[Cite as State v. Howard, 2011-Ohio-2862.]

 IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

ANGELO HOWARD, 

 Defendant-Appellant. 

:

: 

: 

: 

: 

APPEAL NO. C-100240 

TRIAL NOS. B-0703493A 

 B-0806325A 

D E C I S I O N.

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, Appellant 

Discharged in Part, and Cause Remanded 

Date of Judgment Entry on Appeal: June 15, 2011 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Philip R. Cummings, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Sarah M. Schregardus, for Defendant-Appellant. 

Please note: This case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS 

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SYLVIA S. HENDON, Judge. 

{¶1} Defendant-appellant Angelo Howard was indicted in the case 

numbered B-0703493A for offenses relating to the murders of Gino Booker and Tim 

Canady. Specifically, Howard was indicted for the aggravated murder and 

aggravated robbery of Gino Booker, the aggravated murder, aggravated robbery, and 

kidnapping of Tim Canady, the aggravated burglary of Krystal White’s residence, the 

aggravated burglary of Sakinah Malik’s residence, the kidnapping of Sakinah Malik, 

and two counts of having a weapon while under a disability. With the exception of 

the charges for having a weapon while under a disability, each offense carried 

weapons specifications. 

{¶2} In the case numbered B-0806325A, Howard was indicted for offenses 

relating to the murders of Kevin Johnson and Kevin Redding. Specifically, Howard 

was charged with the aggravated murder and aggravated robbery of Kevin Johnson, 

the aggravated murder, aggravated robbery, and kidnapping of Kevin Redding, and 

having a weapon while under a disability. Again, with the exception of the charge for 

having a weapon while under a disability, each offense carried weapons 

specifications. 

{¶3} Upon the state’s motion, the indictments in the cases numbered B0703493A and B-0806325A were joined for trial. Following a jury trial, Howard was 

found guilty of all offenses and accompanying specifications in the indictment in the 

case numbered B-0703493A. With respect to the offenses in the indictment in the 

case numbered B-0806325A, Howard was found guilty of the aggravated murder, 

aggravated robbery, and kidnapping of Kevin Redding. But he was acquitted of the 
OHIO FIRST DISTRICT COURT OF APPEALS 

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accompanying specifications for these offenses. He was also acquitted of the 

aggravated murder and aggravated robbery of Kevin Johnson, and of having a 

weapon while under a disability. The trial court then sentenced Howard to an 

aggregate term of 148 years’ to life imprisonment.

{¶4} Howard appeals from these convictions and raises ten assignments of 

error for our review. We address these assignments out of order

Statement of Facts 

{¶5} Howard was found guilty of offenses stemming from his involvement 

in three separate criminal incidents that resulted in the murders of Gino Booker, Tim 

Canady, and Kevin Redding, respectively. The state’s theory of these murders was 

that Howard and a group of accomplices, including Eugene Jackson, Carlos Jackson, 

Andre Thomas, Quinton Gill, Scott McCoy, and Raeshaun Hand, had been “hustling” 

drug dealers. Throughout 2002, this group of men had engaged in the robbery and 

murder of known drug dealers and would then sell the drugs obtained in the 

robberies for profit.

{¶6} We discuss the facts surrounding Howard’s involvement in each 

criminal incident separately. 

1. The Gino Booker Homicide 

{¶7} The evidence presented at trial established that, at approximately 4:30 

in the afternoon on October 16, 2002, Howard and Carlos Jackson had been standing 

outside a housing complex on Walters Ave. in Walnut Hills. They were talking to a 

group of people when Booker approached them and inquired about buying 

marijuana. Booker was not satisfied with the prices he was offered, and he then 
OHIO FIRST DISTRICT COURT OF APPEALS 

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produced his own bag of marijuana. Howard took the bag of marijuana to examine 

and smell. He then “checked” the marijuana, or refused to give it back. Booker 

reached for the marijuana, and Howard displayed his gun. When Booker attempted 

to reach for Howard’s weapon, Howard fired his gun two times, hitting Booker once. 

Howard and Carlos Jackson then fled from the scene, and Booker died from injuries 

caused by the gunshot.

2. The Tim Canady Homicide 

{¶8} On December 14, 2002, Howard, Andre Thomas, and a third 

accomplice had entered the home of Krystal White, Tim Canady’s girlfriend, in the 

middle of the night. The men were armed and wore masks. White and Canady had 

been asleep in White’s bedroom, and various other relatives and friends of White had 

been sleeping throughout the home. Howard and his accomplices dragged Canady 

out of White’s bed and then moved White and the other residents into the dining 

room, where they were restrained and tied up with cords. Canady was questioned by 

the intruders about where he kept his supply of marijuana. 

{¶9} Canady was handcuffed, and White and all the others were barricaded 

in the basement so that they could not escape. Howard and his accomplices then left 

with a beaten and handcuffed Canady in Canady’s truck. After driving around, they 

eventually stopped, at Canady’s direction, at Sakinah Malik’s apartment in Clifton. 

Eugene Jackson remained in the truck with Canady, while Howard and Thomas 

entered Malik’s apartment building. Howard and Thomas encountered Malik in the 

hallway as she was leaving for work. They forced her back into her apartment, placed 

a gun to her head, and demanded to know where “the stuff” was. Malik directed 

them to a duffel bag in her closet that contained Canady’s marijuana. The men then 
OHIO FIRST DISTRICT COURT OF APPEALS 

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restrained Malik with an extension cord and put her in bed. As she struggled to get 

free, she heard a gunshot outside.

{¶10} After returning to Canady’s truck with his bag of marijuana, Howard 

shot the handcuffed Canady in the back of his head two times. 

3. The Kevin Redding Homicide 

{¶11} On August 28, 2002, a group of men shot and killed Kevin Johnson as 

they attempted to rob him. This group included Andre Thomas, Harold Thomas, 

Raeshaun Hand, and Scott McCoy. After murdering Johnson, they found Kevin 

Redding asleep inside the truck that Johnson had abandoned as he fled from his 

assailants. The men drove off with Johnson’s truck, holding Redding captive inside. 

They met Howard at some point shortly thereafter, and the entire group traveled to 

Eugene Jackson’s home in Cheviot.

{¶12} Kevin Redding was taken into the basement of Jackson’s home, where 

he was tied to a beam and beaten severely in an effort by Howard and the other men 

to discern the location of Kevin Johnson’s drug stash. Redding eventually provided 

his attackers with Johnson’s address. Using this information, Howard, Andre 

Thomas, Raeshaun Hand, and Eugene Jackson broke into Johnson’s apartment and 

took drugs and personal items. After returning to Eugene Jackson’s home, the group 

of men determined that Redding needed to be killed to prevent him from talking to 

the police. Howard announced that this crime was not his “baby,” and that he would 

not be the one to kill Redding. Andre and Harold Thomas then took Redding into a 

wooded area in Fairmount, where they shot him. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Joinder 

{¶13} In his first assignment of error, Howard argues that the trial court 

erred in allowing the joinder for trial of all charges in the cases numbered B070493A and B-0806325A. The state had filed a pretrial motion to join all charges 

in these indictments. The trial court granted the state’s motion over Howard’s 

objections. 

{¶14} Generally, a trial court’s decision to join offenses for trial is reviewed 

for an abuse of discretion.1 But here, although Howard properly objected to the 

state’s pretrial motion for joinder, he failed to renew that objection at any point 

during the trial. Howard’s failure to renew his objection resulted in the waiver of any 

issue concerning joinder.2 But because the issue is relevant to Howard’s tenth 

assignment of error regarding ineffective assistance of counsel, we hold that even if 

Howard had preserved his objection, the trial court did not commit an abuse of 

discretion in allowing joinder. 

{¶15} Crim.8(A) governs joinder of offenses. It states that “[t]wo or more 

offenses may be charged in the same indictment * * *[if they] are of the same or 

similar character, or are based on the same act or transaction, or are based on two or 

more acts or transactions connected together or constituting parts of a common 

scheme or plan, or are part of a course of criminal conduct.” And Crim.R. 13 governs 

joinder of indictments. It provides that “[t]he court may order two or more 

indictments or informations or both to be tried together, if the offenses or the 

defendants could have been joined in a single indictment or information. The 

procedure shall be the same as if the prosecution were under such single indictment 

 

1 State v. Torres (1981), 66 Ohio St.2d 340, 343, 421 N.E.2d 1288. 

2 State v. Robertson, 1st Dist. Nos. C-070151 and C-070159, 2008-Ohio-2562, ¶11. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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or information.” Joinder is the rule rather than the exception, and it is favored by 

the law.3

{¶16} Howard bears the burden of demonstrating that he was prejudiced by 

the joinder of these offenses.4 Howard has asserted that joinder was inappropriate 

and prejudicial because, under Evid.R. 404(B), evidence of the crimes stemming 

from each criminal incident would not have been admissible in a separate trial for 

the crimes stemming from a separate criminal incident. Once a defendant has 

asserted a claim of prejudice, the state may rebut the alleged prejudice in two ways.5 

First, the state may demonstrate that the evidence presented for each offense joined 

was simple and direct.6 Or the state may rely on the “other acts” test to rebut 

prejudice. Under this test, offenses are properly joined when the state would have 

been permitted to introduce evidence of one offense in the trial of another. The state 

need only demonstrate that joinder was appropriate under one of these tests.7

{¶17} Here, we are persuaded that under Crim.R. 8(A) the offenses were 

properly joined for trial because each offense was of a same or similar character and 

was part of a course of criminal conduct. All crimes stemmed from Howard and his 

accomplices’ plan to rob known drug dealers at gunpoint and then to sell the drugs 

obtained in the robberies for profit. Admittedly, the crimes against each victim were 

not identical, and each contained their own distinguishing characteristics. But the 

various offenses were committed in a sufficiently similar manner and were so clearly 

part of a course of criminal conduct that it was appropriate to join them for trial. 

 

3 State v. Franklin (1991), 62 Ohio St.3d 118, 122, 580 N.E.2d 1. 

4 State v. Torres, supra, 66 Ohio St.2d at 343. 

5 State v. Franklin, supra, 62 Ohio St.3d at 122. 

6 Id. 

7 Id. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶18} We further conclude that the state has countered Howard’s claim of 

prejudice by demonstrating that each offense in the joined indictments was proved 

by simple and direct evidence. The murder and associated crimes against each 

victim occurred at different times and places. Each was supported by evidence 

independent from the others. The law is clear that “the jury is believed capable of 

segregating the proof on multiple charges when the evidence as to each of the 

charges is uncomplicated.”8 Although this case involved numerous offenses and an 

abundance of evidence, it relied on the type of uncomplicated and simple evidence 

that was capable of being segregated. In fact, the jury’s acquittal of Howard on all 

offenses relating to Kevin Johnson demonstrates that the jury was capable of, and 

did, separate the evidence relating to each offense.

{¶19} The trial court did not abuse its discretion in joining all offenses in one 

trial. The first assignment of error is overruled.

Sufficiency, Weight, and Rule 29 

{¶20} In his third assignment of error, Howard argues that his convictions 

were not supported by sufficient evidence. In his fourth assignment of error he 

argues that his convictions were against the manifest weight of the evidence. And in 

his fifth assignment of error, Howard argues that the trial court erred in denying his 

Crim.R. 29 motion for an acquittal on all offenses.

{¶21} We first address whether Howard’s various convictions were 

supported by sufficient evidence. When reviewing the sufficiency of the evidence, 

this court is not permitted to weigh the evidence.9 We must review the record and 

 

8 State v. Torres, supra, 66 Ohio St.2d at 343. 

9 State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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determine whether, upon viewing all evidence and reasonable inferences in the light 

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

elements of the offenses proved beyond a reasonable doubt.10 We employ the same 

standard to determine whether the trial court properly denied a Crim.R. 29 motion 

for an acquittal.11

{¶22} To facilitate our analysis, we address the offenses stemming from each 

criminal incident separately. We begin with the incident culminating in the murder 

of Kevin Redding. As we have stated, Howard was found guilty of the aggravated 

robbery, aggravated murder, and kidnapping of Kevin Redding. 

{¶23} R.C. 2911.01(A) governs the offense of aggravated robbery. This 

statute provides in relevant part that “[n]o person, in attempting or committing a 

theft offense * * *, or in fleeing immediately after the attempt or offense, shall * * * 

[h]ave a deadly weapon on or about the offender’s person or under the offender’s 

control and either display the weapon, brandish it, indicate that the offender 

possesses it, or use it.” With respect to this offense, the jury was specifically 

instructed that before it could find Howard guilty of aggravated robbery, it was 

required to find beyond a reasonable doubt that Howard “in purposely committing 

or attempting to commit a theft offense, as defined in Section 2913.01 of the Ohio 

Revised Code, to wit, knowingly obtained or attempted to obtain personal property 

or United States currency of Kevin Redding * * * had a deadly weapon on or about 

his person * * *.” Howard’s indictment for this offense was in accord with the jury 

instruction and referred to the theft of personal property or currency from Kevin 

Redding.

 

10 Id. 

11 State v. Jordan, 167 Ohio App.3d 157, 2006-Ohio-2759, 854 N.E.2d 520, ¶49. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶24} The state presented testimony from two witnesses, Howard’s codefendants Eugene Jackson and Carlos Jackson, to establish Howard’s role in 

Redding’s murder. Eugene Jackson testified that he was called by Raeshaun Hand 

and told to come to Jackson’s residence in Cheviot. When Jackson arrived, he found 

Redding tied to a beam and being beaten by Howard and Andre Thomas in an effort 

to obtain the location of Kevin Johnson’s drugs. Redding eventually revealed this 

location, and Howard and his accomplices looted Johnson’s home while Redding 

remained bound in Jackson’s basement. The men later determined that Redding 

needed to be killed to prevent his identification of his assailants. Howard announced 

that he would not kill Redding, but would leave that task up to one of his 

accomplices. Redding was then murdered by Andre Thomas and Howard Thomas.

{¶25} Carlos Jackson’s testimony was largely in line with that given by 

Eugene Jackson. He had not been present for any of the offenses committed against 

Redding, but had been informed about the crimes the following day. Carlos Jackson 

testified that Redding had been found asleep in Kevin Johnson’s truck following 

Johnson’s murder. Redding was then taken to Eugene Jackson’s home, where his 

assailants, including Howard, interrogated him to obtain the location of Johnson’s 

drugs. Once Johnson’s address was obtained, his home was robbed. According to 

Carlos Jackson, Andre Thomas then killed Redding after Howard announced that he 

would not commit the murder.

{¶26} Following our review of the record, we are constrained to conclude 

that Howard’s conviction for the aggravated robbery of Kevin Redding was not 

supported by sufficient evidence. The record contains no evidence that either 

Howard or his accomplices took any personal property or currency from Kevin 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Redding. The men restrained Redding, beat him, and later murdered him. But no 

witness provided any testimony concerning an actual robbery of Kevin Redding. 

Arguably, Howard and his accomplices attempted to take from Redding his 

knowledge of Johnson’s address and the location of Johnson’s drugs. But we need 

not consider whether the theft of such knowledge or information would be sufficient 

as a “theft offense” to maintain a conviction for aggravated robbery under R.C. 

2911.01 because both Howard’s indictment for this offense and the relevant jury 

instruction referred to the theft of “personal property or United States currency of 

Kevin Redding.” Because the record contains no evidence of such a theft from 

Redding, we hold that Howard’s conviction for the aggravated robbery of Redding 

was not supported by sufficient evidence.

{¶27} Our determination with respect to the offense of aggravated robbery 

leads us to conclude that Howard’s convictions for the aggravated murder and the 

kidnapping of Kevin Redding were also supported by insufficient evidence. Howard 

was found guilty of aggravated murder under R.C. 2903.01(B). This statute provides 

that “[n]o person shall purposely cause the death of another * * * while committing 

or attempting to commit * * * kidnapping, rape, aggravated arson, arson, aggravated 

robbery, robbery, aggravated burglary, burglary, terrorism, or escape.” In this case, 

the jury was instructed that it had to find that Howard had purposely caused the 

death of Redding while committing the offense of aggravated robbery, which was 

defined as the theft of personal property or currency from Kevin Redding. Howard 

was additionally convicted of kidnapping pursuant to R.C. 2905.01(A)(2). This 

statute provides that “[n]o person, by force, threat, or deception * * * shall remove 

another from the place where the other person is found or restrain the liberty of the 
OHIO FIRST DISTRICT COURT OF APPEALS 

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other person * * * to facilitate the commission of any felony or flight thereafter.” The 

jury was instructed that, in this case, the felony at issue was aggravated robbery, 

which had previously been defined as the theft of personal property or currency of 

Kevin Redding.

{¶28} Howard’s convictions for the aggravated murder and kidnapping of 

Redding were contingent upon his commission of the aggravated robbery of 

Redding. And because we have concluded that the record does not contain sufficient 

evidence to support a conviction for the aggravated robbery, we must also conclude 

that there was insufficient evidence to support Howard’s conviction for these two 

additional offenses. 

{¶29} We now consider whether Howard’s convictions stemming from the 

criminal incident culminating in the homicide of Gino Booker were supported by 

sufficient evidence. Howard was found guilty of the aggravated murder and 

aggravated robbery of Gino Booker and of having a weapon while under a disability. 

{¶30} The jury was instructed that, to find Howard guilty of the aggravated 

robbery of Gino Booker, it had to find beyond a reasonable doubt that, in committing 

the theft of marijuana from Booker, Howard had a deadly weapon on or about his 

person and had displayed that weapon. And to find Howard guilty of the aggravated 

murder of Booker, the jury was instructed that it had to find that Howard had 

purposely caused the death of Booker while committing the offense of aggravated 

robbery, which was defined as the theft of marijuana from Booker. 

{¶31} Carlos Jackson testified that Howard shot Booker after Booker had 

attempted to retrieve marijuana that Howard had taken from him. And Eugene 

Jackson witnessed Howard reveal a gun, heard two gunshots, and saw Booker 
OHIO FIRST DISTRICT COURT OF APPEALS 

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collapse. Viewing this evidence and all the other evidence adduced at trial in the 

light most favorable to the state, we conclude that the state presented sufficient 

evidence to support Howard’s convictions for both the aggravated robbery of Booker 

pursuant to R.C. 2911.01(A)(1) and the aggravated murder of Booker pursuant to 

R.C. 2903.01(B).

{¶32} Howard was additionally found guilty of having a weapon while under 

a disability, which is governed by R.C. 2923.13. R.C. 2923.13(A)(3) states that 

“[u]nless relieved from disability * * *, no person shall knowingly acquire, have, 

carry, or use any firearm or dangerous ordnance, if [t]he person is under indictment 

for or has been convicted of any offense involving the illegal possession, use, sale, 

administration, distribution, or trafficking in any drug of abuse.” Howard had 

stipulated that he been convicted of drug abuse and had not been relieved from that 

disability. His conviction for having a weapon while under a disability was supported 

by sufficient evidence. 

{¶33} We now turn to Howard’s convictions stemming from the criminal 

incident that culminated in the homicide of Tim Canady. As we have stated, Howard 

was found guilty of the aggravated murder, aggravated robbery, and kidnapping of 

Canady, the aggravated burglary of Krystal White’s residence, the aggravated 

kidnapping of Sakinah Malik, the aggravated burglary of Malik’s residence, and 

having a weapon while under a disability. 

{¶34} We have previously defined these offenses, with the exception of 

aggravated burglary. The aggravated-burglary charges in this case were governed by 

R.C. 2911.11(A)(2), which provides in relevant part that “[n]o person, by force, 

stealth, or deception, shall trespass in an occupied structure * * * when another 
OHIO FIRST DISTRICT COURT OF APPEALS 

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person other than an accomplice of the offender is present, with purpose to commit 

in the structure * * * any criminal offense * * * if [t]he offender has a deadly weapon 

or dangerous ordnance on or about the offender’s person or under the offender’s 

control.” 

{¶35} With respect to the offense of aggravated murder, the jury was 

instructed that, to find Howard guilty of this offense, it had to find beyond a 

reasonable doubt that Howard had purposely caused the death of Canady while 

committing the offense of aggravated robbery and/or kidnapping. Aggravated 

robbery was defined in relevant part as the theft of marijuana from Tim Canady. 

And kidnapping was defined as the removal or restraint of Canady for the purpose of 

committing aggravated robbery. These definitions applied to each of the charged 

offenses stemming from this criminal incident, with the exception of the kidnapping 

charge relating to Sakinah Malik. That offense charged that Howard had removed or 

restrained Malik for the purpose of committing aggravated robbery, which was also 

defined in relevant part as the theft of marijuana from Canady. 

{¶36} Carlos Jackson testified that Howard had entered White’s residence 

without permission, had restrained the home’s occupants with cords, had handcuffed 

Canady and driven him around the area in his van, and had shot him in the head 

after taking his marijuana. Sakinah Malik testified that two armed men had forced 

their way into her apartment, restrained her with a phone cord, and taken Canady’s 

supply of marijuana. Eugene Jackson corroborated this testimony, stating that an 

armed Howard had taken Canady’s supply of marijuana and shot Canady in the 

head. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶37} Viewing this evidence in the light most favorable to the prosecution, 

we hold that it was sufficient to support Howard’s convictions stemming from this 

criminal incident. 

{¶38} In summary, we conclude that Howard’s convictions for the 

aggravated murder, aggravated robbery, and kidnapping of Kevin Redding were not 

supported by sufficient evidence and must be reversed. But the record contains 

sufficient evidence to support the remainder of Howard’s convictions. The third and 

fifth assignments of error are sustained in part and overruled in part. 

{¶39} We now consider Howard’s argument that these remaining convictions 

were against the manifest weight of the evidence. When reviewing the weight of the 

evidence, this court must review the entire record, weigh the evidence, and consider 

the credibility of the witnesses to determine if the trier of fact lost its way and created 

a manifest miscarriage of justice in finding the defendant guilty.12 

{¶40} To support his argument, Howard has noted the suspect nature of the 

testimony offered by Eugene Jackson and Carlos Jackson and has pointed out 

contradictions in these witnesses’ testimony. We have reviewed the testimony of 

each witness in detail. And although the testimony of each witness is contradictory 

on particular details, their testimony is largely in harmony concerning Howard’s role 

in each of these offenses. The jury was in the best position to judge the credibility of 

the witnesses. It was aware of the benefits that both Eugene Jackson and Carlos 

Jackson were receiving in return for their testimony, and it was instructed to 

consider their testimony with heightened scrutiny. We cannot conclude that the jury 

 

12 State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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lost its way and created a manifest miscarriage of justice in finding Howard guilty of 

these offenses. Accordingly, we overrule Howard’s fourth assignment of error. 

Reliability Hearing 

{¶41} In his seventh assignment of error, Howard argues that the trial court 

erred in overruling his motion to exclude the testimony of his codefendants and his 

request for the trial court to conduct a reliability hearing to evaluate their testimony. 

{¶42} Howard’s codefendants Eugene and Carlos Jackson were the state’s 

primary witnesses in the case against him. Howard asserts that the testimony of 

these witnesses was highly suspect because of the sentencing considerations that 

they were provided in exchange for their testimony. Howard argues that their 

testimony should have been excluded in its entirety or, at the very least, that the trial 

court should have conducted a hearing to evaluate its reliability.

{¶43} Howard has not provided any case law from Ohio in support of his 

assertion, but instead relies on several federal cases as well as Evid.R. 403 and 104. 

Evid.R. 403(A) provides that evidence is inadmissible if its probative value is 

outweighed by its prejudicial effect. And Evid.R. 104 provides that a trial court shall 

consider preliminary questions regarding the qualifications of a witness. 

{¶44} This court has considered a nearly identical argument in State v. 

McCoy.13 Notably, McCoy was a codefendant of Howard’s and was found guilty of 

the aggravated murder and aggravated robbery of Kevin Johnson, as well as the 

aggravated robbery of Kevin Redding. In McCoy, this court rejected the suggestion 

that the testimony from a “cooperating witness,” or codefendant, was unreliable as a 

 

13 State v. McCoy, 1st Dist. No. C-090599, 2010-Ohio-5810. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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matter of law.14 We recognized the procedural safeguards that should be present 

when a codefendant testifies, specifically that the jury be informed of the 

codefendant’s plea agreement, that the testifying codefendant be subject to crossexamination, and that the jury be instructed to weigh the codefendant’s testimony 

with care.15 

{¶45} Applying these safeguards, the McCoy court held that the trial court 

was not required to hold a reliability hearing to evaluate the testimony of cooperating 

witnesses in that case, and that the credibility of such witnesses had been for the jury 

to decide.16 

{¶46} We find that the procedural safeguards recognized by the McCoy court 

were also present in this case. Both Eugene Jackson and Carlos Jackson were 

vigorously questioned about the sentencing considerations that they had received in 

exchange for their testimony. Their plea agreements were available to Howard. And 

the jury was instructed to evaluate the testimony of these witnesses with heightened 

scrutiny and caution. We conclude that the credibility of these witnesses was for the 

jury to determine. The trial court did not err in failing to conduct a reliability 

hearing or in failing to exclude the testimony offered by these witnesses. The seventh 

assignment of error is overruled.

Allied Offenses of Similar Import 

{¶47} In his second assignment of error, Howard argues that the trial court 

erred by sentencing him on allied offenses of similar import that were subject to 

merger pursuant to R.C. 2941.25. 

 

14 Id. at ¶20. 

15 Id. at ¶18, citing United States v. Dailey (C.A.1, 1985), 759 F.2d 192, 196. 

16 Id. at ¶22. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶48} Under R.C. 2941.25, Ohio’s multiple-count statute, a trial court may 

convict and sentence a defendant for two or more offenses “ ‘having as their genesis 

the same criminal conduct or transaction,’ ” if the offenses (1) were not allied 

offenses of similar import, (2) were committed separately, or (3) were committed 

with a separate animus as to each offense.17

{¶49} The Ohio Supreme Court recently changed the analysis to be applied in 

allied-offense cases in State v. Johnson.

18 In Johnson, the court abandoned the 

previous test established in State v. Rance19 that required courts to compare 

elements of the offenses in the abstract. The court overruled Rance and held that 

“[w]hen determining whether two offenses are allied offenses of similar import 

subject to merger under R.C. 2941.25, the conduct of the accused must be 

considered.”20 Following Johnson, if the evidence presented at trial reveals that the 

state relied upon the same conduct to support both offenses, and that the offenses 

were neither committed separately nor with a separate animus as to each, then the 

defendant is afforded the protection of R.C. 2941.25, and the trial court errs in 

imposing separate sentences for both offenses.21 

{¶50} In this case, Howard argues that the offenses of aggravated murder, 

aggravated robbery, and kidnapping were allied offenses of similar import subject to 

merger. R.C. 2903.01 governs the offense of aggravated murder. As relevant to this 

case, R.C. 2903.01(B) provides that “[n]o person shall purposely cause the death of 

 

17 State v. Bickerstaff (1984), 10 Ohio St.3d 62, 65-66, 461 N.E.2d 892, quoting State v. Moss 

(1982), 69 Ohio St.2d 515, 519, 433 N.E.2d 181. See, also, State v. Johnson, 128 Ohio St.3d 153, 

2010-Ohio-6314, 942 N.E.2d 1061, ¶51, and State v. Evans, 1st Dist. No. C-100028, 2011-Ohio2356. 

18 State v. Johnson, supra, 2010-Ohio-6314. 

19 State v. Rance, 85 Ohio St.3d 632, 1999-Ohio-291, 710 N.E.2d 699. 

20 State v. Johnson, supra, syllabus. 

21 Id. at ¶51; R.C. 2941.25. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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another * * * while committing or attempting to commit * * * kidnapping, rape, 

aggravated arson, arson, aggravated robbery, robbery, aggravated burglary, burglary, 

terrorism, or escape.”

{¶51} R.C. 2911.01 governs the offense of aggravated robbery. R.C. 

2911.01(A)(1) provides that “[n]o person, in attempting or committing a theft 

offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately 

after the attempt or offense, shall [h]ave a deadly weapon on or about the offender’s 

person.” The kidnapping offenses in this case were governed by R.C. 2905.01(A)(2). 

This statute provides that [n]o person by force, threat, or deception * * * shall 

remove another from the place where the other is found or restrain the liberty of the 

other person * * * [t]o facilitate the commission of any felony or flight thereafter.”

{¶52} We first consider the offenses of aggravated murder and aggravated 

robbery. Howard argues that these offenses are subject to merger as they relate to 

his convictions for offenses against both Gino Booker and Tim Canady. Prior to 

Johnson, the law was well settled that aggravated felony murder was not an allied 

offense of similar import to the underlying charged felony.22 But following Johnson, 

courts must now reconsider this issue. 

{¶53} We first examine Howard’s convictions with respect to Gino Booker. 

The record indicates that Howard had taken Booker’s marijuana, refused to return it, 

and brandished a gun in response to Booker’s efforts to retrieve the drugs. Unable to 

recover his drugs, Booker reached for the gun and was shot by Howard. We 

determine that Howard’s convictions for the aggravated murder and the aggravated 

robbery of Gino Booker were not subject to merger pursuant to R.C. 2941.25(B) 

 

22 See State v. McCoy, supra, 2010-Ohio-5810, at ¶62. See, also, State v. Keene, 81 Ohio St.3d 

646, 668, 1998-Ohio-342, 693 N.E.2d 246. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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because, despite the close temporal connection, they were committed separately and 

with a separate animus.

{¶54} The aggravated robbery of Howard was complete when an armed 

Howard took Booker’s drugs and refused to return them. Following the completion 

of the robbery, Howard then shot Booker. These offenses were committed 

separately. 

{¶55} With respect to animus, we note that aggravated murder requires 

proof of the specific purpose to kill.23 After robbing Booker, Howard purposefully 

chose to kill him. The murder was in fact so unnecessary for the robbery itself that it 

demonstrated a significant independence from that robbery.24 Here, Howard’s 

actions evinced a separate animus for the aggravated murder, namely a specific 

purpose to kill that was not present for the commission of aggravated robbery. We 

accordingly conclude that Howard’s convictions for the aggravated murder and 

aggravated robbery of Gino Booker were separately punishable under R.C. 

2941.25(B).

{¶56} We now consider Howard’s convictions for the aggravated murder and 

the aggravated robbery of Tim Canady. We determine that these offenses were 

clearly committed as separate acts and that the state did not rely on the same 

conduct to prove each of these offenses. Howard committed aggravated robbery by 

taking Canady’s marijuana from Sakinah Malik’s apartment. Canady was not present 

for the robbery. Howard then returned to the location where he had kept Canady 

restrained, and he purposely murdered Canady. As these offenses were committed 

separately, the trial court properly imposed a sentence for each offense.

 

23 See R.C. 2903.01(B). 

24 See State v. Shields, 1st Dist. No. C-100362, 2011-Ohio-1912, ¶19. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶57} We next consider whether the offenses of aggravated murder and 

kidnapping committed against Tim Canady were allied offenses of similar import. 

And because these offenses were committed with a separate animus, they were not 

subject to merger. In State v. Logan, the Ohio Supreme Court established guidelines 

to determine whether the offense of kidnapping and a separate offense were 

committed with the same animus.25 The Logan court held that “[w]here the restraint 

or movement of the victim is merely incidental to a separate underlying crime, 

there exists no separate animus sufficient to sustain separate convictions; however, 

where the restraint is prolonged, the confinement is secretive, or the movement is 

substantial so as to demonstrate a significance independent of the other offense, 

there exists a separate animus as to each offense sufficient to support separate 

convictions.”26

{¶58} In this case, Howard handcuffed Canady, removed him from Krystal 

White’s home against his will, confined him to a van, and drove him around for a 

substantial period of time. Howard kept Canady restrained while he committed the 

aggravated robbery of Canady’s marijuana. Only after this aggravated robbery was 

committed did Howard murder Canady. Clearly, the restraint of Canady was 

prolonged and substantial, and was not merely incidental to the aggravated murder. 

As these offenses were committed with a separate animus, the trial court properly 

imposed a sentence for each offense.

{¶59} Last, we consider whether aggravated robbery and kidnapping were 

allied offenses of similar import. Howard raises this argument with respect to crimes 

committed against Tim Canady. As we have stated, the kidnapping of Canady was 

 

25 State v. Logan (1979), 60 Ohio St.2d 126, 397 N.E.2d 1345, syllabus. 

26 Id. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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substantial and prolonged. It continued for a lengthy period of time before the 

aggravated robbery was committed, and it was not merely incidental to the 

aggravated robbery. We determine that these offenses were committed with a 

separate animus and were not subject to merger pursuant to R.C. 2941.25(B). 

{¶60} In summary, the trial court properly imposed sentence on all offenses, 

and none of Howard’s convictions involved allied offenses of similar import subject 

to merger pursuant to R.C. 2941.25. The second assignment of error is accordingly 

overruled.27 

Sentencing 

{¶61} In his sixth assignment of error, Howard argues that the sentence 

imposed by the trial court was excessive because it included maximum, consecutive 

sentences for all offenses, resulting in an aggregate sentence of 148 years’ to life 

imprisonment. We disagree. When reviewing a sentence, an appellate court must 

first determine whether the sentences imposed were clearly and convincingly 

contrary to law.28 If they were not contrary to law, the reviewing court must then 

determine whether the trial court abused its discretion in imposing the sentences.29

{¶62} Here, the sentences imposed fell within the available sentencing 

ranges and were not clearly and convincingly contrary to law. Nor did the trial court 

abuse its discretion when imposing the sentences. Howard went on a crime spree 

 

27 In his appellate brief, Howard argues that his convictions for the aggravated robbery and the 

kidnapping of Sakinah Malik involved allied offenses of similar import. But Howard was not 

convicted of the aggravated robbery of Sakinah Malik, so we do not address this argument. 

Howard further argues that his convictions for the aggravated murder, aggravated robbery, and 

kidnapping of Kevin Redding involved allied offenses of similar import. But our conclusion that 

his convictions for these offenses were not supported by sufficient evidence has mooted Howard’s 

argument with respect to allied offenses. 

28 State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. 

29 Id. at ¶14-17. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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resulting in the murder, robbery, and kidnapping of multiple victims. Howard 

committed vicious crimes and showed little remorse. 

{¶63} Howard further argues that the imposition of consecutive sentences 

was improper under the Ohio Supreme Court’s decision in Oregon v. Ice.30 But in 

State v. Hodge, the Ohio Supreme Court recently considered the effect of Ice on 

Ohio’s sentencing laws, and it rejected the argument raised by Howard in this case.31 

In Hodge, the court stated that “[t]he United States Supreme Court's decision in 

Oregon v. Ice * * * does not revive Ohio's former consecutive-sentencing statutory 

provisions, R.C. 2929.14(E)(4) and 2929.41(A), which were held unconstitutional in 

State v. Foster.”32 Trial courts need not engage in judicial fact-finding before 

imposing consecutive sentences.33 Howard’s argument is without merit, and his 

sixth assignment of error is overruled. 

{¶64} In his eighth assignment of error, Howard argues that the trial court’s 

sentencing entry was erroneous, as it stated that he was required to pay court costs 

when the court had explicitly waived those costs at the sentencing hearing. 

{¶65} Howard correctly argues that, despite its oral waiver of court costs at 

the sentencing hearing, the trial court nonetheless imposed court costs upon him in 

its sentencing entry. The state concedes this error. Accordingly, Howard’s eighth 

assignment of error is sustained. Upon remand, the trial court shall correct its 

sentencing entry to reflect that court costs have been waived.

 

30 (2009), 555 U.S. 160, 129 S.Ct. 711. 

31 State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768. 

32 Id. at paragraph two of the syllabus. 

33 Id. at paragraph three of the syllabus. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Motion in Limine 

{¶66} In his ninth assignment of error, Howard argues that the trial court 

erred in not granting his motion in limine to exclude the testimony of codefendant 

Carlos Jackson as hearsay. But prior to Jackson’s testimony in a videotaped 

deposition being played for the jury, Howard withdrew his motion. Consequently, 

the trial court never formally ruled on the motion. 

{¶67} Case law is clear that, with respect to motions in limine, “[a]n appellate 

court need not review the propriety of such an order unless the claimed error is 

preserved by a timely objection when the issue is actually reached during trial.”34 

Here, Howard has failed to preserve this alleged error with a timely objection. In 

fact, Howard appears to have abandoned his argument altogether by withdrawing his 

motion in limine prior to the trial court issuing a formal ruling on the merits. The 

ninth assignment of error is overruled.

Ineffective Assistance of Counsel 

{¶68} In his tenth assignment of error, Howard argues that he received 

ineffective assistance from his trial counsel. To demonstrate ineffective assistance, a 

defendant must show both that his counsel’s performance was deficient, and that the 

defendant was prejudiced by this deficient performance.35 Counsel will only be 

considered deficient if his or her conduct is deemed to have fallen below an objective 

standard of reasonableness.36 To establish prejudice, the defendant must show that, 

but for counsel’s performance, the outcome of the proceedings would have been 

 

34 State v. Kuehne (Mar. 6, 1996), 1st Dist. No. C-940971, quoting State v. Grubb (1986), 28 Ohio 

St.3d 199, 203, 503 N.E.2d 142. 

35 Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052. 

36 Id. at 688. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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different.37 When reviewing counsel’s performance, this court is highly deferential, 

and we begin with the presumption that counsel’s performance was reasonable.38

{¶69} Howard first argues that his counsel was ineffective for failing to 

renew his motion for relief from prejudicial joinder during the trial. But given our 

conclusion that joinder was appropriate, we hold that Howard was in no manner 

prejudiced by his counsel’s failure to renew this motion during the trial. 

{¶70} Howard next argues that his counsel was ineffective for failing to 

object to the state’s violation of Crim.R. 16. Howard asserts that the state violated 

Crim.R. 16 by failing to produce the plea agreements of Eugene and Carlos Jackson 

prior to trial, instead waiting to disclose these agreements during the trial. We are 

not persuaded by Howard’s assertion that the state violated Crim.R. 16. Further, we 

hold that Howard was not prejudiced by his counsel’s failure to obtain these plea 

agreements at an earlier date. Both Eugene Jackson and Carlos Jackson were 

thoroughly questioned during trial regarding the content of their plea agreements 

and the potential benefits that they would receive by testifying against Howard. The 

jury was able to consider such information when weighing the credibility of these 

witnesses.

{¶71} Last, Howard argues that his counsel was ineffective for failing to 

object to the admission of a firearm that was allegedly used in the murder of Gino 

Booker. During trial, the state admitted into evidence a nine-millimeter gun that was 

found near the Booker murder scene. The state additionally admitted into evidence 

shell casings from a nine-millimeter gun that were found at the scene. And the state 

presented testimony from a firearms examiner that these casings came from the 

 

37 Id. at 694. 

38 Id. at 689. 
OHIO FIRST DISTRICT COURT OF APPEALS 

26

nine-millimeter gun. This evidence was relevant to the state’s case, and counsel was 

not deficient for failing to object to its admission.

{¶72} The tenth assignment of error is overruled. 

Conclusion 

{¶73} Howard’s convictions for the aggravated murder, aggravated robbery, 

and kidnapping of Kevin Redding are not supported by sufficient evidence and are 

accordingly reversed. Howard is discharged from further prosecution for these 

offenses. This case is remanded for the trial court to correct its sentencing entry to 

reflect that court costs have been waived. The judgment of the trial court is affirmed 

in all other respects. 

Judgment accordingly. 

SUNDERMANN, P.J., concurs. 

CUNNINGHAM, J., concurs in judgment only.

Please Note: 

 The court has recorded its own entry on the date of the release of this decision.