[Cite as State v. Lipkins, 2023-Ohio-1192.]

COURT OF APPEALS

STARK COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES:

: Hon. W. Scott Gwin, P.J.

 Plaintiff - Appellee : Hon. William B. Hoffman, J.

: Hon. Craig R. Baldwin, J.

-vs- :

:

TERREL J. LIPKINS, : Case No. 2022CA00053

: 2022CA00054

 Defendant - Appellant :

 : O P I N I O N

CHARACTER OF PROCEEDING: Appeal from the Stark County Court 

of Common Pleas, Case Nos. 2021 

CR 1715A and 2021 CR 2188A

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 10, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

KYLE L. STONE D. COLEMAN BOND

Prosecuting Attorney 116 Cleveland Avenue NW

Stark County, Ohio Suite 600

Canton, Ohio 44702

By: TIMOTHY E. YAHNER

Assistant Prosecuting Attorney

Appellate Division

110 Central Plaza South Ste. 510

Canton, Ohio 44702-1413
Stark County, Case No. 2022CA00053, 2022CA00054 2

Baldwin, J.

{¶1} Terrell J. Lipkins appeals his conviction of multiple offenses in case 

numbers 2021CR1715(A) and 2021CR2188(A).

{¶2} In case number 2021CR1715(A), Lipkins was convicted of Murder, in 

violation of R.C. 2903.02(B), an unclassified felony, with Firearm Specifications, R.C. 

2941.145(A) and R.C. 2941.146(A) and a Repeat Violent Offender Specification, R.C. 

2941.149(A); Felonious Assault, in violation of R.C. 2903.11(A)(1)(2) a felony of the 

second degree with Firearm Specifications, R.C. 2941.145(A) and R.C. 2941.146(A) and 

a Repeat Violent Offender Specification, R.C. 2941.149(A); Discharge of a Firearm on or 

Near Prohibited Premises, in violation of R.C. 2923.162(A)(3), a felony of the third degree, 

with Firearm Specifications, R.C. 2941.145(A) and R.C. 2941.146(A); two counts of 

Improperly Handling Firearms in a Motor Vehicle, in violation of R.C. 2923.16(A), felonies 

of the fourth degree with a Firearm Specification, R.C. 2941.145(A); and Having Weapons 

While Under Disability, in violation of R.C. 2923.13(A)(2) a felony of the third degree with 

a Firearm Specification, R.C. 2941.145(A).

{¶3} In case number 2021CR2188(A) Lipkins was convicted of two counts of 

Felonious Assault in violation of R.C. 2903(A)(2), felonies of the second degree, with 

Firearm Specifications, R.C. 2941.145(A) and R.C. 2941.146(A) and a Repeat Violent 

Offender Specification, R.C. 2941.149(A).

{¶4} Lipkins also appeals the sentence imposed by the Stark County Court of 

Common Pleas. The State of Ohio is Appellee.
Stark County, Case No. 2022CA00053, 2022CA00054 3

STATEMENT OF THE FACTS AND THE CASE

{¶5} J.N. was the victim of a drive by shooting on August 7, 2021 near her home 

and in the presence of her daughter, M.N. and two other witnesses, all of whom had been 

talking immediately prior to the attack. The local authorities relied primarily on 

circumstantial evidence to tie Lipkins to the offense, compiling video from local residences 

and businesses with GPS monitoring to track his movements, a doorbell video recording 

to establish access to a weapon and forensic examination of his clothing to demonstrate 

that he was present when a weapon was fired.

{¶6} J.N., her adult daughter, M.N., their neighbor, N.H. and his brother, C.T. 

were in an alley behind J.N.’s home engaged in conversation when a black vehicle with 

tinted windows and damage to the left rear fender passed by them. They paid little 

attention to the vehicle, finished their conversation and N.H. and C.T. began to walk 

home.

{¶7} Before they had moved far from the alley, the same black vehicle returned 

and a passenger in the rear driver’s side vehicle fired seven to ten shots. N.H. and C.T. 

dropped to the ground and escaped harm, but J.N. was shot in the stomach and doubled 

over in pain. M.N.’s daughter called 911 and the Canton Police Department was first on 

the scene.

{¶8} The police officer noted that J.N. suffered a wound that entered and exited 

her body and he attempted to staunch the bleeding until the ambulance arrived. J.N.’s 

wounds proved to be fatal, the bullet passing through her back, then arteries and veins 

as well as her stomach. The coroner’s office ruled that the death was a homicide as a 

result of a gunshot wound.
Stark County, Case No. 2022CA00053, 2022CA00054 4

{¶9} The Canton Police Department began investigating the shooting within 

minutes of the 911 call. From N.H. and C.T., they learned that the vehicle was a black 

Malibu with a Spitzer dealership plate and that the weapon used had an extended 

magazine. While at the scene, detectives from the Canton Police Department began 

canvassing the neighborhood with the hope of finding a residential security camera that 

may have recorded the offense. The detectives did find a such recording in a camera 

about a block away from the scene of the shooting.

{¶10} Two witnesses, N.H. and A.F., noticed a pink steering wheel cover in the 

Malibu. N.H. recalled that the gun was black, had an extended magazine and that seven 

to ten shots were fired. The home of the decedent, J.N., was hit by two bullets and a 

neighboring house was struck. Windows in vehicles were shattered and the vehicle 

bodies were damaged by bullets.

{¶11} The Canton Police Department issued an alert to be on the lookout for a 

black Malibu with a Spitzer plate frame and a visible scratch across a corner panel. They 

also investigated the link to the local Chevrolet dealer, Spitzer, where a sales person 

recalled selling a 2014 black Chevrolet Malibu with tinted windows and that the buyer had 

asked if the tint was legal. The Canton Police Department, with the assistance of the 

authority of the trial court, obtained a copy of the purchase agreement and discovered 

that the vehicle was sold to Sabriah Johnson, the mother of Lipkins’ daughter.

{¶12} The Canton Police Department knew that Lipkins socialized with Javier 

Blood and that Blood was obligated to wear a GPS monitor that would allow his 

movements to be tracked. The Canton Police Department reviewed GPS record of 

Blood’s whereabouts on the day of the shooting and after discovering the addresses of 
Stark County, Case No. 2022CA00053, 2022CA00054 5

locations that he visited, an officer reviewed video recordings from security cameras at 

the different locations. The videos showed that Blood and Lipkins traveled together, 

beginning at approximately 1:45 p.m., and that they were using a dark Chevrolet Malibu 

with a pink steering wheel cover. Lipkins and Blood appeared in videos from five different 

commercial establishments leading up to the time of the shooting.

{¶13} As they approached the scene of the shooting, two Ring cameras tracked 

their progress. The cameras showed the Malibu circle the area once and then gunshots 

were heard on the second pass. J.N. was shot at 8:37 p.m. and the 911 call was made 

at 8:38 p.m. The GPS monitor traced the progress of Blood and Lipkins toward the 

shooting just minutes before it occurred. A different GPS system showed that the speed 

of the vehicle increased from 23 miles per hour before or near the time of the shooting 

then increased to a speeds of 53, 59 and 71 miles per hour after the shooting.

{¶14} The Canton Police Department recovered shell casings from the scene and 

determined that they were fired from a Glock, nine millimeter, hand gun. Based upon 

witness statements, the police concluded that the gun was fitted with an extended 

magazine. Sabriah Johnson had purchased a Glock nine millimeter hand gun in February 

2021. And, upon searching Johnson’s residence, they discovered video from a door bell 

camera that showed Lipkins with a hand gun and extended magazine, wearing a 

balaclava style mask and a medallion, the latter two items being the same as seen in 

videos of Blood and Lipkins recovered from business cameras on the day of the shooting.

{¶15} While at Johnson’s residence, the police also discovered the white t-shirt 

with the distinctive graphic and the black pants Lipkins wore on the day of the shooting. 

A forensic expert confirmed that the shirt and the pants contained gunshot residue. The 
Stark County, Case No. 2022CA00053, 2022CA00054 6

medallion he wore in the videos taken on the day of the shooting was on Lipkins’ person 

when he was taken into custody.

{¶16} The officers did not recover the gun used in the shooting, but they did 

discover two boxes of 9mm ammunition at Johnson’s home.

{¶17} The vehicle was recovered in Barberton, Ohio on August 11, 2021 and the 

police found within it a pink steering wheel cover, Lipkins’ social security card, and the 

Spitzer plate still attached to the vehicle.

{¶18} Lipkins, and co-defendant, Blood, were charged with: Murder in violation of 

R.C. 2903.02(B), an unclassified felony; Felonious Assault in violation of R.C. 

2903.11(A)(1)/(2), a felony of the second degree; Having Weapons Under a Disability in 

violation of R.C. 2923.13(A)(2), a felony of the third degree; Discharging a Firearm on or 

Near Prohibited Premises in violation of R.C. 2923.162(A)(3), a felony of the third degree; 

and two counts of Improperly Handling Firearms in a Motor Vehicle in violation of R.C. 

2923.16(A)/(B), both felonies of the fourth degree. All six counts contained three-year fire 

arm specifications. (R.C. 2941.145(A)). The Murder, Felonious Assault, and Discharge of 

Fire Arm on or Near Prohibited Premises included five-year Firearm Specifications. (R.C. 

2941.146(A)). The Murder and Felonious Assault counts both contained repeat violent 

offender specifications pursuant to R.C. 2941.149(A).

{¶19} On October 14, 2021, the grand jury issued a second, secret indictment 

charging Lipkins and Blood with two additional counts of Felonious Assault, in violation of 

R.C. 2903.11(A)(2), both felonies of the second degree. Each count carried a R.C. 

2941.145(A) three-year Firearm Specification, a R.C. 2941.146(A) five-year Firearm 

Specification, and a R.C. 2941.149(A) Repeat Violent Offender Specification.
Stark County, Case No. 2022CA00053, 2022CA00054 7

{¶20} Blood and Lipkins were tried separately, and Blood’s trial ended with an 

acquittal prior to the commencement of Lipkins’ trial. The jury found Lipkins guilty on all 

counts as presented and the trial court then found him guilty of Having Weapons While 

Under Disability, R.C. 2923.13(A)(2) with a Firearm Specification, R.C. 2941,145(A)as 

well as a Repeat Violence Offender Specification, R.C. 2941.149(A).

{¶21} The trial court imposed a total prison term of forty-two years to life 

imprisonment in Case No. 2021CR1715(A) to be served consecutive to the sentence 

imposed in Case No. 2021CR2188(A) which was comprised of an aggregate minimum 

prison term of sixteen years up to a maximum prison term of twenty years, with an 

additional mandatory thirteen years on the specifications be served consecutive and prior 

to any other prison term.

{¶22} Lipkins filed a timely appeal and submitted five assignments of error:

{¶23} “I. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO 

SUSTAIN A CONVICTION AGAINST THE APPELLANT, AND THE CONVICTIONS 

MUST BE REVERSED.”

{¶24} “II. THE APPELLANT’S CONVICTION IS AGAINST THE MANIFEST 

WEIGHT OF THE EVIDENCE PRESENTED, AND MUST BE REVERSED.”

{¶25} “III. APPELLANT’S RIGHTS UNDER THE EIGHTH AND 

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTIONS WERE 

VIOLATED AS HE WAS DENIED APPELLATE REVIEW OF HIS SENTENCE UNDER 

R.C. 2953.08, AS SUBSECTION (D)(3) UNCONSTITUTIONALLY PROHIBITS REVIEW 

OF A SENTENCE IMPOSED FOR MURDER.”
Stark County, Case No. 2022CA00053, 2022CA00054 8

{¶26} “IV. APPELLANT’S RIGHT TO PRESENT A DEFENSE, TO DUE 

PROCESS AND A FUNDAMENTALLY FAIR TRIAL WAS DENIED BY THE TRIAL 

COURT’S LIMITATION ON EVIDENCE DEMONSTRATING THAT THE PRINCIPAL 

OFFENDER TO WHICH APPELLANT WAS ALLEGED TO HAVE AIDED AND 

ABBETED(sic) WAS ACQUITED(sic) OF ALL CHARGES, AND BY PERMITTING 

EVIDENCE OF APPELLANT’S PRIOR BAD ACTS, IN VIOLATION OF THE FIFTH, 

SIXTH, EIGHTH, AND FOURTEENTH AMENDMENTS AND ARTICLE I §§ 2, 9, 10, & 

16 OF THE OHIO CONSTITUTION.”

{¶27} “V. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT 

SENTENCED APPELLANT ON OFFENSES THAT SHOULD HAVE MERGED AS A 

MATTER OF LAW.”

I., II.

{¶28} Lipkins first and second assignments of error, that the conviction was not 

supported by sufficient evidence and was against the manifest weight of the evidence are 

closely related and will be combined for purposes of our analysis.

{¶29} The test for the sufficiency of the evidence involves a question of law for 

resolution by the appellate court. State v. Walker, 150 Ohio St.3d 409, 2016-Ohio-8295, 

82 N.E.3d 1124, ¶ 30. “This naturally entails a review of the elements of the charged 

offense and a review of the state’s evidence.” State v. Richardson, 150 Ohio St.3d 554, 

2016-Ohio-8448, 84 N.E.3d 993, ¶ 13.

{¶30} When reviewing the sufficiency of the evidence, an appellate court does not 

ask whether the evidence should be believed. State v. Jenks, 61 Ohio St.3d 259, 574 

N.E.2d 492 (1991), paragraph two of the syllabus, superseded by State constitutional 
Stark County, Case No. 2022CA00053, 2022CA00054 9

amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 102 at n.4, 

684 N.E.2d 668 (1997). “The relevant inquiry is whether, after viewing the evidence in the 

light most favorable to the prosecution, any rational trier of fact could have found the 

essential elements of the crime proven beyond a reasonable doubt.” Jenks at paragraph 

two of the syllabus. State v. Poutney, 152 Ohio St.3d 474, 2018-Ohio-22, 97 N.E.3d 478, 

¶ 19. Thus, “on review for evidentiary sufficiency we do not second-guess the jury’s 

credibility determinations; rather, we ask whether, ‘if believed, [the evidence] would 

convince the average mind of the defendant’s guilt beyond a reasonable doubt.’ ” State 

v. Murphy, 91 Ohio St.3d 516, 543, 747 N.E.2d 765 (2001), quoting Jenks at paragraph 

two of the syllabus. We will not “disturb a verdict on appeal on sufficiency grounds unless 

‘reasonable minds could not reach the conclusion reached by the trier-of-fact.’ ” State v. 

Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 94, quoting State v. 

Dennis, 79 Ohio St.3d 421, 430, 683 N.E.2d 1096 (1997); State v. Montgomery, 148 Ohio 

St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 74.

{¶31} As to the weight of the evidence, the issue is whether the jury created a 

manifest miscarriage of justice in resolving conflicting evidence, even though the 

evidence of guilt was legally sufficient. State v. Thompkins, 78 Ohio St.3d 380, 386–387, 

678 N.E.2d 541 (1997), superseded by constitutional amendment on other grounds as 

stated by State v. Smith, 80 Ohio St.3d 89, 684 N.E.2d 668, 1997-Ohio-355; State v. Issa,

93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001).

“[I]n determining whether the judgment below is manifestly against the 

weight of the evidence, every reasonable intendment and every reasonable 

presumption must be made in favor of the judgment and the finding of facts.
Stark County, Case No. 2022CA00053, 2022CA00054 10

* * *

“If the evidence is susceptible of more than one construction, the reviewing 

court is bound to give it that interpretation which is consistent with the 

verdict and judgment, most favorable to sustaining the verdict and 

judgment.”

Seasons Coal Co., Inc. v. Cleveland, 10 Ohio St.3d 77, 80, 461 N.E.2d 1273 (1984), fn. 

3, quoting 5 Ohio Jurisprudence 3d, Appellate Review, Section 60, at 191–192 (1978).

{¶32} The reviewing court must bear in mind; however, that credibility generally is 

an issue for the trier of fact to resolve. State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 

904 (2001); State v. Murphy, 4th Dist. Ross No. 07CA2953, 2008-Ohio-1744, ¶ 31. 

Because the trier of fact sees and hears the witnesses and is particularly competent to 

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

appellate court must afford substantial deference to its determinations of credibility. 

Barberton v. Jenney, 126 Ohio St.3d 5, 2010-Ohio-2420, 929 N.E.2d 1047, ¶ 20. In other 

words, “[w]hen there exist two fairly reasonable views of the evidence or two conflicting 

versions of events, neither of which is unbelievable, it is not our province to choose which 

one we believe.” State v. Dyke, 7th Dist. Mahoning No. 99 CA 149, 2002-Ohio-1152, ¶ 13, 

citing State v. Gore, 131 Ohio App.3d 197, 201, 722 N.E.2d 125 (7th Dist. 1999). Thus, 

an appellate court will leave the issues of weight and credibility of the evidence to the 

fact-finder, as long as a rational basis exists in the record for its decision. State v. 

Picklesimer, 4th Dist. Pickaway No. 11CA9, 2012-Ohio-1282, ¶ 24.

{¶33} In the first assignment of error, Lipkins presents five arguments to support 

his contention that there was insufficient evidence to support his conviction:
Stark County, Case No. 2022CA00053, 2022CA00054 11

{¶34} [A]ny rational trier of fact could not have found, beyond a reasonable doubt, 

that the Appellant was guilty of aggravated murder because there was no[t] sufficient 

evidence of the necessary element of prior calculation and design (Appellant’s Brief, p. 

18);

{¶35} [T]he State failed to present sufficient evidence that Appellant was involved 

in the alleged shooting incident or at the scene of the crime (Appellant’s Brief, p. 18);

{¶36} [T]he State failed to present any evidence that Appellant attempt to cause 

any physical harm to either of those individuals (regarding Felonious Assault) (Appellant’s 

Brief, p. 19);

{¶37} [T]he State failed to present any evidence of Appellant's prior convictions at 

trial, and instead after it rested, the State presented this evidence for the first time during 

the sentencing hearing.(Regarding Weapons Under a Disability) (Appellant’s Brief, p. 20).

{¶38} We will review each argument separately.

MURDER

{¶39} Lipkins was charged with and convicted of a violation of R.C. 2903.02(B), 

Murder, and not Aggravated Murder, R.C. 2903.01 as he claims in his brief. Aggravated 

Murder does contain an element of “prior calculation and design” in subsection A, but the 

charge of Murder under R.C. 2903.02(B) requires proof that Lipkins caused “the death of 

another as a proximate result of the offender's committing or attempting to commit an 

offense of violence that is a felony of the first or second degree and that is not a violation 

of section 2903.03 or 2903.04 of the Revised Code” and contains no requirement of “prior 

calculation and design.” Lipkins sole argument related to the murder charge is based 
Stark County, Case No. 2022CA00053, 2022CA00054 12

upon a mistaken characterization of the basis of the conviction and requires no further 

analysis.

{¶40} Lipkins first assignment of error regarding the charge of Murder is denied.

IDENTITY OF THE OFFENDER

{¶41} Lipkins contends the record contains insufficient evidence to support the 

jury’s finding that he was involved in the offense. He relies on the lack of eyewitnesses 

that identify him as being in the vehicle despite his distinctive clothing and that one 

witness described the shooter as having a long black sleeve and that description was 

inconsistent with the state’s evidence regarding the offender’s clothing. Further, Lipkins 

contends that there was no evidence to show that he was still in the vehicle from the time 

that the vehicle left the Gables of Canton until the time of the shooting.

{¶42} The Appellee provided evidence connecting Lipkins to the vehicle as well 

as video and GPS documentation tracing his movements for several hours prior to the 

offense. Despite his assertion to the contrary, Lipkins was seen leaving the vehicle after 

leaving the Gables of Canton. He and Blood stopped at BellStore and were seen leaving 

the store around 8:28 p.m. and the vehicle was tracked to the scene of the shooting which 

occurred approximately ten minutes later.

{¶43} The vehicle was recovered and searched. The officers not only found the 

pink steering wheel cover described by the witnesses, but they also found Lipkins’ Social 

Security Card in the vehicle. After obtaining a warrant, the officers searched the residence 

where Lipkins resided and recovered clothing that matched what he was wearing prior to 

the shooting. The clothing tested positive for gunpowder residue confirming that it was in 

the vicinity of a weapon when it was fired.
Stark County, Case No. 2022CA00053, 2022CA00054 13

{¶44} The police did not recover the weapon, but they did discover ammunition 

for the weapon at Lipkins’ residence as well as doorbell videos showing him in possession 

of a weapon that matched the description of the firearm used in the shooting, a black 

Glock 9mm with an extended magazine.

{¶45} The testimony of the witnesses can be interpreted as inconsistent or 

conflicting, but the trier of fact was free to accept or reject any and all of the evidence 

offered by the parties and assess the witness's credibility. “While the [trier of fact] may 

take note of the inconsistencies and resolve or discount them accordingly * * * such 

inconsistencies *503 do not render defendant's conviction against the manifest weight or 

sufficiency of the evidence.” State v. Craig, 10th Dist. Franklin No. 99AP–739, 2000 WL 

297252 (Mar 23, 2000) quoting State v. Nivens, 10th Dist. Franklin No. 95APA09–1236, 

1996 WL 284714 (May 28, 1996). Indeed, the [trier of fact] need not believe all of a 

witness' testimony, but may accept only portions of it as true. State v. Raver, 10th Dist. 

Franklin No. 02AP–604, 2003-Ohio-958, 2003 WL 723225, ¶ 21, quoting State v. Antill,

176 Ohio St. 61, 67, 197 N.E.2d 548 (1964); State v. Burke, 10th Dist. Franklin No. 02AP–

1238, 2003-Ohio-2889, 2003 WL 21291042, quoting State v. Caldwell, 79 Ohio App.3d 

667, 607 N.E.2d 1096 (4th Dist.1992).

{¶46} And, we acknowledge that the state relies upon circumstantial evidence to 

support the charges against Lipkins but “[c]ircumstantial evidence and direct evidence 

inherently possess the same probative value [.]” State v. Jenks, 61 Ohio St.3d 259, 272, 

574 N.E.2d 492, 502 (1991) paragraph one of the syllabus. Furthermore, “[s]ince 

circumstantial evidence and direct evidence are indistinguishable so far as the jury's factfinding function is concerned, all that is required of the jury is that it weigh all of the 
Stark County, Case No. 2022CA00053, 2022CA00054 14

evidence, direct and circumstantial, against the standard of proof beyond a reasonable 

doubt.” Jenks, supra at 272.

{¶47} While inferences cannot be based on inferences, a number of conclusions 

can result from the same set of facts. State v. Lott (1990), 51 Ohio St.3d 160, 168, 555 

N.E.2d 293, quoting Hurt v. Charles J. Rogers Transp. Co. (1955), 164 Ohio St. 329, 331, 

130 N.E.2d 820. Moreover, a series of facts and circumstances can be employed by a 

jury as the basis for its ultimate conclusions in a case. Lott, supra at 168 quoting Hurt, 

supra at 331.

{¶48} The Appellee provided sufficient evidence, if believed, to demonstrate that 

Lipkins was the driver of the vehicle involved in the shooting. The distinct combination of 

characteristics of the vehicle, the fact that it was titled to the mother of his child and the 

fact that it was found abandoned with his social security card within the vehicle could lead 

a jury to the conclusion that he was the driver. The video recordings of Lipkins in the car 

hours before the shooting and up to approximately ten minutes before the shooting as 

well as the GPS information that tracked Blood, the other person in the vehicle, passing 

by the victims at the time of the shooting further bolsters the logic of the jury’s conclusion. 

The gun shot residue on Lipkins’ clothing and the doorbell video showing him in 

possession of a weapon that matched the description of the firearm used to commit the 

offense are additional facts that serve to support the jury’s finding of guilt.

{¶49} After review of the record, we are persuaded that that if believed, [the 

evidence] would convince the average mind of the defendant's guilt beyond a reasonable 

doubt.’ ” Murphy, supra at 543 and that reasonable minds could reach the conclusion 

reached by the trier-of-fact.
Stark County, Case No. 2022CA00053, 2022CA00054 15

{¶50} Lipkins assignment of error regarding this issue is denied.

FELONIOUS ASSAULT/ATTEMPT TO CAUSE HARM

{¶51} In his next argument, Lipkins contends that Appellee failed to present any 

evidence that he attempted to cause any physical harm to either C.T or N.H and thus he 

cannot be found guilty of Felonious Assault. Lipkins concludes that because there was 

no evidence that the bullets were aimed at either person and there is no evidence 

regarding how close the shots came to striking either, Lipkins did not commit a Felonious 

Assault.

{¶52} Lipkins was convicted of Felonious Assault, a violation of R.C. 

2903.11(A)(2) which states in relevant part that “No person shall knowingly * * * [c]ause 

or attempt to cause physical harm to another or to another's unborn by means of a deadly 

weapon or dangerous ordnance.” Lipkins argument suggests that he believes that the 

Appellee must establish that there was an intent to harm either C.T. or N.H., but knowingly 

is not synonymous with intentional. “A person acts knowingly, regardless of purpose, 

when the person is aware that the person's conduct will probably cause a certain result 

or will probably be of a certain nature.” R.C. 2901.22(B) Lipkins is attempting to amend 

the statute and require proof that the attempt to injure the victims was committed 

purposefully, with a “specific intention to cause a certain result,” which would be wounding 

the victims. We must reject Lipkins invitation to amend the statute.

{¶53} The trier of fact may determine an accused's intent from the facts and 

circumstances present in a particular case. State v. Seiber (1990), 56 Ohio St.3d 4, 564 

N.E.2d 408. Because the intent of an accused person is only in his mind and is not 

ascertainable by another, it cannot be proven by direct testimony of another person but 
Stark County, Case No. 2022CA00053, 2022CA00054 16

must be determined from the surrounding facts and circumstances. State v. Flowers

(1984), 16 Ohio App.3d 313, 475 N.E.2d 790, citing State v. Huffman (1936), 131 Ohio 

St. 27, 1 N.E.2d 313.

{¶54} In this case, the record shows that Lipkins and Blood drove past C.T. and 

N.H. once, then when they passed by a second time, seven to ten shots were fired in the 

direction of C.T., N.H., J.N. and M.N., causing both C.T. and N.H. to drop to the ground. 

The bullets struck and eventually killed J.N. and caused damage to homes and vehicles 

in the area. The shooting was not accidental and by all accounts was directed toward the 

persons talking by the side of the road. The second drive by, then number of shots fired, 

the damage to property and the reaction of the victims all support the conclusion that the 

shooting was done with knowledge that the bullets were likely to strike the victims.

{¶55} We find that the facts in the record support the jury’s conclusion that Lipkins 

acted knowingly in an attempt to cause harm to C.T. and N.H. The first assignment of 

error is denied with regard to this issue.

WEAPONS UNDER A DISABILITY

{¶56} Lipkins asserts that the Appellee failed to present any evidence of prior 

convictions at trial and instead, after resting, presented evidence for the first time at 

sentencing. For this reason, Lipkins concludes, the Weapons Under Disability charge 

must be dismissed.

{¶57} The trial court addressed the charge of Having Weapons Under a Disability 

prior to sentencing when it stated: “There was also one count that was tried to the Court, 

having weapons under disability, which the court feels there’s evidence beyond a 
Stark County, Case No. 2022CA00053, 2022CA00054 17

reasonable doubt to find the Defendant guilty of that charge as well.” (Trial Transcript, p 

629, lines 15-20).

{¶58} At the sentencing hearing, the trial court greeted the parties and the persons 

in attendance and began by noting that “Before we get started, there’s a couple of things 

that I want to address right off the bat,” and the trial court then addressed the repeat 

violator offender specification. (Sentencing Transcript, p. 5, line 17 to p. 6, line 10). Before 

proceeding with sentencing, the Appellee interjected:

MR. BARR: Just briefly, Your Honor.

THE COURT: Oh.

MR. BARR: Before the Court goes any further, the State would at this time

move to admit State's Exhibits 33 and 34 which go to the prior repeat violent

offender specification.

THE COURT: Okay.

MR. BARR: They are copies of those convictions in 2020CR1394B and

2016CR1016, both of which are convictions for Felonious Assault. And I 

would present those to the Court at this time.

THE COURT: Okay.

MR. BARR: Those also go, Your Honor, to the weapons under disability

charge. We are a little -- we also in conversations with Mr. Kovalchik have 

-the defense attorney has told us that they will stipulate that Mr. Lipkins is 

the one and the same person that is in those convictions.

THE COURT: Okay, thank you. So it's based on these convictions State's 

Exhibit 33 and 34. That included the intimidation, aggravated menacing in
Stark County, Case No. 2022CA00053, 2022CA00054 18

Stark County Common Pleas Case No. 2016CR-1016 and Case 

No. 2020CR1394B two counts of Felonious Assault.

(Sentencing Transcript, p. 6, line 11 to p. 7, line 16).

{¶59} Lipkins’ counsel had prior knowledge of these documents and the intent to 

offer them at this time based upon the Appellee’s representation of Lipkins’ stipulation. 

Lipkins’ offered no objection to the submission of the exhibits or their consideration by the 

court.

{¶60} Pursuant to Evid. R. 103(A), a party's failure to object to the admission of 

evidence at trial constitutes a waiver of all but plain error on appeal. State v. Frazier

(1995), 73 Ohio St.3d 323, 332, 1995-Ohio-235, 652 N.E.2d 1000; State v. Lott (1990), 

51 Ohio St.3d 160, 174, 555 N.E.2d 293 quoting State v. Gordon (1971), 28 Ohio St.2d 

45, 276 N.E.2d 243, at paragraph two of the syllabus.

{¶61} Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial 

rights may be noticed although they were not brought to the attention of the court.” 

However, for a reviewing court to find plain error, the court must find that the error is an 

obvious defect in trial proceedings which affected the defendant's substantial rights. State 

v. Barnes, 94 Ohio St.3d 21, 2002-Ohio-68, 759 N.E.2d 1240. Notice of plain error “is to 

be taken with the utmost caution, under exceptional circumstances and only to prevent a 

manifest miscarriage of justice.” State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, 

paragraph three of syllabus.

{¶62} Lipkins does not offer any argument to support a finding a plain error and 

we are reluctant to create one on his behalf on the record before us. Had he objected, 

the trial court would have had the discretion to reopen the record for submission of further 
Stark County, Case No. 2022CA00053, 2022CA00054 19

evidence. Askin v. Askin, 10th Dist. Franklin No. 94APF05–720, 1995 WL 41600, *7, 1995 

Ohio App. LEXIS 313, *20, quoting Pyle v. Pyle, 11 Ohio App.3d 31, 37, 463 N.E.2d 98 

(8th Dist.1983). We find nothing in the record that would suggest that reopening the record 

in this case would have constituted an abuse of discretion and, consequently, we find no 

plain error.

{¶63} As Lipkins has waived this objection and the record does not reflect plain 

error, the assignment of error regarding this issue is denied.

{¶64} For the forgoing reason, the first assignment of error is denied.

{¶65} Further we have reviewed the record and conclude that there is no evidence 

that the jury lost its way and issued a decision against the manifest weight of the evidence. 

The record presents sufficient evidence to support the jury’s resolution of any conflicts of 

issues of credibility and we find nothing that would suggest that Lipkins was a victim of a 

manifest miscarriage of justice.

{¶66} Lipkins second assignment of error is denied.

III.

{¶67} In his third assignment of error, Lipkins states that his rights under the 

Eighth and Fourteenth Amendments to the United States Constitutions were violated as 

he was denied appellate review of his sentence under R.C. 2953.08, as subsection (d)(3) 

unconstitutionally prohibits review of a sentence imposed for murder.

{¶68} Counsel for Lipkins presented the same assignment of error and argument 

to this court in the case of State v. Nelson, 5th Dist. Stark No. 2021CA00112, 2022-Ohio4170 and Lipkins has not persuaded us we should reach a different conclusion in this 

case. In Nelson we adopted our analysis in State v. Weaver, 2017-Ohio-4374, 93 N.E.3d 
Stark County, Case No. 2022CA00053, 2022CA00054 20

178 (5th Dist.), appeal not allowed, 151 Ohio St.3d 1510, 2018-Ohio-365, 90 N.E.3d 950 

where we concluded that “we were without statutory authority to review the sentence for 

aggravated murder.” Nelson, supra at ¶ 53. We next reviewed and applied our decision 

from Weaver “that that R.C. 2953.08(D)(3) did not violate the defendant's rights under the 

Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.”

State v. Weaver, 2017-Ohio-4347, ¶ 20 as quoted in Nelson, supra at ¶ 54 and we 

concluded that “that the absence of appellate review for Nelson's sentence does not 

violate the Eighth Amendment. Nelson, supra at ¶ 54.

{¶69} Within the Nelson decision and in the briefs before us, there are references 

to a pending case before the Supreme Court of Ohio, State v. Grevious, 2022-Ohio-4361. 

The Supreme Court of Ohio recently issued its opinion affirming the Twelfth District Court 

of Appeals decision that R.C. 2953.08(D)(3) was constitutional. State v. Grevious, 2022-

Ohio-4361, ¶ 1, so we find that Grevious does not support Lipkins’ assertions, but instead 

confirms our holding in Nelson.

{¶70} Lipkins third assignment of error is denied.

IV.

{¶71} In his fourth assignment of error, Lipkins asserts the trial court erred by 

prohibiting him from introducing evidence that his co-defendant, Blood, was acquitted at 

trial and that the trial court erroneously permitted the Appellee to introduce video and 

photographs of him holding a weapon that matched the description of the firearm used in 

the shooting.

{¶72} “[A] trial court is vested with broad discretion in determining the admissibility 

of evidence in any particular case, so long as such discretion is exercised in line with the 
Stark County, Case No. 2022CA00053, 2022CA00054 21

rules of procedure and evidence.” Rigby v. Lake Cty., 58 Ohio St.3d 269, 271, 569 N.E.2d 

1056 (1991). In order to find an abuse of discretion, we must determine the trial court's 

decision was unreasonable, arbitrary or unconscionable and not merely an error of law or 

judgment. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. 

Even in the event of an abuse of discretion, a judgment will not be disturbed unless the 

abuse affected the substantial rights of the adverse party or is inconsistent with 

substantial justice. Id.” Beard v. Meridia Huron Hosp., 106 Ohio St.3d 237, 2005-Ohio4787, 834 N.E.2d 323.

{¶73} Lipkins acknowledges that he was charged with complicity in the offenses 

arising from the shooting and that:

[w]hile the State was not required to establish the identity of the principal 

offender to convict an offender of complicity, the State is required to show 

that a principal committed the offense. See State v. Perryman (1976), 49 

Ohio St.2d 14, 27, 359 N.E.2d 1040 ("[I]n order to convict an offender of 

complicity, the state need not establish the principal's identity. Pursuant to 

R.C. 2923.03(C), the state need only prove that a principal committed the 

offense."

Appellant’s Brief, p. 28.

{¶74} In support of his argument, Lipkins offers a citation to a case from the 

Supreme Court of Judicature of New York decided in 1835, People v. Buckland, 1835 WL 

2558 (1835). Not only is that case not binding on this court and of questionable relevance 

as it considered the offense of compounding a larceny, the holding in that matter seems 

to have been refuted in People v. Beintner, 168 N.Y.S. 945, 948 (Sup. Ct.1918) where 
Stark County, Case No. 2022CA00053, 2022CA00054 22

that court decided that: “The conclusion is that a judgment in the principal felon's case, 

whether of conviction or acquittal, is not admissible for any purpose in an action against 

the accessory.” Id. at 948. At least with regard to this ancient case, the law in New York 

seems to support the trial court’s decision in this case.

{¶75} Lipkins discretely admits the weakness in his argument when he cites us to 

State v. Hinzman, 8th Dist. Cuyahoga No. 92767, 2010-Ohio-771 ¶ 27-28, where the 

Eighth District held that a “co-defendant's acquittal cannot be used as evidence of an 

accused's innocence. See State v. Tutt (Apr. 12, 1986), Warren App. No. CA85-09-056 

(“[a] co-defendant's conviction can no more be used as evidence against an accused as 

a co-defendant's acquittal could be used by the accused as evidence of his innocence”). 

* * * In other words, Dillon's acquittal does not have the tendency to make a fact of 

consequence any more or less probable than it would be without the evidence.”

{¶76} We agree with the logic used by the courts in Hinzman and Tutt and find 

that the trial court did not err by refusing to permit Lipkins to present evidence of Blood’s 

acquittal in his trial.

{¶77} In the next part of the fourth assignment of error, Lipkins complains that the 

trial court erred by admitting video showing him carrying a firearm that matched the 

description of the weapon used in the offense claiming that admission of this prior act was 

prohibited by Evid. R. 404(B) because it only “demonstrates that he had a general 

propensity to carry weapons, and that evidence is specifically prohibited.” (Appellant’s 

Brief, p. 28). Appellee responds that: “The State did not offer the video to show a general 

propensity to carry weapons, but to show that Lipkins had access to a gun like the one 

used in the shooting, shortly before the shooting occurred.” (Appellee’s Brief, p. 23).
Stark County, Case No. 2022CA00053, 2022CA00054 23

{¶78} Lipkins filed a motion in limine to exclude the video, and that motion was 

denied. Lipkins did not then object to the playing of the video before the jury, but instead 

cross examined the witness Appellee used to authenticate the video thus failing to 

preserve the issue in the record The decision on the motion in limine was a “tentative, 

preliminary or presumptive ruling about an evidentiary issue that is anticipated” but we 

need not review the propriety of the order because the claimed error was not preserved 

by a timely objection when the issue was reached during the trial. State v. White (1982), 

6 Ohio App.3d 1, 451 N.E.2d 533 as quoted in State v. Grubb, 28 Ohio St.3d 199, 203, 

503 N.E.2d 142 (1986). The “[f]ailure to object to evidence at the trial constitutes a **147 

waiver of any challenge, regardless of the disposition made for a preliminary motion in 

limine. Evid.R. 103(A)(1); State v. White, supra; Fetzek v. Lafon (December 13, 1979), 

Franklin App. No. 79AP-419, unreported.” State v. Wilson (1982), 8 Ohio App.3d 216, 

220, 456 N.E.2d 1287, as quoted in Grubb, supra at 203.

{¶79} Lipkins has waived the error, leaving nothing for our review. But, even if we 

were to consider the assignment of error, our decision would remain unchanged.

{¶80} The video showing Lipkins in possession of a firearm that matched the 

description of the weapon used in the shooting proves “something other than the 

defendant's disposition to commit certain acts.” State v. Hartman, 161 Ohio St.3d 214, 

2020-Ohio-4440, 161 N.E.3d 651, ¶ 22. It is relevant to a “non-character-based issue that 

is material to the case,” the fact that Lipkins had access to a weapon that matched the 

description of the firearm used in the offense and further serves to support Appellee’s 

contention that he participated in the offense. State v. Smith, 162 Ohio St.3d 353, 2020-

Ohio-4441, 165 N.E.3d 1123 ¶ 38.
Stark County, Case No. 2022CA00053, 2022CA00054 24

{¶81} After reviewing the arguments, we find that the trial court did not err in 

permitting this evidence as “the evidence's value ‘[was not] substantially outweighed by 

the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.’ Evid.R. 

403(A); Hartman at ¶ 29.” Id.

{¶82} Lipkins’ fourth assignment of error is denied.

V.

{¶83} In his fifth assignment of error, Lipkins contends that the trial court 

committed two errors regarding merger of offenses. First, he contends the trial court 

“erred when it sentenced Appellant on the three-year Firearm Specification 

accompanying Count II in Case No. 2021 CR 1715A” because the Trial Court found that 

Count II Felonious Assault in Case No. 2021 CR 1715A, merged with Count I, murder. 

As such, Appellant was not convicted of the offense of Felonious Assault in Count II. See 

R.C. 2941.25(A).” (Appellant’s Brief, p. 29)

{¶84} We addressed an analogous situation in State v. Bollar, 5th Dist. No. 2020 

CA 00077, 2021-Ohio-1578, 172 N.E.3d 499 and concluded that the “the Firearm 

Specifications accompanying the involuntary manslaughter and Felonious Assault were 

not subject to merger pursuant to R.C. 2929.14(B).” State v. Bollar, 5th Dist. No. 2020 CA 

00077, 2021-Ohio-1578, 172 N.E.3d 499, ¶ 29. Recently the Supreme Court of Ohio 

affirmed our opinion in State v. Bollar, 2022-Ohio-4370, 2022 WL 17542971 so Lipkins 

assertion that the merger has an impact on the Firearm Specifications has been rejected 

by this court and the Supreme Court of Ohio.

{¶85} Lipkins also argues that the “Trial Court erred when it did not merge Count 

I and Count II in Case No. 2021CR 2188A with Count I in Case No. 2021 CR 1715A 
Stark County, Case No. 2022CA00053, 2022CA00054 25

because the offenses were allied offenses of similar import within the meaning of R.C. 

2941.25.

{¶86} The indictment makes clear that the offenses involved harm to different 

victims. Count One and Two in Case 2021CR 2188A list N.H. and C.T. as victims of 

Felonious Assault. Count I in Case 2021 CR 1715A is the Murder charge involving J.N. 

as the victim. We need not engage in lengthy analysis as it is clear that these offenses 

are separate and do not merge. “When a defendant's conduct victimizes more than one 

person, the harm for each person is separate and distinct, and therefore, the defendant 

can be convicted of multiple counts.” State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 

34 N.E.3d 892, ¶ 26. See State v. Merritt, 5th Dist. Richland No. 2020 CA 0063, 2021-

Ohio-2847, ¶ 55 appeal not allowed, 165 Ohio St.3d 1480, 2021-Ohio-4289, 177 N.E.3d 

1000, ¶ 55 (Counts one and eight involved different victims from each other and from the 

counts arising from the discovery of the weapons under the mattress. Therefore, the harm 

for A.M. and for W.W. is separate and distinct, and Appellant can be convicted of multiple 

counts.)

{¶87} We find that the record demonstrates that the harm to the victims is 

separate and distinct and that the trial court did not commit plain error by failing to merge 

the offenses.

{¶88} Lipkins’ fifth assignment of error is denied.
Stark County, Case No. 2022CA00053, 2022CA00054 26

{¶89} The decision of the Stark County Court of Common Pleas is affirmed.

By: Baldwin, J.

Gwin, P.J. concur.

Hoffman, J., concurs in part

and dissents in part
Stark County, Case No. 2022CA00053, 2022CA00054 27

Hoffman, J., concurring in part, and dissenting in part 

{¶90} I concur in the majority’s analysis and disposition of Appellant’s 

assignments of error III, IV, and V. I further concur in the majority’s analysis and 

disposition of Appellant’s assignments of error I and II, with the singular exception as to 

its analysis of the weapons under a disability conviction. 

{¶91} The state of Ohio did not move to reopen the trial record to admit the 

exhibits. While Appellant’s counsel stipulated Appellant was the person in those 

convictions, such stipulation went to authentication and identity. That is not the same as 

stipulating to allowing the exhibits to be admitted at this stage of the proceedings as trial 

evidence to establish a necessary element of the offense.

{¶92} I find the evidence produced at trial was insufficient to support Appellant’s 

conviction on the having a weapon under a disability charge and find such amounts to 

plain error.