown Police Department was harmless error. Harmless error is “[a]nyerror, defect, irregularity, or variance which does not affect substantial rights[.]” State v. Morris , 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 1153, ¶ 23 quoting Crim.R. 52(A) . Harmless error shall be disregarded. Id. In this case, the admission of Ronald’s statement to the dete ctives at the Youngstown Police Department was harmless error because it was identical to Ronald’s statement to Detective Sweeney at Ronald’s house. The evidence at trial indicated that in both statements, Ronald said that Javel told him appellant was one of the people who shot Javel. Having found that Ronald’s statemen t at his house was nontestimonial, the admission of Ronald’s statement to the detecti ves at the Youngstown Police Department did not affect appellant’s substantial rights and, is therefore, harmless

error. {¶34} Having determined that Javel’s statement to Ronald and Ronald’ s statement to Detective Sweeney at his house were non-testimonia l, we must now determine the admissibility of these statements under the Ohio Rules of Evidence. State v. Triplett , 7th Dist. Mahoning No. 17 MA 0128, 2018-Ohio-5405, ¶ 91 citin g Ohio v. Clark
, 135 S.Ct. at 2180. {¶35} The admission of evidence is within the discretion of the tria l court and the court's decision will only be reversed upon a showing of abuse of discretion. State ex rel.– 9 –

Case No. 18 MA 0064 Sartini v. Yost , 96 Ohio St. 3d 37, 2002-Ohio-3317, 770 N.E.2d 584. This incl udes rulings on hearsay issues. State v. Rupp , 7th Dist. Mahoning No. 05 MA 0166, 2007-Ohio-1561, ¶ 78 citing State v. Hand , 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151. Abuse of discretion implies that the court acted in an unreasonable, arb itrary, or unconscionable

manner. Sartini at ¶ 21. {¶36} Appellant argues that the above statements constitute inadmiss ible hearsay. Hearsay is a statement, other than one made by the de clarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Evid.R. 801(C). Hearsay is generally not admissible at trial. Evid.R. 802. {¶37} We begin with Javel’s statement to Ronald. Javel’s statement that appellant shot him meets two exceptions to the hearsay rule. I t qualified as both an excited utterance and a present-sense impression. {¶38} An excited utterance is “[a] statement relating to a startling event or condition made while the declarant was under the stress of exci tement caused by the event or condition.” Evid.R. 803(2). A present-sense impressi on is “[a] statement describing or explaining an event or condition made while the d eclarant was perceiving the event or condition, or immediately thereafter unless circum stances indicate lack of trustworthiness.” Evid.R. 803(1). {¶39} In this case, at the time Javel made the statement to Ronald, Javel had just recently been shot. Javel’s statement to Ronald was about the startling event of him being shot while Javel was st ill under the stress of being shot . Therefore, Javel’s statement to Ronald qualified as an excited utterance. Moreove r, Javel made this statement soon after being shot while he was still bleeding and had yet to be transported to the hospital. Thus, the statement also qualified as a prese nt-sense impression. {¶40} Next, we address Ronald’s statement to Detective Sweeney at hi s house. During oral argument, the state argued that Ronald’s statement was not hearsay because it was not being offered for the truth of the matter asserted. Instead, the state argued that
it was offered to show Ronald’s state of mind in that he believ ed appellant had shot Javel. {¶41} We find this argument persuasive. During the state’s case-in- chief, the testimony indicated that Ronald believed appellant was the pers on who shot Javel. Whether appellant shot Javel or not was irrelevant. The day Ja vel died, Ronald was upset– 10 –

Case No. 18 MA 0064 and posted an angry and threatening message on Facebook. Two d ays after Ronald posted the Facebook message, Ronal d was killed. Mark Hollinshe ad spoke to appellant a day or two after Ronald was killed. (Tr. 308). Appellant sai d, “I’m going to give my condolences to you about your boy and stuff, but he shouldn’t h ave put that on Facebook.” (Tr. 308). {¶42} The statement from Ronald at his house was not offered to prov e the truth of the matter asserted (that appellant shot Javel), it was offe red to show that Ronald
believed appellant shot Javel and how this belief affected Ronald. Thi s led to Ronald posting a threatening message on Facebook, which then may have led to Ronald being killed. This theory is also supported by the fact that as of t he date of trial, Javel’s murder was still unsolved. (Tr. 200). Based on the above, the trial court did not abuse its discretion by permitting this statement because it was not hear say. {¶43} In conclusion, the statements from Javel to Ronald and then fr om Ronald to Detective Sweeney at Ronald’s house were non-testimonial in nature. The statement from Ronald to Detectives Sweeney and Barber at the Youngstown Police Department
was testimonial in nature but its admission was harmless error. {¶44} As for the hearsay issues surrounding the statements, the tria l court’s
admission of these statements was not an abuse of discretion be cause Javel’s statement to Ronald qualified as an excited utterance and a present-sense impression and Ronald’s statement to Detective Sweeney at Ronald’s house was not hearsa y. {¶45} Accordingly, appellant’s first assignment of error is without merit and is
overruled. {¶46} Appellant’s second assignment of error states:

THE INTRODUCTION OF UNFAIRLY PREJUDICIAL HEARSAY
STATEMENTS DURING THE TESTIMONY OF MULITPLE WITNESSES
VIOLATED APPELLANT’S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTH, FIFTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND WAS CONTRARY TO THE
OHIO RULES OF EVIDENCE.– 11 –

Case No. 18 MA 0064 {¶47} In addition to testimony regarding Ronald’s statements, appell ant argues that the trial court erred in permitting several other witnesse s to testify about other hearsay statements. Appellant complains of numerous pieces of testimony from several witnesses in this assignment of error. He concedes that he did not objec t to all of the testimony at issue in this assignment of error. {¶48} Testimony to which appellant objected is subject to the abuse of discretion standard of review previously set forth. As for testimony that was not objected to, it is subject to a plain error review. State v. Lang , 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 108. Plain error is error that is obvious and, b ut for the error, the outcome
of the trial would have been different. State v. Long , 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978). {¶49} Appellant takes issue with portions of Detective Barber’s test imony. As part of his investigation, Detective Barber interviewed Sevalle Turner, Jordan Kennedy, Hydeia Hardin, and Mark Hollinshead. Detective Barber testifie d about his interviews with each of these people. Appellant argues that Detective Barber’s testimony about these interviews was hearsay. Appellant also argues that allowing De tective Barber to repeat testimony from these four witnesses created an unfairly prejudi cial effect. {¶50} Beginning with Detective Barber’s interview with Mark Hollinsh ead, according to Mark, there was an ongoing feud between Javel and appellant. After Javel died, “Ron may have said something. He [Mark] was not specific about what he [Ronald] said, but he [Mark] did not know anything about Ronald Lewis’ s hooting, is what he told us.” (Tr. 473). Detective Barber elaborated that Mark “didn’t provide a specific, but what he was talking about was that Ron may have been saying somethin g.” (Tr. 473). Appellant objected to this answer. The trial court overruled t he objection holding that the testimony was not used to prove the truth of what was told to D etective Barber but was used to explain what the detective did. (Tr. 473). {¶51} Detective Barber continued that Mark told him that Ronald post ed something on Facebook, but Mark did not remember what was poste d specifically. (Tr. 474). Mark also told Detective Barber that Ronald was at a nei ghborhood in Youngstown and was possibly making threats. (Tr. 474). Appellant objecte d again but the trial court overruled the objection. (Tr. 474). It permitted the testimon y for the limited purpose of– 12 –

Case No. 18 MA 0064 allowing Detective Barber to explain what he did in the investi gation. (Tr. 475). Detective Barber concluded his testimony about his interview with Mark bysaying “Ron may have been up there saying something, but he [Mark] didn’t provide sp ecifics again or who it was directed to.” (Tr. 475). {¶52} Because appellant objected to this line of questioning, it is subject to an
abuse of discretion review. {¶53} Law enforcement officers may testify to out-of-court statement s for the nonhearsay purpose of explaining the steps in their investigation. State v. Beasley , 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, at ¶ 172, reconsider ation denied, 152 Ohio St.3d 1468, 2018-Ohio-1796, 97 N.E.3d 503, and cert. denied, 13 9 S.Ct. 796, 202 L.Ed.2d 587 (2019). Testimony to explain an officer’s investig ation is admissible as nonhearsay if it meets three requirements: “(1) the conduct to be explained is relevant, equivocal, and contemporaneous with the statements, (2) the pro bative value of the statements is not substantially outweighed by the danger of unf air prejudice, and (3) the statements do not connect the accused with the crime charged.” Id

. {¶54} Detective Barber’s testimony about Mark’s statements meets the se criteria. The detective’s testimony regarding his conversation with Mark was explained as one of the steps Detective Barber took in his investigation. Addition ally, Detective Barber stated that Mark could not recall any specific statements Ronald may h ave made. Finally, even if Ronald made some vague threats to one in particular, this di d not connect appellant with the crime charged. Thus, Detective Barber’s testimony reg arding Mark’s statements was non-hearsay. {¶55} Moreover, Mark testified in this case. He stated that he spo ke with appellant a day or two after Ronald was killed. According to M ark, appellant said, “I’m going to give my condolences to you about your boy and stuff, b ut he shouldn’t have put that on Facebook.” (Tr. 308). Mark said that appellant’s stat ement meant that Ronald was “threatening something” on Facebook. (Tr. 308-309). Thus, the jury would have heard Mark’s testimony regarding potential threats appellant ha d been making even if
Detective Barber had not testified about these threats. {¶56} Next, Detective Barber testified about his interview with Seva lle Turner. Sevalle is Ronald’s sister, Javel’s half-sister, and was in Ron ald’s home when Ronald– 13 –

Case No. 18 MA 0064 and Tracey were shot. After the shooting, Sevalle called Detec tive Barber multiple times inquiring about the investigation into Ronald’s death. During one such call, Sevalle told
Detective Barber that the two men in the house when Ronald was shot were wearing gloves. (Tr. 477). She also told the detectives that the men pointed their guns at her while she was in the bathroom. (Tr. 477). Sevalle did not rec all if she heard a clicking sound, indicating that the guns were empty, when they were poin ted at her. (Tr. 477). Sevalle could only see the eyes of the two men because they wer e wearing masks and described them as two black males. (Tr. 478). {¶57} Appellant did not object to this line of questioning. As such , it is subject to a plain error review. {¶58} Detective Barber’s testimony about Sevalle’s statements is hea rsay pursuant to Evid.R. 801(C). Detective Barber testified about o ut-of-court statements from Sevalle that were offered in court to prove the truth of the ma tter asserted. Namely, they were offered to show that two men, one potentially being appell ant, intimidated Sevalle or threatened to cause Sevalle serious bodily harm by pointing a gun at her immediately after shooting two people. Because this testimony is hearsay, the first prong of a plain error analysis is satisfied. {¶59} But there is no indication that, but for this testimony, the o utcome of appellant’s trial would have been different. Sevalle testified at trial to the same events as Detective Barber. Had Detective Barber’s testimony about his i nterview with Sevalle been excluded, the jury was still presen ted with the same testimony from Sevalle herself. Because Detective Barber’s testimony about his interview with S evalle did not affect the outcome of appellant’s trial, it was not plain error to admit t his testimony. {¶60} Next, Detective Barber testified about his interview with Jord an Kennedy. Jordan was appellant’s friend. (Tr. 481). At the time of Rona ld’s and Tracey’s shooting, Jordan was incarcerated at the Mahoning County Justice Center. (Tr. 481). Jordan had been in possession of two firearms that belonged to appellant, a .45 caliber and a 9mm. (Tr. 481). The shell casings found at Ronald’s house were from a .45 caliber and a 9mm. (Tr. 481). About one week before being incarcerated, Jordan re turned one of the guns to appellant. (Tr. 482). After he was incarcerated, Jordan arran ged for appellant to retrieve the second firearm from Hydeia Hardin. (Tr. 482).– 14 –

Case No. 18 MA 0064 {¶61} Appellant did not object to this line of testimony. As such, it is subject to a plain error review. {¶62} Detective Barber’s testimony as to what Jordan told him about the firearms was hearsay. It was offered to show that appellant was in poss ession of the same two types of firearms that were used to shoot Ronald and Tracey. B ut once again, there is no indication that but for this testimony the outcome of the tr ial would have been different.
Jordan testified as to the same events as Detective Barber. Th us, the jury would have heard this evidence even without Detective Barber’s testimony. As such, plain error does not exist with this line of testimony. {¶63} Next, Detective Barber testified about his interview with Hyde ia Hardin. According to Detective Barber, Jordan wanted Hydeia to return a gun to appellant. (Tr. 482). Hydeia told the detective that appellant picked up a gun from her. (Tr. 482). {¶64} Appellant did not object to this line of testimony. As such, it is subject to a plain error review. {¶65} This line of testimony is hearsay. This testimony shows a ch ain of events as to how Jordan’s DNA was found on a shell casing at the scene of the shooting. This testimony was offered to show the truth of the matter asserted, namely, that Jordan’s DNA was at the scene of the shooting because Hydeia gave appell ant a gun and bullets that were in Jordan’s possession. {¶66} But the admission of this testimony did not affect the outcome of appellant’s trial. Hydeia also testified at trial that Jordan arranged for appellant to meet her in order to retrieve the gun. (Tr. 291). Appellant came to Hydeia’s ho me and retrieved the gun along with some bullets. (Tr. 292). Had Detective Barber not testified about his interview with Hydeia, the jury was still presented with the same testimo ny from Hydeia herself. Therefore, Detective Barber’s testimony about his interview wit h Hydeia does not rise to the level of plain error. {¶67} The jury would have heard all of the witnesses’ testimony even without Detective Barber’s testimony. The detective merely repeated wh at the witnesses themselves testified to as he explained each step he took in hi s investigation. Appellant has not demonstrated any prejudice as a result of this testimon y.– 15 –

Case No. 18 MA 0064 {¶68} Appellant also argues that Detective Barber’s testimony about these four interviews, when all four of these witnesses also testified at trial, created a substantial prejudicial effect. I n support, he cites State v. Butcher, 170 Ohio App.3d 52, 2007-Ohio118, 866 N.E.2d 13 (11th Dist.). In Butcher , a mother, grandmother, and physician testified at trial regarding statements by two children that th e appellant was sexually abusing them. On appeal, the court found these statements to b e inadmissible hearsay and reversed the appellant’s conviction due to the prejudice ca used by the statements. The court noted that multiple adults, by way of inadmissible he arsay, testified that the appellant was the culprit. Id . at ¶ 78. It reasoned that when multiple adults repeat
children’s stories in court it makes the children’s statements more believable. Id. at ¶ 79. {¶69} The present case, however, is distinguishable from Butcher . In Butcher
, the court found significant the fact that multiple adults repea ted children’s statements in court. This is not the case here. Moreover, in Butcher , the hearsay statements actually specifically identified appellant as the perpetrator of the sex ual abuse. In this case, however, the repeated testimony appellant complains of does notexplicitly identify him as the perpetrator of a crime. Thus, the prejudice present in Butcher is not present here. {¶70} The trial court did not abuse its discretion by permitting Dete ctive Barber to testify about his interviews with Mark, Sevalle, Jordan, and Hy deia. {¶71} Next, appellant argues that it was improper for the trial cour t to entertain testimony about Ronald’s Facebook post. Appellant argues that mentioning Ronald’s Facebook post was hearsay. Three witnesses testified about thi s Facebook post: Detective Barber, Mark Hollinshead, and Gary Benjamin. As Dete ctive Barber’s testimony about this Facebook post was already addressed in thi s assignment of error, we need not reanalyze it. {¶72} Mark spoke with appellant a day or two after Ronald was killed . Appellant told Mark “I’m going to give my condolences to you about your b oy and stuff, but he shouldn’t have put that on Facebook.” (Tr. 308). Mark said th at appellant’s statement meant that Ronald was “threatening something” on Facebook. (Tr . 308-309). {¶73} Gary Benjamin, Ronald’s childhood friend, went to Ronald’s hou se on March 23, 2017, the night before Ronald was killed. Gary went to Ronald’s house to calm– 16 –

Case No. 18 MA 0064 Ronald down after Ronald’s Facebook post. Ronald was “irate” b ecause Javel had died the previous day, March 22, 2017. (Tr. 391). {¶74} While there was testimony that Ronald made a post on Facebook, there is no testimony as to what Ronald’s post actually said. Mark and Gary never specified what this post contained. Similarly, Detective Barber testified tha t Mark never specified what the post said. As such, there is no statement from Ronald in t his instance. {¶75} Accordingly, appellant’s second assignment of error is without merit and is
overruled. {¶76} Appellant’s third assignment of error states:

APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE BY FAILING TO OBJECT TO IMPERMISSIBLE HEARSAY EVIDENCE, IN
VIOLATION OF HIS RIGHT TO DUE PROCESS AS GUARANTEED BY
THE UNITED STATES AND OHIO CONSTITUTIONS.

{¶77} Appellant argues that his trial counsel’s failure to object to the evidence complained of in his first two assignments of error constitutes ineffective assistance of
counsel. {¶78} To prove an allegation of ineffective assistance of counsel, t he appellant must satisfy a two-prong test. First, appellant must establish that counsel's performance has fallen below an objective standard of reasonable representa tion. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley
, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. Second, appellant must show a reasonable probability that, but for coun sel’s errors, the result of the proceeding would have been different. State v. Conway , 109 Ohio St.3d 412, 2006- Ohio-2815, 848 N.E.2d 810, ¶ 95 citing Strickland. {¶79} Appellant bears the burden of proof on the issue of counsel's effectiveness.
State v. Calhoun , 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In Ohio, a lic ensed attorney is presumed competent. Id. {¶80} For the reasons previously set forth in appellant’s first and second assignments of error, the majority of the testimony appellant c omplains of was properly admitted. As for the testimony that was improperly admitted, t hat testimony did not have– 17 –

Case No. 18 MA 0064 a prejudicial effect on appellant’s trial. As such, appellant’ s trial counsel was not
ineffective. {¶81} Accordingly, appellant’s third assignment of error is without merit and is
overruled. {¶82} Appellant’s fourth assignment of error states:

APPELLANT’S CONVICTION WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE IN VIOLATION OF HIS RIGHT TO DUE
PROCESS AS GUARANTEED BY THE OHIO CONSTITUTION.

{¶83} Appellant makes numerous arguments in this assignment of error but they all center on the general argument that there was no direct evi dence that he was ever inside Ronald’s house at the time of shooting. {¶84} The claim that a verdict is against the manifest weight of the evidence concerns whether a jury verdict is supported by “the greater amount of credible evidence .” (Emphasis sic.); State v. Merritt , 7th Dist. Jefferson No. 09 JE 26, 2011-Ohio-1468, ¶ 45 quoting State v. Thompkins , 78 Ohio St.3d 380, 678 N.E.2d 541 (1997). The reviewing court weighs the evidence and all reasonable inferences and con siders the credibility of
the witnesses. Thompkins at 387. Although the appellate court acts as the proverbial “thirteenth” juror under this standard, it rarely substitutes i ts own judgment for that of the jury’s. Merritt at ¶ 45

. This is because the trier of fact was in the best position to determine the credibility of the witnesses and the weight due the evidenc e. Id. citing State v. Higinbotham , 5th Dist. Stark No. 2005CA00046, 2006-Ohio-635. {¶85} “Only when ‘it is patently apparent that the factfinder lost i ts way,’ should an appellate court overturn the jury verdict.” Id. citing State v. Woullard , 158 Ohio App.3d 31, 2001-Ohio-3395, 813 N.E.2d 964 (2d Dist.). If a conviction is against the manifest weight of the evidence, a new trial is to be ordered. Thompkins at 387. “No judgment resulting from a trial by jury shall be reversed on th e weight of the evidence except by the concurrence of all three judges hearing the cause .” State v. Miller , 96 Ohio St.3d 384, 2002-Ohio-4931, 775 N.E.2d 498, ¶ 36 quoting Ohio Co nstitution, Article IV, Section 3(B)(3).– 18 –

Case No. 18 MA 0064 {¶86} Appellant is correct that no witnesses identified him as one o f the shooters at Ronald’s house on March 24, 2017. There were two eyewitness es who testified at trial: Sevalle Turner and Tracey Lewis. Sevalle testified that the sh ooters were wearing masks and she could only see their eyes. Sevalle only described the shooters as thin AfricanAmerican men. Tracey could not give a description of the shoot ers other than they were wearing black clothing. {¶87} The state relied on circumstantial evidence to identify appell ant as one of the shooters. Officer Miller, one of the evidence collection o fficers, concluded that the point of entry into the house was the kitchen window due to: th e window being open, the blinds on the window being disturbed, and the window’s screen b eing removed and laying on the inside of the house. (Tr. 337-338). Appellant’s DNA wa s found on the outside of the kitchen window. (Tr. 445). {¶88} Additionally, Jordan Kennedy’s DNA was found on one of the sh ell casings inside Ronald’s house. (Tr. 443). Jordan was incarcerated in December of 2016 and was still incarcerated at the time of the Lewis’ shooting. Pri or to being incarcerated, Jordan was in possession of two of appellant’s guns: a P94 Ruge r 9mm and a Hi-Point .45 caliber. (Tr. 271). About a week before being incarcerate d, Jordan returned one of the guns to appellant. (Tr. 482). While he was incarcerated, Jordan arranged for appellant to receive the other gun from Hydeia. (Tr. 272-273). Hydeia returned the other gun to appellant along with a “bag of bullets[.]” (Tr. 291-292 ). The shell casings found at Ronald’s house were for a .45 caliber and a 9mm. (Tr. 343-344)

. {¶89} Appellant contends that this evidence does not indicate that h e was one of the shooters. Troyer testified on cross-examination that, when it comes to touch DNA or “shedding,” he cannot differentiate between primary transfer of DNA (when a person touches an object and that person’s DNA is on the object) or se condary transfer of DNA (when person A touches person B, person B then touches an objec t, and person A’s DNA is on the object). (Tr. 448-449). Appellant also points out D etective Barber’s testimony that, according to Sevalle Turner, the two shooters were “thin built.” (Tr. 498-499). Detective Barber does not consider himself thin built and appel lant is a bigger person than Detective Barber. (Tr. 499).– 19 –

Case No. 18 MA 0064 {¶90} The state counters that appellant’s conviction was not against the manifest weight of the evidence because his DNA was on the window of Ron ald’s house. In support of this argument, the state cites State v. Eckard , 3d Dist. Marion No. 9-15-45,
2016-Ohio-5174. {¶91} In Eckard , Eckard was convicted by a jury of burglary. Id. at ¶ 2-5. He appealed arguing that his conviction was insufficient as a matt er of law and his conviction was against the manifest weight of the evidence. Id. at ¶ 6. The basis of his argument was that no witness testified at trial that he was the person w ho committed the offense.
Id . at ¶ 7, 11. The only evidence that implicated Eckard was a c rowbar at the scene of the burglary. Id. at ¶ 14-15. A DNA profile was found on the crowbar and analys is indicated Eckard was the major contributor. Id. at ¶ 22. With regard to the manifest weight challenge, the Third District held that “because Eckard' s DNA was found on the crowbar that was found at the crime scene, it was permissible f or the jury to infer a link
between Eckard and the crime scene.” Id. at ¶ 39. The Third District went on to hold that the fact the state’s witnesses did not identify Eckard as the p erpetrator was a matter for the trier of fact to weigh. Id. citing State v. Williams , 10th Dist. Franklin No. 10AP-779,
2011-Ohio-4760. {¶92} The state also cites this court’s decision in State v. Walenciej , 7th Dist. Jefferson No. 07 JE 6, 2007-Ohio-7206. In Walenciej , this court held that, in a manifest weight challenge, “[w]hen there are two fairly reasonable views of the evidence or two conflicting versions of events, neither of which is unbelievabl e, it is not our province to
choose which one should be believed.” Id. at ¶ 47. {¶93} Applying Eckard and Walenciej , the jury’s determination that appellant was one of the shooters was not against the manifest weight of the evidence. A reasonable view of the evidence produced at trial was that appellant’s DNA was on the outside of the
window because he was one of the shooters who entered Ronald’s house through the window. Similarly, a reasonable inference for Jordan’s DNA on one of the bullet casings is because the guns and bullets used during Ronald’s and Tracey ’s shooting were the ones that Jordan gave appellant. This is also supported by the fact that Jordan testified that the guns he gave appellant were the same caliber of shell casings found at the house (a .45 caliber and a 9mm).– 20 –

Case No. 18 MA 0064 {¶94} Next, appellant argues that the testimony about Ronald’s Faceb ook post was not indicative of his guilt. While there was no testimony about exactly what Ronald posted on Facebook, there was testimony suggesting that it was threatening in nature and that Ronald’s post showed he was angry. While this evidenc e may not have directly implicated appellant, the other evidence (including appellant’s DNA at scene, the evidence regarding the firearms, and the evidence that Ronald b elieved appellant shot Javel), was enough to sustain the jury’s verdict. {¶95} Finally, appellant specifically argues that his conviction for felonious assault against Sevalle Turner was against the manifest weight of the evidence. Felonious assault is defined as, among other things, knowingly cause or attempting to cause physical harm to another by means of a deadly weapon. R. C. 2903.11(A)(2). {¶96} Appellant argues that there was no evidence that either of the shooters caused or attempted to cause Sevalle harm. The evidence produc ed at trial showed that, after Ronald and Tracey Lewis were shot, the shooters found Sev alle in the house and pointed their guns at h er. Neither of the shooters said anythi ng nor shot Sevalle. {¶97} The state cites two cases: State v. Green , 58 Ohio St.3d 239, 569 N.E.2d 1038 (1991), and State v. Gilbert , 7th Dist. Mahoning No. 08 MA 206, 2012-Ohio-1165.
In Green , the Ohio Supreme Court held that “the act of pointing a deadl y weapon at another coupled with a threat, which indicates an intention to use such weapon, is
sufficient evidence to convict a defendant of the offense of ‘f elonious assault’ as defined by R.C. 2903.11(A)(2).” Green at 241. In Gilbert , this court held that, in felonious assault cases, the defendant’s intent to cause physical harm may be inf erred from his actions
under the circumstances. Gilbert at ¶ 31. {¶98} If we infer appellant’s intent from the actions under the circ umstances, this conviction for felonious assault was not against the manifest w eight of the evidence. Appellant shot two people numerous times moments before encount ering Sevalle. Appellant and the other shooter then both pointed their guns atSevalle. The circumstances indicate that appellant was willing to shoot Seva lle because (1) he had previously fired his gun numerous times in the house Sevalle wa s in and (2) he pointed his gun directly at Sevalle moments after shooting two people n umerous times. While there was no verbal threat, the circumstances in this case indi cate that there was a non-– 21 –

Case No. 18 MA 0064 verbal threat to cause Sevalle severe bodily harm. Thus, appel lant’s conviction for felonious assault against Sevalle was not against the manifest weight of the evidence. {¶99} Accordingly, appellant’s fourth assignment of error is without merit and is
overruled. {¶100} Appellant’s fifth assignment of error states:

THE TRIAL COURT ERRED BY NOT PROPERLY INSTRUCTING THE JURY REGARDING ATTEMPT, WHICH PREJUDICED APPELLANT
AND VIOLATED HIS RIGHT TO DUE PROCESS AS GUARANTEED BY
THE UNITED STATES AND OHIO CONSTITUTIONS.

{¶101} Appellant argues that the trial court incorrectly instructed th e jury on attempt. {¶102} After the jury instructions, the trial court had a discussion w ith both counsel off the record. At the conclusion of that discussion, the tria l court noted that “there are no issues regarding the charge[.]” (Tr. 599). The failure to obj ect to improprieties in the jury instructions waives all but plain error. State v. Triplett , 7th Dist. Mahoning No. 17 MA 0128, 2018-Ohio-5405, ¶ 34, quoting State v. Underwood , 3 Ohio St.3d 12, 444 N.E.2d 1332 (1983). {¶103} During jury instructions, the trial court instructed the jury o n, among other things, aggravated burglary, attempted murder, and felonious as sault. (Tr. 576-579). The first instruction of attempt was during the aggravated burglaryinstruction. The trial court defined “attempt” pursuant to R.C. 2911.11(A)(1) as “simply an unsuccessful try[.]” (Tr. 578). During the attempted murder instruction, the trial court noted that attempt has “already been defined for you[.]” (Tr. 581). During the felon ious assault instruction, the trial court defined attempt as “he wasn’t able to do it, but he tried to do it[.]” (Tr. 584). {¶104} Appellant argues this is an oversimplification of the definitio n of attempt. Pursuant to R.C. 2923.02(A), attempt is defined as “conduct tha t, if successful, would
constitute or result in the offense.” {¶105} The trial court’s instructions on attempt, while not word-for-w ord recitations of R.C. 2923.02(A), are not misleading or an oversimplification as appellant argues. The trial court’s instructions of attempt being “an unsuccessful tr y” and of appellant trying to– 22 –

Case No. 18 MA 0064 do it but not being able both fit the Revised Code definition o f “conduct that, if successful, would constitute the offense.” As such, there is no obvious er ror regarding the trial court’s instruction of attempt and, therefore, no plain error. {¶106} Accordingly, appellant’s fifth assignment of error is without m erit and is
overruled. {¶107} For all of the foregoing reasons, the trial court’s judgment is hereby
affirmed.

Robb, J., concurs. D’Apolito, J., concurs.[Cite as State v. James , 2020-Ohio-4289.]

For the reasons stated in the Opinion rendered herein, the assi gnments of error are overruled and it is the final judgment and order of this Co urt that the judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs to be waived.

A certified copy of this opinion and judgment entry shall const itute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Proc edure. It is ordered that a certified copy be sent by the clerk to the trial court to car ry this judgment into
execution.

NOTICE TO COUNSEL
This document constitutes a final judgment entry.