[Cite as State v. Jones , 2011-Ohio-6633.]



### IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, Plaintiff-Appellee,

vs. JERRY JONES, Defendant-Appellant. :

:

:

:

: APPEAL NO. C-110059 TRIAL NO. B-0902585

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: December 23, 2011

Joseph T. Deters , Hamilton County Pros ecuting Attorney, and Rachel Lipman Curran , Assistant Prosecuting Attorney, for Plaintiff-Appellee,
The Farrish Law Firm and Michaela M. Stagnaro , for Defendant-Appellant.

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

2 S YLVIA S. H ENDON , Judge. 

### {¶1} Following a jury trial, defendant-appellant Jerry Jones was found guilty of murder under R.C. 2903.02(A) an d an accompanying weapon specification. At the close of the trial, the trial court sepa rately found Jones guilty of the offense of having a weapon while under a disability, under R.C. 2923.13(A)(3). The trial court imposed an aggregate sentence of 25 years’ to life imprisonment. 

### {¶2} Jones appeals, raising five assignments of error for our review. We find no merit to Jones’ assignments of error, and we affirm the judgment of the trial

court.

Statement of Facts



### {¶3} On December 31, 2002, Gregory Beauchamp was shot as he stood downtown at the corner of Vine and Liberty streets with friends. Joshua Bumpus, an acquaintance of Beauchamp’s who had witnessed the murder, testified that he, Beauchamp, and several others had been downtown standing around talking, when a car full of people drove past. The car’s occupants started shouting the word “fags” at Bumpus and Beauchamp, who were homosexuals, and someone in the car threw a can of “pop” out of a window. Beauchamp began to throw the “pop” can back. But the back rear passenger put his arm out of the front passenger’s window and fired a gun at Beauchamp approximately three or four times. Bumpus heard Beauchamp state that his chest hurt, and then saw his fr iend fall to the ground covered in blood. 

### {¶4} Ade Oba had been driving the vehicle involved in the shooting. Oba testified that, on the evening of December 31, 2002, he had been driving around with Lorenzo Hudson, Antonio Harmon, and Jones. Jones had been seated in the rearOHIO FIRST DISTRICT COURT OF APPEALS

3 passenger seat of the vehicle. Oba had stopped the vehicle at a traffic light at the intersection of Vine and Liberty streets, when Hudson had thrown a Mountain Dew can out of the window at the group of people on the corner, whom Oba described as “transsexuals.” Oba testified that as one of the “transsexuals” had begun to throw the can back at the car, Jones had used Hudson’s weapon to fire two shots at him. After the shooting, Oba had burned the vehicle that he had been driving to prevent it from leading to his identification. 

### {¶5} In addition to Bumpus and Oba, the state presented testimony from two witnesses to whom Jones had confessed his guilt in these offenses. Adrian Smith testified that he and Jones had grown up together. In 2007, Smith and Jones had been selling heroin together when, in Smith’s terms, a “fag” had attempted to “score” some drugs from them. Jones had refused to sell drugs to the man; he had called the man numerous derogatory terms and had talked about his hatred of “fags.” Jones then told Smith that he had “bodied” a “fag” back in 2002. Smith explained to the jury that to “body” some one meant to kill them. According to Smith, Jones had revealed that he had been driving around with Oba, Hudson, and Harmon, when a “fag” had flagged them down. Jones told Smith that he had thrown a can of “pop” at the “fag,” who had then thrown the can back at the car. After the car in which Jones had been riding drove around the block, it came back to that scene and Jones had
fired out of the window at the man. 

### {¶6} Michael Matthews additionally testif ied that Jones had confessed to Beauchamp’s murder while the two had been incarcerated together in the Hamilton County Justice Center. Matthews testified th at, prior to their incarceration, he and Jones had “hustled” together. While in the Justice Center, Jones told Matthews thatOHIO FIRST DISTRICT COURT OF APPEALS

4 he had been transported back to Hamilton County for charges involving the murder of a “fag” on Vine Street back in 2001. According to Matthews, Jones had admitted that he had committed the murder, and he additionally had expressed surprise that charges had been brought because the crime had occurred so many years prior.

Other-Acts Evidence



### {¶7} In his first assignment of error, Jo nes argues that the trial court erred in admitting other-acts test imony into evidence. Jones first argues that Adrian Smith’s testimony that he and Jones had sold heroin together was improperly admitted. He further argues that Michae l Matthews’ testimony that he and Jones used to “hustle” together, as well as Matthews’ testimony th at Jones had been brought back to Hamilton County to stand trial for these charges, was impermissible other-acts testimony. 

### {¶8} Under Evid.R. 404(B), “[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.” Generally, we review a trial court’s admission of
relevant evidence for an abuse of discretion. State v. Truitt , 1st Dist. No. C-050188, 2011-Ohio-1885, ¶8, citing State v. Maurer (1984), 15 Ohio St.3d 239, 264-265, 473 N.E.2d 768. But here, Jones failed to ob ject to this testimony during trial. Consequently, he has waived all put plain error. Crim.R. 52(B); State v. Griffin , 1st Dist. No. C-020084, 2003-Ohio-3196, ¶34. Pl ain error is an error so extreme that it affected the outcome of the proceedings and must be corrected to prevent a manifestOHIO FIRST DISTRICT COURT OF APPEALS

5 miscarriage of justice. State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraphs two and th ree of the syllabus. 

### {¶9} We find no error in the admission of the cited testimony from Smith and Matthews under Evid.R. 404(B). Contra ry to Jones’ assert ion, the testimony
was not offered to show that he is a drug dealer and a violent person. Rather, the testimony was offered to establish Jones’ identity and relationship to the witnesses. 

### {¶10} Smith’s testimony that he and Jones had sold heroin together was relevant; Jones had admitted to Beauchamp’s murder while selling drugs with Smith, and this testimony was key to establishing Jones’ identi ty as the person who had
admitted this crime. The same holds tr ue for Matthews’ test imony. Matthews’ reference to “hustling” esta blished that these two men had had a prior relationship, which gave credence to Matthews’ testimon y that Jones had confessed this crime to
him. And Matthews’ brief mention that Jones had been transported from Butler County to the Hamilton County Justice Ce nter was offered to establish how the two men had been reacquainted. It set the stage for their later conversation, in which Jones had confessed to Beauchamp’s murder. 

### {¶11} The trial court properly admitted this testimony under Evid.R. 404(B). The first assignment of error is overruled.
Hearsay



### {¶12} In his second assignment of error, Jones argues that the trial court erred by admitting impermissible hearsay evidence at trial. 

### {¶13} During trial, Detective John Horn, a member of the Cincinnati Police Department’s cold case unit, testified about his investigation of Beauchamp’s murder. With respect to this assignment of error, Jones takes issue with Horn’sOHIO FIRST DISTRICT COURT OF APPEALS

6 testimony that Lorenzo Hudson and Antonio Harmon, two of the occupants in Jones’ vehicle when Beauchamp was shot, had provided statements to him in connection with this offense. Jones argues that this statement, when considered in conjunction with Horn’s testimony that he had been unable to locate Hudson and Harmon to testify at trial, was hearsay because it invi ted the jury to speculate that these men had placed the blame for Beauchamp’s murder on Jones in their statements. 

### {¶14} Jones’ argument is tenuous. Under Evid.R. 801(C), hearsay “is a statement, other than one made by the de clarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Horn’s testimony that Hudson and Harmon had provided statements during the investigation was not hearsay. Horn merely stated that these men had given statements; he made no mention of the statements’ contents. His testimony was offered to explain the course of his investig ation, not to prove th e truth of the content of these statements, which, notably, was never provided to the jury. We decline
Jones’ invitation to label Ho rn’s testimony as hearsay, and we find that no error
occurred in the admission of this testimon y. The second assignment of error is
overruled.

Prosecutorial Misconduct



### {¶15} In his third assignment of error, Jones argues that the trial court erred by permitting the prosecutor to make im proper remarks to the jury and introduce improper evidence. Prosecutorial misconduct will only be grounds for reversal if it deprived the defendant of a fair trial. State v. Truitt , supra, at ¶13; see State v.
Jackson , 92 Ohio St.3d 436, 443, 2001-Ohio-1266, 751 N.E.2d 946.OHIO FIRST DISTRICT COURT OF APPEALS

7 

### {¶16} Jones first argues that the prosecutor improperly questioned Detective
Horn about statements obta ined during his investigat ion from Lorenzo Hudson, Antonio Harmon, and Ade Oba. We have already found that the prosecutor’s questions, along with Detective Horn’s corresponding testimony, regarding statements given by Hudson and Harmon were not improper. So we now solely consider the propriety of the prosecutor’s questions with respect to pretrial statements given by Ade Oba. During tria l, Oba testified prior to Detective Horn. During Detective Horn’s testimony, the prosecutor first established that Oba had given a pretrial statement at some point in the course of the investigation. The prosecutor then asked Detective Horn if Oba’s pretrial statement had been consistent with his trial testimony. Detective Horn answered affirmatively, and counsel for Jones objected immediately. The trial cour t sustained the objection and instructed the jury to disregard that question and answer. Prior to the prosecutor engaging in this line of questioning, the trial cour t had cautioned him against bolstering the credibility of his witnesses throug h Detective Horn’s testimony. 

### {¶17} This question was improper. The trial court had instructed the prosecutor to avoid bolstering the credibil ity of a witness thro ugh Detective Horn. But in light of the other evidence adduced at trial, this lone qu estion did not deprive Jones of a fair trial. Further, the trial co urt sustained Jones’ objection and instructed the jury to disregard both the question and answer. A jury is presumed to follow the
trial court’s curative instructions. State v. Garner , 74 Ohio St.3d 49, 59, 1995-Ohio168, 656 N.E.2d 623. 

### {¶18} Jones next argues that the prosecutor committed misconduct during closing argument by contending that Jones should have produced a neutral witnessOHIO FIRST DISTRICT COURT OF APPEALS

8 to verify the relationship be tween Jones and the prosecutor’s testifying witnesses. Jones argues that this statement improperly shifted the burden of proof from the state to Jones. Generally, prosecutors are entitled to a wide degree of latitude in closing arguments. State v. Smith (1984), 14 Ohio St.3d 13, 470 N.E.2d 883. All
statements made must be evaluated not in is olation, but rather in light of the entire closing argument. State v. Keenan (1993), 66 Ohio St.3d 402, 410, 613 N.E.2d 203. 

### {¶19} This statement by the prosecutor was not improper and has been taken out of context by Jones. During closing arguments, counsel for Jones discussed in detail the motives that Oba, Smith, and Matthews had for testifying, and he
insinuated that these witnesses had lied du ring their testimony in return for case consideration. Defense counsel stated to the jury, “How hard—is there any other proof that they know—even know each other? How hard would it be to bring in some independent witness to say, hey, you know Jerry Jones? Yes. Do you know [Adrian Smith]? Yes. Are they best friends? Yea. If that was true, how hard would it be to get a witness to come in?” In response to these statements by defense counsel, the prosecutor stated in his rebuttal portion of closing argument “He says, well, why didn’t [the prosecutor] bring in a witness, a neutral witness, that could testify that * * * they know each other. I didn’t need that witness * * * Why didn’t they bring in a witness to say he didn’t know?” 

### {¶20} When viewed in the proper context, it is clear that the prosecutor was responding to defense counsel’s insinuation that the state should have produced a neutral witness to verify the relationship between all these parties. The prosecutor’s comment was an appropriate response. And, as noted by the trial court, defenseOHIO FIRST DISTRICT COURT OF APPEALS

9 counsel “opened the door” for this statement. The prosecutor’s comment was not improper, and the assignment of error is overruled.
Sufficiency and Weight



### {¶21} In his fourth assignment of error, Jones argues that his convictions for murder and having a weapon while unde r a disability were not supported by sufficient evidence and were against the manifest weight of the evidence. A conviction is supported by sufficient evidence when, after viewing all evidence in the light most favorable to the prosecution, a rati onal trier of fact could have found all of the elements of the offenses proven beyond a reasonable doubt. State v. Martin (1983), 20 Ohio App.3d 172, 175, 485 N.E.2d 717. When reviewing the manifest weight of the evidence, this court must weigh all evidence, along with reasonable inferences, and consider the credibility of th e witnesses to determine if the trier of fact lost its way and created a manifest miscarriage of justice requiring reversal of the

conviction. State v. Thompkins , 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d

541. 

### {¶22} Jones was convicted of murder under R.C. 2903.02(A), which provides that “[n]o person shall purposely cause the death of another.” Jones was additionally found guilty of having a weap on while under a disability under R.C. 2923.13(A)(3). This statute states, in relevant part, that “[ u]nless relieved from disability * * *, no person shall knowingly, acquire, have, carry, or use any firearm or dangerous ordnance if * * * the person is under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse.”OHIO FIRST DISTRICT COURT OF APPEALS

10 

### {¶23} Jones’ convictions were supported by sufficient evidence. Joshua Bumpus testified that Beauchamp was shot by the person sitting in the rear passenger seat of the vehicle. Ade Oba confirmed that Jones had been seated in that position, and that Jones had shot Beauchamp. And Jones admitted his culpability to
both Adrian Smith an d Michael Matthews. 

### {¶24} We further find that Jones’ convic tions were not against the manifest weight of the evidence. As the triers of fa ct, the jury and the trial court were in the best position to judge the credibility of the witnesses. Oba had admitted during his testimony that he was currently incarcerated on federal weapons charges, and that it was a possibility that he would receive a lesser sentence as a result of his testimony in
this case. Smith had testified that he was currently incarcerated in South Carolina on drug and weapon charges, and he also reve aled his lengthy prior criminal history. And Matthews admitted that the prosecutor had agreed to “take up” his currentcharges with his attorney after his testimony. Defense counsel vigorously crossexamined the state’s witnesses on these issues. The jury and trial court were aware
of the witnesses’ motivations and desire for case consideration, and they were able to determine what weight to give their test imony with these considerations in mind. 

### {¶25} Jones additionally highlights various discrepancies in the testimony of Smith and Oba to argue that they had fabricated their stories. But these discrepancies concerned minor details about the crime’s execution. Smith and Oba
did not waiver or differ in their testimon y that Jones had been the perpetrator of these offenses. Further, the jury had the opportunity to weigh their testimony and to resolve any incons istencies. See State v. Hughes , 1st Dist. No. C-030489, 2005- Ohio-2453, ¶19.OHIO FIRST DISTRICT COURT OF APPEALS

11 

### {¶26} Jones’ convictions for murder and having a weapon while under a disability were supported by sufficient evid ence and were not against the manifest weight of the evidence. The fourth assignment of error is overruled.

Allied Offenses



### {¶27} In his fifth assignment of error, Jones argues that the trial court erred by improperly sentencing him on both the offenses of murder and having a weapon while under a disability because the offenses were allied offenses of similar import. 

### {¶28} Under R.C. 2941.25, Ohio’s multiple-count statute, a trial court may
convict and sentence a defendant for two or more offenses that arose out of the same
criminal transaction if the o ffenses (1) were not allied offenses of similar import, (2) were committed separately, or (3) were commi tted with a separate animus as to each
offense. State v. Bickerstaff (1984), 10 Ohio St.3d 62, 65-66, 461 N.E.2d 892; see, also, State v. Johnson , 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, ¶51;

State v. Evans , 1st Dist. No. C-100028, 2011-Ohio -2356, ¶6. The Ohio Supreme Court has recently clarified that, when determining whether two offenses are allied offenses of similar import subject to merg er under R.C. 2941.25, the conduct of the
accused must be considered. State v. Johnson , supra, syllabus. 

### {¶29} This court recently considered an identical argument in State v.

Baron , 1st Dist. No. C-100474, 2011-Ohio-3204. In Baron , we held that the offenses of murder and having a weapon while under a disability were not allied offenses of similar import subject to merger because, in that case, the offenses had been committed both separately and with a separate animus. Id. at ¶19. Jones urges this court to distinguish Baron from the case at hand. In support of his argument, Jones notes that, in Baron , the defendant had possessed the firearm for a significantOHIO FIRST DISTRICT COURT OF APPEALS

12 amount of time before the murder took place. In contrast, Jones argues, the murder in this case occurred simultaneously to his possession of the weapon. 

### {¶30} Jones’ argument fails. Like Baron , the offenses of murder and having a weapon while under a disability in th is case were committed with a separate animus. The offense of murder required that Jones have the specific purpose to kill. The offense of having a weapon while under disability does not require a similar purposeful intent. After possessing the weapon, Jones purposely fired at Beauchamp, carrying out a motive and intent that was not present in his commission of the offense of having a weapon while under a disability. Because these offenses were committed with a separate animus, they were not allied offenses of similar import and were separately punishable. The fifth assignment of error is overruled. 

### {¶31} Having overruled Jones’ assignments of error, we accordingly affirm the judgment of the trial court.

Judgment affirmed.

D INKELACKER , P.J. , and C UNNINGHAM , J., concur.

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