[Cite as State v. Shepard, 2021-Ohio-964.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

MARLON SHEPARD, 

 Defendant-Appellant. 

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: 

: 

: 

: 

APPEAL NO. C-190747 

TRIAL NO. B-1702355 

 O P I N I O N.

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

Judgment Appealed From Is: Affirmed 

Date of Judgment Entry on Appeal: March 26, 2021 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Alex Scott Havlin, 

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Timothy J. McKenna, for Defendant-Appellant. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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MYERS, Judge. 

{¶1} Defendant-appellant Marlon Shepard appeals the trial court’s 

judgment convicting him of aggravated murder, felonious assault, aggravated 

burglary, and two counts of kidnapping, and sentencing him to an aggregate 

sentence of 36 years to life imprisonment. 

{¶2} In five assignments of error, Shepard argues that the trial court abused 

its discretion in allowing prejudicial evidence of prior unrelated bad acts to be 

admitted at trial, that the trial court erred in failing to merge allied offenses of 

similar import, that his convictions were not supported by sufficient evidence and 

were against the manifest weight of the evidence, and that he received ineffective 

assistance from his trial counsel. Finding no merit to Shepard’s arguments, we 

affirm the trial court’s judgment. 

Factual and Procedural Background 

{¶3} On July 19, 2013, Brandon Simms, Lateesha Wright, and their young 

daughter were accosted in their garage by two assailants. They were held at 

gunpoint, their home was robbed, and both Simms and Wright were shot. Simms 

died from his injuries. 

{¶4} For a lengthy period of time these crimes remained unsolved. But 

eventually Shepard and his half-brother Brandon Harris were identified as suspects. 

For his role in these offenses, Shepard was indicted on May 10, 2017, for aggravated 

murder, two counts of murder, aggravated robbery, two counts of felonious assault, 

two counts of kidnapping, and aggravated burglary. Each count carried an 

accompanying firearm specification. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶5} Prior to trial, the state filed a notice of intention to use evidence of 

other robberies committed by Shepard and Harris pursuant to Evid.R. 404(B) and 

R.C. 2945.59. It argued that evidence of the other robberies was relevant to 

establishing Shepard’s identity and motive. Following a hearing, the trial court held 

that the other-acts evidence was admissible because there was substantial proof that 

Shepard committed the other acts and because the evidence assisted in establishing 

Shepard’s identity and motive in the present case. 

{¶6} The case was tried to the bench. 

1. Testimony Concerning the Charged Offenses 

{¶7} Lateesha Wright testified that on July 19, 2013, she, Simms, and their 

daughter returned to their home in Woodlawn around 10:00 p.m. Simms pulled 

their car into the garage, but before the three could exit from their vehicle, both the 

driver’s door and the front passenger’s door were opened from the outside by two 

assailants. Simms was startled when the doors were opened. A shot was fired into 

the car and the bullet hit Simms. Although Wright did not realize it at the time, the 

bullet traveled through Simms and lodged in her shoulder. Simms later died from 

his injuries. 

{¶8} The assailants demanded that Simms and Wright hand over their keys, 

phones, and money. They took two cell phones from the car, as well as Wright’s 

engagement ring and money from Simms’s pocket. The assailant on Simms’s side of 

the vehicle, who had fired the shot, remained in the garage and held them at 

gunpoint while the other assailant went into their home. Wright later heard the 

gunman tell the second assailant to “go get the car,” and she heard what she believed 

to be a small car pulling up their driveway. The assailants left, and after waiting a 
OHIO FIRST DISTRICT COURT OF APPEALS 

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few seconds, Wright and her daughter ran to a neighbor for help. Wright later 

discovered that her home was ransacked and that multiple items were taken, 

including clothing, shoes, purses, jewelry, a video game system, and a television. 

{¶9} Wright testified that both assailants were African American. She 

described the gunman who had shot Simms as “a brown skin black man” and stated 

that he wore a hooded sweatshirt that was either red and blue or red and black. That 

gunman had a winter glove on one hand and a clear latex glove on the other. He 

wore a hood over his head and a white t-shirt tied around his face. Wright explained 

that the second assailant had darker skin and carried what she characterized as a 

“hatchet,” or a knife with a wooden handle. 

{¶10} Woodlawn Assistant Police Chief Don Fourth testified that Woodlawn 

requested assistance with the investigation of these crimes from the Bureau of 

Criminal Investigation (“BCI”). While BCI agents handled the bulk of the 

investigation, Assistant Chief Fourth tracked the stolen cell phones, which were 

found discarded in locations not far from the crime scene. 

{¶11} BCI Special Agent Seth Hagaman assisted Woodlawn police in the 

investigation, but struggled to develop any leads. In August of 2014, he received a tip 

from Antonio Gray, an inmate in the Hamilton County Justice Center, who came 

forward with information on Simms’s murder that he claimed he received from 

Brandon Harris. Agent Hagaman interviewed Gray, and then later fitted him with a 

recording device on four separate occasions to record conversations with Harris in 

the Justice Center. He also developed a list of potential suspects, including Shepard, 

Harris, Renay Johnson, and Ellonzo Martin. 
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{¶12} Agent Hagaman interviewed Shepard about Simms’s murder, but 

Shepard denied involvement. Shepard did discuss other robberies that Agent 

Hagaman questioned him about and admitted that he was responsible for selecting 

the targets of those robberies. Shepard explained the efforts he took to disguise his 

identity, stating that he would wear long sleeves to cover his tattoos and a white tshirt over his face. 

{¶13} Brandon Harris, Shepard’s half-brother, admitted to his role in the 

murder of Simms and the robbery. He further testified as to Shepard’s involvement 

in the crimes. Harris testified that Shepard selected Simms and Wright’s home as 

their robbery target because he believed it would contain money and drugs. Harris 

and Shepard received no answer after knocking on the door, so they waited behind 

the home for the residents to return. A third person—who Harris claimed not to 

know—served as their driver and waited in a car nearby. When Simms and Wright 

eventually returned home, Harris and Shepard followed them into the garage. 

Shepard was armed with a gun, and Harris carried a knife. According to Harris, he 

wore a dark hooded sweatshirt, while Shepard wore a red hooded sweatshirt. They 

both wore the hoods over their heads, gloves, and covered their faces with a t-shirt. 

{¶14} After the residents pulled into the garage, Shepard opened the driver’s 

door and fired a shot into the vehicle. Harris opened the front passenger’s door and 

obtained keys to the house from Wright’s purse. He ransacked the home for drugs 

and money, but was unable to find either, and ultimately took various other items, 

including a television and clothing. Harris and Shepard were picked up by their 

getaway driver, who then dropped Shepard off at Little Caesars. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶15} Harris testified that he was arrested for his role in several other 

robberies, and that while housed in the Hamilton County Justice Center, he confided 

to fellow inmate Antonio Gray about the offenses in this case. He told Gray that 

Shepard fired the gun and later discarded that weapon in a river. Harris 

acknowledged that in return for his testimony against Shepard, he struck a deal to 

plead to the offense of manslaughter and receive a 20-year prison sentence for his 

role in these offenses. This sentence would be served concurrently to the sentences 

he received for his role in several other robberies. 

{¶16} Donovan Clark testified that he was housed with Shepard in the 

Hamilton County Justice Center in both 2015 and 2017. The two talked during 

recreational time, and Shepard confided in Clark that his brother was trying to “sink 

him for a murder.” Shepard told Clark that he and Harris had been ready to “hit a 

lick,” and that Shepard “upped a pistol” and shot one of the victims after following 

him into a garage. Shepard wanted Clark’s help in “flipping the situation” on Harris. 

{¶17} William Wietmarschen, an assistant office manager in the Hamilton 

County Sheriff’s Department, testified that he was responsible for determining where 

inmates are housed when they are in the Justice Center. Wietmarschen verified that 

Shepard and Donovan Clark were both jailed in the Justice Center at the same time 

for a period of time in 2014, 2015, and 2017. 

{¶18} Kara Hayes testified that in July of 2013, she was a store manager at 

Little Caesars in Woodlawn. As part of her duties, she was in charge of other 

employees’ schedules. According to Hayes, she and Shepard were well acquainted; 

they had previously worked together at a different restaurant and had engaged in a 

sexual relationship. Hayes promoted Shepard to assistant manager at Little Caesars 
OHIO FIRST DISTRICT COURT OF APPEALS 

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and allowed him to clock in and then leave the store at various times without 

clocking out. Hayes testified that Shepard often wore a red hooded sweatshirt and 

that when it was particularly hot outside, he would wear a white t-shirt around his 

head. 

{¶19} Hayes recalled that she and Shepard both worked the evening of July 

19, 2013. She explained that Shepard had clocked in for work, but later left, claiming 

he had to take his sick child to an appointment. Hayes was surprised when Shepard 

returned less than an hour later. After he returned, she saw him showing money to 

another employee. 

2. Other-Acts Testimony 

{¶20} Pursuant to the court’s pretrial ruling, the state offered testimony of 

prior robberies committed by Harris and Shepard. 

{¶21} Colerain Township Sergeant Dustin Weekly testified concerning a 

robbery that occurred at Pippin Market on August 12, 2013, several weeks after the 

charged offenses. Shepard admitted to Sergeant Weekly that he, Harris, and Ellonzo 

Martin had committed the robbery, that he carried a firearm, and that he wore a red 

hooded sweatshirt. Harris also testified about this robbery, stating that he and 

Shepard wore hoods over their heads and covered their faces with their shirts during 

the robbery. Money and a cell phone were taken; the cell phone was later found 

several miles away from the market. 

{¶22} Sergeant Weekly also testified about another robbery of Pippin Market 

that occurred on October 16, 2013. Shepard again admitted his role in this robbery 

to Sergeant Weekly, stating that he had not carried a weapon but had pulled his 

sleeve over his hand to indicate that he had a firearm. Shepard, who wore a dark 
OHIO FIRST DISTRICT COURT OF APPEALS 

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gray hooded sweatshirt with the hood up, fled the store without obtaining any goods 

or money after an employee pointed a firearm at him. 

{¶23} Cincinnati Police Detective Marcus McNeil testified regarding a 

robbery that occurred at the Reading Road Drive-Thru on September 7, 2013. 

Shepard again admitted his involvement in this robbery. He told Detective McNeil 

that he drove the getaway car while Harris committed the robbery. Harris also 

testified about this robbery, stating that he entered the store while Shepard and his 

girlfriend Renay waited in the car, which Harris described as a red Hyundai. 

{¶24} Detective McNeil testified about a second robbery of the Reading Road 

Drive-Thru that occurred on October 14, 2013. During an interview with Detective 

McNeil, Shepard admitted that he and Harris jumped the counter, forced the clerk 

into a bathroom, and looked through the register. Shepard wore a red hooded jacket 

and blue gloves in this robbery; Harris wore a gray hooded sweatshirt. Harris also 

testified about this robbery. He corroborated Shepard’s description of their clothing 

and stated that they both wore masks. 

{¶25} Both Cincinnati Police Detective Brian Wheeler and Harris testified 

about an aggravated robbery that occurred on September 13, 2013, at the Clifton 

International Market. Harris stated that he and Shepard committed the robbery and 

took cash from the market. According to Harris, Shepard wore gloves and a gray 

hooded sweatshirt, while Harris wore a striped Adidas hooded sweatshirt. Shepard 

carried a gun and fired two shots into the air during the robbery. 

{¶26} Springfield Township Police Detective Jim Stroud testified about an 

aggravated robbery that took place at the Shamrock gas station on September 13, 

2013. Harris also testified about this robbery and admitted that it was committed by 
OHIO FIRST DISTRICT COURT OF APPEALS 

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him and Shepard. Harris wore a striped Adidas hooded sweatshirt, Shepard covered 

his face with a t-shirt, and they both wore gloves. 

{¶27} Both Detective Stroud and Harris testified about a robbery of a BP gas 

station on Vine Street on September 29, 2013. Harris admitted that he and Shepard 

committed this robbery. Both wore hooded sweatshirts; Shepard’s was red and 

Harris’s was gray. They also both wore gloves. Detective Stroud testified that both 

suspects wore masks and threatened to shoot the clerk. 

{¶28} Assistant Police Chief Fourth testified about a robbery of a Little 

Caesars restaurant in Woodlawn on October 1, 2013. Shepard admitted to Assistant 

Chief Fourth his involvement in this robbery, stating that he was fired from Little 

Caesars for stealing money, and that he and Kara Hayes, who was also fired from the 

restaurant, planned the robbery with Harris. Shepard further stated that Renay was 

the getaway driver that night. Harris testified that he carried a shotgun and wore a 

gray hooded sweatshirt, while Shepard wore a red hooded sweatshirt. They both 

wore masks. 

3. Verdict and Sentence 

{¶29} The trial court found Shepard guilty of all offenses. For purposes of 

sentencing, it merged the two murder offenses, the aggravated-robbery offense, and 

one of the felonious-assault offenses with the offense of aggravated murder. 

{¶30} Shepard was sentenced to 30 years to life imprisonment for the offense 

of aggravated murder. The trial court imposed a sentence of eight years for the 

offense of felonious assault, 11 years for each of the kidnapping offenses, and 11 years 

for the offense of aggravated burglary. A three-year sentence was imposed for each 

firearm specification, to be served consecutively to the underlying felony the 
OHIO FIRST DISTRICT COURT OF APPEALS 

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specification accompanied. The trial court ordered the sentences for all the 

underlying felonies to be served concurrently. It further ordered that the sentences 

imposed for the firearm specifications for both kidnapping offenses and for the 

offenses of felonious assault and aggravated burglary be served concurrently to each 

other, but consecutively to the sentence imposed for the firearm specification for the 

aggravated-murder offense. This resulted in an aggregate sentence of 36 years to life 

imprisonment. 

Other-Acts Evidence 

{¶31} In his first assignment of error, Shepard argues that the trial court 

abused its discretion in allowing evidence of prior bad acts, the other robberies. He 

contends that the trial court admitted evidence concerning these other crimes in 

violation of Evid.R. 403 and 404(B). 

{¶32} As set forth above, prior to trial the state filed a notice of intention to 

use evidence of other robberies committed by Shepard and Harris pursuant to 

Evid.R. 404(B) and R.C. 2945.59. It argued that evidence of the other robberies was 

relevant to establishing Shepard’s identity and motive. Following a hearing, the trial 

court permitted the state to use the other-acts evidence. The state subsequently 

presented testimony from multiple officers and Harris concerning eight other 

robberies that were linked to Shepard and Harris. 

{¶33} Evid.R. 404(B) provides that “[e]vidence of other crimes, wrongs, or 

acts is not admissible to prove the character of a person in order to show action in 

conformity therewith. It may, however, be admissible for other purposes, such as 

proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake or accident.” R.C. 2945.59 similarly provides that: 
OHIO FIRST DISTRICT COURT OF APPEALS 

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In any criminal case in which the defendant’s motive or intent, the 

absence of mistake or accident on his part, or the defendant’s scheme, 

plan, or system in doing an act is material, any acts of the defendant 

which tend to show his motive or intent, the absence of mistake or 

accident on his part, or the defendant’s scheme, plan, or system in 

doing the act in question may be proved, whether they are 

contemporaneous with or prior or subsequent thereto, 

notwithstanding that such proof may show or tend to show the 

commission of another crime by the defendant. 

{¶34} The Supreme Court of Ohio recently set forth a road map for 

analyzing the admissibility of other-acts evidence under Evid.R. 404(B). The court 

first recognized the long-standing principle that other-acts evidence may not be used 

to establish a defendant’s propensity to commit crime or to demonstrate that an 

accused committed the crime in question because of her or his proclivity to commit 

crime in general. State v. Hartman, 161 Ohio St.3d 214, 2020-Ohio-4440, 161 

N.E.3d 651, ¶ 21. To be admissible, the other-acts evidence must be “probative of a 

separate, nonpropensity-based issue.” Id. at ¶ 22. Whether other-acts evidence is 

admissible is a question of law that we review de novo. Id. 

{¶35} The first step in an Evid.R. 404(B) other-acts analysis is to determine 

whether the evidence is relevant for the particular purpose for which it is being 

offered. Id. at ¶ 26. In other words, it must be relevant to a particular purpose 

allowed under Evid.R. 404(B). Relevant evidence is that which has “any tendency to 

make the existence of any fact that is of consequence to the determination of the 

action more probable or less probable than it would be without the evidence.” 
OHIO FIRST DISTRICT COURT OF APPEALS 

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Evid.R. 401. The evidence must be relevant for a nonpropensity purpose and “must 

go to a ‘material’ issue that is actually in dispute between the parties.” Hartman at ¶ 

27. 

{¶36} Here, the state contends that the other-acts evidence was relevant to 

establishing Shepard’s identity as the perpetrator of the charged crimes, his modus 

operandi, and his common scheme or plan. 

{¶37} We agree that the other-acts evidence was relevant to establishing 

Shepard’s identity as the perpetrator of the offenses in this case, which was a 

material issue—if not the only issue—in dispute between the parties. See Hartman at 

¶ 27. The key question in this case was the identity of the person with Harris the 

night of the crimes. Wright’s testimony established that the crimes were committed 

by two suspects. Harris admitted committing the crimes and testified that he had 

acted in concert with Shepard. The material issue in dispute was whether, as Harris 

testified, Shepard was the second suspect. Where other acts, such as robberies, 

“[form] a unique, identifiable plan of criminal activity, sufficiently probative as to 

identity,” their admission may be warranted under Evid.R. 404(B). State v. 

Jamison, 49 Ohio St.3d 182, 183, 552 N.E.2d 180 (1990). 

{¶38} The evidence adduced at trial established that the charged crimes were 

committed by two African American assailants, one of whom wore either a red and 

blue or red and black hooded sweatshirt, a different type of glove on each hand, and 

a white t-shirt tied around his face. A gun was used during the robbery and a shot 

was fired. The assailants were picked up by a driver in a small car, and the victims’ 

cell phones were taken during the robbery and discarded nearby. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶39} Evidence established that the other robberies were committed close in 

time to, and shared characteristics in common with, the July 2013 offenses. For 

example, in all of the other robberies, with the exception of the robbery of Pippin 

Market on October 16, 2013, Shepard and Harris acted in concert and committed the 

robberies together. While Harris linked Shepard to all eight of the other robberies, 

Shepard definitively admitted his involvement in five of the other robberies, 

specifically both robberies of Pippin Market, both robberies of the Reading Road 

Drive-Thru, and the robbery of Little Caesars. And like the charged offenses, the 

robbery of the Reading Road Drive-Thru on September 7 and the robbery of Little 

Caesars also involved a getaway driver waiting in a car. 

{¶40} The other-acts evidence further established that Shepard wore a 

hooded sweatshirt in six of the other robberies, and, like the offenses in this case, the 

sweatshirt he wore was red in the October 14 robbery of the Reading Road DriveThru and the robberies of the BP gas station and Little Caesars. Shepard covered his 

face with a t-shirt in the August 12 robbery of Pippin Market and the robbery of the 

Shamrock gas station. He wore gloves in the October 14 robbery of the Reading 

Road Drive-Thru and in the robberies of the Shamrock gas station and BP gas 

station. He wore a mask in the robberies of the BP gas station and Little Caesars and 

in the October 14 robbery of the Reading Road Drive-Thru. 

{¶41} Shepard either brandished or intimated that he carried a weapon in 

five of the eight other robberies. He actually fired shots during the robbery of the 

Clifton International Market. And like the July 2013 offenses, Shepard took a cell 

phone during the August 12 robbery of Pippin Market and discarded it nearby. 
OHIO FIRST DISTRICT COURT OF APPEALS 

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{¶42} Collectively, the other-acts evidence, if believed, established that 

Shepard and Harris acted in concert to commit a series of eight robberies in 11 

weeks. While committing these robberies, they wore hooded sweatshirts (often red 

for Shepard), gloves, masks, and t-shirts tied around their faces. They often 

brandished and/or fired a weapon, had a getaway driver waiting for them, and took 

cell phones from the victims that were later discarded. It is the collective 

circumstances and characteristics of these other acts that are relevant towards 

establishing Shepard’s identity as the person who, with Harris, committed the crimes 

against Simms and Wright. 

{¶43} That each robbery did not share all the characteristics of this robbery 

does not render the other-acts evidence irrelevant or inadmissible under Evid.R. 

404(B). In Jamison, the Supreme Court of Ohio held that evidence of other 

robberies was properly admitted under Evid.R. 404(B) to establish the accused’s 

identity. Jamison, 49 Ohio St.3d at 187, 552 N.E.2d 180. Appellant argued in 

Jamison that the other-acts evidence was “sufficiently dissimilar” in details to the 

charged offense, and specifically challenged the admissibility of the other robberies 

because “a variety of businesses were robbed, [ ] the offenses occurred over several 

months, and [ ] the robber acted alone or with an accomplice. Sometimes the robber 

used a firearm; at other times, no gun was observed. Also, the robber escaped on 

foot or by bicycle.” Id. at 184. The Jamison court rejected that argument, stating 

that “[a]dmissibility is not adversely affected simply because the other robberies 

differed in some details.” Id. at 187. 

{¶44} Differences between the other-acts evidence and the charged offense 

go to the weight of the evidence, rather than its admissibility. Id.; State v. Knight, 
OHIO FIRST DISTRICT COURT OF APPEALS 

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131 Ohio App.3d 349, 353, 722 N.E.2d 568 (1st Dist.1998). Like the Jamison court, 

we conclude that despite the fact that no two robberies were identical, the other-acts 

evidence was relevant to establishing Shepard’s identity. Because the evidence was 

admissible to show the identity of Shepard as the perpetrator, we need not decide 

whether it was also admissible to show modus operandi or Shepard’s common 

scheme or plan. 

{¶45} We now consider whether the probative value of the evidence was 

substantially outweighed by its prejudicial effect. Hartman, 161 Ohio St.3d 214, 

2020-Ohio-4440, 161 N.E.3d 651, at ¶ 29. “Weighing the probative value of the 

evidence against its prejudicial effect is a highly fact-specific and context-driven 

analysis.” Id. at ¶ 30. We accordingly review a trial court’s determination that the 

probative value of the other-acts evidence was not substantially outweighed by its 

prejudicial effect for an abuse of discretion. Id. Relevant considerations to such a 

determination are the extent to which the other-acts evidence is directed to an issue 

in dispute and whether the state can present the same fact with alternative, less 

prejudicial, evidence. Id. at ¶ 31-32. “As the importance of the factual dispute for 

which the evidence is offered to the resolution of the case increases, the probative 

value of the evidence also increases and the risk of unfair prejudice decreases.” Id. at 

¶ 31. 

{¶46} Here, the other-acts evidence was used to establish Shepard’s identity 

as the perpetrator of the charged crimes, an issue directly in dispute. We are aware 

of no alternative evidence that could have been used to prove this through less 

prejudicial means. Consequently, the probative value of the other-acts evidence was 

high. To be certain, other-acts evidence of eight robberies is prejudicial. But we 
OHIO FIRST DISTRICT COURT OF APPEALS 

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cannot find that the trial court abused its discretion in determining that the 

probative value of the other-acts evidence was not substantially outweighed by its 

prejudicial effect. 

{¶47} Further, as this was a bench trial, we presume that the trial court did 

not rely on evidence for an improper purpose (such as using the prior robberies as 

evidence that Shepard acted in conformity with his propensity to commit robberies) 

in reaching a verdict. State v. Pennington, 1st Dist. Hamilton Nos. C-170199 and C170200, 2018-Ohio-3640, ¶ 46. Rather, “we presume that the court considered only 

‘relevant, material, and competent evidence’ unless the record affirmatively discloses 

otherwise.” Id., quoting State v. Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 754 

(1987). Here, the record contains no indication that the trial court considered the 

other-acts evidence for an improper purpose and we presume that it did not do so. 

{¶48} The first assignment of error is overruled. 

Allied Offenses 

{¶49} In his second assignment of error, Shepard argues that the trial court 

erred in failing to merge allied offenses of similar import. 

{¶50} Under R.C. 2941.25, separate sentences may be imposed on a 

defendant whose conduct supports multiple offenses if the offenses were dissimilar 

in import, were committed separately, or were committed with a separate animus. 

State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph three of 

the syllabus; State v. Pettus, 1st Dist. Hamilton No. C-170712, 2019-Ohio-2023, ¶ 74. 

{¶51} Because Shepard failed to raise a merger argument before the trial 

court, he has forfeited all but plain error. State v. Rogers, 143 Ohio St.3d 385, 2015-

Ohio-2459, 38 N.E.3d 860, ¶ 3. Such error is only reversible if it affected the 
OHIO FIRST DISTRICT COURT OF APPEALS 

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outcome of the proceedings and reversal is necessary to correct a manifest 

miscarriage of justice. Id. Shepard “has the burden to demonstrate a reasonable 

probability that the convictions are for allied offenses of similar import committed 

with the same conduct and without a separate animus.” Id. 

{¶52} Shepard first contends that his conviction for kidnapping Wright must 

merge with his felonious-assault conviction because Wright was the victim of both 

offenses and they were not committed separately or with a separate animus. In 

determining whether kidnapping and another offense are subject to merger, the 

primary question is “whether the restraint or movement of the victim is merely 

incidental to a separate underlying crime or, instead, whether it has a significance 

independent of the other offense.” State v. Logan, 60 Ohio St.2d 126, 135, 397 

N.E.2d 1345 (1979); State v. Jackson, 1st Dist. Hamilton No. C-180341, 2019-Ohio2027, ¶ 10. “Where the restraint of the victim is prolonged, the confinement of the 

victim secretive, or the movement of the victim is substantial, there exists a separate 

animus for each offense.” Jackson at ¶ 10. 

{¶53} Here, the offense of felonious assault occurred immediately; Shepard 

shot Simms as soon as he opened the car door, and the bullet traveled through 

Simms and struck Wright. The kidnapping occurred when Shepard held Wright at 

gunpoint while Harris ransacked her house. The restraint of Wright was prolonged, 

it was done for the purpose of confining her while Harris burglarized her home, and 

it was not merely incidental to the felonious assault. We accordingly find that each 

of these offenses was committed with a separate animus. 

{¶54} Shepard additionally argues that his conviction for kidnapping Wright 

should merge with his aggravated-robbery conviction. But Shepard was not 
OHIO FIRST DISTRICT COURT OF APPEALS 

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convicted of aggravated robbery, as the trial court merged the offense of aggravated 

robbery into the offense of aggravated murder, and no sentence was imposed for that 

offense. 

{¶55} Shepard next argues that his conviction for aggravated burglary should 

have merged with his conviction for aggravated murder. We disagree. The offense of 

aggravated burglary was complete when Shepard entered the garage with the intent 

to steal drugs and money. See State v. Jackson, 149 Ohio St.3d 55, 2016-Ohio-5488, 

73 N.E.3d 414, ¶ 129 (the offense of aggravated burglary was complete when the 

defendant entered the residence with the intent to commit murder, theft, or 

kidnapping). The aggravated murder was separately committed when he purposely 

opened the door of Simms’s vehicle and shot Simms. Because these offenses were 

committed separately, they were not subject to merger. 

{¶56} Shepard last contends that the trial court erred in imposing sentence 

on multiple firearm specifications. The trial court imposed a sentence of three years 

for each accompanying firearm specification. It ordered that the sentences on the 

firearm specifications imposed for the offenses of felonious assault, kidnapping, and 

aggravated burglary be served concurrently to each other, but consecutively to the 

sentence imposed for the firearm specification for aggravated murder, for a total of 

six years on the specifications. 

{¶57} We find Shepard’s argument to be without merit, as R.C. 

2929.14(B)(1)(g) permitted the imposition of sentences for all firearm specifications 

in this case. This statute provides that: 

If an offender is convicted of or pleads guilty to two or more felonies, if 

one or more of those felonies are aggravated murder, murder, 
OHIO FIRST DISTRICT COURT OF APPEALS 

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attempted aggravated murder, attempted murder, aggravated robbery, 

felonious assault, or rape, and if the offender is convicted of or pleads 

guilty to a specification of the type described under division (B)(1)(a) of 

this section in connection with two or more of the felonies, the 

sentencing court shall impose on the offender the prison term specified 

under division (B)(1)(a) of this section for each of the two most serious 

specifications of which the offender is convicted or to which the 

offender pleads guilty and, in its discretion, also may impose on the 

offender the prison term specified under that division for any or all of 

the remaining specifications. 

R.C. 2929.14(B)(1)(g). As Shepard was convicted of at least one of the specified 

felony offenses, the trial court was required to impose sentence on the two most 

serious specifications, and was permitted to impose sentence on all specifications. 

{¶58} The trial court properly sentenced Shepard on each offense. The 

second assignment of error is accordingly overruled. 

Sufficiency and Weight 

{¶59} In his third and fourth assignments of error, Shepard challenges the 

sufficiency and the weight of the evidence supporting his convictions. 

{¶60} In a challenge to the sufficiency of the evidence, the question is 

whether after reviewing the evidence in the light most favorable to the prosecution, 

any rational trier of fact could have found all the essential elements of the crime 

beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 

(1991), paragraph two of the syllabus. In contrast, when considering a challenge to 

the weight of the evidence, the court must examine the entire record, weigh the 
OHIO FIRST DISTRICT COURT OF APPEALS 

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evidence and all reasonable inferences, consider the credibility of the witnesses, and 

determine whether, in resolving conflicts in the evidence, the court clearly lost its 

way and created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d 

380, 387, 678 N.E.2d 541 (1997). 

{¶61} Shepard argues that the state failed to establish his identity as the 

perpetrator of the charged offenses. On this point, Harris testified that he and 

Shepard committed the offenses against Simms, Wright, and their daughter. He 

testified that Shepard carried a gun and shot Simms, and that he (Harris) searched 

the house for drugs and money. Donovan Clark testified that Shepard confided to 

him while they were incarcerated together in the Justice Center that he “upped a 

pistol” and shot a victim whom he followed into a garage when attempting to “hit a 

lick.” Kara Hayes’s testimony supported the testimony that Shepard committed 

these crimes. Hayes testified that on the evening that these offenses were 

committed, Shepard clocked in for work but later left, claiming he had to take his 

sick child to an appointment. Shepard returned less than an hour later, and Hayes 

saw him showing money to another employee. In addition, the other-acts evidence 

established Shepard’s identity as the perpetrator of the offenses. Viewed in the light 

most favorable to the prosecution, this evidence was sufficient to establish that 

Shepard had committed the charged offenses. See Jenks at paragraph two of the 

syllabus. 

{¶62} We further find that Shepard’s convictions were not against the 

manifest weight of the evidence. Defense counsel thoroughly cross-examined Harris 

and Clark on their motivations for testifying and the veracity of their statements. 

The trial court was in the best position to judge the credibility of each of the 
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witnesses, and it was entitled to believe some, all, or none of their testimony. 

See State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the 

syllabus; State v. Williams, 1st Dist. Hamilton No. C-180574, 2020-Ohio-1367, ¶ 36. 

Corroborating Harris’s testimony that Shepard had committed these crimes was the 

testimony of Hayes, as well as the other-acts evidence establishing Shepard’s identity 

as the perpetrator. 

{¶63} Shepard’s convictions were supported by sufficient evidence and were 

not against the manifest weight of the evidence. The third and fourth assignments of 

error are accordingly overruled. 

Ineffective Assistance 

{¶64} In his fifth assignment of error, Shepard argues that he received 

ineffective assistance from his trial counsel. 

{¶65} Counsel will not be considered ineffective unless her or his 

performance was deficient and caused actual prejudice to the defendant. Strickland 

v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. 

Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). Counsel’s performance 

will only be deemed deficient if it fell below an objective standard of reasonableness. 

Strickland at 688; Bradley at 142. A defendant is only prejudiced by counsel’s 

performance if there is a reasonable probability that the outcome of the proceedings 

would have been different but for the deficient performance. Strickland at 

694; Bradley at 142. 

{¶66} Shepard specifically argues that his counsel was ineffective for failing 

to engage an expert to testify regarding the unreliability of the state’s cooperating 

witnesses. But this court has consistently held that whether to call an expert witness 
OHIO FIRST DISTRICT COURT OF APPEALS 

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is a matter of trial strategy, and that the failure to present expert testimony does not 

constitute ineffective assistance. State v. Smith, 1st Dist. Hamilton No. C-190507, 

2020-Ohio-4976, ¶ 74. 

{¶67} Defense counsel thoroughly cross-examined the cooperating witnesses 

on their motivations for testifying and any “deals” they may have received. We 

cannot say that the outcome of the proceedings would have been different but for 

counsel’s failure to call an expert witness. The fifth assignment of error is overruled. 

Conclusion 

{¶68} Having found no merit to Shepard’s assignments of error, we affirm 

the trial court’s judgment. 

Judgment affirmed. 

ZAYAS, P.J., and CROUSE, J., concur. 

Please note: 

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